In this added document while the payments are again stated in cows, the value of the cow is reckoned, not in shillings, but in ores, which the figures, when examined, show to be ores of 16 pence. This reckoning in ores of 16 pence suggests a Norse or Danish influence. For, although the Anglo-Norman reckoning in shillings of 12 pence ultimately conquered and became the prevalent reckoning in the Scotch statutes, there was no doubt a period when the reckoning in ores of 16 pence was in use in Danish England, probably including Northumbria.

This is shown by a law, probably of Cnut’s,[204] which enacted as follows:—

The ores of this law, as we shall see, were evidently ores of 16 pence, or 512 wheat-grains (16 × 32), for fifteen of such ores made the Saxon and Anglo-Norman pound of 240 pence, or 7680 wheat-grains.

The fact that the ore of the document describing the customs of the Bretts and Scots was the same ore as that in use with both Danes and English in Danish England and probably Northumbria about A.D. 1000 is an important one. For in this document the value of the cow of the Bretts and Scots is stated to be three ores, i.e. 1536 wheat-grains of silver, and at the Scandinavian ratio of 1:8 the gold value of the cow would therefore be once more 192 wheat-grains or two gold solidi of Imperial standard. That the Danish ratio was 1:8 as in the Scandinavian laws we shall find to be involved in the Anglo-Danish compacts making Danes and English ‘equally dear,’ while as late as A.D. 1192 the Abbey of Kelso compounded for payments to the Pope at the same ratio, two solidi of sterlings (24d. of 32 wheat-grains), or 768 wheat-grains of silver being paid for the gold solidus of 96 wheat-grains.[205]

We may therefore consider that the document relating to the Bretts and Scots belongs to the period of Danish influence, and is of much earlier date than the work to which it was appended by the Scotch editor of Glanville.

III. LEGES INTER BRETTOS ET SCOTOS.

The remarkable document printed separately in Appendix III. of the ‘Ancient Laws of Scotland’ under the above title is given in three languages—Latin, Norman French, and Scottish English.

The oldest version of it is that of the ‘Berne Manuscript,’ now in the ‘Register House’ at Edinburgh, which is considered to be of the thirteenth century. It appears in this manuscript as a separate document in Norman French, and therefore it would seem that we owe this statement of ancient custom to a Norman scribe. The Latin version added to the ‘Regiam Majestatem’ is of later date. The earliest manuscript is of the fourteenth century.[206]

As given in the ‘Regiam Majestatem’ it consists of four clauses, LV. to LVIII.

The clauses are headed ‘Quid sit le cro quod anglice dicitur “grant before the King,”’ ‘De occisis in pace Regis,’ ‘De Kelchyn regis et aliorum dominorum Scocie,’ and ‘De effusione sanguinis.’

It is printed in Appendix III. of the ‘Ancient Laws of Scotland’ among the ‘capitula vetustiora’ under the heading ‘Leges inter Brettos et Scotos.’ The Norman French of the Berne manuscript is accompanied by the Latin from the ‘Regiam Majestatem’ and a Scottish-English version of unknown date.

The first clause is as follows:—

It will be most convenient to put these payments of the cro and galnes into a tabular form.

The cro and galnes seem to be substantially the same thing as the wergeld. The word ‘cro’ is of uncertain meaning. The ‘cro’ of the Brehon laws is translated ‘property.’ It seems also to have had the meaning of ‘death.’ The word ‘galnes’ can hardly be other than the Welsh galanas or wergeld. Whether the phrase ‘cro and galnes’ means two things or one thing, and if two things, what the distinction between them was, it is not easy to see. But evidently the two together made a single payment for each grade of rank. The payments, moreover, are expressed in cows as well as in ores and pence, and the payment of 100 cows seems to mark the thane as the typical and complete tribesman.

The two explanatory clauses introduce a third element, the ‘enach.’

The enach, as already said, seems to be the honour-price of the Brehon law. We have seen that, according to the Scotch addition and Glanville’s clause, if a slave was injured by his master, he was to be set free and his freedom was to be in the place of any other ‘enach.’ This accords well with the Irish enec-lann and the Welsh saraad and the Norse rett, all of which referred to insult rather than bodily injury.

The next clause relates to homicide ‘in pace regis’ or of other lords. We have already seen that in the laws of King David the manbote or payment to the king for breach of his peace, or for crime committed in his grith or precinct, was a thing distinct from the satisfaction to be made to the kin of the person slain ‘according to the assize of the Kynrik.’ In these early laws the payment for slaying a man in the king’s peace was, according to the corrected text, 180 cows. In the following clauses 180 cows are again the payment for breach of the king’s peace, but there are payments also for breach of the peace of other classes.

The payments were as under:—

They seem to be very large, but they are not impossible, seeing that in the Norse law, while the wergeld of the hauld was 27 marks of silver or 96 cows, the payment to the king for the breach of his peace (frith-bot) was 40 marks, i.e. 128 cows.[207]

The next two clauses, under the heading ‘Kelchin’ or ‘Gelchach,’ seem to refer to insult or wounding, (the Welsh gweli = wound). And as the word enach does not occur again in the laws of Bretts and Scots it seems probable that it may have been included under this heading, and that the Kelchin or Gelchach, like the Irish enach and the Welsh saraad, referred quite as much to insults to personal honour as to bodily injuries.

Put into a tabular form these payments are as follows:—

That we are right in supposing the kelchin to be analogous to the Welsh saraad seems to be confirmed by the interesting additional information appended to the clauses.

These clauses of explanation are very important when we try to understand the laws to which they are appended as a whole.

Commencing with what seems to be the wergeld, the ‘cro and galnes’ of the thane, who may be taken as the typical freeman, was 100 cows. We have seen that the value of the cow was three ores of silver or, at a ratio of one to eight, 192 wheat-grains of gold. The wergeld was therefore, not only the usual round number of 100 cows, but also in gold value, like that of the Cymric codes and so many others, exactly 19,200 wheat grains or 200 gold solidi.

If we try to trace the connection of this wergeld with those of other tribes, the coincidence with the normal wergeld does not help us much.

It is the same as the Welsh galanas of the uchelwr, and the use in the laws of Cymric and Gaelic words might lead us to look upon the wergeld as a Celtic one. But the equality in the payment is in gold and not in the number of cows. The cro of the thane was 100 cows. The galanas of the Welsh uchelwr was 120 cows. Moreover, the cows in which the Welsh galanas was paid were equated with three scores of silver, i.e. three Saxon ounces of 20d., while the cows in which the cro was paid were equated with three ores of 16d. And this seems to point to a Danish connection.

All these things taken together seem to point to a mixture and confusion of influences rather than to a single origin.

The gradations of rank and position disclosed by the amount of the cro or wergeld seem to be based upon family seniority, and to have a character of their own.

The King of course stands at the head of the list with a cro of 1000 cows. His son takes equal rank with the earl with a cro of 140 cows. The earl’s son is of equal rank with the thane, and they have a cro of 100 cows. Then comes the thane’s son with a cro of one third less, or 66⅔ cows, and next the thane’s grandson with a cro one third less again, of 44 cows and 21⅔ pence. All below this in parentela or kin are classed with rustics or carls, with a cro of 16 cows.

Looking at the position of persons at any given moment, from the point of view of the thane, he has the earl and the king above him and the earl’s son as his equal in rank. Their children and grandchildren belong still to the chieftain class, but they are juniors or cadets of the class. Even the grandchildren of the thane are ogthierns, or young thanes. In natural course they may presumably take their father’s rank on his death, but not until that happens. And possibly only the eldest son of the earl or of the thane succeeded to the official position of chieftain of his house.

Beyond this there is not much more to be gathered concerning the gradations in social rank. Nor are we told anything about the division of the amount among the members of the kindred receiving or paying the cro as the case might be. We are told only that the cro and galnes belonged to the kin of the person slain.

Turning from the cro and galnes to the kelchin: what are we to make of it?

The gradations resemble those of the cro to this extent, that the kelchin of each grade was one third less than that of the one above, but the kelchin was no direct fraction of the cro. The kelchin seems, as we have said, to be something like the Welsh saraad for insult or wounding, the Irish enec-lann or honour-price, and the Norse rett or ‘personal right;’ but it does not seem to correspond altogether with any one of them.

All we know is that on the homicide of a person, whoever he might be, in addition to the cro and galnes, the kelchin had to be paid. But it was a payment which, like the Cymric saraad, according to the interesting explanation given, did not go with the wergeld proper to the kindred or relations in blood. When a wife was slain, the husband, who was not a blood relation or of the kindred of the wife, took the kelchin, while the wergeld proper—cro and galnes—went to her kindred.

Turning to the payment which had to be made for breach of the peace or protection of the lord, it was a payment due to the king if the homicide were perpetrated ‘in pace regis,’ and to a person of each grade in succession, even to the thane’s grandson, in case the homicide were committed within his precinct. Only the carl or rustic received no payment, as presumably he was living on the land of a lord, who would, therefore, claim it.

The position of the carl or rustic, or in Norman French the vilein, is interesting. If his wife was killed the lord took the kelchin. The homicide was reckoned as an insult and loss to him. The wergeld did not go to the husband but to the kindred of the wife, as in the case of those of higher grade. So that, so far as this at least, there was recognition of kindred in the rustic’s position. His ‘cro and galnes’ was just about one sixth of that of the thane and presumably went to his kin—as his wife’s cro and galnes went to her kin.

There is one other point as yet unexplained—what was the ‘turhochret’?

It occurs in the clause:—

There are so many Gaelic words in this document that there can be little doubt that the turhochret[208] is one of them. It seems to have been the part of the kelchin allowed by the lord to go to the husband in respect of the insult to his wife—i.e. her share in the kelchin. Whatever it was, when the wife was slain, the husband retained it, while the lord took the rest of the kelchin, and the wife’s kin the cro and galnes of their slain kinswoman. The information given is scanty, but it is difficult to make this passage mean anything else.

One thing is made remarkably clear in this document: that the wife of the free tribesman did not among the Bretts and Scots pass upon marriage under the full potestas of her husband. On her murder, while it was an insult to him and he therefore could claim the kelchin, the cro and the galnes passed to her kin. The wife, therefore, in a very real sense belonged still to her own kindred.

These rules of tribal custom as regards marriage need no longer surprise us after what we have found elsewhere. They closely resemble in principle Cymric usage and are, after all, what the study of Beowulf prepared us to regard as by no means confined to the Celtic tribes.

IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED IN SCOTLAND.

In the foregoing sections no distinct reference has been made to the recognition of the fourth and ninth degrees of kindred. It would be misleading to pass from the Scottish evidence without allusion to the subject.

Strongly influenced as custom in Scotland must have been by both Cymric and Gaelic as well as Norse and Danish traditions, it would be strange if no trace were left in Scotland of so marked a feature of tribal policy.

It will be enough, however, to refer the reader to the interesting chapter on ‘The Kin’ in the second volume of Mr. Robertson’s ‘Scotland under her early Kings,’ in which he alludes to ‘the words in which the Northern St. Margaret is supposed to have formally renounced her kindred (“al my Kun I forsake to the nithe Kne”), and to the “nine degrees of kindred” within which all connected with the Earl of Fife might claim the privileges of the Clan Mac Duff.

And after what we have seen of the way in which the Norse leysing rose by steps of four generations into increasing freedom as a kindred grew up around him, it may be worth while to recall attention once more to the reverse process by which the nativus or villanus under later law became attached to the land.

Among the fragments of Scotch laws collected under the heading ‘Quoniam attachiamenta’[209] is the clause ‘De brevi de nativis’ which may be translated as follows:—

Whatever may have been the date and origin of these remarkable clauses, they are valuable as showing how tribal tradition became hardened in course of time into Feudal law, and how, the transition from tribal to Feudal principles having been accomplished, what is known everywhere by the name of ‘serfdom,’ became domiciled in Scotland.

CHAPTER X.
ANGLO-SAXON CUSTOM FROM THE NORMAN POINT OF VIEW.

I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS.

In approaching the question of Anglo-Saxon tribal custom it is needful to make a clear distinction between the laws of the Kentish kings and the other Anglo-Saxon laws.

The laws of the Kentish kings are known only in the MS.—the Textus Roffensis—compiled or collected by Ernulf, Bishop of Rochester from 1115 to 1125, and are not included in the other collections containing the laws of King Alfred and Ine.

The evidence for Kentish custom seems, therefore, to be independent of that of Wessex or Mercia or Northumbria. Further, in the so-called ‘Laws of Henry I.’ at the conclusion of the statement of the customs as to homicide in s. LXXVI. it is distinctly stated that the wergelds in Kent differed much from those of Wessex both as regards villani and barones.

It will therefore be necessary to examine the Kentish laws separately from the others.

On the whole, with regard to the others, it seems best to resort to the method of proceeding from the later to the earlier evidence and to begin with the so-called ‘Laws of Henry I.,’ as a Norman though unofficial view of what Anglo-Saxon custom was or had been before the Conquest.

It may be well to inquire first, what in the view of the writer took place, after the Conquest, when a Norman or stranger was killed, because this at once raises the question what should happen in the unavoidable absence of kindred.

These clauses show that when a Norman or stranger was slain, in a certain way the king was to stand in the place of the absent kindred to see that justice was done.

The maternal kindred of the slain, if such were at hand, should receive the third of the wergeld which pertained to them, and so presumably the paternal kindred, if they alone were present, should take the two thirds pertaining to them, the king taking the share of the maternal kindred. In any case the right of the parentes was recognised when they were present.

Next with regard to the payment of the wergeld in the case of the slayer being a Norman or a stranger:—

These clauses are valuable as showing that to meet the circumstances arising upon the Norman Conquest there was a recurrence as far as possible to ancient law and Anglo-Saxon custom.

This was not the first time that the difficulty of absence of kindred had occurred and been formally recognised in England. The early Danish conquests had made special provisions necessary for the protection of the kinless stranger. And it was declared that ‘if any one did wrong to an ecclesiastic or a foreigner as to money or as to life, then should the king or the eorl there in the land and the bishop of the people be unto him in the place of a kinsman and of a protector (for moeg and for mund-boran) unless he had another.’[210]

Again, as regards the position of the maternal relations and the congildones of a stranger, it is clear that the writer of these so-called laws is copying and adopting what he finds in the Laws of King Alfred. In ss. 27 and 28 of the latter, in the absence of relatives the gegildas of the slayer were to pay half the wergeld; and also, in the absence of relatives of the slain person, his gegildas were to receive half the wergeld.

In both cases an artificial group of organised comrades, ‘gegildas’ or ‘congildones,’ seems to have been recognised as in part taking the place of kindred. And the importance of the provision of some such substitute for protection by the oaths of kinsmen is evident enough when it is considered that the ordeal of hot iron or water was the recognised alternative.

On the whole the clauses in these so-called laws relating to Normans and strangers adhere to the principle of the liability of kindred both paternal and maternal in cases of homicide, and this is the more remarkable because long before, especially in the Laws of Edmund, as will hereafter appear, a very strong tendency had been shown to restrict the liability in case of homicide to the slayer himself.

In the meantime the attempt to apply the Anglo-Saxon custom as to wergelds to Normans after the Conquest, taken together with the continued recognition of the liability of both paternal and maternal parentes, is a very strong proof that the solidarity of the kindred was not altogether a thing of the past. Tribal custom which at the Norman Conquest could be applied to the conquering class cannot be regarded as dead.

II. NORMAN VIEW OF WESSEX CUSTOM.

We pass on now to clause LXX. of the ‘Laws of Henry I.’ with the heading ‘Consuetudo Westsexe.’

The amount of the wergeld according to Wessex law is thus stated:—

The Anglo-Saxon and Norman lb. of silver was 240d., and thus the twelve-hyndeman’s wergeld of 25 lbs. was the same thing as the ancient Wessex wergeld of 1200 Wessex scillings of 5d. Four pounds was a rough equivalent of the twyhyndeman’s wergeld of 200 Wessex scillings.

A little further on in the same clause is the following quotation from Ethelred II.’s compact with Olaf.