Clause 21 seems to deal with the case of some one else being slain, and makes the lender liable to pay a bot of a ‘medume leod-gild’ of 100 scillings for mixing in the fray. It would be natural that the bot should be greater if another was slain than if the man to whom he lent the weapons had been slain. And if the later precedents are to guide us, the bot of a ‘medume wergeld’ should not in amount equal the whole wergeld but only a proportion of the wergeld. If the bot of 100 scillings might be considered as equal to a half-wergeld we should gain a clue to what the whole wergeld might be. And this would be a tempting inference. But we are not, it seems, as yet warranted in making it. We must therefore at present content ourselves with the conclusion that the ‘medume wergeld’ cannot mean a whole wergeld, otherwise the lender of the weapon would pay as bot as much as the wergeld would be if he had killed the man himself.

Clause 22 makes 20 scillings payable at the open grave and the whole leod in forty nights. It refers apparently to the actual slayer’s liability to pay the whole wergeld (ealne leod); and finally clause 23 states that if the slayer depart from the land his kindred shall pay half the wergeld of the slain person. We are not told to whom the bot of the ‘medume wergeld’ of 100 scillings was to be paid, nor whether it was to be a part of the wergeld or additional to the ‘ealne leod’ paid by the actual slayer. The later laws, as we have seen, afford precedents for both alternatives.

Another point of interest arises from the last clause. In the absence of the slayer his kindred had to pay only a half wergeld (healfne leod). Does this justify the inference that in all cases of wergelds the liability of the kindred was confined to one half? It will be remembered that in the so-called ‘Canones Wallici’ (supra, p. 109), if the slayer had fled, the parentes of the slayer had fifteen days allowed for their payment of one half or flight from the country. And only when they had paid their share could the slayer return and make himself safe by paying the other half—the ‘medium quod restat.’ It seems not unlikely that in the Kentish case also ecclesiastical influence had limited the liability of the kindred to the half-wergeld.

Clauses 25 and 26 are important, and we shall have to recur to them.

To these three grades of læts we shall have to return when we sum up the evidence on the division of classes.

Next follow three clauses upon edor-breach. The first relates to the breach by a freeman of the enclosure or precinct presumably of a freeman, the penalty being the same as the ceorl’s mund. The second imposes a threefold bot upon theft from within the precinct. And the third refers to a freeman’s trespass over the edor or fence.

After these clauses about edor-breach is the following:

Then follow chapters relating chiefly to injuries done and wounds inflicted, and the bots payable to the person injured for the same. It is not needful to mention more of these than the most important one, viz. that for the destruction of an eye, hand, or foot. The bots for all these in most other laws were alike. In Ethelbert’s Laws the bot for each of the three is fifty scillings, which happens to be the same as the mund-byrd of the King.

After the clauses for injuries there are several relating to women.

The clause relating to the mund of the four grades of apparently eorlcund (?) widows does not help us much to an understanding of what the grades of Kentish society may have been. But it emphasises a remarkable trait of these laws of Ethelbert. Every class is divided in these laws into grades. The clergy are divided into grades from bishops to clerks. The female servants of the King’s household are divided into three classes, and so are the servants of the ceorl’s household. The læts are divided into three classes. And now the widows, whether all eorlcund or not, are divided into four classes for the purpose of their mund. The significance of these divisions will be apparent hereafter. In the meantime the mund is probably the amount to be paid by a second husband to the parents or kindred of the widow.

Passing from the mund of the widow, the following clauses throw some light upon the position of the wife under Kentish custom.

It is obvious from these clauses that under Kentish custom the position of the wife was very much the same as under Cymric and continental German custom. The marriage was a fair contract between the two kindreds.

The next clause enjoins a payment of fifty shillings to the ‘owner’ of a maiden if she be carried off by force.

Lastly there are the following clauses relating to the position of the esne under Kentish custom. The esne is considered to be a ‘servus’ working for hire rather than a theow.

There is nothing in these clauses, I think, to show that the bot was payable to any one but the owner of the esne.

What the ‘full worth’ of the esne was we are not told.

IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6.

Between the date of the Laws of Ethelbert and those of other Kentish kings which have been preserved nearly a century had intervened. So that these later laws of Kent are nearly contemporary with King Ine’s Dooms of Wessex.

As in Ethelbert’s laws, the main division of classes of freemen seems still to have been that between eorlcund and ceorlisc. But we get further valuable information.

The Laws of Hlothære and Eadric open with clauses which seem to fix the wergeld of the eorl at three times that of the ordinary freeman.

They deal with the liability of an owner of an esne[307] for his servant’s homicides.

The next two clauses are as follows:—

This reading of these clauses is not that of Thorpe or of Schmid, but that approved by the best authorities.[308]

Following this reading as philologically the most correct one, the inference at first sight might be that under Kentish law the wergeld of the eorlcundman was 300 Kentish scillings and that of the freeman 100 scillings.

But there may be reason to doubt the correctness of such an inference.

For the present we may leave the question of the amount of the wergelds to consider the meaning of the clauses in their main intention. And this seems to be clear. Henceforth the owner of an esne was not to be accountable for the wergeld of the person slain or any part of it further than that if an eorlcundman payable for with 300 scillings be slain he must hand over the esne and three times his manworth in addition; and in the case of the freeman payable for with 100 scillings he must hand over the esne and add one manworth in addition. That is to say, the esne was in both cases to be handed over and a manworth for each hundred scillings of the amount at which the person slain is paid for.

Now, I think, we must conclude that these clauses were intended to make an innovation upon ancient custom rather than to confirm it. And therefore it may be well to compare with them the parallel evidence of the laws of other tribes, as to the responsibility of an owner for his slave’s homicides.

Under the Welsh Laws (ii. p. 105) the liability of the owner of a slave for his homicides was apparently complete.

And this probably must be taken as the general rule of tribal custom in its early stages.

In the laws of the Saxons and of the Anglii and Werini the ancient German tribal custom was still preserved. The owner of an animal or a slave was liable for any injury done by either, very much as if it had been done by himself (‘Lex Sax.’ xii. Ang. and Wer. 16 and 52).

But it would seem that Roman and Christian feeling very early suggested that this was hard upon the innocent owner. Hence in some of the laws the compromise was made that the owner should pay only a half-wergeld and hand over the offending animal or slave instead of the other half.

That this innovation was not altogether acceptable to tribal feeling is shown by clauses in the ‘Pactus III.’ of the Alamannic laws. The whole wergeld was to be paid by the owner if his horse, ox, or pig killed a man (s. 18). But an exception was made in the case of the dog. If a man’s dog killed any one, a half-wergeld (medium werigeldum) was to be paid, and if the whole wergeld was demanded, all the doors but one of the house of the person making the demand were to be closed and the dog was to be hung up nine feet from the only one left open for ingress or egress, and there it must remain till it fell from putrefaction. If it was removed or any other door was used, the wergeld was to be returned (s. 17).

Grimm (‘D. R.’ p. 665) has pointed out that in the Ostgotalaga (Drap. 13, 2) a similar archaic practice is described when a slave had killed a man. The owner of the slave under this law ought to pay the whole wergeld, and if he did not do so the slave was to be hung up at his (the owner’s) house door till the body putrefied and fell. Thus the same archaic method of punishing the delinquent was retained in both cases. But the significant point is that so long as the whole wergeld was due from the owner it was at the owner’s door that the body of the slayer was to be hung up, while when the half-wergeld only was to be paid, the dog was to be hung up at the door of the person who improperly demanded the whole wergeld. Thus, as in so many other cases, the twelfth-century laws of the North preserved the earlier custom of the payment of the whole wergeld, while the Alamanni, after migration into contact with Roman and Christian civilisation, in their laws of the seventh century modified the custom, at the same time retaining the archaic method of forcing compliance with the modification. It must be remembered that every change which relieved the innocent owner from liability, wholly or in part, robbed the kindred of the person slain of the whole or the part of the wergeld.

The compromise of payment of the half-wergeld and the handing over of the offending animal or slave was not confined to the Alamannic laws.

In the Ripuarian Law xlvi. the animal which had killed a man was to be handed over and received ‘in medietatem wirigildi’ and the owner was to pay the other half.

In the Lex Salica the same rule was at first applied to the case of homicide by a slave or læt. A half-wergeld was to be paid and the slave or læt handed over for the other half.[309] This was the rule according to the Codex I. But in the later Codices, VII. to X., and in the ‘Lex Emendata,’ the lord, if innocent, was allowed to get off altogether from the half-wergeld and had only to give up the slave or the læt. This further innovation seems to have been connected with the Edict of Chilperic (circ. A.D. 574) and thus probably represented the result of ecclesiastical influence at very nearly the date of the earliest Kentish laws.

We have only to recur to the Canons of the Celtic Church of Brittany and South Wales of the sixth and seventh centuries, considered in the earlier part of this volume, to recognise the hand of the Church in these innovations upon earlier tribal custom. They extended to Celtic as well as to German districts. In Canon 5 of the so-called ‘Canones Wallici’ the rule was laid down that ‘if any master should permit his slave to carry arms, and the slave killed a freeman, the owner must hand over the slave and another besides’ (supra, p. 108).

The half-wergeld here is omitted altogether, and, as in the case of the Kentish freeman, two slaves are to be given up instead of one.

These Canons were nearly contemporary with the later Kentish laws, and the same stage of innovation seems to have been reached in both. A still further and final stage had been reached in the Burgundian Law already quoted (supra, p. 124) in which in the case of homicide by a slave, unknown to his master, the slave was to be delivered up to death and the master was to be free from liability. The parentes of the slain person were to get nothing, not even the slave, ‘because, as we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’ The whole process of change had taken place in the Burgundian district by the sixth century. But it would seem that in Kent the middle stage only had been reached at the date of the laws of Hlothære and Eadric.

Evidence that the further stage had at last been reached in Anglo-Saxon law is perhaps to be found in the nearly contemporary law of Ine (s. 74) which enacts that if a theow-wealh slay an Englishman, the owner shall deliver him up to the lord and the kindred or give sixty scillings for his life. Here no further manworths are required. But possibly the peculiar position of the theow-wealh may have something to do with it, so that we ought not perhaps to assume as certain that the clause represented a still further general innovation upon tribal custom beyond that described in the Kentish clauses.

Returning to the Kentish clauses and assuming that their direct intention was to modify previous custom, we are now in a position fairly to judge what the previous rule may have been.

Reasoning from the analogy of other laws, it seems most likely to have been to make the owner pay a half-wergeld of the person slain and hand over the esne for the other half—the stage of custom reached in the Ripuarian Laws and Salic Laws of Codex I.

And if this were in fact the former custom previous to the enactment in these clauses, then without departing from the correct literal reading of the text it may be that the words in the parenthesis in each clause may refer, not to the eorlcundman’s or the freeman’s wergild—the word ‘leod-geldi’ is not used—but to the amount hitherto payable in the particular case of a man slain by an esne. The 300 and 100 scillings may be the half-wergeld hitherto payable, instead of which thenceforth the owner of the esne is to pay three manworths or one manworth in addition to handing over the esne.

If previous to the innovation the eorlcundman had been paid for in such a case with three hundred shillings and the freeman with one hundred, the words in their strictly correct literal meaning might perhaps rightly be read thus:—

This reading of the clauses, putting emphasis upon what is now the gild (þane ꝥ sie)—the three and the one hundred scillings—in contrast with what the owner has in future to do, i.e. pay three manworths and one manworth instead of the three hundred and one hundred scillings in addition to the handing over of the esne—seems to me more than any other rendering to account for the insertion of the parenthesis stating the amounts payable for the eorlcundman and freeman. If the word leod-gylde had been used it might have been different. But I am informed on the best authority that the words gylde and gelde in the two clauses are not substantives but used in an adjectival sense, and in this case they would apply to a half-wergeld payable as correctly as to a whole one.

At the same time the mention of 100 scillings, if the payment be a half-wergeld, may help to an understanding of the medume leodgeld of 100 scillings mentioned in Ethelbert’s Laws. It suggests that the medume wergeld was a modified or middle one which, like the medium werigeldum and medium precium of the mediæval Latin of the Alamannic and other laws, had come to mean a half one. Perhaps, after all, if we recognise clerical influence in the framing and modification of the Kentish laws, the translation of the Latin ‘medium werigeldum’ by the Anglo-Saxon ‘medume leodgeld’ is not very unnatural.

Before we leave the laws of Hlothære and Eadric there are one or two further clauses worth notice.

Clause 5 reminds us that, though scarcely mentioned in these laws, the system of compurgation was in force. A freeman charged with a crime has to clear himself by the oaths of a number of ‘free æwda-men.’

Clause 6 makes mention of the protection of a woman by her kindred:—

These clauses, unimportant perhaps in themselves, are useful as showing that behind the silence of the laws tribal custom still lingered on, however seldom and slightly it might be brought into evidence as fresh circumstances might suggest new clauses.

There are also some clauses which are useful as showing the continuance of the mund-byrds of king and ceorl of King Ethelbert’s Laws, unchanged in amount, a century later.

By s. 11, if a man uses abusive words to another in any one’s ‘flet,’ ‘let him pay one scilling to him who owns the “flet” and six scillings to him to whom he said the words and twelve scillings to the King.’ So also in s. 12, one scilling is to be paid to the owner of the ‘flet,’ six scillings to the person wronged, and twelve scillings to the king. The six scillings to the person insulted or wronged is the mund of the freeman or ceorl. Lastly, in s. 13 in case of a slaying in a drinking bout:—

Thus we have again the mund-byrds of King Ethelbert’s Laws:—

• Of the King 50 scillings.
• Of the ceorl 6 scillings.

The crime of killing another in a drinking bout is a breach of the mund of the owner of the ‘flet’ as well as a breach of the peace of the King.

V. THE LAWS OF KING WIHTRÆD, A.D. 690-696.

One more chance remains for further information regarding Kentish wergelds, viz. in the ‘Laws of King Wihtræd,’ who became King of the Kentish men about A.D. 690 and, according to Bede, died A.D. 725. A century had passed since the Laws of Ethelbert were enacted, in the time of St. Augustine. Brihtwald was now Archbishop of Canterbury, and at an assembly of Church and people ‘the great men decreed, with the suffrage of all, these dooms, and added them to the lawful customs of the Kentish men.’ These laws are mainly ecclesiastical both in their origin and subject.

In the first two clauses the Church was declared to be ‘free from gafols,’ and the mund-byrd of the Church was declared to be the same as the King’s, viz. fifty scillings—as in Ethelbert’s Laws. There is therefore no marked change in the Kentish currency, though by this time it must have been almost entirely silver so far as any Kentish coinage was concerned.

Clause 5 introduces us for the first time in the Kentish laws to the distinction between the gesithcund and ceorlisc classes.

It would not do to conclude from this single allusion to gesithcund and ceorlisc men that the Kentish division of classes—eorlisc and ceorlisc—had given way before the Wessex division of classes—gesithcund and ceorlisc.

There had been no interval between this and the last set of Kentish laws long enough to have made likely any radical change in social conditions, and as the ‘ancient law’ alluded to was probably ecclesiastical and not especially Kentish, either in its origin or its terms, it would not be wise to build anything upon the use of the word ‘gesithcund’ beyond recognising the natural tendency of neighbouring peoples under the same ecclesiastical influence to approximate in phraseology especially in regard to matters of general ecclesiastical interest.

Clauses which follow regulating the penalties for work on Sundays, or neglect of baptism, or a ceorl’s making offerings to devils without his wife’s knowledge, or a man’s giving flesh meat to his family on fast days, do not interest us in this inquiry further than as revealing lingering traces of paganism and the ecclesiastical character of these laws of Wihtræd.

There are, however, a few clauses which incidentally come within the lines of our inquiry.

Clause 8 is especially interesting as showing that when freedom was given by a lord to his man and he became folkfree, still, even though he left the district, his inheritance, his wergeld, and the mund of his family remained with the freedom-giver.

Here tribal custom asserts itself. The freedman, though freed at the altar, is to be folkfree, and yet, although folkfree and able to go wherever he will, he cannot inherit, because he is nobody’s heir. He had no free parents from whom to inherit. His lord inherited what his unfree man might leave behind him. The freedman’s wergeld if he were slain still went to his lord, for he had no free kindred to claim it. His family remained in the lord’s mund unless they also had been set free.

These points were doubtless all incident to the position of a newly made freedman under Kentish custom, and this enactment was probably needful only to make it clear that freedom given at the altar, whatever churchmen might think, was not to modify the customary rules incident to freedom-giving. The evidence of the clause is, however, valuable because for one moment it accidentally lifts the veil and shows that Kentish tribal custom was in these matters much the same as we have found tribal custom elsewhere, and it is particularly valuable as direct evidence that there was a class of freedmen under Kentish custom as everywhere else.

There are also the following clauses on oaths.

These statements regarding oaths, like other laws of Wihtræd, betray their ecclesiastical origin, and following directly after the imposition of penalties for what may be called ecclesiastical sins, very difficult of proof, seem to have been inserted with special reference to them. They are interesting, however, as reminding us again that the system of oath-helpers was not absent from Kentish custom.

Section 20 of this clause is also interesting, which places the stranger (gest)—may we not say the ‘King’s guest’?—in the same position as the ‘King’s thane’ as to the validity of his single oath. Both seem to be specially under the King’s protection: in the case of the King’s thane, on account of his official or military position; in the case of the stranger, probably because of the absence of his kindred. The King being in the place of kin to the stranger, his single oath is accepted.

These laws end with clauses referring to theft more or less closely resembling those so prominent in King Ine’s Dooms.

They state that a thief slain as a thief was to be without wergeld. If a freeman were caught in the act of thieving, the King might either kill him, or sell him over sea, or release him on payment of his wergeld. He who should seize and hold him was to be entitled to the half-wergeld, or if he were put to death to seventy scillings. A man coming from far or a foreigner, when off the public way, who should neither call aloud nor blow a horn, was to be taken to be a thief, and put to death or redeemed by a wergeld.

The last clause resembles Ine s. 20 so closely as to suggest a common origin.

The close resemblance between these clauses confirms the suggestion that the expression ‘gesithcund’ in the Kentish laws of Wihtræd may have been borrowed from Wessex. Nowhere else than in these contemporary laws of Ine and Wihtræd does the term gesithcund appear, except in the fragments of Mercian law, which may thus belong to the same period.

VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM.

We have now examined the Kentish laws especially regarding the amount of the wergelds and mund-byrds. Although we may not have arrived at absolute certainty, yet some light may have been thrown upon the important matter of the division of classes.

So far as the amounts of the wergeld are concerned, the contrast was between the eorl and the freeman, the wergeld of the eorl being three times that of the freeman. But as regards the mund-byrd the contrast was between eorl and ceorl. The mund-byrds were:—

There must evidently be either identity of meaning or much overlapping in the terms freeman and ceorl. Otherwise the ceorl would be without a wergeld and the freeman without a mund-byrd.

And yet, on the other hand, there was probably some reason why the particular words used were chosen in the several clauses, and to a certain extent it may not be far to seek.

So far as the word ceorl had a special sense, it meant the married man,[310] the husband with a homestead and household, like the North-country husbandman with his husbandland. In this special sense every ceorl may have been a freeman, but every freeman may not have been a ceorl. Hence in the clauses as regards mund-byrd the contrast is between the eorl and the ceorl. Both were men with homesteads and households. Unless they had persons under their ‘mund’ they could not have had corresponding mund-byrds. The freeman who did not happen to be a man with a homestead and household could have no mund-byrd, because he had no precinct within which his peace could be broken, and no household under his protection. But he could have a wergeld.

So, again, in the clauses quoted relating to injuries done to servants in the Laws of Ethelbert:—

The ceorl in this contrast is again a husbandman with a homestead and household and with bireles and theows and hlafætas under his roof or in his ‘ham.’ Wherever in the Kentish laws the word ‘ceorl’ is used in any other sense, I think the meaning is confined to that of the married man—the husband, as in the phrase ‘husband and wife.’

So regarded, the division for purposes of mund-byrd into eorlisc and ceorlisc classes was natural, and so also, for purposes of wergeld, was the distinction between eorl and freeman. As regards the wergeld, we may consider the terms ceorl and freeman as practically interchangeable, inasmuch as every ceorl was certainly a freeman, and the unmarried freeman was probably a cadet or member of the household of some eorlisc or ceorlisc man.

Continental society included everywhere, as we have seen, such classes as the Roman liti and liberti composed of strangers and freedmen who had not so far risen in the social scale as to have fully recognised rights of inheritance and whose wergeld never was of the same amount as that of the full freeman. It is in connection with such classes that the tribal distinction of blood came in. If for the full freeman we were to substitute the word tribesman, with all the background of hyndens of kinsmen to fight and to swear for him involved in the term, then from the same point of view we must expect to find in Kent, as everywhere else, strangers in blood below the tribesmen, like the aillts and alltuds and taeogs of the Cymric Codes, the fuidhirs of the Brehon Laws, if not the liberti and liti of the Gallo-Romans, or, perhaps still more nearly to the point, the leysing classes of the Norse Laws.

We have already found incidental mention of the Kentish freedman. He cannot after enfranchisement have been classed as an esne or a theow. There would seem to be no other class mentioned to which he could belong, unless it might be that of the læts of Ethelbert’s Laws.

It is worth while, therefore, to recur to the single clause in Ethelbert’s Laws already quoted respecting the læts and to examine it more closely. Within the compass of its few words there may perhaps be found evidence connecting the status of the Kentish læt with what we have learned of the status and conditions of the Norse leysing.