I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS.
The Kentish laws to be treated apart.
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.
Laws of Henry I.
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.
When a Norman was killed.
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.
Si Francigena qui parentes non habeat in murdro perimatur, habeat precium natalis ejus qui murdrum abarnaverit: Rex de hundreto ubi invenietur xl marc̄ argenti; nisi intra vii dies reddatur malefactor justicie regis, et talis de quo possit justicia fieri.…
(lxxv. 6) If a Norman (Francigena) be murdered who has no parentes, let that person have the price of his birth who made known the murder. The King to have 40 marks of silver from the hundred where he was found unless within 7 days the malefactor be delivered up to the justice of the King in such a way that justice can be had of him.…
Ad patrem vero, non ad matrem, generacionis consideracio dirigatur: omnibus enim Francigenis et alienigenis debet esse rex pro cognacione et advocato, si penitus alium non habeat.
(7) Consideration as to birth must be directed to the father, not to the mother, for the King ought to be in the place of maternal kindred (cognatio) and of advocate for the Norman or stranger if he absolutely have no other.
Si ex parte patris parentes non habeat qui occiditur, et ex parte matris habeat, quantum ad eum attinet, i. tercia pars weregildi sui reddatur.
(8) If he who is killed has no parentes on his father’s side and he has on his mother’s side, let what appertains to her, viz. one-third of his wergeld, be paid.
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.
When the slayer was a Norman.
Next with regard to the payment of the wergeld in the case of the slayer being a Norman or a stranger:—
Si quis hujusmodi faciat homicidium, parentes ejus tantum were reddant, quantum pro ea reciperent, si occideretur.
(8) If any one commit homicide of this kind let his parentes pay so much wergeld as they would have received if he [the slayer] had been killed.
Si ex parte patris parentes habeat, et ex parte matris non habeat, et hominem occideret, reddant pertinentes ei quantum de ejus interfeccione reciperent, i. duas partes weregildi sui.
(9) If he [the slayer] have parentes on his father’s side and not on his mother’s and kills a man, they pay for him as much as they would have received had he been killed, i.e. two thirds of the wergeld.
Si quis autem paterna cognacione carens male pugnet ut hominem occidat, si tunc cognacionem maternam habeat, reddat ipsa terciam partem were, terciam congildones, pro tercia fugiat.
(10) If any one who has no paternal relations shall fight so wrongly as to kill a man and if he has maternal relations they shall pay one-third of the wer, the congildones one-third, and for the other third let him flee.
Si nec maternam cognacionem habeat, reddant congildones dimidiam weram, pro dimidia fugiat vel componat.
If he has no maternal relations the congildones shall pay half, and for half he shall flee or pay.
Si quis occidatur ejusmodi secundum legem pristinam, si parentela careat, reddatur dimidium regi, dimidium congildonibus.
If any such person is killed, then according to ancient law, if he have no kindred half shall be paid to the King and half to the congildones.
Recurrence to Anglo-Saxon custom.
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.
Protection of the kinless stranger.
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.