I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS.
Tribal custom in the ancient laws of Scotland.
The population of Scotland was so various in origin and language that it would be unreasonable to expect uniformity of custom. Even where Celtic custom was best able to hold its own there must naturally have been a mixture of Cymric and Gaelic elements. In districts, on the other hand, where Frisian and Northumbrian and Danish and Norse influences may have once predominated, whatever survivals there may have been of tribal custom from any of these origins may well have been afterwards submerged under legal forms and ideas from Anglo-Norman sources.
It is worth while, however, to examine what scattered survivals of tribal custom may be found in the laws of the early kings, and in the various documents collected in the first volume of the ‘Ancient Laws of Scotland.’
That tribal custom as to wergeld existed and was recognised is proved by the necessity to abolish what remained of it.
Thus in the ‘Leges Quatuor Burgorum’ is the following clause:—
Laws of the Four Burgs.
XVII. Of bludewyt and siklyk thingis.
And it is to wyt at in burgh sall nocht be herde bludewyt na yit stokisdynt [styngisdynt] na merchet na heregelde na nane suilk maner of thyng.
This wholesale and disdainful disregard of feudal and tribal customs on the part of the townsmen of the four Burgs was followed somewhat later by an Ordinance of Edward I. (A.D. 1305) which again testifies to the wider survival of more directly Celtic tribal usages by forbidding their continuance.[195]
Ordene est que l’usages de Scots et de Brets desorendroit soit defendu si que mes ne soient usez.
Here we have the usages of the Brets and Scots distinctly recognised as still lingering on so late as the beginning of the fourteenth century in some parts of Scotland.
Laws of King David.
In the laws of King David[196] there are distinct traces of ancient custom as regards wergelds and the connection of the kindred with their payment and receipt. In section XIV. it is enacted:[197]—
If in any place within the peace of the King any one shall attempt to strike another, he shall pay to the King 4 cows and to the other 1 cow. If he shall really strike, but without drawing blood, 6 cows to the King and 2 cows to the other. If blood be drawn, 9 cows to the King and 3 to the person struck. If he slay the other, he shall give to the King ‘XXIX ky and a colpindach’ (juvenca).[198] And he shall assyth to the kin of him slain after the assyse of the land.
Clause XV. deals with violence done in the king’s court:—
If any one draws a knife to another in the King’s Court it shall be stricken through the middle of his hand. If he draws blood, the hand shall be cut off. And if he slay any man, he shall give to the King XX ky and a colpindach [ixˣˣ, Ayr MS.] and he shall make peace with the kin of him slain and with the King ‘after the assyse of the kynrik.’
In both these clauses the wergeld to the kin is additional to the payment to the king (of 180 cows?) for breach of his peace.
Clause XVI. forbids the letting off of a thief for money or friendship. An earl or any one having the freedom and custom of an earl who does this is to pay to the king 100 cows, and other great men not of earl’s rank 34 cows. The thief is to be ‘outlawed through all the king’s land.’
It is clear, then, that in the time of King David the system of wergelds payable to the kindred of the person slain was generally in force, though no amount is mentioned, and that payments were made at this date mostly in cows.
Assize of King William.
In the ‘Assize of King William’ under date A.D. 1180 is the following mention of the wergeld to be paid evidently for a thief who has been allowed to escape as above.
XIV. Of the law which is called weregylt.
Of every thief through all Scotland whether that he be bondman or freeman the wergeld is XXXIV ky and a half.
The following clause is further evidence of the continued right of vengeance on the part of the kin of a person slain.
XV. Of a man slain in the King’s vengeance.
If any one for theft or rapin dies by law of iron or water, and of him right be done, or if he were slain with theft found with him and afterwards if his kin in vengeance of him slew him that brought him to the law, the King shall have as fully right of such men slayers for the death of him, as of his peace fully broken, without concord or relaxation; unless it be through the counsel or the assent of his kin.
And if it happen by chance that the King grant peace to the adverse party unknown to the kin of him that was slain, nevertheless the kin of him shall take vengeance of them that slew their kin.
Laws of Alexander II.
Among the Statutes of Alexander II. under date A.D. 1220 the following fines were imposed upon persons who held land of the king and who absented themselves from the army. (Clause II., p. 68.)
From a thane, 6 cows and a gillot [juvenca].
From an ochtyern, 15 sheep or 6s. (half to King and half to the thane or the knight).
From a carl [rusticus], a cow and a sheep to be divided between the King and the thane or knight, but if with the leave of the thane or the knight, then all to the King.
This clause reveals a social division of classes into thanes, ochtyerns,[199] and carls or rustics; to which another clause (IV., A.D. 1230) enables us to add the nativus or ‘kind-born bondman.’
It is not needful to pursue the inquiry into the laws of the later kings of Scotland. But among the ‘Fragmenta’ in App. V. (p. 375) of the collection there is one which must not be overlooked, although it may be difficult to fix its date. It seems to be made up of two fragments united and is interesting as containing two very different statements of the payment ‘for the life of a man.’
Put into modern English, the first part is as follows:—
All laws either are man’s law or God’s law. By the law of God, a head for a head, a hand for a hand, an eye for an eye, a foot for a foot.
By the law of man for the life of a man ixˣˣ cows, for a foot a mark, for a hand as much, for an eye half a mark, for an ear as much, for a tooth 12 pence, for each inch of length of the wound 12 pence, for each inch of breadth of the wound 12 pence. For a stroke under the ear 16 pence, for a stroke with a staff 8 pence, and if he fall with the stroke 16 pence. For a wound in the face he shall give an image of gold [? a coin with the King’s head upon it].
The other part is as follows:—
And by man’s law for breaking of bones 5 ores, for a wound under the clothes 12 pence. For a wound before the sleeve 16 pence, and for each visible wound except the face 15 pence. For a man’s life 12 marks; for a wound above the chest 6 solidi, and under the chest 60 pence; for a foot stroke 60 pence; for blood drawn 25 shillings, and beyond the sea 6 cows.
Amount of the wergeld doubtful.
Now what are we to make of these ‘Fragmenta’? Clearly the two fragments must be taken separately, for in the first the payment ‘for the life of a man’ is 180 cows and in the second the payment ‘for a man’s life’ is twelve marks.
Mr. Robertson seems to have concluded that the payment of 180 cows was the wergeld according to the Assize of Scotland, or, as he puts it, ‘the manbote for homicide throughout Scotia.’[200] But he arrived at this conclusion apparently by connecting this fragment with the clause already quoted in the Assize of King David which states that a person killing another in any place within the king’s peace ‘shall pay to the king 180 cows and a colpindach.’ He concluded that the payment was 180 cows from the reading ‘ixˣˣ cows,’ as it is found in the Ayr manuscript of one of the clauses, as already stated. But the clause itself shows that this payment to the king was not the wergeld, because after making this payment the slayer had still to ‘assyth to the kin of him slain after the assyse of the land.’
Nor does it seem any more likely that the payment of twelve marks mentioned in the second fragment was the wergeld of Scottish custom. From its amount it seems much more likely to correspond with the payment already alluded to as the ‘wergeld’ of the thief allowed to escape, which, however, might possibly represent that of persons of lowest rank.
The evidence of these undated fragments leaves us in the dark as to what the wergeld of the ancient Assize of Scotland may have been. Confused and mixed statements as to the wergelds are not surprising when the mixture of races is taken into account, and, after all, the phrase ‘after the assize of the land’ or ‘after the assize of the Kynrik’ may refer only to those portions of the kingdom to which the laws of King David specially applied.