II. NORMAN VIEW OF WESSEX CUSTOM.
We pass on now to clause LXX. of the ‘Laws of Henry I.’ with the heading ‘Consuetudo Westsexe.’
Wessex wergeld of twyhynde or villanus and twelve-hynde or thane.
The amount of the wergeld according to Wessex law is thus stated:—
In Westsexa, que caput regni est et legum, twihindi, i. villani wera est iiii lib.; twelfhindi, i. thaini xxv lib.
(lxx. i) In Wessex, which is the capital of the kingdom and of laws, the wer of the twyhyndeman, i.e. of the villanus, is four pounds; of the twelvehyndeman, i.e. of the thane, twenty-five pounds.
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.
Si Anglicus homo Dacum occidat, liber liberum, persolvat eum xxv lib. vel ipse malefactor reddatur, et tantundem reddat Dacus de Anglico si eum occidat.
(lxx. s. 6.) If an Englishman kill a Dane—a freeman a freeman—let him pay for him 25 lbs. or the criminal himself shall be delivered up. And let the Dane do the same if he kill an Englishman.
The English and Danish typical freeman of this clause with his 25 lb. wergeld is clearly recognised in these so-called laws as the twelve-hyndeman and not the twyhynde man, who, though free, is identified with the ‘villanus.’
Wife still belongs to her own kindred in respect of wergeld.
In further sections of this clause regarding Wessex customs very important statements are made with regard to the position of the wife in case of homicide, showing (1) that if she committed homicide her own kindred were responsible for her crime and not her husband or his kindred; and (2) that in case of the murder of a wife the wergeld went to her kindred and not to the husband or his kindred. In s. 12 of this clause is the following statement:—
Similiter, si mulier homicidium faciat, in eam vel in progeniem vel parentes ejus vindicetur, vel inde componat: non in virum suum, seu clientelam innocentem.
Likewise if a woman commits homicide let it be avenged on her or on her children or parentes or paid for from that side, not on her husband, or innocent connections.
And in s. 13:—
Si mulier occidatur, sicut weregildum ejus est reddatur, ex parte patris, sicut observamus in aliis. (14) Si pregnans occidatur et puer in ea vivat, uterque plena wera reddatur. Si nondum vivus sit, dimidia wera solvatur parentibus ex parte patris.
If a woman be killed, whatever be her wergeld, let it be paid ex parte patris just as we have said in other cases. (14) If a pregnant woman be killed and her child be living let the full wergeld of both be paid. If not yet living let half a wergeld be paid [for it] to the parentes ex parte patris, [of the child].
The position of the wife under Wessex custom is further shown by the following:—
Si sponsa virum suum supervixerit, dotem et maritacionem suam, cartarum instrumentis vel testium exhibicionibus ei traditam, perpetualiter habeat, et morgangivam suam et terciam partem de omni collaboracione sua, preter vestes et lectum suum; et si quid ex eis in elemosinis vel communi necessitate consumpserit, nichil inde recipiat.
(ss. 22-23). If the wife survive her husband let her have permanently her dower and her ‘maritagium’ given to her by written instruments or production of witnesses, and her ‘morgengift’ and a third part of all joint acquisition, besides clothes and her bed, and let her receive nothing in respect of what has been consumed in charity or common necessity.
Si mulier absque liberis moriatur, parentes ejus cum marito suo partem suam dividant.
If a woman die without children her parentes divide her share with the husband.
These statements are valuable evidence that, in regard to the position of a wife, Anglo-Saxon custom was very nearly the same as Cymric custom and that of the Bretts and Scots. And they are the more important as stating in black and white what is only to be inferred from isolated statements in earlier laws.
We now pass to c. LXXVI., De precio cujuslibet, containing information as to the mode of procedure in the payment of wergeld.
After stating that if a man be slain he is to be paid for according to his birth, the clause proceeds thus:—
Sureties for wergeld 8 of paternal and 4 of maternal kindred.
Et rectum est ut homicida, postquam weregildum vadiaverit inveniat wereplegios, sicut ad eam pertinebit, i. de thaino debent dari xii wereplegii, viii de parte patris, et iiii de cognacione matris; et cum hoc factum erit, elevetur inter eos pax regis in omni weregildo, et debet halsfang primo reddi, sicut were modus erit.
And it is right that the homicide after having given pledge for the wergeld should find the wer-pledges pertaining to it. From the thane: 12 were-pledges 8 exparte patris and 4 de cognatione matris, and this done shall be raised among them the peace of the king in every wergeld. And first the halsfang should be paid according to the nature of the wergeld.
Following the case of the twelve-hyndeman a little further we learn that:—
Twelve-hyndeman’s halsfang.
Twelf-hindus est homo plene nobilis, i. thainus cujus wera est duodecies c sol. qui faciunt libras xxv, cujus halsfang sunt cxx sol. qui faciunt hodie sol. l. Et non pertinet alii cognacioni pecunia ista, nisi illis qui sunt intra genu.
The twelve-hyndeman is the man plene nobilis, i.e. the thane whose wergeld is 1200 scillings which make 25l. His halsfang is 120s. which today equals 50s.[211] [Norman], and it belongs to no other relations than those who are intra genu.
This halsfang had to be paid on the 21st day from the giving of the pledge, and it seems to have been a token in recognition of guilt or earnest money to show that the wergeld would be paid.
Manbot and fightwite and then wergeld.
On the next 21st night from the payment of the halsfang the manbot had to be paid, and on the 21st night after that the fightwite, and on the 21st night again the first payment of the wergeld.
Et sic omnibus parentibus dominisque emendacionibus iniciatis persolvantur reliquum were, intra terminum quem sapientes instituunt.
Thus for all the parentes and lords, amends being set agoing, the rest of the wergeld shall be paid during a term to be fixed by the wise men (sapientes).
Turning next to the case of persons twyhynde born—cyrlisci vel villani—more details are given:—
After stating their wergeld to be four pounds, the clause proceeds:—
Halsfang of the twyhynde class.
Halsfange ejus sunt v marc. que faciunt xii sol. et vi den.: est autem verbum Anglicum quod Latine sonat ‘apprehensio colli.’
Their halsfang is v marks which = 12s. 6d.; and it is an English word which in Latin means ‘apprehensio colli.’
There is evidently here an error. ‘V marc’ ought to be read 5 mancuses. The mancus was 30d. or 2s. 6d. Norman money and the halsfang therefore 150d. or 12s. 6d. Norman money, as stated in the following clause.
Manbot and fightwite and then wergeld.
Si quis ad iv lib. persolvendus occidatur, et ad id res veniat, ut precio natalis ejus componendus sit, primo debent reddi xii sol. et vi den. et in wera numerari: reddantur vero patri, vel filio, vel fratri, vel qui propinquior est de patre, si predictos parentes non habeat: si omnes istos habeat, et ipsi dividant inter se.
(6) If any one is killed to be paid for at 4l. and it comes to pass that the price of his birth has to be paid, first should be paid [the halsfang of] 12s. 6d. to be reckoned in the wergeld, and this is paid to the father or son, or brother, or, failing these, whoever is the nearest of kin to the father. If he has all these, they divide it between them.
A die qua wera vadiata est in xxi diem, sine omni excusacione et dilacione, debet halsfang reddi, sicut premisimus.…
On the 21st day from the giving of the pledge, without any excuse or delay the halsfang should be paid, as we have said.…
Inde ad xxi diem reddatur ipsius manbota: tunc ad xxi diem fuytwhita: inde ad xxi diem reddatur ipsius were frumgildum, i. vii sol. et vi den. ad explecionem xx sol.
On the 21st day after that, is to be paid the manbot, then on the 21st day the fightwite, and then on the 21st day must be paid the frumgeld of the wergeld, i.e. 7s. 6d., to the completion of 20s.
Thus we learn that in the case of the twy-hyndeman the halsfang of 12s. 6d. and the frumgeld of 7s. 6d. make up the first 20s. of the wergeld of four pounds. The clause proceeds:—
Inde componat qui weram solvit, terminum de xx sol.: inde ponant terminum suum parentes mortui de xl ovibus, que pro xx sol. computantur: sint autem oves videntes et cornute, nulla parte corporis diminute: ultimo termino reddatur equus, qui pro xx sol. numerandus est. Hoc secundum legem et nostram consuetudinem diximus: differentia tamen weregildi multa est in Cancia villanorum et baronum.
After that he who pays the wergeld pays at another term 20s. Then the parentes of the dead fix a term for 40 sheep which are reckoned as 20s., but they must be sheep seeing and horned and deficient in no part of the body. At the last term a horse is given reckoned at 20s. This we have said according to law and our custom. There is, however, great difference in the wergeld of both villani and barones in Kent.
Thus both in the case of the twelve-hynde and the twy-hyndeman the halsfang is the first beginning of the wergeld, and whatever may be the exact meaning of the word, it is pretty evident that it was regarded as an admission of the wrong done and as a kind of earnest money that the rest of the wergeld would be paid.
But between the halsfang or earnest money and the making up of the first full instalment of the wergeld were the two other payments, the manbot and the fightwite.
They have already been mentioned, but it is important to recognise what these two payments outside the wergeld mean.
We learn from c. LXXX. s. 6 what the fightwite was:—
Fightwite was for breach of precinct.
In cujuscumque terra fiat homicidium, qui socam et sacam suam habeat, si homicida divadietur ibi vel cravetur, fihtwytam recipiat.… Si occisus et locus unius domini sint, qui socnam suam habeat manbotam et fihtwytam.
On whosesoever land the homicide may be committed, he who has soc and sac shall if the homicide there be pledged or remanded receive fightwite.… If the person killed and the place are of one lord, let him who has the soc have [both] manbot and fightwite.
Manbot was value to lord of person slain.
It is clear from this that the fightwite was the payment due to the lord who had the ‘soc’ of the place where the homicide occurred and the wergeld was pledged. The manbot, on the other hand, was the payment to the lord whose man the person slain was. The lord of the soc might also be the lord of the man slain, in which case both fightwite and manbot were payable to him.
In c. LXIX. the manbot of the twy-hyndeman is stated to be 30s. (of 5d., i.e. 150d.), and that of the twelve-hyndeman 120s. (600d.) as in the Laws of Ine, s. 70.
In the so-called ‘Laws of Edward the Confessor’ c. XII. is the following:—
Qui scienter fregerit eam [pacem regis] … lege Anglorum suum were, i. precium suum, et manbote de occisis erga dominos quorum homines interfecti erant. Manbote in Danelaga, de vilano et de socheman, xii oras; de liberis hominibus iii marcas. Manbote in lege Anglorum, regi et archiepiscopo, iii marc̄ de hominibus suis; episcopo comitatus, comiti comitatus, et dapifero regis, xx soƚ; baronibus ceteris, x soliđ. Emendacionem faciat parentibus, aut guerram paciatur, unde Angli proverbium habebant: Biege spere of side oðer bere, quod est dicere, lanceam eme de latere aut fer eam.
He who knowingly breaks the king’s peace … by the law of the English pays his were, i.e. pretium suum, and manbot of persons killed to the lords whose men have been killed. Manbote in Danelaga of villanus and socheman xii ores, of liberi homines iii marks.[212] Manbot in English law to the king and archbishop iii marks for their men; to the bishop and earl of a county and dapifer of the king xxs.: other barons xs. Let him make amends to the parentes or suffer feud. Hence the English have a proverb, ‘Buy off the spear or bear it.’
This chapter relates chiefly to the breach of the king’s peace on the king’s highways &c., but it clearly confirms the meaning of the manbot as the payment to the lord for his man and as quite distinct from the wergeld to the parentes of the slain.
Manbot of socheman and villanus alike in the Danelaga.
It may seem strange at first sight that according to this clause the manbot in the Danelaga of the villanus and the socheman should be alike, viz. 12 ores of silver, and further that the villanus and socheman should not be included as liberi homines, the manbot of the latter being double their manbot, viz. three marks or 24 ores.
The explanation of the equal manbot of villani and sochemen may partly be found in the tendency after the Conquest to class together all subordinate tenants rendering manual or agricultural services to the landlord as villani, and to ignore the differences in origin between the various classes of tenants of this kind. Still if at this point of our inquiry the relative positions of the sochmanni of the Danish districts and the villani of ordinary English manors were the question under discussion, it would be fair in explanation of the equality in manbot to point out how very nearly the services of the two classes seem to have corresponded so far as their value to the lord was concerned.[213]
The loss to the lord of the twelve-hyndeman was probably reckoned as of greater money value than that of the villanus or socheman, because of the higher grade or character of his military and judicial services as compared with the agricultural services of the villanus and socheman.
However this may be, these considerations confirm the importance of the distinction between the manbot which varies according to the value or loss to the lord of the person slain, and is therefore payable to him, and the wergeld payable to the parentes of the person slain which varied according to the grade in social rank in which he was born or to which he may have sometimes risen.
Further, this distinction between the wergeld and the manbot becomes all the clearer when we turn to the evidence given in the Laws of Henry I. regarding the custom of Wessex in respect of the homicide of slaves.
When a slave is killed, or kills an Englishman.
In c. LXX. the custom of Wessex is stated thus:—
Si servus servum occidat, domino reddantur xx sol. pro manbota, parentibus interfecti servi xl den.
(s. 2) If a slave (servus) kills a slave xxs. [? of 5d.] is paid to the lord for manbot, to the parentes of the dead slave xld.
Si dominus occisoris nec pro eo reddit, nec servus habet unde reddat, dimittere potest eum dominus, ut sibi caveat, nisi forte cravetur dum secum est; quod si eveniat, eum repetentibus reddat vel inde componat.
(s. 3) If the lord of the slayer pays nothing for him and the slave has nothing to pay with, the lord can dismiss him so that he [the lord] may protect himself from having the slave seized while with him. But if this happen he shall hand him over to the prosecutors or pay for him.
Si liber servum occidat, similiter reddat parentibus xl den. et duas mufflas, et unum pullum mutilatum, domini servi xx sol. pro manbota blodwitam vel fihtwitam sicut acciderit.
If a freeman kill a slave let him likewise pay to the parentes xl pence and two ‘muffles’ and a capon. To the lord of the slave xxs. [? of 5d.] for manbot, [also] bloodwite or fightwite as it happens.
Si servus Waliscus Anglicum hominem occidat, debet ille cujus servus est reddere eum domino et parentibus, vel dare xl sol. pro vita sua. Si hoc capitale nolit dare pro eo, dimittat eum liberum, solvant postea parentes ejus weram illam, si cognacionem habeat liberam. Si non habeat, observent eum inimici. Non cogitur liber cum servo meggildare, nisi velit ei satisfaccionem facere, nec servus cum libero.
If a slave Waliscus kills an Englishman he whose slave he is ought to give him up to the lord and the parentes or pay xls. [? of 5d.] for his life. If he does not choose to pay this for his head let him set him free; then afterwards let his parentes pay his wergeld if he has free relations. If not let them regard him as an enemy. No freeman is to be compelled to join in payment with a slave unless he wishes to make satisfaction for him nor a slave with a freeman.[214]
Manbot of Wessex slave.
Thus while under the Danelaga the equal manbot of the villanus and of the socheman was 12 ores or 240d., we learn from these clauses that the manbot of the ordinary slave under Wessex custom was 20s. i.e. (if of 5d.) 100 pence, while that of the twy-hyndeman was, as we have seen, only 150 pence.
At first sight it may seem strange that the manbot or value to the lord of his villanus or socheman should be no greater, or even less, than that of his theow or slave. But a moment’s consideration will show that the value of the villanus and the socheman to the lord was mainly their week-work and services amounting to perhaps half their whole time, while that of the slave or theow was the value of his whole time and also that of a marketable chattel.
It may be noticed, too, how in the statements of Wessex custom some slight recognition is made of the kindred of the slave, but the amount (40 pence) is so very small that it hardly can be reckoned as any real approach to recognition of family rights or rights of kindred belonging to the relatives of the slave.
In the ‘Laws of William the Conqueror’ the manbot of the slave is stated (perhaps in error) to be twice that of the freeman, and in the case of freemen a concession is made of 10s. of the wergeld to the widow of the slain, who otherwise, not being of the same blood or kindred with her husband, would under tribal custom have received no part of the wergeld.
Si quis convictus vel confessus fuerit in jure, alium occidisse, dat were suum, et insuper domino occisi, manbote, scilicet, pro homine libero x sol. pro servo xx solid.
(s. vii.) If any one shall have been convicted of or have confessed the slaying of another, let him give his wergeld and over and above to the lord of the person slain, manbote: that is, for a freeman xs. [? of 5d. or 12d.] for a servus xx shillings.
Est autem were theni in Merchenelahe xx libr.; in Westsaxenelahe xxv libr.; rustici autem c solid. in Merchenelahe, et similiter in Westsaxenelahe.
(viii.) The wergeld, however, of the thane under Mercian law is xx lb. [i.e. 1200s. of 4d.], under West Saxon law xxv lb. [i.e. 1200s. of 5d.]; of the rustic cs. [? of 5d. or 12d.] in Mercia and the same in Wessex.
De were ergo pro occiso soluto, primo vidue x sol. dentur, et residuum liberi et consanguinei inter se dividant.
(ix) Of the wergeld thus paid for the slain person, first let x shillings be given to the widow, and the rest let the children and relations divide between them.
Homicide of a kinsman.
Finally, it is interesting to observe that according to the so-called ‘Laws of Henry I.’ tribal custom was still partly recognised in the method of dealing with the homicide of a kinsman.
In clause LXXV. is the following:—
Qui aliquem de parentibus suis occidet, dignis apud Deum penitencie fructibus emendet; et in modo penitencie sit, si sponte vel casu perpetravit; et excidat emendacio patrini sicut manbota domini: si non pertineat ei utrumque, et aliorum importunitate, quorum consanguineus est, cogatur eum reddere, sapientum hoc judicio, secundum genus, componatur.
He who shall slay any one of his parentes, let him make amends by fruits of penitence worthy before God. And let the measure of the penance be according to whether he did it willingly or by accident. And the correction of the sponsor falls just as the manbot of the lord. If there does not pertain to him either the one or the other and by the importunity of others whose kinsman he is he shall be compelled to pay, let it be compounded for by judgment of wise men whatever that may be.
The homicide of a kinsman was apparently still generally free from judicial interference or criminal law. The slayer is handed over to the Church and his punishment is spiritual penance. Even the manbot to the lord who has lost a man through his crime fails to be paid. But should there be a fear of trouble through the importunity of any of the kinsmen of the slain demanding compensation, then a compromise was to be effected by reference to the judgment of wise men. Tribal feeling is evidently not yet dead, although beginning in this matter to yield to the more modern view of individual responsibility for crime without regard to the question of kindred. There is at the same time recognition of the fact that the weakened tribal feeling is no longer always able to restrain the kinsmen from revenge in the case of wrong done within the kindred.
