II. THE COURSE OF PROCEDURE IN PAYMENT OF WERGELD.
There are two statements of the course of procedure in the payment of wergelds which may conveniently be mentioned at this point. The first occurs in the ‘Laws of King Edmund,’ who reigned A.D. 940-946. And the other is contained in a fragment belonging probably to the time following soon after the Compact between Alfred and Guthrum.
King Edmund makes payment of wergeld voluntary.
King Edmund, in order to abate the ‘manifold fightings’ resulting from the system of feud and wergeld, made stringent regulations under which wergelds were to be claimed, making it voluntary on the part of the kindred to join in payment of the wergeld.
Gif hwa heonan-forð ænigne man ofslea ꝥ he wege sylf þa fæhðe butan he hy mid freonda fylste binnan twelf monðum forgylde be fullan were sy swa boren swa he sy. Gif hine þonne seo mægð forlæte & him foregyldan nellen þonne wille ic ꝥ eall seo mægð sy unfah. butan þam hand-dædan, gif hy him syþþan ne doð mete ne munde. Gif þonne syþþan hwilc his maga hine feormige þonne beo he scyldig ealles þæs þe he age wið þone cyning ⁊ wege þa fæhðe wið þa mægðe forþam hi hine forsocan ær. Gif þonne of þære oðre mægðe hwa wrace do on ænigum oðrum men butan on þam riht hand-dædan sy he gefah wið þone cyning ⁊ wið ealle his frynd & þolige ealles þæs þe he age.
(Edmund Secular Laws, s. 1.) If any one henceforth slay any man that he himself bear the feud unless with the aid of his friends and within 12 months he compensate it with the full wer; be he born as he may be. But if his mægd forsake him and will not pay for him, then I will that all the kindred be unfah [free from the feud] except the perpetrator, if afterwards they do not give him either food or mund [protection]. But if any one of his kindred feed him, then be he liable in all that he possesses to the king and bear the feud with the kindred because they had previously forsaken him. But if anyone of the other kindred take vengeance upon any other man than the real perpetrator, let him be foe to the king and to all his friends and forfeit all that he owns.
Gif hwa cyrican gesece oþþe mine burh ⁊ hine man þær sece oþþe yflige þa þe ꝥ deð syn þær ylcan scyldige þe hit her beforan cwæð.
(2) If any one take refuge in a church or in my burh, and one there seek him or do him evil, be those who do that liable in the same that is heretofore ordained.
And ic nelle ꝥ ænig fyhtewite oþþe man-bote forgifen sy.
(3) And I will not that any fightwite or manbot be forgiven.
This relaxation of the rules as to payment of wergeld seems to leave matters very much as they were, with the one exception that for the sake of peace and to lessen the risk of ‘manifold fightings,’ a year was given to the slayer’s kindred to save his life by helping him to pay the wergeld if they chose, while if they chose to forsake him and did not harbour or help him in any way they were free. The kindred of the slain in the meantime were left to pursue their feud but only upon the slayer. This of course was another instance of the partial breaking down of the ancient tribal solidarity of the kindred in favour of the principle, long before adopted in some of the Continental codes, limiting the punishment of crime to the criminal himself.
Whether this innovation of King Edmund’s was adhered to the evidence of the Laws of Henry I. may lead us to doubt, but for our purpose the law making the innovation is evidence of the ancient solidarity of the kindred, the attempt to loosen which had become necessary in the tenth century.
How wergelds were to be paid.
A clause which follows shows that it was expected that wergelds would still be paid:—
Witan scylon fæhðe settan ærest æfter folc-rihte slaga sceal his for-specan on hand syllan ⁊ se for-speca magum ꝥ se slaga wille betan wið mægðe. þonne syþþan gebyred ꝥ man sylle þæs slagan for-specan on hand ꝥ se slaga mote mid griðe nyr ⁊ sylf wæres weddian. Ðonne he þæs beweddod hæbbe þonne finde he þærto wær-borh, þonne ꝥ gedon sy þonne rære man cyninges munde of þam dæge on xxi niht gylde man heals-fang. þæs on xxi niht manbote. þæs on xxi niht þæs weres ꝥ frum-gyld.
(7) The Witan shall appease feuds. First according to folkright the slayer shall give pledge to his forespeca and the forespeca to the kindred that the slayer will make bot to the kindred. Then after that it is requisite that security be given to the slayer’s forespeca that the slayer may in peace come near and himself give wed for the wer. When he has given wed for this let him find thereto a werborh. When that is done let the King’s mund be levied. Within 21 days from that day let the halsfang be paid. 21 days from that the manbot. 21 days from that the frumgeld of the wer.
Earlier statement of how wergelds were to be paid.
The further course of procedure is best given in the earlier fragment alluded to.
The werborh.
The fragment[235] is headed ‘How a twelve-hyndeman shall be paid for.’ It opens with the statement, ‘A twelve-hyndeman’s wer is twelve hundred scillings. A twy-hyndeman’s wer is two hundred scillings.’ And then it proceeds:—
Gif man ofslægen weorðe gylde hine man swa he geboren sy. And riht is ꝥ se slaga siþþan he weres beweddod hæbbe finde þærto wær-borh be þam þe þærto gebyrige ꝥ is æt twelf-hyndum were gebyriað twelf men to werborge, viii fæderen-mægðe ⁊ iiii medren-mægðe.
If any one be slain let him be paid for according to his birth. And it is right that the slayer after he has given wed for the wer find in addition a werborh according as shall thereto belong, that is to a twelve-hynde’s wer twelve men are necessary as werborh, viii of the paternal kin and iv of the maternal kin.
This is in accordance with the clause in Alfred and Guthrum’s compact, which, however, makes the additional provision by way of precaution that one of the twelve co-swearers must be a king’s-thane. The clause continues:—
The king’s mund.
Ðonne ꝥ gedon sy þonne rære man cyninges munde, ꝥ is ꝥ hy ealle gemænum handum of ægðere mægðe on anum wæpne þam semende syllan ꝥ cyninges mund stande.
When this is done, then let the king’s mund be established, that is, that they all of either kindred, with their hands in common upon one weapon, engage to the mediator that the king’s mund shall stand.
The king’s mund-byrd, as we have seen, was equal to five pounds according to both English and Kentish custom.
The heals-fang.
Of þam dæge on xxi nihtan gylde man cxx scill. to heals-fange æt twelf-hyndum were. Heals-fang gebyreð bearnum broðrum ⁊ fæderan ne gebyreð nanum mæge ꝥ [feoh] bute þam þe sy binnan cneowe.
In xxi days from that day let cxx shillings be paid as heals-fang at a twelve-hynde’s wer. Heals-fang belongs to the children, brothers and paternal uncles: that money belongs to no kinsman except to those that be within the knee.
The manbot and fightwite and then the wergeld.
Of þam dæge þe ꝥ heals-fang agolden sy on xxi nihtan gylde man þa man-bote þæs on xxi nihtan ꝥ fyht-wite þæs on xxi nihtan þæs weres ꝥ frumgyld ⁊ swa forð ꝥ fulgolden sy on þam fyrste þe witan geræden. Siþþan man mot mid lufe ofgan gif man [wille] fulle freondrædene habban.
In xxi days from the day that the heals-fang is paid let the manbot be paid. In xxi days from this the fightwite. In xxi days from this the ‘frumgyld’ of the wer; and so forth till it be fully paid within the time that the witan have appointed. After this they may depart with love if they desire to have full friendship.
Eal man sceal æt cyrliscum were be þære mæðe don þe him to-gebyreð swa we be twelf-hyndum tealdan.
All men shall do with regard to the wer of a ceorl that which belongs to his condition like as we have said about a twelve-hyndeman.
These steps in the procedure are very nearly the same as those quoted in the so-called ‘Laws of Henry I.’ and these clauses may probably be looked upon as more or less repeating for the benefit of both peoples what Anglo-Saxon custom may have been before the Viking invasions of England. But of this we cannot be certain.