II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAWS.

The Gulathing law.

In approaching the consideration of the Scandinavian custom as to wergelds and the structure of tribal society as disclosed in the ancient laws, I do it with great diffidence, especially as, for the translation of Old Norse, I am dependent on others.

On the whole it seemed best to concentrate attention upon the Gulathingslög as the oldest of the Norse laws. The Danish and Swedish laws and the Grágás of Iceland no doubt under competent hands would yield valuable additional evidence, but the oldest of the Norse laws may probably be fairly taken as the most representative of early Northern custom, and at the same time most nearly connected with the object of this inquiry.

Geographically the Gulathing law was in force in the southern portion of Norway. It seems to have embraced, in about the year 930, three, and afterwards six, fylkis or districts each with its own thing and local customs.[174] In this respect it resembled the Frisian and Saxon laws, both of which recognised, as we have seen, the separate customs of tribal divisions contained in the larger district over which the laws had force.

The Gulathing law must therefore be regarded as in some sense a compilation or collection of customs rather than one uniform law. For instance, there are three or four separate descriptions of the wergeld and the modes of its payment and receipt. One of these is avowedly of later date. The older ones may probably describe local variations of general custom, belonging to one or another of the divisions, and even these bear marks of later modification and additions.

As usual, the introduction of Christianity was the occasion and perhaps the cause of the compilation, and therefore from the time of the formation of Dioceses by King Olaf (A.D. 1066-93) ecclesiastical influence must be expected. But on the whole this Gulathing law presents in some points a far more interesting and instructive picture of social conditions resulting from tribal custom than the laws of other tribes already examined of much earlier date.

The Frostathing law.

The next important of the ancient laws of Norway is the Frostathingslög belonging to the more northerly district of Drontheim. Without pretending to have made it the subject of special study, I have here and there found it useful in elucidation of the Gulathing law, and as showing that tribal custom, though with local variations, was in force over a wider district than that under the Gulathing law.

The question of the structure of tribal society and the division of classes in Norway may be most conveniently approached from the point of view of the rett or ‘personal right,’ somewhat analogous to the Irish ‘honour-price’ and the Welsh ‘saraad.’

Grades of personal ‘rett.’

Both in the Gulathing law and in the Frostathing law this personal ‘rett’ lies at the root of the graduated payments for insults, wounding, and homicide. And the statements of it are practically identical in the two laws. They are as follows:—

Gulathing (200)			Frostathing (X. 35)
Leysing	6	ores	Leysing before freedom’s ale	4	ores
Leysing	6	ores	Leysing after freedom’s ale	6	ores
Leysing’s son	8	”	Leysing’s son	8	ores	or 1 mark
Bónde	12	”	Reks-thane [175]	12	ores
			Árborinn man [176]	16	ores	or 2 marks
Hauldman [177]	24	”	Hauldman	24	ores	or 3 ”
Lendman and Stallare	48	”

The chief difference is that the Frostathing law divides the leysings into two classes, a significant point on which important considerations turn.

The things for which full rett was paid may be described as insults. If a man were knocked down, even if he fell on his knees, or if his moustache were ‘seized with hostile hand’ (195), or if a man were called ‘a mare or bitch,’ these were insults for which full rett was to be paid (196).

The payments for inflicting serious wounds (sár) were regulated in the same gradations according to rank as the rett, but were threefold in amount. These payments were made in ‘baugs’ or rings, each of twelve ores of silver.

Gulathing Law (185)			Frostathing Law (IV. 53)
Leysing	1	ring
Leysing’s son	2	rings	Leysing	2	rings
Bónde	3	”	Reks-thane	3	”
			Ár-borinn man	4	”
Odal-born man [178]	6	”	Hauld	6	”
Lend-man and Stallare	12	”	Lend-man	12	”
Jarl	24	”	Jarl	24	”
King	48	”	King	48	”

These were the penalties paid by the person inflicting the wound—i.e. three times his own rett—and besides this he had to pay sár-bót according to the extent and character of the wound, as in other laws. He also had to pay the healing fee (185) of the injured person.

The hauld or odal-man the typical tribesman.

Passing from insults and wounds to homicide, throughout the Gulathing law the hauld, or odal-born man, is taken as the typical tribesman. His wergeld is described, and then the wergelds of other classes are said to vary according to the rett.

But before we consider the wergelds it must be remarked that here, as elsewhere, there is no wergeld for a murder within the family.

In clause 164 under the heading of ‘A madman’s manslaying’ is the following:[179]

Nu hever maðr óðz mannz víg vigit, vigr sunr faður, æða faðer sun, æða bróðer bróðor, æða systkin eitthvert, æða vigr barn móðor sína, æða móðer barn sitt, þá firi-vigr hann arve þeim er hann átti at taca. Scal sá þann arf taca er nestr er þá, oc helldr scal konongr hava en hann. En hann være í lande, oc gange til skrifta, oc have sitt allt.

Now if a man has done the slaying of a madman, if a son slays his father, or a father his son, or a brother his brother or any of his sisters and brothers, or a child slays its mother or a mother her child, then he forfeits the inheritance he ought to take. The one next to him in kin takes that inheritance, and the King shall have it rather than he. But he shall stay in the land and be shriven and keep all that is his.

No wergeld within the family.

In the Gulathing law the kindred within which there is no wergeld is thus the actual family, and it is in full accord with the instance in Beowulf in which the old father is represented as having to put up with the presence of a son by whose arrow another of his sons had been slain, such a crime being one which under tribal custom could not be avenged.

Turning now to the amount of the wergeld of the Gulathing law and the Frostathing law, it must again be remarked that there are in these laws varying accounts of it.

The wergeld of the Frostathing law of later date awarded in marks of gold.

In the first place there are some avowedly of later date than others. Thus, in Frostathing VI. 1 the description of the wergeld is commenced as follows:—

Her hefr upp oc segir í frá því er flestum er myrkt oc þyrftu þó marger at vita, fyrir því at vandræði vaxa manna á millum en þeir þverra er bæði höfðu til vit oc góðan vilja, hvesso scipta scylldi ákveðnum bótum ef þær ero dœmdar, fyrer því at þat er nú meiri siðr at ánemna bœtr, hvesso margar mercr gulls uppi sculu vera epter þann er af var tecinn, oc velldr þat at marger vito eigi hvat laga bót er, er þó at vissi, þá vilia nú fáer því una. En Frostoþings bóc scipter lagabót hveriom epter sínum burð oc metorði, en ecki hinum bótum er þeir ofsa eða vansa er í dómum sitia oc sáttmál gera.

Here begins and is told that which to most is dark and yet many had need to know, because difficult matters increase among men and those grow fewer who both had the wits and the goodwill for it,—how to divide the fixed bóts (bœtr) if they are adjudged, for it is now more the custom to fix the bóts, how many marks of gold shall be paid on account of him who was slain, and the cause of that is that many know not what the lawful bót is, and though they knew it, few will now abide by it. But the Frostathing book divides the lawful bót to every one according to his birth and rank, and not those bóts (bœtr) which they that sit in courts and make terms of peace put too high or too low.

Here the writer clearly refers back to the ancient Frostathing book as the authority for the ‘lawful bót,’ but on examination he seems to add certain additional bóts which the courts now include in the round amount of so many gold marks awarded by them in each case as it comes before them.

The writer takes first the case of an award of six marks of gold and describes how it is to be divided, and then the case of five marks of gold, and so on.

Division of it in silver marks at ratio of 1:8.

The division is throughout made in silver marks, ores, ortugs, and penningar. But when the items are added up, the total in silver divided at the ratio of 1:8 brings back the result as nearly as may be to the number of gold marks from which the division started. Thus in the clause describing the division of the wergeld of six marks of gold, the silver items add up to 48 marks exactly, and the division of this by 8 brings back the amount to six marks of gold. And so in the clause dividing five marks of gold, the items seem to add up to one ortug only less than 40 silver marks, and again a division by 8 brings the amount sufficiently near to five marks of gold.

The group of Bauga men. The other group of Nefgildi-men.

In each case, however, the writer adheres to the same scheme of division. When he has 6 gold marks to divide he first assigns 18 silver marks to Bauga men (i.e. the near group of kinsmen of male descent on the paternal side only), and then he adds half as much (i.e. 9 marks) to a group of Nefgildi-men[180] among whom are included, with others, kinsmen of descent through females on both paternal and maternal sides. So that these two groups of Bauga men and Nefgildi get 27 marks. In all cases he makes the group of Nefgildi receive only half the amount received by the Bauga group, the whole amount being reduced according to the number of gold marks to be divided. After the amount allowed to these two groups, the remainder is made up of additional payments some of which he expressly declares were not included under old law. Thus (in clause 6) he adds an amount which he says was ‘not found in the old Frostathing book’ and justifies it by saying that there would be danger to the slayer if it was not paid. And so again (in clause 9), there are additions for half-brothers, half-brothers’ sons, &c., of the same mother. And these additions are included in the six marks of gold ‘according to new law.’

Evidently, therefore, we must not take these wergelds of six and five marks of gold with their divisions as representing the ancient customary wergelds of this class or that in the social scale, but rather as showing the extent to which the system of wergelds had become somewhat arbitrarily expanded and elastic in later times. The total amount with additions was apparently increasing as time went on.

Later statement in the Gulathing law.

As in the Frostathing law so also in the Gulathing law (clause 316, p. 104) there is a statement of wergeld, avowedly of a late date and added under the name of Biarne Marðarson, who lived about A.D. 1223. And this, too, seems to belong to a time when the amount of the wergeld was awarded by some public authority in so many marks of gold. He takes the case of a wergeld of six marks of gold and shows how it ought to be divided; and then the case of a wergeld of five marks of gold and shows how that should be divided—‘What each shall take of five marks of gold’ and so on—just as was done by the writer in the Frostathing law.

One might have supposed from this that, as the method of awarding fixed amounts and the amounts to be divided in gold marks were the same, so the groups and the persons included in them would have corresponded also. But they differ considerably.

Biarne Marðarson up to a certain point follows the same scheme as the writer in the Frostathing.

In his division of six marks of gold he, too, draws a line at the amount of 27 marks, and he also divides this amount into thirds and gives two thirds to one group and one third to the other. The son of the slain and the brother of the slain form the first group and take 18 marks, and a second group take 9 marks, the two together taking 27 marks.

The group who together take 9 marks, like the Nefgildi-men of the Frostathing, embraces however by no means the same relatives as are included in the latter. The only persons included are the father’s brother and his children, i.e. first cousins or brœðrungs of the slain, but among them are included the sons of concubines and of female first cousins. And after the mention of these is the statement, ‘All that these men take amounts to 27 marks and 2 aurar.’ Out of the remainder of the 6 gold marks or 48 silver marks other relations take to the ‘fifth man’ on the male line and the sixth on the female line.

Biarne Marðarson seems, like the writer in the Frostathing law, to have had to some extent a free hand in the division. It is clear that there was much variety in the course adopted. Nor does he seem to have been by any means so systematic and accurate as the other writer. The silver amounts, when added up, do not so accurately correspond with the six gold marks to be divided.

Earlier wergeld of the Gulathing law. In silver marks and cows.

We turn, then, from these later statements to what seems likely to be an older statement of the Norse wergeld, viz. that which commences at clause 218 of the Gulathing law.

It describes the division of the wergeld of a ‘hauld’ or ‘odal-born’ man, and it begins with the explanation that the ‘mannsgiöld’ or wergeld decreases and increases from this as other retts.

It describes the various amounts both in silver marks and in cows, which the other statements do not, and this, so far as it goes, is a sign of antiquity.

In clause 223 is inserted a statement of the various things in which wergelds may be paid. The only item the value of which is given is the cow, which is to be taken at 2½ ores if not older than eight winters and if it be ‘whole as to horns and tail, eyes and teats, and in all its legs.’ And this silver value of the cow—2½ ores—is the one used in this older description of the wergeld.

The wergeld according to this statement consists of bauga payments and upnám payments. The first are received in three baugs or rings thus:—

The 64 cows of the Bauga group.

Höfuð (head) baug, taken by the son and the father of the slain	10	marks	or	32	cows.
Bróður baug, taken by brother, or if none, by the son of the slain	5	marks	or	16	cows.
Brœðrungs baug taken by the father’s brother’s son, i.e. first cousin of the slain	4	marks	or	13	cows - ½ ore.
	19	marks	or	60	cows + 2 ores.
To this is added for women’s gifts, i.e. the mother, daughter, sister, and wife of the slain, or in default to the son of the slain	1	mark	or	3	cows + ½ ore.
Total	20	marks	or	64	cows.

After this statement is the declaration, ‘Now all the baugs are counted.’

A clause is here interpolated changing the point of view so as to show how, and by whom on the slayer’s side the same three baugs were paid.

Nú scal vigande bœta syni hins dauða hafuðbaug.

(222) The slayer shall pay to the son of the dead the höfuð baug.

En bróðer viganda scal bœta brœðr hins dauða bróðor baug, ef hann er til, ellar scal vigande bœta.

The slayer’s brother (if he has one) shall pay to the brother of the dead the bróður baug; otherwise the slayer shall pay it.

Nú scal brœðrongr viganda bœta brœðrongi hins dauða brœðrongs baug, ef hann er til, ellar scal vigande bœta.

The brœðrung of the slayer (if he has one) shall pay to the brœðrung of the slain the brœðrungs baug; otherwise the slayer shall pay it.

Sá er sunr hins dauða er við giölldum tecr, hvárt sem hann er faðer æða bróðer, æða hvigi skylldr sem hann er.

He is [reckoned] the son of the dead who takes the giöld, whether he is father or brother or however he is related.

Then follows the declaration, ‘Now the baugs are separated’ (‘Nú ero baugar skildir’).

It seems clear, then, that the slayer was in the last resort responsible for the whole of these baug payments, as it was the son of the slain who would take any part of them lapsing through failure of the designated recipients.

Women’s gifts.

The small payments to the mother, daughter, sister, and wife included in the baug payments are evidently additional and exceptional payments in regard to close sympathy. The slayer does not make these payments. It is expressly stated that they are made ‘by the kinswomen of the slayer,’ but they are included in the even amount of 20 marks or 64 cows.

The recipients of the three baugs, it will be seen, were limited to the nearest relatives on the paternal side—fathers, sons, brothers, and first cousins—with no descent through females, while the recipients in the next set of groups or ‘upnáms’ include also relations through females: but, again, only males receive.

There is, however, one exception. In clause 231 is the following:—

Nú ero konor þær allar er sunu eigu til sakar, oc systr barnbærar. þá scal þeim öllum telia söc iamna, til þær ero fertogar.

All those women who have sons are in the sök (suit), and sisters capable of bearing sons. They shall all be held to have an equal part in it till they are forty.

Evidently they partake, as under Cymric custom, only in respect of possible sons who if born would partake themselves. Indeed, the sons only appear in the list of receivers and in no case the mother, except among the women’s gifts included as above in the baug payments.

The upnám group includes descendants of great-grandparents.

Clause 224 describes the upnám set of recipients as under. It will be seen that they include descendants of great-grandparents, but no more distant relations.

‘Sac-tal of upnáms or groups outside bauga men.’

1st upnám.

The slain person’s {	Father’s brother (i.e. uncle).
	Brother’s son.
	Mother’s father.
	Daughter’s son.

Each gets a mark from the slayer if a hauld be slain; and this amounts to 4 marks.

2nd upnám.

The slain person’s {	Father’s brother’s son (brœðrung).
	Brother’s daughter’s son.
	Mother’s brother.
	Sister’s son.
	Systling (? Father’s sister’s son).

Each gets 6 ores from the slayer if a hauld be slain; and this amounts to 3 marks 6 ores.

3rd upnám.

{	Mother’s sister’s son (systrung).
	Brœðrung’s child.
	Father’s brœðrung.
	Mother’s mother’s brother.
	Sister’s daughter’s son.

They get half a mark from the slayer if a hauld be slain (probably ½ mark each): i.e. 2 marks 4 ores, making the total of upnáms 10 marks 2 ores.

Total wergeld 30 marks or 96 cows.

Then follows the declaration, ‘Now all the upnám men are counted.’

If we add up the amount of the two sets of payments the result will be as follows:—

The three bauga payments of near relatives, with addition of women’s gifts	20	marks		or	64	cows.
The upnám payments within descendants of paternal and maternal great-grandparents	10	marks	2 ores	or	32⅘	cows.
	30	marks	2 ores	or	96⅘	cows.

As in the Frostathing law the nefgildi-men took as a group an amount equal to one half the amount of the bauga group, so here the upnám men do the same. Evidently this is the intention.

Wergeld of the hauld at 1:8 200 gold solidi, or roundly, 100 cows.

Now if we may take the bauga payments and the upnám payments as representing in intention 30 silver marks or 96 cows, then, at a ratio of 1:8, the 30 silver marks equalled, in wheat-grains, exactly 200 Merovingian gold solidi.[181] And this may have been the ancient wergeld of the hauld.

There is, however, in clause 235 a further payment mentioned extending ‘to the fifteenth degree of kinship’ and amounting to about 1 mark and 3 ores. Possibly (though I hardly think it likely) this formed a part of the original wergeld, and if it be added, it would increase the wergeld to 31 marks, 5 ores, and at 2½ ores to the cow the wergeld would be increased to 101⅕ cows. If we might take this as roughly aiming at the round number of 32 marks and 100 cows, the wergeld of the hauld would be, at the ratio of 1:8, four gold marks or 100 cows: i.e. in actual weight the heavy gold mina of 32 Roman ounces, which under Greek usage was divided into 100 staters or ox-units. The confusion between 96 and 100 cows is so likely a result of the application of Roman methods to the division of the mina that we need not regard it. That the one or the other of these amounts may have been the original wergeld of the hauld representing originally 100 cows is consistent at least with widely spread tribal usage.

This view is confirmed by the fact that the further payments mentioned in the Gulathing are distinctly abnormal ones, and so presumably added at a later date like those mentioned in the Frostathing law.

We are justified in so considering them, because in the laws themselves the persons to whom they were made are expressly called Sak-aukar, or ‘additional persons in the sak or suit.’ And when we examine them further we find that they were hardly likely to have been included among the original recipients of the wergeld.

Among those of clause 236 are the thrallborn brother and thrallborn son of the slain, and the half-brother by the same mother; and clause 239 extends the number to the son-in-law, brother-in-law, stepfather, stepson, oath brothers, and foster brothers. Evidently in these exceptional cases the rules of strict blood relationship have been broken away from, and additions have been made to the normal wergeld to stay the vengeance of persons sufficiently nearly connected in other ways to make them dangerous if left unappeased.

It was probably these additional payments, added from time to time in contravention of the strict rules of blood relationship, which caused the uncertainty of the later laws, and led to the new system of awarding a round number of gold marks as the total wergeld, included in which were additions intended to meet the introduction of half-blood and foster relations and others the risk of whose vengeance it seemed needful apparently in later times to buy off.

Returning, then, to the original wergeld of the hauld without these additions, we have seen that it consisted of two sets of payments, bauga payments and upnám payments, and possibly the small addition of those of more distant relations.

Now in the Gulathing law there are two other descriptions of the amount of the bauga payment, and it will be useful to examine them.

Another statement makes the bauga men pay 18 marks.

The first is to be found in clauses 179 and 180.

In clause 179 the payment for cutting off a hand or foot and for striking out an eye is said to be a half ‘giöld,’ and it is added:—

En ef allt er af einum manni höggvit hönd oc fótr, þá er sá verri livande en dauðr; scal giallda sem dauðr sé.

But if both hand and foot be cut off the same man, he is worse living than dead, and is to be paid for as if he were dead.

And then in the next clause, under the heading ‘About Giöld,’ is the following:—

Nú ero giölld töld í Gula; giallda haulld xviii mörcom lögeyris. Nú scolo þeðan giölld vaxa oc svá þverra sem rétter aðrer.

Now shall be told payments in Gula. A hauld shall be paid for with 18 marks of lawful aurar. Starting from this, the payments shall increase or decrease as other retts.

Now it would seem that this payment for the death of a hauld was not the whole wergeld but only the bauga part of it. No details even of the bauga payments of eighteen marks are given in this clause. It seems to be inserted in this place simply with reference to the full limit of payments for injuries. Liability for wounding, under Cymric custom, was confined to the kinsmen of the gwely, and so it may well be that under Norse custom it was confined to the bauga group.

But the amount in this clause is only eighteen marks, while that of the bauga payments of the wergeld we have just been considering, as probably the earlier one, was twenty marks. How is this to be accounted for? The answer surely must be that eighteen marks of Charlemagne, reckoned in wheat-grains, were exactly equal to twenty of the Roman or Merovingian marks of the earlier period.

Another detailed statement makes the bauga payment 18 or 20 marks.

The other statement alluded to is also a statement avowedly of the bauga payments, and begins with almost the same words, ‘Now the giöld for the hauld shall be told.’ In this case the details are given and the detailed payments add up between eighteen and nineteen marks, and yet the total is given as a little more than twenty marks.

This statement differs from the older one in its divisions, but it has an air of antiquity and reality about it which suggests that it may represent a local custom actually in force. Little touches of picturesque detail seem to bring it into contact with actual life, and to show how local custom might work out a common object by its own peculiar method.

It meets us abruptly in clause 243 under the heading ‘On baugar,’ and commences thus:—

Now the giöld for the hauld shall be told—

6 marks (of 12 ells to the ore) in the head-baug,

4 marks in the brother’s-baug,

2½ marks in the brœðrung’s baug.

It then introduces quite another element, viz. the tryggva-kaup (truce-buying).

Nú scolo fylgia tvau tryggva kaup baugi hverium.

Two tryggva-kaup shall go with every baug.

hvert scal eyrir oc fimtungr eyris tryggva kaup.

Each tryggva-kaup shall be 1⅕ ore.

En tryggva kaup scal fara bauga manna í mellom.

Tryggva-kaup shall go between bauga-men.

In the next clause it is explained that this ‘peace-price’ (sættar-kaup) is paid when the kinsmen come together to make peace, and that three marks are also paid as skógar-kaup—‘forest price,’ i.e. payment to release the slayer from being a skógar-maðr, or outlaw living in the forest.

The slayer pays a baug to the son of the dead, and two truce-prices, one to the brother and the other to the ‘brœðrung’ of the dead. And the slayer’s brother pays a baug to the brother of the slain and again two truce-prices, one to the son of the slain and the other to the brœðrung of the slain. And the brœðrung of the slayer pays a baug to the brœðrung of the slain and again two ‘truce-prices,’ one to the son and the other to the brother of the slain. All this is for peace-buying (sættar-kaup) when the kinsmen are met together to make peace.

Then, in clause 245, the women’s gifts are described. The slayer, his mother, his daughter, and his wife each give a gift of 1⅕ ore to the wife, mother, and daughter of the slain—making twelve gifts. The sister of the slayer gives a half gift to the sister, wife, daughter, and mother of the slain (two gifts), and the slayer, his mother, wife, and daughter, each give a half gift to the sister of the slain, making the number of women’s gifts sixteen in all.

The amounts thus stated add up as follows:—

Baug payments	12	marks	4	ores
6 truce payments	—		7⅕	”
Forest price	3	”	—
16 women’s gifts	2	”	3⅕	”
	18	marks	6⅖	ores

The amount aimed at seems to be 18 marks (the upnám payments being 9 marks), and yet the total is stated as follows:—

Now with baugar and with tryggvakaup and skógar-kaup and women’s gifts it is 20 marks and 2⅖ ores.

Absolute accuracy need not be expected, but there must be a reason for the difference between eighteen and twenty marks—between the detailed payments and the total—and it is difficult to suggest any other than the one already mentioned.

The total amount of the bauga payments seems to be the same in this as in the other statement, but a new element is introduced with an obvious and interesting object.

The bauga-men, as before, consist of three groups. The slayer pays the baug to the son of the slain and appeases the other two groups by payment to each of them of a truce-price, so that to all the three bauga groups of the relations of the slain he has acknowledged his wrong and desire to make composition. And so in each case the representative of the other two groups of slayer’s relations pay the baug to the corresponding group of the relatives of the slain and a truce-price to the other two, so that no relation of the slain could after this point to any individual as not having joined in the payment to himself or his group.

The women most deeply concerned on both sides are also present at the gathering. And each of those connected with the slayer is prepared with her gift of 1⅕ ore for the corresponding relative of the person slain.

Women’s gifts were included in the bauga payments in the other statement also.

The clauses relating to the bauga payments are followed by three others, headed ‘On saker,’ and the further recipients of wergeld, as before, seem to be divided into upnáms and sakaukar, but in this case there is a strange mixture of the two. The mother’s brother and the sister’s son are excluded from the upnáms to make way for the half-brother by the same mother of the thrallborn son.

Clause 246, ‘On saker,’ gives twelve ores to each of the following, who in clause 250 are called upnám men.

Father’s brother	12 ores
Brother’s son	12 ”
Brother by the same mother	12 ”
Thrallborn son	12 ”
Daughter’s son	12 ”
Mother’s father	12 ”
	72 ores	= 9 marks.

So that the bauga and upnám payments—two thirds and one third—added together once more make a normal wergeld of twenty-seven marks, that is, thirty of the Merovingian standard.

Then clause 247, ‘Further on saker,’ gives to—

Mother’s brother	9 ores
Sister’s son	9 ”
Thrallborn brother	9 ”
Father’s sister’s son	6 ”

The whole wergeld 2 marks of nova moneta or 30 Roman marks.

And in clause 248 ‘further on saker,’ a thrallborn father’s brother and a thrallborn daughter’s son by a kinborn father, take each a mark.

The traditional wergeld seems, therefore, once more to be 27 marks of Charlemagne or 30 Merovingian marks, and the additional payments appear to be sakaukar. But the upnám group in this case includes the brother by the same mother and the thrallborn son, leaving outside as sakaukar the mother’s brother and the sister’s son and the father’s sister’s son along with the thrallborn brother.

Payments to outsiders additional to secure safety, and varied locally.

It is not within the scope of this inquiry to attempt either to explain, or to explain away as of no moment, the variations in the persons included under the various schemes in the groups of bauga and nefgildi or upnám men. Even such a question as that of the exclusion from the upnám group of the mother’s brother and the sister’s son, to make way for the illegitimate half-brother and thrallborn son, is not necessarily to be disposed of as a later alteration in favour of those of illegitimate birth. For the Cymric precedent might well lead us to an opposite conclusion, inasmuch as in the laws of Howell, in spite of strong ecclesiastical opposition, the ancient pagan custom of admitting illegitimate sons to share in the father’s inheritance was defended and retained as too fully established to be given up.[182] Looked at from the point of view of the feud, they were naturally more on the spot and therefore of much more moment than the mother’s brother or the sister’s son.

Professor Vinogradoff [183] has suggested that the evidence of Norse and Icelandic wergelds seems to point to an original organised group of agnates who were bauga men and formed the kernel of the kindred liable for wergeld as contrasted with after additions of relations on both paternal and maternal sides and others more or less nearly concerned. The Cymric precedent would lead us to expect to find thrallborn sons as well as legitimate sons among the bauga men without any special mention as such. Under Christian influences they may have been excluded from this group to find a place ultimately, sometimes with special mention, in the upnám group.

It may or may not have been so, according to the stage of moral growth arrived at in the particular case of this tribe or that, at the particular period in question. Hence, although under Norse custom the amount of the normal wergeld of the hauld may have been constant, the way in which it was divided and the group responsible for its payment may well have varied from time to time and in different districts.

It has already been noticed that even under the later methods of awarding as wergeld an even number of gold marks, both the Gulathing and the Frostathing laws, in the case of the award of 6 marks of gold, draw a line, the one at 18 and 27 marks and the other at 20 and 30 marks, as though these amounts had a strong traditional sanction. Even in the case of the lower awards the scheme of division being the same with proportionately lessened figures, this portion of the wergeld was always divided into two thirds of bauga payments and one third of nefgildi or upnám payments. This seems to be strong evidence that, although the persons forming the groups may have differed, the two groups formed originally an inner and an outer kernel of the wergeld proper, the additions to which may fairly be regarded as sakaukar.

The repetition of evidence in both laws that the bauga payment of two thirds was followed by another third of nefgildi or upnám payments, when connected with the further fact that the two together made an amount which was, at the value of the cow stated in the laws, equated with 96 or 100 cows, seems to confirm the hypothesis that in this amount we have the normal wergeld of the hauld. To Professor Vinogradoff’s suggestion that the bauga payments may have formed an original inner kernel of the wergeld we may therefore perhaps add that the nefgildi and upnám payments may have formed an outer shell of the kernel, and that both may have been included in the original normal wergeld of 96 or 100 cows.

Wergelds of the several grades of social rank.

Finally, if this may fairly be taken to be the wergeld of the hauld, then, recurring to the repeated statement in the Gulathing law that the wergeld of the hauld being told, the wergelds of others ‘varied according to the rett,’ the wergelds of the several classes in Norse social rank may, it would seem, with fair probability be stated as follows:—

—	Rett in silver ores	Wergeld in silver ores	Wergeld in cows
Leysing before freedom ale	4	40
” after ” ”	6	60	24 or 25
Leysing’s son	8	80	32
Bónde	12	120	48 or 50
Ár-borinn or Ættborinn-man	16	160	64
Hauld or Odal-born	24	240	96 or 100

The significance of these gradations in the retts and wergelds of Norse tribal society will become apparent in our next section.