III. LEGES INTER BRETTOS ET SCOTOS.
Norman French version thirteenth century.
The remarkable document printed separately in Appendix III. of the ‘Ancient Laws of Scotland’ under the above title is given in three languages—Latin, Norman French, and Scottish English.
The oldest version of it is that of the ‘Berne Manuscript,’ now in the ‘Register House’ at Edinburgh, which is considered to be of the thirteenth century. It appears in this manuscript as a separate document in Norman French, and therefore it would seem that we owe this statement of ancient custom to a Norman scribe. The Latin version added to the ‘Regiam Majestatem’ is of later date. The earliest manuscript is of the fourteenth century.[206]
As given in the ‘Regiam Majestatem’ it consists of four clauses, LV. to LVIII.
The cro and galnes.
The clauses are headed ‘Quid sit le cro quod anglice dicitur “grant before the King,”’ ‘De occisis in pace Regis,’ ‘De Kelchyn regis et aliorum dominorum Scocie,’ and ‘De effusione sanguinis.’
It is printed in Appendix III. of the ‘Ancient Laws of Scotland’ among the ‘capitula vetustiora’ under the heading ‘Leges inter Brettos et Scotos.’ The Norman French of the Berne manuscript is accompanied by the Latin from the ‘Regiam Majestatem’ and a Scottish-English version of unknown date.
The first clause is as follows:—
De cro quod anglice dicitur grant befor the Kyng.
De cro le Rey descoce & des altres choses.
Her folowis lee Croo.
Statuit dominus rex quod le Cro domini regis scocie est mille vacce vel tria millia orarum aurearum scilicet tres ore pro vacca. Item le Cro filii regis vel vnius comitis scocie est septies viginti [et decem] vacce vel tres ore pro vacca.
Cro le rei descoce est · mile vaches · u · treis mil ores · e fet a sauer treis ores · a la vache. Cro a vn conte descoce · v del fiz le Rei · viiˣˣ · vaches · ⁊ x · ov · iiiiᶜ ⁊ · L · ores.
Þe lord þe king has statut þat þe Croo of þe king of scotland iᵐ ky or iiiᵐ orarum aurearum bot iii ar for þe kow. Item þe Croo of þe kingis soune or of ane erl of scotland is vii tymes xxᵗⁱ ky and ten ky.
Item le Cro filii vnius comitis vel vnius thani est centum vacce.
¶ Cro a vn fiz a cunt ou a vn thayn · est · C · vaches · u · treis · C · ores.
Item þe Croo of þe sone of ane erl or of a than is jᶜ ky.
Item le Cro filii thani est sexaginta sex vacce et due partes vnius vacce.
¶ Cro a fiz dun thayn · est · lxvi · vaches · ⁊ · ii · pars dune vache · ou · CC · ores.
Item þe Croo of þe sone of a thane is iiiˣˣ ky and vi ky and twapert a kow.
Item le Cro nepotis vnius thani vel vnius ogthiern est quadraginta quatuor vacce et viginti unus denariorum et due partes vnius denarii. Et omnes bassiores in parentela sunt rustici.
¶ Cro · del neuu · a vn thain · u · de vn ogettheyrn est · xliiij · vac͠c · ⁊ · xxi · đ · ⁊ deu pars dun deñ. E tu li plꝰ [bas] en le parente sūt vilayns · ⁊ vnt dreitᶻ a vilayn.
Item þe Cro of þe newow of a than or of ane ogethearn is xliiii ky and xxi penijs and twapert of a peny. Item al þir þat ar lawer þan þir in kyn ar callit carlis.
Item le Cro vnius rustici est sexdecim vacce.
¶ Cro a vn vileȳ · xvi · vac͠c.
Item þe cro of a carl is xvi ky.
Item le Cro cuiuslibet femine virum habentis est minor per terciam partem quam le Cro viri sui et si non habeat virum tunc le Cro ipsius est adeo magnum sicut le Cro fratris sui si quem habet.
¶ Cro a checune fēme q̃ barō at · est de la tierz partie mayns de son barō · et si ele nat nēt de barō · dūkes est le cro ausi gʳnt cū vne de se freres.
Item þe Croo of euerilk woman hafand husband is less be þe thridpert þan þe cro of hyr husbande. And gif scho has nocht a husband þan þe cro of hir is alsmekil as þe cro of hir broder gif scho ony broder has.
Item le Cro et le galnys et le enach vnius cuiusque hominis sunt pares scilicet in respectu de le enach feminarum suarum.
le cro ⁊ le galnis · ⁊ le enach a checū hōme sūt peirs · ceo est a sauer le enach · pur sa fēme.
Item þe Cro and þe gallnes and þe enauch of euerilkaman ar lik þat is to say in respic of enauch of þar wiffis.
It will be most convenient to put these payments of the cro and galnes into a tabular form.
| King of Scotland | 1000 | cows | = | 3000 | ores |
| King’s son and comes (earl) | 140 | cows | = | 420 | ” |
| Comes’ son and thane | 100 | cows | = | 300 | ” |
| Thane’s son | 66⅔ | cows | = | 200 | ” |
| Thane’s grandson or ogthiern | 44 | cows & 21d. and ⅔d. | |||
| All lower in parentela or kin and rustics | 16 | cows | |||
Thane’s wergeld 100 cows.
The cro and galnes seem to be substantially the same thing as the wergeld. The word ‘cro’ is of uncertain meaning. The ‘cro’ of the Brehon laws is translated ‘property.’ It seems also to have had the meaning of ‘death.’ The word ‘galnes’ can hardly be other than the Welsh galanas or wergeld. Whether the phrase ‘cro and galnes’ means two things or one thing, and if two things, what the distinction between them was, it is not easy to see. But evidently the two together made a single payment for each grade of rank. The payments, moreover, are expressed in cows as well as in ores and pence, and the payment of 100 cows seems to mark the thane as the typical and complete tribesman.
The two explanatory clauses introduce a third element, the ‘enach.’
The Cro of a woman having a husband is one third less than the husband’s cro, and if no husband she has the same cro as her brother.
The Cro and the galnys and the enach of every man are alike, that is to say in respect of the enach of their wives [i.e. one third less than the husband’s].
The enach, as already said, seems to be the honour-price of the Brehon law. We have seen that, according to the Scotch addition and Glanville’s clause, if a slave was injured by his master, he was to be set free and his freedom was to be in the place of any other ‘enach.’ This accords well with the Irish enec-lann and the Welsh saraad and the Norse rett, all of which referred to insult rather than bodily injury.
Payments for breach of peace of various persons.
The next clause relates to homicide ‘in pace regis’ or of other lords. We have already seen that in the laws of King David the manbote or payment to the king for breach of his peace, or for crime committed in his grith or precinct, was a thing distinct from the satisfaction to be made to the kin of the person slain ‘according to the assize of the Kynrik.’ In these early laws the payment for slaying a man in the king’s peace was, according to the corrected text, 180 cows. In the following clauses 180 cows are again the payment for breach of the king’s peace, but there are payments also for breach of the peace of other classes.
De occisis in pace regis.
Of þhaim þat ar slayn in þe peis of þe king and oþer lordis.
Si quis homo sit occisus in pace domini regis sibi pertinent nouies viginti vacce.
¶ Si hūme est ocys en la pes le rei · il a feit · ixˣˣ vac͠c.
Giff ony man be slayn in þe pes of our lord þe king til him pertenis ix tymis xxᵗⁱ ky.
Item si homo sit occisus in pace filii regis vel vnius comitis sibi pertinent quater viginti et decem vacce.
¶ Si hūme seit ocis en la pes · le fiz le rei · v en la pees vn cunte · ilur · a feit · iiijˣˣ · vacc · ⁊ · x.
Item gif a man be slayn in þe pes of þe sone of þe king or of ane erl til him pertenis iiij tymis xxᵗⁱ ky and x ky.
Item si homo sit occisus in pace filii vnius comitis vel in pace vnius thani sibi pertinent sexaginta vacce.
¶ Si hūme seit ocis · en la pees · al fiz dun cunt · v · de vn thain · ilur a feit · lx · vachis.
Item gif a man be slayn in þe pes of þe son of an erl or of a thayn till him pertinis iijˣˣ ky.
Item si homo sit occisus in pace filii vnius thani sibi pertinent quadraginta vacce. Item si homo sit occisus in pace nepotis vnius thani sibi pertinent viginti vacce et due partes vnius vacce.
¶ Si vn seit occis en la pees al fiz dun thain · ili a feit · xxvi · [· xl ·] vac͠c.
Item gif a man be slayn in pes of þe sone of a thayn til him pertenis xl ky. Item gif a man be slayn in þe pece of a nevo of a thayn til him pertinis xxᵗⁱ ky and twapert a kow.
The payments were as under:—
| If a man be killed in pace regis | 180 | cows. | } To the person in whose peace he was killed. |
| In that of the King’s son or comes | 90 | ” | |
| ” ” comes’ son or thane | 60 | ” | |
| ” ” thane’s son | 40 | ” | |
| ” ” thane’s grandson | 20⅔ | ” |
They seem to be very large, but they are not impossible, seeing that in the Norse law, while the wergeld of the hauld was 27 marks of silver or 96 cows, the payment to the king for the breach of his peace (frith-bot) was 40 marks, i.e. 128 cows.[207]
The Kelchin.
The next two clauses, under the heading ‘Kelchin’ or ‘Gelchach,’ seem to refer to insult or wounding, (the Welsh gweli = wound). And as the word enach does not occur again in the laws of Bretts and Scots it seems probable that it may have been included under this heading, and that the Kelchin or Gelchach, like the Irish enach and the Welsh saraad, referred quite as much to insults to personal honour as to bodily injuries.
De Kelchyn
Of lee Kelchyn
Item le kelchyn domini regis est centum vacce. Item le kelchyn filii regis vel vnius comitis est sexaginta sex vacce et due partes vnius vacce.
¶ Gelchach le rei · a · C · vacc · a cont v al fiz le rei · lx[vi] vac͠c · ⁊ · ii · pars deune vac͠c.
Item þe kelchin of our lord þe king is jᶜ ky. Item þe kelchyn of a sonne of þe kingis or of an erle is iijˣˣ ky [and sex ky and twapert of a kow].
Item le kelchyn filii vnius comitis vel vnius thani est quadraginta quatuor vacce viginti vnus denarii et due partes vnius oboli. Item le kelchyn filii thani est minor per terciam partem quam patris sui et sunt viginti nouem vacce vndecim denarii et tercia pars vnius oboli. Rusticus nichil habet de kelchyn.
¶ Gelchac · de thayn · v · de fiz a cunt · est xliiij · vac͠c · & · xxi · đ · ⁊ deus pars deune mayl.
Item þe kelchin of a thane or of þe sone of ane erle is xliiij ky and xxi peniis and twapert of a half peny. Item þe kelchin of þe sonne of a thane is les be thrid part þan of his fader þat is to say þar pertenis til him xxix ky and xi peniis and þe thrid part of a half peny. And a carl has na kelchin.
Item si uxor liberi ominis sit occisa vir suus habebit le kelchyn parentes eius habebunt le cro et le galnes.
¶ Si fēme a vn franc hūme est ocis · son barō auera le kelchin · ⁊ ses parens auerūt le cro & le galnis.
Item gif þe wif of a fre man be slayn hyr husband sal haf þe kelchyn. And hir kyn sal haf þe cro and þe galnes.
Item si uxor rustici sit occisa dominus ipsius terre in qua manet habebit le kelchyn et parentes eius le cro et le galnes.
¶ Et si fēme a vileyn seit ocis · le seygnur del fe v le vilein meint auera le kelchin · ⁊ le vilein auera le turhochret a sa fēme del kelchin · ⁊ le parens [le cro] et le galnis.
Item gif þe woman of a carl be slayn þe lord in quhais lande he duellis sal haf þe kelchin and hyr kyn sal haf þe cro and þe galnes.
Payments for blood drawn.
De effusione sanguinis
Of blude drawyn
Item sanguis de capite vnius comitis aut filii regis sunt nouem vacce. Item sanguis filii comitis aut vnius thani sunt sex vacce. Item de sanguine filii thani tres vacce. Item de sanguine nepotis thani due vacce et due partes vnius vacce. Item de sanguine vnius rustici vna vacca.
¶ Le saūc de la teste a vn cūte v · del fiz al rei · est · ix · vaches · del thayn · v del fiz al vn cūte · vi · vachis · del fiz al vn thayn · iij · vac͠c.
Þe blude of þe hede of ane erl or of a kingis son is ix ky. Item þe blud of þe sone of ane erle is vi ky or of a thayn. Item þe blude of þe sone of a thayn is iij ky. Item þe blud of þe nevo of a thayn is twa ky and twapert a kow. Item þe blud of a carl a kow.
De sanguine extracto subtus anhelitum est minus per terciam partem in omnibus supradictis.
¶ Le saunc de suz le alayn · est de la terce parte meyndre.
Item blude drawyn vnder þe aand is thrid pert les of al þir gangand befor.
Et si mulier non habeat virum ius suum erit sicut ius fratris sui si quem habeat.
⁊ ensemēt de lur fēmes est saunc est del tꝰce part mayndre · mes si fēme seit sen baron ··· dūkes ad ele tel dreitur · com sun frere.
And gif a woman haf nocht a husband hyr rycht salbe as of her broder gif scho ony broder has.
Item percussio sine sanguine effuso decem denarii.
Item strikyn without blud drawyn x penijs.
···· ¶ Et si hūme est ocis en le ost · sun seingnʳ · auera le kelchin · ⁊ ses parens le cro · e le galnis · ⁊ le rei · viij · vaches · flatha.
Put into a tabular form these payments are as follows:—
Kelchyn or Gelchach
| King | 100 | cows | |||||
| Son of King or comes | 66⅔ | ” | |||||
| Son of comes and thane | 44 | ” | and | 21 d. | and | ⅔ | ob. |
| Son of thane | 29 | ” | ” | 11 d. | ” | ⅓ | ” |
| Rusticus or carl | nil |
De effusione sanguinis or of blude drawyn.
| Blood drawn from the head of a | |||
| Comes or King’s son | 9 | cows | |
| Comes’ son or thane | 6 | ” | |
| Thane’s son | 3 | ” | (? 4) |
| Thane’s grandson | 2⅔ | ” | |
| Rusticus | 1 | cow | |
| Blood drawn subtus anhelitum one third less than above it. | |||
| If a woman have not a husband her right shall be as her brother, if she has one. | |||
| Striking without blood drawn 10d. | |||
That we are right in supposing the kelchin to be analogous to the Welsh saraad seems to be confirmed by the interesting additional information appended to the clauses.
And if the wife of a freeman is slain her husband has the Kelchyn and her kin the Cro and galnes.
Item if the woman of a carl be slain, the lord of the fee where he dwells shall have the Kelchin and the vilein shall have his wife’s turhochret of the Kelchin and her kin shall have the cro and the galnes.
If a man be killed in the host, his lord shall have the Kelchin and his parentes the cro and the galnes and the King eight cows flatha.
These clauses of explanation are very important when we try to understand the laws to which they are appended as a whole.
The thane’s wergeld the normal one of 100 cows.
Commencing with what seems to be the wergeld, the ‘cro and galnes’ of the thane, who may be taken as the typical freeman, was 100 cows. We have seen that the value of the cow was three ores of silver or, at a ratio of one to eight, 192 wheat-grains of gold. The wergeld was therefore, not only the usual round number of 100 cows, but also in gold value, like that of the Cymric codes and so many others, exactly 19,200 wheat grains or 200 gold solidi.
If we try to trace the connection of this wergeld with those of other tribes, the coincidence with the normal wergeld does not help us much.
It is the same as the Welsh galanas of the uchelwr, and the use in the laws of Cymric and Gaelic words might lead us to look upon the wergeld as a Celtic one. But the equality in the payment is in gold and not in the number of cows. The cro of the thane was 100 cows. The galanas of the Welsh uchelwr was 120 cows. Moreover, the cows in which the Welsh galanas was paid were equated with three scores of silver, i.e. three Saxon ounces of 20d., while the cows in which the cro was paid were equated with three ores of 16d. And this seems to point to a Danish connection.
All these things taken together seem to point to a mixture and confusion of influences rather than to a single origin.
The gradations of rank and position disclosed by the amount of the cro or wergeld seem to be based upon family seniority, and to have a character of their own.
The gradations of rank in the family.
The King of course stands at the head of the list with a cro of 1000 cows. His son takes equal rank with the earl with a cro of 140 cows. The earl’s son is of equal rank with the thane, and they have a cro of 100 cows. Then comes the thane’s son with a cro of one third less, or 66⅔ cows, and next the thane’s grandson with a cro one third less again, of 44 cows and 21⅔ pence. All below this in parentela or kin are classed with rustics or carls, with a cro of 16 cows.
Looking at the position of persons at any given moment, from the point of view of the thane, he has the earl and the king above him and the earl’s son as his equal in rank. Their children and grandchildren belong still to the chieftain class, but they are juniors or cadets of the class. Even the grandchildren of the thane are ogthierns, or young thanes. In natural course they may presumably take their father’s rank on his death, but not until that happens. And possibly only the eldest son of the earl or of the thane succeeded to the official position of chieftain of his house.
Beyond this there is not much more to be gathered concerning the gradations in social rank. Nor are we told anything about the division of the amount among the members of the kindred receiving or paying the cro as the case might be. We are told only that the cro and galnes belonged to the kin of the person slain.
Turning from the cro and galnes to the kelchin: what are we to make of it?
The kelchin like the Welsh saraad for insult.
The gradations resemble those of the cro to this extent, that the kelchin of each grade was one third less than that of the one above, but the kelchin was no direct fraction of the cro. The kelchin seems, as we have said, to be something like the Welsh saraad for insult or wounding, the Irish enec-lann or honour-price, and the Norse rett or ‘personal right;’ but it does not seem to correspond altogether with any one of them.
All we know is that on the homicide of a person, whoever he might be, in addition to the cro and galnes, the kelchin had to be paid. But it was a payment which, like the Cymric saraad, according to the interesting explanation given, did not go with the wergeld proper to the kindred or relations in blood. When a wife was slain, the husband, who was not a blood relation or of the kindred of the wife, took the kelchin, while the wergeld proper—cro and galnes—went to her kindred.
Each grade had a precinct and a fine for breach of it. But not the carl or rustic.
Turning to the payment which had to be made for breach of the peace or protection of the lord, it was a payment due to the king if the homicide were perpetrated ‘in pace regis,’ and to a person of each grade in succession, even to the thane’s grandson, in case the homicide were committed within his precinct. Only the carl or rustic received no payment, as presumably he was living on the land of a lord, who would, therefore, claim it.
The position of the carl or rustic, or in Norman French the vilein, is interesting. If his wife was killed the lord took the kelchin. The homicide was reckoned as an insult and loss to him. The wergeld did not go to the husband but to the kindred of the wife, as in the case of those of higher grade. So that, so far as this at least, there was recognition of kindred in the rustic’s position. His ‘cro and galnes’ was just about one sixth of that of the thane and presumably went to his kin—as his wife’s cro and galnes went to her kin.
There is one other point as yet unexplained—what was the ‘turhochret’?
It occurs in the clause:—
Item if the woman of a carl be slain, the lord of the fee where he dwells shall have the kelchin and the vilein shall have his wife’s turhochret of the kelchin and her kyn shall have the cro and the galnes.
There are so many Gaelic words in this document that there can be little doubt that the turhochret[208] is one of them. It seems to have been the part of the kelchin allowed by the lord to go to the husband in respect of the insult to his wife—i.e. her share in the kelchin. Whatever it was, when the wife was slain, the husband retained it, while the lord took the rest of the kelchin, and the wife’s kin the cro and galnes of their slain kinswoman. The information given is scanty, but it is difficult to make this passage mean anything else.
The wife belonged to her own kindred.
One thing is made remarkably clear in this document: that the wife of the free tribesman did not among the Bretts and Scots pass upon marriage under the full potestas of her husband. On her murder, while it was an insult to him and he therefore could claim the kelchin, the cro and the galnes passed to her kin. The wife, therefore, in a very real sense belonged still to her own kindred.
These rules of tribal custom as regards marriage need no longer surprise us after what we have found elsewhere. They closely resemble in principle Cymric usage and are, after all, what the study of Beowulf prepared us to regard as by no means confined to the Celtic tribes.