III. THE LAWS OF ETHELBERT.
The Laws of Ethelbert begin with the heading: ‘These are the dooms which King Ethelbert established in the days of Augustine.’
Evidence of clerical influence.
This heading probably did not form a part of the original laws, but it may serve to remind us that ecclesiastical influence must be reckoned with in their consideration and that some of their clauses may have been modifications of ancient custom rather than statements of what it originally was.
The first clause is as follows:—
Godes feoh ⁊ ciricean .xii. gylde.
Biscopes feoh .xi. gylde.
Preostes feoh .ix. gylde.
Diacones feoh .vi. gylde.
Cleroces feoh .iii. gylde.
Cyric-frið .ii. gylde.
M[æþel] frið .ii. gylde.
| The property of God and of the Church | 12 | fold |
| A bishop’s | 11 | ” |
| A priest’s | 9 | ” |
| A deacon’s | 6 | ” |
| A clerk’s | 3 | ” |
| Church frith | 2 | ” |
| [Moot] frith | 2 | ” |
This clause is read by Thorpe and Schmid and Liebermann as enacting that thefts were to be paid for on this scale, so many multiples of the value of the goods stolen.[300]
Clause 2 enacts:—
Mund-byrd of the King 50 scillings.
Gif cyning his leode to him gehateð. ⁊ heom mon þær yfel gedo .ii. bote. ⁊ cyninge .l. scillinga.
If the King call his leod to him and any one there do them evil, the bot is twofold and 50 scillings to the King.
Here are two distinct things. The bot is the payment to the person called to the King. While thus in attendance any injury is to be paid for twofold. The payment of fifty scillings to the King is the mund-byrd or payment for breach of his protection or peace.
Clause 3 is as follows:—
Gif cyning æt mannes ham drincæð ⁊ þær man lyswæs hwæt gedo twi bote gebete.
If the King drink at any one’s ‘ham’ and any one there does something wrong, then let him pay twofold bot.
That is, the presence of the King at a subject’s house is the same thing as the subject being in the King’s protection, and the bot for any wrong done to the subject, while the King is there, is doubled.
Clause 4 enacts:—
Gif frigman cyninge stele .ix. gylde forgylde.
If a freeman steal from the King, let him pay ninefold.
It seems at first sight hardly likely that the Archbishop should be compensated elevenfold and the King only ninefold, but as this is repeated in the statement of the Kentish law in the fragment ‘Of Grith and of Mund’ the text may be taken as correct.
Clause 5 enacts:—
Gif in cyninges túne man mannan ofslea .l. scill. gebete.
If a man slay another in the King’s tun, let him make bot with 50 scillings.
The bot here again is evidently the mund-byrd payable to the King for breach of his protection, i.e. fifty Kentish scillings.
Clause 6 enacts:—
Gif man frigne mannan ofsleahð cyninge .l. scill to drightin-beage.
If any one slay a freeman, 50 scillings to the King as drihtin-beag.
Here again the payment is to the King, but in this case, if the word is to be taken literally, it is not perhaps for breach of his peace, but for the killing of his man. He claims it as his ‘drihtin-beag’ or lord’s-ring. It is, to use the later Saxon phrase, the King’s manbot or value to him of his man killed.
King’s smith and outrider pay a medume wergeld.
Up to this point the question of wergeld has not been mentioned at all. But in clause 7 is the following:[301]—
Gif cyninges ambiht-smið oþþe laad-rinc mannan ofslehð. meduman leodgelde forgelde.
If the King’s ambiht-smith [official-smith] or laad-rinc [outrider] slay a man, let him pay a medume leodgeld.
Liebermann would insert the word ‘man’ after ‘gif’ and so read this clause as stating the wergeld of the King’s smith and laadrinc-man when slain to be a ‘medume wergeld’ (mittleres wergeld). But the clause is complete as it stands without the insertion of ‘man,’ and, read as it is, means that the smith and the outriders of the King, if they slay a man, are to pay a ‘medume leodgeld.’ But what does this mean? The word medume was translated by Wilkins by ‘moderata.’ Thorpe read the phrase as meaning ‘a half wergeld;’[302] Schmid as a ‘fit and proper’ one; and Liebermann would take it to refer to the wergeld of a person of middle rank or position. We must leave the true meaning for the present in doubt.
Reason why not a full wergeld. Their dangerous work.
Apart from the amount of the wergeld, if we would understand this passage we have surely first to consider for what reason these two royal officials should be singled out from all others and made liable to pay wergelds. The inference must be that in the performance of their duties they were peculiarly liable to injure others. The King’s smith in his smithy forging a weapon, and the outrider forcing a way for the King through a crowd, might very easily through carelessness or in the excitement of work cause the death of another. The necessity apparently had arisen to check their action by making them liable to pay a wergeld.[303] But the wergeld was not to be the usual one. It was to be a ‘medume leodgelde.’
For the present the exact meaning may be left open, but whether the true reading be a half-wergeld or not, the inference seems to be that a full wergeld was not to be paid. Probably it had come to be recognised that a person engaged in a specially dangerous trade could not be held responsible to the same extent as in the case of an ordinary homicide.[304] These considerations are important, because the ‘medume’ wergeld will again claim notice and every hint is valuable when, as in the case of these laws, we have only hints to guide us.
In Clause 8, the King’s mund-byrd is declared to be fifty scillings; and the next two clauses relate to injuries done to the King’s servants.
Bots for harm done to King’s servants.
Gif man wið cyninges mægden-man geligeð .l. scillinga gebete.
10. If any one lie with a King’s maiden, let him pay a bot of 50 scillings.
Gif hio grindende þeowa sio .xxv. scillinga gebete. Sio þridde .xii. scillingas.
11. If she be a grinding slave, let him pay a bot of xxv scillings. The third [class] xii scillings.
Cyninges fed-esl .xx. scillinga forgelde.
12. Let the King’s fed-esl be paid for with xx scillings.
These bots are evidently payable to the King for injuries done to him by abuse of his servants of different grades. They were not wergelds.
We have now done with these bots to the King, and the laws turn to consider injuries done and bots due to the eorl.
Bots due to the eorl.
Gif on eorles tune man mannan ofslæhð .xii. scill. gebete.
13. If a man slay another in an eorl’s tun, let him make bot with xii scillings.
Gif wið eorles birele man geligeð .xii. scill. gebete.
14. If a man lie with an eorl’s birele, let him make bot with xii scillings.
And then from the bots due to the eorl the laws pass to those due to the ceorl. The following clauses show that under the Kentish laws the ceorl also had a mund-byrd.
Bots due to the ceorl.
Ceorles mund-byrd .vi. scillingas.
15. A ceorl’s mund-byrd vi scillings.
Gif wið ceorles birelan man geligeð .vi. scillingum gebete. aet þære oðere þeowan .l. scætta. aet þare þriddan .xxx. scætta.
16. If a man lie with a ceorl’s birele, let him make bot with vi scillings; if with the slave of the second class l scætts; if with one of the third class xxx scætts.
Thus we get a scale of mund-byrds or penalties due for breach of the peace or protection of the King, the eorl, and the ceorl:—
Mund-byrd of King, eorl, and ceorl.
| King’s | mund-byrd | 50 | scillings |
| Eorl’s | ” | 12 | ” |
| Ceorl’s | ” | 6 | ” |
but so far we have learned nothing about the amount of their wergelds.
Clause 17 fixes the bot for inroad into a man’s ‘tun’ at six scillings for the first person entering, three for the next, and one for the rest.
Lending a weapon in a brawl.
Then follows an interesting set of clauses, which I think must be read together, as all referring to the case of what might happen in a brawl in which one man lends a weapon to another.
Gif man mannan wæpnum bebyreþ ðær ceas weorð ⁊ man nænig yfel ne gedeþ .vi. scillingum gebete.
18. If a man furnishes weapons to another where there is strife, and the man does no harm, let him make bot with vi scillings.
Gif weg reaf sy gedon .vi. scillingum gebete.
19. If weg-reaf [street robbery] be done, let him make bot with vi scillings.
Gif man þone man ofslæhð .xx. scillingum gebete.
20. If any one slay that man [i.e. to whom he lent the weapons], let him [the lender] make bot with xx scillings.
Gif man mannan ofslæhð medume leod-gild .c. scillinga gebete.
21. If a man slay another, let him [the lender] make bot with a medume leod-geld of c scillings.
Gif man mannan ofslæhð æt openum græfe .xx. scillinga forgelde ⁊ in .xl. nihta ealne leod forgelde.
22. If a man slay another, let him at the open grave[305] pay xx scillings and in 40 nights pay a full[306] leod.
Gif bana of lande gewiteþ þa magas healfne leod forgelden.
23. If the slayer depart from the land, let his kindred pay a half leod.
These clauses taken together and followed carefully, I think, become intelligible.
How treated in Alfred’s and in Ine’s laws.
A man lends weapons to another who is engaged in a brawl, and the question arises how far he is to be responsible for what happens in the brawl. In the case dealt with in these clauses two things are involved—the lending of the weapons and the joining thereby in the fray. In the later laws there are provisions for both points. Under King Alfred’s laws (s. 19) the man who lends his weapon to another who kills some one therewith has to pay at least one third of the wergeld unless he can clear himself from evil intention.
Under Ine’s laws (s. 34) a man who joins in a fray in which someone is killed, even if he can clear himself from the slaying, has to pay as bot (gebete) one fourth of the wergeld of the slain person whether twy-hynde or ‘dearer born.’ Under Alfred (29 to 31) the actual slayer has to pay the wergeld, and in addition each of the others in the fray has to pay as ‘hloð-bote’ 30 scillings for a twy-hynde man, 60 for a six-hynde, and 120 for a twelve-hynde man.
These later precedents may materially help us in the understanding of the Kentish clauses.
Clauses 18 and 19 make the lender of the weapon pay a bot of six scillings though no evil be done or only street robbery occur.
Clause 20 provides for the case in which the man to whom he lent the weapon was slain, and in this case the bot is raised to twenty scillings.
The lender pays a medume wergeld for person slain.
Clause 21 seems to deal with the case of some one else being slain, and makes the lender liable to pay a bot of a ‘medume leod-gild’ of 100 scillings for mixing in the fray. It would be natural that the bot should be greater if another was slain than if the man to whom he lent the weapons had been slain. And if the later precedents are to guide us, the bot of a ‘medume wergeld’ should not in amount equal the whole wergeld but only a proportion of the wergeld. If the bot of 100 scillings might be considered as equal to a half-wergeld we should gain a clue to what the whole wergeld might be. And this would be a tempting inference. But we are not, it seems, as yet warranted in making it. We must therefore at present content ourselves with the conclusion that the ‘medume wergeld’ cannot mean a whole wergeld, otherwise the lender of the weapon would pay as bot as much as the wergeld would be if he had killed the man himself.
Clause 22 makes 20 scillings payable at the open grave and the whole leod in forty nights. It refers apparently to the actual slayer’s liability to pay the whole wergeld (ealne leod); and finally clause 23 states that if the slayer depart from the land his kindred shall pay half the wergeld of the slain person. We are not told to whom the bot of the ‘medume wergeld’ of 100 scillings was to be paid, nor whether it was to be a part of the wergeld or additional to the ‘ealne leod’ paid by the actual slayer. The later laws, as we have seen, afford precedents for both alternatives.
Kindred liable for half the wergeld and slayer for the other half.
Another point of interest arises from the last clause. In the absence of the slayer his kindred had to pay only a half wergeld (healfne leod). Does this justify the inference that in all cases of wergelds the liability of the kindred was confined to one half? It will be remembered that in the so-called ‘Canones Wallici’ (supra, p. 109), if the slayer had fled, the parentes of the slayer had fifteen days allowed for their payment of one half or flight from the country. And only when they had paid their share could the slayer return and make himself safe by paying the other half—the ‘medium quod restat.’ It seems not unlikely that in the Kentish case also ecclesiastical influence had limited the liability of the kindred to the half-wergeld.
Clauses 25 and 26 are important, and we shall have to recur to them.
The three grades of læts.
Gif man ceorlæs hlaf-ætan ofslæhð .vi. scillingum gebete.
25. If any one slay a ceorl’s hlafæta, let him make bot with vi scillings.
Gif læt ofslæhð þone selestan .lxxx. scill forgelde. Gif þane oðerne ofslæhð .lx. scillingum forgelde. þane þriddan .xl. scillingum forgelden.
26. If [any one] slay a læt of the best class, let him pay lxxx scillings; of one of the second, let him pay lx scillings; of the third, let him pay xl scillings.
To these three grades of læts we shall have to return when we sum up the evidence on the division of classes.
Edor-breach.
Next follow three clauses upon edor-breach. The first relates to the breach by a freeman of the enclosure or precinct presumably of a freeman, the penalty being the same as the ceorl’s mund. The second imposes a threefold bot upon theft from within the precinct. And the third refers to a freeman’s trespass over the edor or fence.
Gif friman edor-brecðe gedeð vi scillingum gebete.
27. If a freeman commit edor-breach, let him make bot with vi scillings.
Gif man inne feoh genimeð se man iii gelde gebete.
28. If any one take property [? cattle] from within, let him pay a threefold bot.
Gif fri-man edor gegangeð iv scillingum gebete.
29. If a freeman trespass over a fence, let him make bot with iv scillings.
After these clauses about edor-breach is the following:
Gif man mannan ofslea agene scætte. ⁊ unfacne feo gehwilce gelde.
30. If a man slay another, let him pay with his own money (scætte) and with any sound feo [cattle].
Gif friman wið fries mannes wif geligeð his wer-gelde abicge ⁊ oðer wif his agenum scætte begete. ⁊ þæm oðrum æt þam gebrenge.
31. If a freeman lie with a freeman’s wife, let him pay his wergeld, and another wife obtain with his own scætte and bring her to the other.
Bots for injuries. For eye, hand, or foot 50 scillings.
Then follow chapters relating chiefly to injuries done and wounds inflicted, and the bots payable to the person injured for the same. It is not needful to mention more of these than the most important one, viz. that for the destruction of an eye, hand, or foot. The bots for all these in most other laws were alike. In Ethelbert’s Laws the bot for each of the three is fifty scillings, which happens to be the same as the mund-byrd of the King.
After the clauses for injuries there are several relating to women.
Injuries to women.
Gif fri wif locbore les wæs hwæt gedeþ xxx scll gebete.
73. If a lock-bearing free wife does wrong, xxx scillings bot.
Mægþbot sy swa friges mannes.
74. The maiden-bot is like a freeman’s.
Mund þare betstan widuwan eorlcundre l scillinga gebete. Ðare oþre xx scll, ðare þriddan xii scll. þare feorðan vi scll.
75. The mund of the best eorlcund widow is a bot of l scillings. Of the second rank xx scillings, of the third xii scillings, of the fourth vi scillings.
Gif man widuwan unagne genimeþ, ii gelde seo mund sy.
76. If a man carry off a widow not in his mund, her mund shall be twofold.
The clause relating to the mund of the four grades of apparently eorlcund (?) widows does not help us much to an understanding of what the grades of Kentish society may have been. But it emphasises a remarkable trait of these laws of Ethelbert. Every class is divided in these laws into grades. The clergy are divided into grades from bishops to clerks. The female servants of the King’s household are divided into three classes, and so are the servants of the ceorl’s household. The læts are divided into three classes. And now the widows, whether all eorlcund or not, are divided into four classes for the purpose of their mund. The significance of these divisions will be apparent hereafter. In the meantime the mund is probably the amount to be paid by a second husband to the parents or kindred of the widow.
Passing from the mund of the widow, the following clauses throw some light upon the position of the wife under Kentish custom.
Position of a wife under Kentish custom.
Gif mon mægþ gebigeð, ceapi geceapod sy gif hit unfacne is. Gif it þonne facne is ef þær æt ham gebringe ⁊ him man his scæt agefe.
77. If any one buy a maid, let the purchase stand if without guile. But if there be guile, let him bring her home again and let them give him his money back.
Gif hio cwic bearn gebyreþ, healfne scæt age gif ceorl ær swylteþ.
78. If she bears a living child, let her have half the property if the husband die first.
Gif mid bearnum bugan wille healfne scæt age.
79. If she wills to go away with her children, let her have half the property.
Gif ceorl agan wile swa an bearn.
80. If the husband wills to have [them], [let her have] as one child.
Gif hio bearn ne gebyreþ fæderingmagas fioh agan ⁊ morgengyfe.
81. If she bear no child, let [her] paternal kindred have the property and morgengift.
It is obvious from these clauses that under Kentish custom the position of the wife was very much the same as under Cymric and continental German custom. The marriage was a fair contract between the two kindreds.
The next clause enjoins a payment of fifty shillings to the ‘owner’ of a maiden if she be carried off by force.
The Kentish esne.
Lastly there are the following clauses relating to the position of the esne under Kentish custom. The esne is considered to be a ‘servus’ working for hire rather than a theow.
Gif man mid esnes cwynan geligeþ be cwicum ceorle ii gebete.
85. If a man lies with an esne’s wife, the husband alive, double bot.
Gif esne oþerne ofslea unsynnigne, ealne weorðe forgelde.
86. If one esne kills another innocently, let the full worth be paid for.
Gif esnes eage ⁊ foot of weorðeþ aslagen ealne weorðe hine forgelde.
87. If an esne’s eye and foot are struck out or off, let the full worth be paid for it.
Gif man mannes esne gebindeþ vi scll gebete.
88. If a man bind a man’s esne, vi scillings bot.
There is nothing in these clauses, I think, to show that the bot was payable to any one but the owner of the esne.
What the ‘full worth’ of the esne was we are not told.