IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6.

Between the date of the Laws of Ethelbert and those of other Kentish kings which have been preserved nearly a century had intervened. So that these later laws of Kent are nearly contemporary with King Ine’s Dooms of Wessex.

Eorlcund and ceorlisc classes.

As in Ethelbert’s laws, the main division of classes of freemen seems still to have been that between eorlcund and ceorlisc. But we get further valuable information.

The Laws of Hlothære and Eadric open with clauses which seem to fix the wergeld of the eorl at three times that of the ordinary freeman.

The owner’s liability for an esne’s homicides.

They deal with the liability of an owner of an esne[307] for his servant’s homicides.

If an esne slay an eorl.

Gif mannes esne eorlcundne mannan ofslæhð. þane þe sio þreom hundum scill gylde se agend þone banan agefe ⁊ do þær þrio manwyrð to.

1. If any one’s esne slay an eorlcund man, one that is paid for with three hundred scillings, let the owner give up the slayer, and add three manwyrths thereto.

Gif se bana oðbyrste feorðe manwyrð he to-gedo ⁊ hine gecænne mid godum æwdum ꝥ he þane banan begeten ne mihte.

2. If the slayer escape, let him add a fourth manwyrth and let him prove with good compurgators that he could not catch the slayer.

The next two clauses are as follows:—

If he slay a freeman.

Gif mannes esne frigne mannan ofslæhð þane þe sie hund scillinga gelde se agend þone banan agefe ⁊ oþer manwyrð þær to.

3. If anyone’s esne slay a freeman, one that is paid for with 100 scillings, let the owner give up the slayer and a second manwyrth thereto.

Gif bana oðbyrste, twam manwyrðum hine man forgelde ⁊ hine gecænne mid godum æwdum ꝥ he þane banan begeten ne mihte.

4. If the slayer escape, let [the owner] pay for him with two manwyrths and let him prove with good compurgators that he could not catch the slayer.

This reading of these clauses is not that of Thorpe or of Schmid, but that approved by the best authorities.[308]

Were the wergelds 300 and 100, or are they half-wergelds?

Following this reading as philologically the most correct one, the inference at first sight might be that under Kentish law the wergeld of the eorlcundman was 300 Kentish scillings and that of the freeman 100 scillings.

But there may be reason to doubt the correctness of such an inference.

The clauses limit and lessen the owner’s liability.

For the present we may leave the question of the amount of the wergelds to consider the meaning of the clauses in their main intention. And this seems to be clear. Henceforth the owner of an esne was not to be accountable for the wergeld of the person slain or any part of it further than that if an eorlcundman payable for with 300 scillings be slain he must hand over the esne and three times his manworth in addition; and in the case of the freeman payable for with 100 scillings he must hand over the esne and add one manworth in addition. That is to say, the esne was in both cases to be handed over and a manworth for each hundred scillings of the amount at which the person slain is paid for.

Now, I think, we must conclude that these clauses were intended to make an innovation upon ancient custom rather than to confirm it. And therefore it may be well to compare with them the parallel evidence of the laws of other tribes, as to the responsibility of an owner for his slave’s homicides.

Under tribal custom at first complete.

Under the Welsh Laws (ii. p. 105) the liability of the owner of a slave for his homicides was apparently complete.

If a bondman commit homicide of whatever kind, it is right for the lord of the bondman to pay for the deed of his bondman as for a murderer, for he is a murderer.

And this probably must be taken as the general rule of tribal custom in its early stages.

In the laws of the Saxons and of the Anglii and Werini the ancient German tribal custom was still preserved. The owner of an animal or a slave was liable for any injury done by either, very much as if it had been done by himself (‘Lex Sax.’ xii. Ang. and Wer. 16 and 52).

Then made a half-wergeld only, and the slave to be handed over for the other half.

But it would seem that Roman and Christian feeling very early suggested that this was hard upon the innocent owner. Hence in some of the laws the compromise was made that the owner should pay only a half-wergeld and hand over the offending animal or slave instead of the other half.

That this innovation was not altogether acceptable to tribal feeling is shown by clauses in the ‘Pactus III.’ of the Alamannic laws. The whole wergeld was to be paid by the owner if his horse, ox, or pig killed a man (s. 18). But an exception was made in the case of the dog. If a man’s dog killed any one, a half-wergeld (medium werigeldum) was to be paid, and if the whole wergeld was demanded, all the doors but one of the house of the person making the demand were to be closed and the dog was to be hung up nine feet from the only one left open for ingress or egress, and there it must remain till it fell from putrefaction. If it was removed or any other door was used, the wergeld was to be returned (s. 17).

Grimm (‘D. R.’ p. 665) has pointed out that in the Ostgotalaga (Drap. 13, 2) a similar archaic practice is described when a slave had killed a man. The owner of the slave under this law ought to pay the whole wergeld, and if he did not do so the slave was to be hung up at his (the owner’s) house door till the body putrefied and fell. Thus the same archaic method of punishing the delinquent was retained in both cases. But the significant point is that so long as the whole wergeld was due from the owner it was at the owner’s door that the body of the slayer was to be hung up, while when the half-wergeld only was to be paid, the dog was to be hung up at the door of the person who improperly demanded the whole wergeld. Thus, as in so many other cases, the twelfth-century laws of the North preserved the earlier custom of the payment of the whole wergeld, while the Alamanni, after migration into contact with Roman and Christian civilisation, in their laws of the seventh century modified the custom, at the same time retaining the archaic method of forcing compliance with the modification. It must be remembered that every change which relieved the innocent owner from liability, wholly or in part, robbed the kindred of the person slain of the whole or the part of the wergeld.

The compromise of payment of the half-wergeld and the handing over of the offending animal or slave was not confined to the Alamannic laws.

In the Ripuarian Law xlvi. the animal which had killed a man was to be handed over and received ‘in medietatem wirigildi’ and the owner was to pay the other half.

So in Codex I. of Lex Salica, but afterwards owner released from the half-wergeld.

In the Lex Salica the same rule was at first applied to the case of homicide by a slave or læt. A half-wergeld was to be paid and the slave or læt handed over for the other half.[309] This was the rule according to the Codex I. But in the later Codices, VII. to X., and in the ‘Lex Emendata,’ the lord, if innocent, was allowed to get off altogether from the half-wergeld and had only to give up the slave or the læt. This further innovation seems to have been connected with the Edict of Chilperic (circ. A.D. 574) and thus probably represented the result of ecclesiastical influence at very nearly the date of the earliest Kentish laws.

In the Canons of sixth century the slave was to be given up and another besides.

We have only to recur to the Canons of the Celtic Church of Brittany and South Wales of the sixth and seventh centuries, considered in the earlier part of this volume, to recognise the hand of the Church in these innovations upon earlier tribal custom. They extended to Celtic as well as to German districts. In Canon 5 of the so-called ‘Canones Wallici’ the rule was laid down that ‘if any master should permit his slave to carry arms, and the slave killed a freeman, the owner must hand over the slave and another besides’ (supra, p. 108).

The half-wergeld here is omitted altogether, and, as in the case of the Kentish freeman, two slaves are to be given up instead of one.

In the Burgundian Law slave to be given up and the owner to be free.

These Canons were nearly contemporary with the later Kentish laws, and the same stage of innovation seems to have been reached in both. A still further and final stage had been reached in the Burgundian Law already quoted (supra, p. 124) in which in the case of homicide by a slave, unknown to his master, the slave was to be delivered up to death and the master was to be free from liability. The parentes of the slain person were to get nothing, not even the slave, ‘because, as we enact that the guilty shall be extirpated, so we cannot allow the innocent to suffer wrong.’ The whole process of change had taken place in the Burgundian district by the sixth century. But it would seem that in Kent the middle stage only had been reached at the date of the laws of Hlothære and Eadric.

Evidence that the further stage had at last been reached in Anglo-Saxon law is perhaps to be found in the nearly contemporary law of Ine (s. 74) which enacts that if a theow-wealh slay an Englishman, the owner shall deliver him up to the lord and the kindred or give sixty scillings for his life. Here no further manworths are required. But possibly the peculiar position of the theow-wealh may have something to do with it, so that we ought not perhaps to assume as certain that the clause represented a still further general innovation upon tribal custom beyond that described in the Kentish clauses.

Kentish clauses meant to modify the previous rule: which may have been the half-wergeld of 300 and 100 scillings.

Returning to the Kentish clauses and assuming that their direct intention was to modify previous custom, we are now in a position fairly to judge what the previous rule may have been.

Reasoning from the analogy of other laws, it seems most likely to have been to make the owner pay a half-wergeld of the person slain and hand over the esne for the other half—the stage of custom reached in the Ripuarian Laws and Salic Laws of Codex I.

And if this were in fact the former custom previous to the enactment in these clauses, then without departing from the correct literal reading of the text it may be that the words in the parenthesis in each clause may refer, not to the eorlcundman’s or the freeman’s wergild—the word ‘leod-geldi’ is not used—but to the amount hitherto payable in the particular case of a man slain by an esne. The 300 and 100 scillings may be the half-wergeld hitherto payable, instead of which thenceforth the owner of the esne is to pay three manworths or one manworth in addition to handing over the esne.

If previous to the innovation the eorlcundman had been paid for in such a case with three hundred shillings and the freeman with one hundred, the words in their strictly correct literal meaning might perhaps rightly be read thus:—

If any one’s esne slay an eorlcundman, one who is [now] paid for at three hundred scillings, let the owner [in future] give up the slayer and add three manworths [of the esne] thereto.

If anyone’s esne slay a freeman, one who is [now] paid for at one hundred scillings, let the owner [in future] give up the slayer and add one manworth [of the esne] thereto.

This reading of the clauses, putting emphasis upon what is now the gild (þane ꝥ sie)—the three and the one hundred scillings—in contrast with what the owner has in future to do, i.e. pay three manworths and one manworth instead of the three hundred and one hundred scillings in addition to the handing over of the esne—seems to me more than any other rendering to account for the insertion of the parenthesis stating the amounts payable for the eorlcundman and freeman. If the word leod-gylde had been used it might have been different. But I am informed on the best authority that the words gylde and gelde in the two clauses are not substantives but used in an adjectival sense, and in this case they would apply to a half-wergeld payable as correctly as to a whole one.

Was 100 scillings the half-wergeld and so the medume wergeld of King Ethelbert’s laws?

At the same time the mention of 100 scillings, if the payment be a half-wergeld, may help to an understanding of the medume leodgeld of 100 scillings mentioned in Ethelbert’s Laws. It suggests that the medume wergeld was a modified or middle one which, like the medium werigeldum and medium precium of the mediæval Latin of the Alamannic and other laws, had come to mean a half one. Perhaps, after all, if we recognise clerical influence in the framing and modification of the Kentish laws, the translation of the Latin ‘medium werigeldum’ by the Anglo-Saxon ‘medume leodgeld’ is not very unnatural.

Before we leave the laws of Hlothære and Eadric there are one or two further clauses worth notice.

System of oath-helpers.

Clause 5 reminds us that, though scarcely mentioned in these laws, the system of compurgation was in force. A freeman charged with a crime has to clear himself by the oaths of a number of ‘free æwda-men.’

Clause 6 makes mention of the protection of a woman by her kindred:—

Position of the wife.

Gif ceorl acwyle be libbendum wife ⁊ bearne riht is ꝥ hit ꝥ bearn medder folgige ⁊ him mon an his fædering-magum wilsumne berigean geselle his feoh to healdenne oþþæt he .x. wintra sie.

6. If a husband (ceorl) die wife and child yet living, it is right that the child follow the mother: and let that sufficient guardian be given to him [the child] from among his paternal kinsmen to keep his property [cattle?] till he be ten winters old.

These clauses, unimportant perhaps in themselves, are useful as showing that behind the silence of the laws tribal custom still lingered on, however seldom and slightly it might be brought into evidence as fresh circumstances might suggest new clauses.

Mund-byrds unchanged.

There are also some clauses which are useful as showing the continuance of the mund-byrds of king and ceorl of King Ethelbert’s Laws, unchanged in amount, a century later.

By s. 11, if a man uses abusive words to another in any one’s ‘flet,’ ‘let him pay one scilling to him who owns the “flet” and six scillings to him to whom he said the words and twelve scillings to the King.’ So also in s. 12, one scilling is to be paid to the owner of the ‘flet,’ six scillings to the person wronged, and twelve scillings to the king. The six scillings to the person insulted or wronged is the mund of the freeman or ceorl. Lastly, in s. 13 in case of a slaying in a drinking bout:—

Gif man wæpn abregde þær mæn drincen ⁊ þær man nan yfel ne deð scilling þan þe ꝥ flet age ⁊ cyninge xii scill.

If a man draw a weapon where men are drinking and no harm be done, then a scilling to him who owns the flet and xii scillings to the King.

Gif ꝥ flet geblodgad wyrðe forgylde þem mæn his mund-byrd ⁊ cyninge l. scill.

If the flet be stained with blood, let him pay to the man [who owns the flet] his mund-byrd and 50 scillings to the King.

Mund-byrd of the King still 50 scillings and of the ceorl 6.

Thus we have again the mund-byrds of King Ethelbert’s Laws:—

The crime of killing another in a drinking bout is a breach of the mund of the owner of the ‘flet’ as well as a breach of the peace of the King.