If any such person is killed, then according to ancient law, if he have no kindred half shall be paid to the King and half to the congildones.
Recurrence to Anglo-Saxon custom.
These clauses are valuable as showing that to meet the circumstances arising upon the Norman Conquest there was a recurrence as far as possible to ancient law and Anglo-Saxon custom.
Protection of the kinless stranger.
This was not the first time that the difficulty of absence of kindred had occurred and been formally recognised in England. The early Danish conquests had made special provisions necessary for the protection of the kinless stranger. And it was declared that ‘if any one did wrong to an ecclesiastic or a foreigner as to money or as to life, then should the king or the eorl there in the land and the bishop of the people be unto him in the place of a kinsman and of a protector (for moeg and for mund-boran) unless he had another.’[210]
Again, as regards the position of the maternal relations and the congildones of a stranger, it is clear that the writer of these so-called laws is copying and adopting what he finds in the Laws of King Alfred. In ss. 27 and 28 of the latter, in the absence of relatives the gegildas of the slayer were to pay half the wergeld; and also, in the absence of relatives of the slain person, his gegildas were to receive half the wergeld.
In both cases an artificial group of organised comrades, ‘gegildas’ or ‘congildones,’ seems to have been recognised as in part taking the place of kindred. And the importance of the provision of some such substitute for protection by the oaths of kinsmen is evident enough when it is considered that the ordeal of hot iron or water was the recognised alternative.
On the whole the clauses in these so-called laws relating to Normans and strangers adhere to the principle of the liability of kindred both paternal and maternal in cases of homicide, and this is the more remarkable because long before, especially in the Laws of Edmund, as will hereafter appear, a very strong tendency had been shown to restrict the liability in case of homicide to the slayer himself.
In the meantime the attempt to apply the Anglo-Saxon custom as to wergelds to Normans after the Conquest, taken together with the continued recognition of the liability of both paternal and maternal parentes, is a very strong proof that the solidarity of the kindred was not altogether a thing of the past. Tribal custom which at the Norman Conquest could be applied to the conquering class cannot be regarded as dead.