In the Cymric codes, the normal wergeld was a payment of one hundred and twenty cows, but the number varied according to the rank of the slain. For the death of a chieftain the amount was one hundred and eighty cows: for the death of a stranger, from thirty to sixty cows.[24] Over and above the wergeld or galanas, there was payable an insult-price or saraad, consisting of six cows. This amount was always paid first, from the murderer’s own cattle. Within fourteen days of the murder, a meeting of the slayer’s clan or wider kindred was convened, at which the proportion of wergeld due from each family was determined. Usually the murderer’s family paid forty cows, or one-third of the total wergeld. Of this amount the murderer himself paid one-third, or about fourteen cows; his father and mother paid one-third, and his brothers and sisters one-third, the brothers paying twice as much as the sisters. The remaining portion of the wergeld, namely, eighty cows, was paid by the wider kindred. Relatives on the paternal side paid two-thirds, those on the maternal side, one-third. As the clan comprised very often a large number of people, the actual contribution of individual cousins of the murderer would have been rather small. The murderer himself paid, in saraad and galanas, a total forfeit of twenty cows. But if the murderer was poor, there was paid ‘spear-penny,’ which was one-ninth of the wergeld, but was collected from male kinsmen on the paternal side.
It was not necessary that these payments should all be made at the same time, or immediately. They were frequently made in fortnightly instalments. The system of receiving wergeld seems to have been parallel. It is probable that the cows paid by the murderer’s family went to the family of the victim: those paid by first cousins went to first cousins: those paid by paternal kindred went to paternal kindred: all being distributed in the last resort to individuals, if the clans involved had developed the principle of individual ownership at that particular period of time. It is clear from the Cymric codes that individual ownership was assumed as universally prevalent. But it is certain that such a condition is not a characteristic of all tribal communities. In the Salic law, which operated amongst the Germans from about A.D. 500 onwards, a distinction was made between the inheritance of ‘wergeld’ and that of the ‘allod’ or family-domain.[25] While the latter could only be inherited by a family group which did not extend beyond second cousins, a group which in Wales was called a ‘gwely,’ the wergeld was inherited by all persons who could trace any kind of direct descent, however remote, from a common ancestor of the original receivers of the wergeld. This law seems to us to reflect an ancient system of communistic ownership in movable property amongst the Germans. Indeed we may infer the existence of such a system from the account which Caesar[26] gives of the pre-Christian Germans. Even in the time of Tacitus the arable land of the Germans had not yet become private property.[27]
It is in this common control, or common ownership, of wergeld that we may find the explanation of the absence of wergeld-payments for homicide within the clan. Seebohm, speaking of the Welsh system, says[28]: ‘A murder within this wider kindred was regarded as a family matter.... There was no blood-fine or galanas within the kindred.’ We shall find at least one illustration of this important principle in the Iliad of Homer.[29] It is not a complete explanation of the principle to assert, as Fustel de Coulanges would assert,[30] that the kin-slayer had offended his domestic gods and that no payment could permit the continued presence of the murderer at the ancestral hearth fire in which the life of a kinsman had been violently submerged. In the phratry different clans had a common worship, and the murderer who paid wergeld joined in that worship. We agree with Coulanges that the attitude of the domestic gods towards kin-slaying differed from that of the phratry-gods towards ordinary homicide. But why? Because primitive man creates gods in his own image and endows them with his own emotions. It is with man, not with gods, that the ultimate explanation lies. The real explanation of the principle is to be found, we think, in a tradition ultimately resting on the common ownership of property.
Accepting this principle, we can understand more easily the punishment of kin-murder in tribal society. There are only three alternative penalties to wergeld: exile, bondage (or servitude) and death. It is natural to assume, and it has been rightly maintained,[31] that death was a loathsome penalty in days when relatives alone could avenge. It was therefore rarely, if ever, exacted. Bondage or servitude also, though sometimes found as a punishment for homicide,[32] would naturally be avoided as a sequel to kin-murder. There remains only the option of exile. Like Cain, the slayer of his brother, the kin-murderer must wander over the wide earth.[33] Expelled from his clan, his home, his property and his gods, he goes forth to slavery or to death in other lands. As a French writer puts it, ‘Alone, he has arrayed against him the universe.’[34]
When homicide occurred between members of different clans, death was never inflicted on the slayer, except in the last resort. It was, perhaps, in order to avoid this fate, that the slayer sometimes fled into exile. But it is doubtful if his flight cancelled any part of the wergeld except his own individual share, or the ‘spear-penny’ which he was expected to collect, if he was poor. It is certain however that the life of the slayer was never exposed to danger from the relatives of the victim so long as he remained in exile. That there were variations in the matter of accepting exile as part-payment of wergeld will be obvious from the following facts which we cite also as illustrations of the survival of wergeld in a modified form under feudal or ecclesiastical rule.
In the Canones Wallici, a code of laws which operated in Wales in the seventh century A.D., we find[35] that the slayer pays half the total wergeld, and his relatives pay half. The wergeld at this time consisted of three male slaves and three female slaves: if the slayer went into exile his half was cancelled, but his relatives had still to pay their half, or to follow him into exile. In the Burgundian homicide-laws of the fifth century A.D. we find[36] that the penalty for the murder of a freeman was death. The older wergeld penalty, which was now abolished for murder, was however retained in a certain form for minor degrees of guilt. Thus, for manslaughter, we have a list of blood-ransoms arranged according to the rank of the victim: for the unintentional slaying of a noble, the penalty was a payment of 300 solidi: for that of an ordinary man, 200 solidi, and so on. For slaying a person in self-defence, the penalty was reduced to one-half in each case. Amongst the laws of the early Norman Kings of England we find[37] the following, attributed to Henry I, in which a group of neighbours known as guild-brethren (congildones) are compelled to supplement the payments of the kindred. ‘If anyone commit homicide of this kind, let his relatives pay as much wergeld as they would have received if he (the slayer) had been killed: if the slayer have relatives on the father’s side and not on the mother’s, they pay as much as they would have received, that is, two-thirds the wergeld: if the slayer has only maternal relatives, they pay one-third the wergeld, the congildones one-third, and himself one-third: if he has no maternal relatives, the congildones pay half, and himself half.’ The manner in which feudalism gradually substituted the conception of murder as an insult to a king or to a lord for the older conception of it as an injury to the clan is clearly seen in the following law[38] attributed to King Henry I: ‘If the slain man has no kindred ... half shall be paid to the king, and half to the congildones (of the victim).’ In one portion of the Salic law we read[39] that if anyone slays a kinsman and goes into exile, his goods are confiscated to the royal treasury. Feudalism has thus exacted a new penalty which the clan-regime did not exact.
On the other hand we find a diminution in the collective punishment which tribal wergeld carried with it, in the law of King Edmund (A.D. 940-946) which may thus be rendered in modern English[40]: ‘If anyone henceforth slay any man, (I will) that he himself bear the feud unless with the aid of his friends he compensate it with full wergeld within twelve months. But if they will not pay, I will that all the kindred be free from the feud except the murderer, provided they do not afterwards give him food and protection.’ In such laws as these we catch a glimpse of a system of blood-vengeance which once prevailed amongst tribal peoples, but which soon became a mere echo, a phantom shadow of its former self, in the march of mightier movements, in the onward course of civilisation.
We have wandered far afield in the search for definite details of the wergeld system, as we shall look in vain for such details in the ancient literature of Greece, though we can have no doubt that the system prevailed in Greece for many centuries. It is true that in the laws of Gortyn we find[41] a classification of money-payments which were exacted for adultery and seduction at a period which no authority regards as earlier than the seventh century B.C., and which is generally believed[42] to be the sixth or fourth century B.C. These payments varied according to the rank of the offender and of the injured party: and also according to the particular circumstances of the offence.[43] But at the time of the Gortyn laws, Crete had passed out of the stage in which murder was materially compensated. Hence these laws contain no reference to the wergeld system. We must therefore be content to apply to the earliest societies of Greek lands the general principles of the payment of wergeld which we find operative in other tribal countries. We have in the text of Homer unmistakable evidence[44] for the payment of some form of wergeld. The only question that arises is: was this payment a mere sordid termination of a sanguinary feud, such as characterised the Montenegrins up to recent years, or was it a genuine tribal wergeld? Before attempting to answer this question, it will be necessary to examine briefly the nature of the societies which existed in Homeric Greece.