Chapter I: Preface

To the two former Essays, on ‘The English Village Community’ and ‘The Tribal System in Wales,’ is now at last added in this volume a third on ‘Tribal Custom in Anglo-Saxon Law.’

In the first Essay an attempt was made to approach the early Anglo-Saxon evidence from the point of view of the Manorial system, and mainly by tracing back its connection with the open field system of agriculture--the shell, so to speak, in which it had all along apparently lived.

The object of this third Essay in the trilogy is to approach the Anglo-Saxon laws from the point of view of tribal custom.

As a preliminary to this attempt, a detailed study of Cymric tribal custom was made in the intermediate Essay in the belief that the knowledge so gained might be used as a clue to the understanding of survivals of tribal custom in the laws of the tribes most nearly allied to the invaders of Britain, and lastly in the Anglo-Saxon laws themselves.

The interval which has elapsed between the publication of the three Essays has made it necessary to make each of them, to some extent, independent and complete in itself.

It thus becomes necessary in this volume briefly to repeat, as well as further to develop, what was learned of Cymric tribal custom in the previous volume, especially as regards the ‘gwely,’ or family unit of tribal society, and as regards the methods of payment of the galanas, or death-fine for homicide in lieu of the blood-feud between kindreds.

The death-fine or wergeld of the Continental tribes forms so important a test of the position of classes in tribal society that it became necessary to ascertain at the outset what were the currencies in which the wergelds were stated and paid. A brief explanation of these will be found in the first chapter.

Then follows the summary of the Cymric evidence. And as some of the points connected with the payment of wergelds can only be rightly understood when regarded from the point of view of the blood-feud for which the wergeld was a substitute, the Cymric evidence is followed by a brief examination of the rules of the feud incidentally revealed in ‘Beowulf.’

A chapter on Irish or Goidelic tribal custom completes the preliminary evidence.

The inquiry into the tribal custom of the Continental tribes as revealed in their laws is proceeded with in the following order:--

First the Burgundian and Wisigothic laws are briefly examined, as showing most clearly the disintegration of tribal custom caused by early contact with Roman and Christian influences.

Next are examined the traces of tribal custom in the laws of the Salic and Ripuarian Franks and of the tribes conquered by the Merovingian Kings. Separate consideration is then given to the laws of the tribes conquered by Charlemagne.

The earliest Norse and Scanian laws next claim a full share of attention; for, although much later in date than the others, they exhibit earlier conditions of tribal custom.

Lastly, after a short chapter on tribal custom in the ancient laws of Scotland and the ‘leges inter Brettos et Scotos,’ attention is turned to the Anglo-Saxon laws, and they are approached from the tribal point of view and the vantage-ground afforded by the previous study of the tribal customs of the Continental tribes.

That by this method of study some fresh light may have been thrown on the conditions of early Anglo-Saxon society I think the reader will admit. And imperfectly as the work has been done, the bringing of Anglo-Saxon evidence more into line with the Continental evidence will, I think, be accepted as a permanent gain.

After all, we are but trying to advance a step or two further, as regards some particular points, the general intention of the masterly contributions of Dr. Konrad von Maurer, made nearly half a century ago to the _Kritische Ueberschau_, which I think have hardly been sufficiently kept in view by English historical students.

How far the evidence contained in this Essay may be found on full consideration to modify previous views of others or my own the reader will be left to judge. I have tried throughout to bring an open mind to the inquiry from a fresh point of view, with but little regard to foregone conclusions. Any new facts elicited will find their proper place without displacing those already known, however much they may ultimately modify the conclusions provisionally drawn from the latter.

The method of inquiry from the known to the unknown is essentially a tentative method. It necessarily leads to results which, if isolated, easily mislead and may be still more easily misapprehended. But correction comes with perseverance in the same method from other points of view, whilst in the intermediate stages of such an inquiry the student has to learn to be content sometimes with a provisional restatement of a problem rather than a premature solution.

It would be absurd to pretend that, were it necessary to rewrite the Essay on ‘The English Village Community’ after an interval of nearly twenty years, modification of many points might not be needful. But as further editions were called for, it seemed best to leave it as it was, a link in a chain of inquiry which has not yet come to an end. Other links have been added by far more competent inquirers, and these have generously given it a place in the chain from which it would indeed be ungrateful in me to wish to unlink it. But I venture to hope that the addition of this third Essay will be accepted not only as a further contribution to the understanding of a difficult subject, but also as evidence that kindly criticism of the former volumes has not been thrown away.

For constant help in the preparation of this volume I am indebted to my son, whose essay on ‘The Structure of Greek Tribal Society’ really ought to form one of this series. My thanks are due to Dr. ATKINSON and Prof. RHYS for help as regards the Irish and Welsh chapters; and to Mr. CRAIGIE for careful revision of the text and translations of the passages quoted from the early Norse laws. To Prof. LIEBERMANN and Mr. W. H. STEVENSON, for help in the reading of some difficult passages in the Kentish laws, I am especially indebted. I regret very much that I have not had the help which Prof. LIEBERMANN’S notes to his text of the Anglo-Saxon laws would have been. To Mr. F. G. HILL, of the British Museum, I owe very much in connection with the study of the currencies used in the various laws. Finally, I cannot too warmly express my gratitude especially to Prof. VINOGRADOFF, Prof. MAITLAND, and Mr. W. J. CORBETT, amongst others, for the help and encouragement which only fellow-workers can give to the otherwise solitary student.

THE HERMITAGE, HITCHIN:
_January 1, 1902_.

CONTENTS

SECT. PAGE

CHAPTER I.

_THE CURRENCY IN WHICH WERGELDS WERE RECKONED AND PAID._

I. CONNECTION BETWEEN THE WERGELD OF 100 HEAD OF CATTLE AND
THE MINA OF 100 GOLD STATERS 1

II. THE SAME EQUATION REPEATED BETWEEN THE WERGELDS OF WESTERN
TRIBES AND 200 GOLD SOLIDI OF CONSTANTINE 5

III. THE FRANKISH CURRENCY 9

IV. THE NORMAN AND ANGLO-SAXON CURRENCY 12

V. THE MINAS WHICH SURVIVED IN USE SIDE BY SIDE WITH THE ROMAN
POUND 13

VI. THE USE OF GOLD TORQUES AND ARMLETS, ETC., INSTEAD OF COINS 17

CHAPTER II.

_SUMMARY OF THE CYMRIC EVIDENCE._

I. THE UNIT OF CYMRIC TRIBAL SOCIETY 21

II. THE CONSTITUTION AND WORKING OF THE GWELY 23

III. THE LIABILITY OF THE WIDER KINDRED FOR GALANAS IN CASE
OF HOMICIDE 30

IV. THE FISCAL UNIT FOR THE PURPOSE OF FOOD-RENTS TO THE
CHIEFTAINS 33

V. THE METHOD OF PAYMENT OF GALANAS BETWEEN KINDREDS 42

VI. THE AMOUNT OF THE CYMRIC GALANAS 46

VII. THE METHODS OF TREATMENT OF STRANGERS OR NON-TRIBESMEN 50

CHAPTER III.

_THE EVIDENCE OF BEOWULF ON TRIBAL CUSTOM REGULATING FEUDS &c._, 56

CHAPTER IV.

_TRIBAL CUSTOM OF THE IRISH TRIBES._

I. THE ERIC FINE OF THE BREHON LAWS 73

II. THE HONOUR-PRICE (ENECLANN) 80

III. THE GRADATIONS IN RANK UNDER THE BREHON LAWS 83

IV. THE CURRENCY IN WHICH THE BREHON FINES WERE PAID 97

V. THE IRISH COIRP-DIRE AND HONOUR-PRICE TRACED FURTHER BACK
THAN THE BREHON LAWS 100

VI. THE BRETON OR GALLIC WERGELD OF THE SO-CALLED ‘CANONES
WALLICI’ 105

VII. THE WERGELD OF ANCIENT GAELIC CUSTOM. THE EVIDENCE OF CÆSAR 115

CHAPTER V.

_THE WERGELDS OF THE BURGUNDIAN AND WISIGOTHIC LAWS._

I. THE BURGUNDIAN WERGELDS 121

II. THE WERGELDS OF THE LEX WISIGOTHORUM 126

CHAPTER VI.

_TRIBAL CUSTOMS OF FRANKS AND OF THE TRIBES CONQUERED
BY THE MEROVINGIAN KINGS._

I. THE WERGELDS OF THE LEX SALICA 131

II. THE DIVISION OF CLASSES AS SHOWN BY THE AMOUNT OF THE WERGELD 147

III. TRIBAL RULES OF SUCCESSION IN ‘TERRA SALICA’ 150

IV. THE WERGELDS AND DIVISION OF CLASSES IN THE ‘LEX RIPUARIORUM’ 163

V. THE ALAMANNIC AND BAVARIAN LAWS 172

CHAPTER VII.

_TRIBAL CUSTOMS OF THE TRIBES CONQUERED BY CHARLEMAGNE._

I. THE EFFECT UPON WERGELDS OF THE NOVA MONETA 179

II. THE LEX FRISIONUM 194

III. THE LEX SAXONUM 213

IV. LEX ANGLIORUM ET WERINORUM, HOC EST THURINGORUM 224

V. THE SO-CALLED LEX CHAMAVORUM 229

VI. CONCLUDING REMARKS 231

CHAPTER VIII.

_THE TRIBAL CUSTOMS OF THE OLDEST SCANDINAVIAN LAWS._

I. THE MONETARY SYSTEM OF SCANDINAVIA 233

II. THE WERGELDS OF THE GULATHING AND FROSTATHING LAW 238

III. THE GRADATIONS OF SOCIAL RANK DISCLOSED BY THE WERGELDS ETC. 260

IV. THE CLASSES OF FREE MEN AND THEIR RELATION TO LAND 271

V. THE LEX SCANIA ANTIQUA 276

VI. SCANIAN AND LOMBARDIC CUSTOM COMPARED 292

CHAPTER IX.

_TRIBAL CUSTOM IN SCOTLAND._

I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS 297

II. THE ‘REGIAM MAJESTATEM’ 302

III. ‘LEGES INTER BRETTOS ET SCOTOS’ 307

IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED
IN SCOTLAND 318

CHAPTER X.

_ANGLO-SAXON CUSTOM FROM THE NORMAN POINT OF VIEW._

I. ANGLO-SAXON CUSTOM AS APPLIED TO NORMANS 321

II. NORMAN VIEW OF WESSEX CUSTOM 325

CHAPTER XI.

_DANISH VIEW OF ANGLO-SAXON CUSTOM._

I. THE ‘DE INSTITUTIS LUNDONIE’--OF CNUT (?) 337

II. FRAGMENT ‘OF “GRITH” AND OF “MUND”’ 344

III. THE ‘FRITH’ BETWEEN ETHELRED II. AND OLAF TRYGGVASON,
A.D. 993 349

CHAPTER XII.

_ANGLO-SAXON CUSTOM FROM THE VIKING OR
NORTHMEN’S POINT OF VIEW._

I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM, A.D. 886 351

II. THE COURSE OF PROCEDURE IN PAYMENT OF WERGELD 356

III. FRAGMENTS OF MERCIAN AND NORTH PEOPLE’S LAW 360

CHAPTER XIII.

_EARLY ANGLO-SAXON CUSTOM._

I. KING ALFRED’S DOOMS 370

II. THE DIALOGUE OF EGBERT, ARCHBISHOP OF YORK, A.D. 732-766.
ECCLESIASTICAL OATHS AND WERGELDS 377

III. THE DOOMS OF INE, A.D. 688-725 386

IV. THE POSITION OF STRANGERS IN BLOOD UNDER KING INE’S
LAWS--THE SIX-HYNDEMAN 396

V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR HYNDENS OF
OATH-HELPERS 406

VI. THE GESITHCUND AND CEORLISC CLASSES IN THEIR CONNECTION
WITH LAND 417

VII. COMPARISON OF WESSEX AND MERCIAN WERGELDS WITH THOSE OF
CONTINENTAL TRIBES 436

CHAPTER XIV.

_THE LAWS OF THE KENTISH KINGS._

I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696 440

II. THE SCÆTTS AND SCILLINGS OF THE KENTISH LAWS 443

III. THE LAWS OF ETHELBERT 455

IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6 467

V. THE LAWS OF KING WIHTRÆD, A.D. 690-696 476

VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM 481

VII. THE AMOUNT OF THE KENTISH WERGELDS 487

VIII. RESULT OF THE KENTISH EVIDENCE 492

CHAPTER XV.

_GENERAL CONCLUSIONS_ 496

INDEX 533