Chapter XXVI: Section 20: of this clause is also interesting, which places the

_stranger_ (gest)--may we not say the ‘King’s guest’?--in the same position as the ‘King’s thane’ as to the validity of his single oath. Both seem to be specially under the King’s protection: in the case of the King’s thane, on account of his official or military position; in the case of the stranger, probably because of the absence of his kindred. The King being in the place of kin to the stranger, his single oath is accepted.

These laws end with clauses referring to theft more or less closely resembling those so prominent in King Ine’s Dooms.

[Sidenote: Clauses as to theft like those in Ine’s laws.]

They state that a thief slain as a thief was to be without wergeld. If a freeman were caught in the act of thieving, the King might either kill him, or sell him over sea, or release him on payment of his wergeld. He who should seize and hold him was to be entitled to the half-wergeld, or if he were put to death to seventy scillings. A man coming from far or a foreigner, when off the public way, who should neither call aloud nor blow a horn, was to be taken to be a thief, and put to death or redeemed by a wergeld.

The last clause resembles Ine s. 20 so closely as to suggest a common origin.

(Wihtræd, 28)

Gif feorran cumen man oþþe fræmde buton wege gange ⁊ he þonne
nawðer ne hryme ne he horn blawe for ðeof he bid to profianne
oþþe to sleanne oþþe to alysenne.

(Ine, 20)

Gif feor cuman man oððe fremde buton wege geond wudu gonge ⁊ ne
hryme ne horn blawe for ðeof he bid to profianne oððe to sleanne
oððe to alysanne.

The close resemblance between these clauses confirms the suggestion that the expression ‘gesithcund’ in the Kentish laws of Wihtræd may have been borrowed from Wessex. Nowhere else than in these contemporary laws of Ine and Wihtræd does the term gesithcund appear, except in the fragments of Mercian law, which may thus belong to the same period.

VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM.

We have now examined the Kentish laws especially regarding the amount of the wergelds and mund-byrds. Although we may not have arrived at absolute certainty, yet some light may have been thrown upon the important matter of the division of classes.

[Sidenote: Mund-byrds of King, eorl, and ceorl.]

So far as the amounts of the wergeld are concerned, the contrast was between the eorl and the freeman, the wergeld of the eorl being three times that of the freeman. But as regards the mund-byrd the contrast was between eorl and ceorl. The mund-byrds were:--

King 50 Kentish scillings
Eorl 12 ”
Ceorl 6 ”

There must evidently be either identity of meaning or much overlapping in the terms freeman and ceorl. Otherwise the ceorl would be without a wergeld and the freeman without a mund-byrd.

And yet, on the other hand, there was probably some reason why the particular words used were chosen in the several clauses, and to a certain extent it may not be far to seek.

[Sidenote: The ceorl was a man with a household and flet and so had a mund-byrd.]

So far as the word _ceorl_ had a special sense, it meant the married man,[310] the husband with a homestead and household, like the North-country husbandman with his husbandland. In this special sense every ceorl may have been a freeman, but every freeman may not have been a ceorl. Hence in the clauses as regards mund-byrd the contrast is between the eorl and the ceorl. Both were men with homesteads and households. Unless they had persons under their ‘mund’ they could not have had corresponding mund-byrds. The freeman who did not happen to be a man with a homestead and household could have no mund-byrd, because he had no precinct within which his peace could be broken, and no household under his protection. But he could have a wergeld.

So, again, in the clauses quoted relating to injuries done to servants in the Laws of Ethelbert:--

14. If a man lie with an eorl’s birele, let him make bot with xii
scillings.

16. If a man lie with a ceorl’s birele, let him make bot with vi
scillings. If with a theow of the second class, l sceatts; if
with one of the third class xxx sceatts.

25. If any one slay a ceorl’s hlafæta, let him pay bot with vi
scillings.

The ceorl in this contrast is again a husbandman with a homestead and household and with bireles and theows and hlafætas under his roof or in his ‘ham.’ Wherever in the Kentish laws the word ‘ceorl’ is used in any other sense, I think the meaning is confined to that of the married man--the husband, as in the phrase ‘husband and wife.’

So regarded, the division for purposes of mund-byrd into eorlisc and ceorlisc classes was natural, and so also, for purposes of wergeld, was the distinction between eorl and freeman. As regards the wergeld, we may consider the terms ceorl and freeman as practically interchangeable, inasmuch as every ceorl was certainly a freeman, and the unmarried freeman was probably a cadet or member of the household of some eorlisc or ceorlisc man.

* * * * *

Continental society included everywhere, as we have seen, such classes as the Roman liti and liberti composed of strangers and freedmen who had not so far risen in the social scale as to have fully recognised rights of inheritance and whose wergeld never was of the same amount as that of the full freeman. It is in connection with such classes that the tribal distinction of blood came in. If for the full freeman we were to substitute the word _tribesman_, with all the background of hyndens of kinsmen to fight and to swear for him involved in the term, then from the same point of view we must expect to find in Kent, as everywhere else, strangers in blood below the tribesmen, like the aillts and alltuds and taeogs of the Cymric Codes, the fuidhirs of the Brehon Laws, if not the liberti and liti of the Gallo-Romans, or, perhaps still more nearly to the point, the leysing classes of the Norse Laws.

[Sidenote: The Kentish freedman and læt resembled the Norse leysing.]

We have already found incidental mention of the Kentish freedman. He cannot after enfranchisement have been classed as an esne or a theow. There would seem to be no other class mentioned to which he could belong, unless it might be that of the læts of Ethelbert’s Laws.

It is worth while, therefore, to recur to the single clause in Ethelbert’s Laws already quoted respecting the læts and to examine it more closely. Within the compass of its few words there may perhaps be found evidence connecting the status of the Kentish læt with what we have learned of the status and conditions of the Norse leysing.

26. If a man slay a læt of the best class, let him pay 80
scillings; if one of the second class, let him pay 60 scillings;
of the third, let him pay 40 scillings.

The clause does not mention to whom the payments are to be made, whether to the læt himself or, as in the case of the freedman, to his late owner or lord. But the payments are not called leodgelds as are the wergelds of freemen.

[Sidenote: Three classes in both cases.]

Looking to the payments themselves they are graduated for three classes of læts. There were also, under Norse custom, three classes of leysings gradually growing by successive steps towards a higher grade of freedom as kindreds grew up around them and became more and more nearly perfect till at last the ninth generation from the first freedman became fully free. Why may not the three grades of Kentish læts have been doing the same?

Let us compare the amounts of the payments for the slaying of the three classes of Kentish læts with those for the three classes of Norse leysings.

We have seen over and over again that the Kentish scilling regarded as twenty sceatts was an ore or a Roman ounce of silver. Therefore the Kentish payments, stated in ounces of silver, were as follows:--

Best class of læt 80 ounces of silver
Second class 60 ” ”
Third class 40 ” ”

The Norse ore was also in wheat-grains a Roman ounce of silver. The wergelds of the three classes of leysings in the Norse laws were as under:--

Frialsgiafi or newly made freedman 40 ores of silver
Leysing after making ‘freedom ale’ 60 ” ”
Leysinjia-son or highest rank of }
leysing whose great-grandfather } 80 ” ”
was a leysing[311] }

[Sidenote: And the wergelds similar.]

So that the wergelds of the three classes of Kentish læts corresponded exactly in amount with those of the three classes of Norse leysings, when reckoned both in silver.

We may further compare these payments for the Kentish læts with those for the freedman of the nearly contemporary Bavarian laws. They are stated in gold solidi of three tremisses, and the Kentish solidus was of only two tremisses. We have seen that the Bavarian freedman was paid for with forty solidi, _i.e._ sixty Kentish scillings. The payment thus corresponded with that for the Kentish læt of the second class.

[Sidenote: The grades the result of growth of kindred.]

These correspondences are unexpected and very significant, but the significance is made still more important by the clause in the Laws of Wihtræd describing the position of the newly made freedman under Kentish custom. The description of his position might almost be taken as a description of the ‘frialgiafi’ or newly made leysing of the Norse laws. Under Kentish law the freedman was to be folkfree, but ‘the freedom-giver was to keep the heritage and wergeld and mund of his family, be he over the march wherever he will.’ This was, as we have seen, almost exactly the position of the Norse leysing before he had made his freedom ale. He had as yet no kindred to swear and to fight for him. He was still under the mund and protection of his lord. His descendants could only obtain the protection of a kindred and become wholly free from the _thyrmsl_ of the lord, when in the course of generations a kindred had grown up gradually around them.

So too, as we have seen, under the Bavarian laws the freedman’s wergeld went to his lord.[312] Under the Frisian law the wergeld of the _litus_ went to his lord.[313] Under Ripuarian law even the ‘homo denarialis’--the freedman who became a Frank with a full wergeld--was recognised as having at first no kindred. If he had no children, his property went to the fisc. And it was not till the third generation that his descendants had full rights of inheritance.[314] We have already found abundant evidence of the continued force of tribal custom and tribal instincts in regard to the importance of kindred while considering the meaning and function of the hyndens in connection with the twelve-hynde and twy-hynde classes of the Anglo-Saxon laws. These remarkable correspondences between the position held by the læts in Kent and that of the leysings and freedmen and liti of the Continental laws, without our making too much of them, may fairly be taken as additional evidence of the tenacity of tribal custom in these matters.[315]

VII. THE AMOUNT OF THE KENTISH WERGELDS.

[Sidenote: Probable Kentish wergelds eorl 600, freeman 200, Kentish scillings.]

Once more we return to the amount of the wergelds of the Kentish eorl and freeman.

We have seen reason to believe that the payments of 300 and 100 scillings of the laws of Hlothære and Eadric were half-wergelds, and that the full wergelds were 600 and 200 scillings.

If they may be so considered they are at once put on line with the Frankish wergelds. The threefold wergeld of the eorl becomes evidently due to his noble birth or official position. And, if the Kentish and Frankish solidi had been alike, the similarity of the wergelds would have been complete.

[Sidenote: As in the Frankish laws.]

The wergelds of the Frankish group of laws were found to be as follows:--

Lex Salica, Graphio or ingenuus in truste Regis 600 solidi }
Frank or Barbarian living under Salic law 200 ” }

Lex Ripuariorum, Comes &c. in truste Regis 600 ” }
Ingenuus 200 ” }

Lex Angliorum et Werinorum, Adalingus 600 ” }
Liber 200 ” }

Lex Chamavorum, Homo Francus 600 ” }
Ingenuus 200 ” }

In all these cases the wergeld of the Royal official or person in high rank is threefold that of the _liber_ or _ingenuus_.[316]

[Sidenote: Confirmed by comparison with the King’s mundbyrd.]

Confining attention now to the position of the Kentish freeman, further confirmation of the view that his wergeld was 200 Kentish scillings may be derived from a comparison of the King’s mundbyrd with his wergeld, and the corresponding Continental payments _pro fredo_ with the wergelds of the _liber_ and _ingenuus_ of the Continental laws.

The Kentish mundbyrd of 50 Kentish scillings was one fourth of the Kentish freeman’s wergeld if 200 Kentish scillings.

The Mercian mundbyrd of five pounds of silver was one fourth of the Mercian wergeld of 1200 scillings of four pence, or twenty pounds.

The Wessex mundbyrd of five pounds would be one fourth of the Wessex wergeld proper if the latter might be looked upon as the same as the Mercian with the mundbyrd added.[317]

The Alamannic and Bavarian payments _pro fredo_ of 40 solidi were one fourth of the Alamannic and Bavarian wergeld of 160 solidi.

And Brunner[318] and others consider that, although the payment _pro fredo_ was sometimes an extra payment, the 200 solidi of the Frankish wergeld equalled 160 solidi with one fourth added _pro fredo_.

Now, if instead of holding the Kentish freeman’s wergeld to be 200 Kentish scillings we were to take it to be the _medume_ wergeld of 100 scillings, we should destroy the correspondence of the King’s mundbyrd with the wergeld, and make the mundbyrd half the wergeld instead of a quarter: unlike what it was in the other laws. This hardly seems a likely supposition.

[Sidenote: And also with payment for eye, hand, and foot.]

We get still further evidence if we compare the payments for the eye, hand, and foot in the Kentish and Continental laws. We have seen that the Kentish payment was 50 scillings, _i.e._ the same as the King’s mundbyrd and one fourth of the wergeld of 200 scillings. In the Alamannic and Bavarian laws and in those of the Chamavi the payment for these, like the payment _pro fredo_, was one quarter of the freeman’s wergeld. In the Frankish laws it was one half. But the reason of this is, not that either the Frankish payment _pro fredo_ or the wergeld is less than in other laws, but that the payment for the eye, hand, and foot is greater. The Frankish payment for the eye, hand, or foot was 100 solidi of three tremisses, _i.e._ half as much again as the Kentish freeman’s wergeld would be if only 100 Kentish scillings of two tremisses; which again seems unlikely.

At first sight the Wessex payments for the eye, hand, and foot present an anomaly. The Wessex twelve-hynde wergeld of 1200 Wessex scillings of five pence at a ratio of 1:10 corresponds, as we have seen, with the Frankish freeman’s wergeld of 200 solidi. The payment for the eye, hand, and foot in King Alfred’s Laws is 66⅔ Wessex scillings, _i.e._ only one eighteenth of the twelve-hynde wergeld. But the explanation no doubt is that in the Laws of King Alfred the payments for injuries are stated for the _twyhynde_-man’s grade, those for the eye, hand, and foot being one third of the twyhyndeman’s wergeld of 200 Wessex scillings.

[Sidenote: Kentish freeman’s wergeld most likely 200 Kentish scillings, or 4000 sceatts.]

On the whole, therefore, these considerations seem to strengthen the supposition that the Kentish freeman’s wergeld was 200 Kentish scillings. That the Kentish wergeld should differ from that of Mercia and Wessex need not surprise us, seeing that we started with the warning that we should find it so as regards both the _barones_ and _villani_. To the writer of the so-called Laws of Henry I. the eorl was no doubt the _baro_ and the freeman or ceorl the _villanus_ of Norman phraseology. And we need not wonder at his confusion if he had nothing but the laws to guide him. It is necessary, however, to look at the question of the wergelds from a broader point of view than his could be.

It must not be forgotten that the Continental wergelds of the Merovingian period were all stated in gold solidi. The first emigrants into Britain must have known this perfectly well. Kentish moneyers coined gold tremisses, and when they afterwards coined silver it was in silver tremisses of the same weight, which earned the name in England of ‘sceatts.’

Any exact comparison of English and Continental wergelds must obviously be dependent upon the ratio between gold and silver.

[Sidenote: Archbishop Egbert’s priest’s wergeld also 4000 sceatts--_i.e._ 200 ounces of silver or _Mina Italica_ of gold.]

The Kentish scilling of two gold tremisses at 1:10 was reckoned in the Laws of Ethelbert as equal to 20 sceatts--_i.e._ to the Roman ounce--and the wergeld, if of 200 scillings, was thus, as we have seen, a wergeld in silver of 200 ounces or 4000 sceatts. We have seen also that Archbishop Egbert claimed for his priests a wergeld of 200 ounces of silver, which thus would accord exactly with the Kentish wergeld of 200 scillings. It might almost seem that he may have consulted his colleague the Archbishop of Canterbury and fixed his clerical demand in accordance with the Kentish wergeld rather than with that of Wessex or Mercia.

Nor was there anything unnatural or abnormal in the Kentish wergeld of 200 ounces of silver, inasmuch as 200 Roman ounces of silver at a ratio of 1:10 would equal the _Mina Italica_ of twenty Roman ounces or of two ancient Roman pounds of gold.

We may therefore with confidence, but without claiming certainty, fairly state the Kentish wergelds in Kentish scillings and sceatts, thus:--

[Sidenote: Kentish wergelds.]

Kentish
scillings Sceatts

Eorl 600 (possibly 300?) = 12,000
Freeman 200 (possibly 100?) = 4,000
Læt (1) 80 = 1,600
” (2) 60 = 1,200
” (3) 40 = 800

And when put together in this way the proportion between the wergeld of the freeman and that of the læts becomes important. In the Norse laws the leysing’s wergeld was one sixth that of the hauld or odalman. In the Bavarian and Saxon laws the wergeld of the _litus_ was one fourth that of the freeman. Anything like these proportions in Kent would make a wergeld as low as 100 scillings for the freeman very improbable.

[Sidenote: The sceatts could not have been farthings.]

Lastly, perhaps it may be fair to the reader to recur once more to the question of the Kentish scilling. If any doubt should remain as to whether we are right in regarding the sceatt as the silver coin of that name, twenty of which went to the Roman ounce until it was superseded by the penny of Offa and Alfred, surely that doubt must now be dispelled. For if, according to the view of Schmid and others, the sceatt were to be taken as a farthing or _quarter_ of a sceatt, the correspondence of Kentish with Continental wergelds and payments _pro fredo_ would be altogether destroyed. The eorl’s triple wergeld at a ratio of 1:10 would be only one sixth (and if 300 scillings only one twelfth) of that of the Frankish noble or official, while the Kentish freeman’s wergeld would be reduced to one sixth (or if 100 scillings to only one twelfth) of that of the Continental _liber_ or _ingenuus_.

One perhaps must not say that such a result would be impossible. But would it be a likely one? We should have to suppose that the Jutish chieftain, perfectly familiar with the Continental wergeld of the freeman as 200 or 160 gold solidi, equated by long tradition with the round number of 100 head of cattle, upon settlement in Kent reduced the wergeld of the freeman to one sixth or one twelfth of what it was in the country he came from. From what we know of the tenacity of tribal custom everywhere, especially as regards the amount of the wergelds, it is difficult to conceive of his doing so.

VIII. RESULT OF THE KENTISH EVIDENCE.

We are now in a position to take a broader view of the wergelds, Continental, Kentish, Wessex, and Mercian.

[Sidenote: The Kentish, Wessex, and Mercian wergelds thus brought into line with the normal Continental wergeld of 200 and 160 gold solidi or 100 head of cattle.]

To the incidental mention of the fact that the Kentish freeman’s wergeld, if 200 Kentish scillings, equalled the gold _Mina Italica_ may be added the further incident that it was equal to 100 ‘sweetest cows’ of the Alamannic laws. Whether accidental coincidences or not, these facts bring us back to the point with which this inquiry started, viz. the widespread normal wergeld of 100 head of cattle and its very general traditional equation with a gold mina.

The main facts elicited as to the amount of the wergelds in the course of this inquiry are these.

At the date of the Kentish Laws and generally during the seventh century we find three wergelds in use in England for the freeman:--

The Wessex wergeld of 6000 sceatts at 1:10 = 600 gold tremisses

” Mercian ” 4800 ” { at 1:10 = 480 ” ”
{ at 1:12 = 400 ” ”

” Kentish ” 4000 ” at 1:10 = 400 ” ”

And on the Continent we find the two wergelds:--

Frankish 200 solidi = 600 gold tremisses
The other 160 ” = 480 ” ”

Now, in the fairly contemporary laws of the Ripuarian Franks, and of the Burgundians, the traditional values of animals we have found to be stated as follows:--

Ox 2 solidi = 6 gold tremisses
Cow 1 solidus = 3 ” ”

And in the nearly contemporary Alamannic laws the traditional values were:--

Best ox = 5 gold tremisses
Medium ox and sweetest cow = 4 ” ”

[Sidenote: The differences covered by ratio between gold and silver 1:10 and 1:12.]

Within the range of these variations in the ratio between gold and silver, and in the local value of animals, there seems to be ample room and reason for the variations in the money values of the wergelds.

(1) 100 oxen of 6 tremisses (_i.e._ 600 tremisses) equal the Frankish wergeld of 200 gold solidi, and at 1:10 the Wessex wergeld of 6000 sceatts.

(2) A long hundred of 120 cows of 4 tremisses (_i.e._ 480 tremisses) would equal the wergeld of 160 gold solidi, and at 1:10 the Mercian wergeld of 4800 sceatts.

(3) 100 cows at 4 tremisses (_i.e._ 400 tremisses) make the Kentish wergeld of (if we are right) 200 Kentish scillings of 2 tremisses, and at 1:10, 4000 sceatts. If we change the ratio to 1:12, then a Kentish wergeld of 100 cows of 4 tremisses would in silver equal the Mercian wergeld of 4800 sceatts. In other words, the difference between the Kentish and Mercian wergeld may be explained, either as one between 100 and 120 cows, or, the number of cows remaining at 100, between the ratios of 1:10 and 1:12.

There is thus in these fairly contemporary values of Western Europe, in the seventh century, or within the Merovingian period, so obviously room for the variations in the wergelds that, whether as to origin the differences may be of historical interest or not, at any rate for our present purpose we are fairly warned by the general coincidence in the wergelds not to make too much of the differences.

[Sidenote: Kentish freeman and the twelve-hyndeman = Continental _freeman_.]

The Kentish laws, therefore, lead us with some confidence to recognise the practical identity of the wergeld of the Kentish freeman with that, not of the Wessex ceorl, but of the twelve-hyndeman.

We have been led cautiously step by step to this result, and, whether the problem raised by it be capable of solution or not, it is important that it should be fairly stated and considered. Even if the Kentish freeman’s wergeld was only 100 Kentish scillings, it would more nearly correspond with the six-hyndeman’s wergeld than with that of the Wessex ceorl. On the other hand, the wergelds of the Kentish læts are very fairly on a level with that of the Wessex ceorl. Taking an average between the second and third class of læts the correspondence would be exact.[319]

[Sidenote: Kentish læt and the twy-hyndeman = the Continental _freedman_.]

If, therefore, the wergeld of the Kentish freeman may be regarded as practically equivalent to that of the Continental _liber_ or _ingenuus_ on the one hand, and to that of the twelve-hyndeman of the Anglo-Saxon laws on the other hand, and if that of the Kentish læt was like that of the Norse leysing and of the twy-hyndeman, then once more it becomes natural and right, and in accordance with ancient custom, that in the Compact between Alfred and Guthrum the twelve-hyndeman should be made ‘equally dear’ with the Norse hauld, and so with the _liber_ or _ingenuus_ of the Continental laws, while the twy-hyndeman should be held ‘equally dear’ with the Danish leysing.