Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'Seebohm, Frederic
History
Tribal Custom in Anglo-Saxon Law: Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'
Seebohm, Frederic
Anglo-Saxons; Law, Anglo-Saxon; Law, Medieval; Tribes -- Great Britain
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]
[Sidenote: 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.
[Sidenote: 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.
[Sidenote: 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).
[Sidenote: Then made a half-wergeld only, and the slave to be handed over
for the other half.]
Public-domain text, read in full here on John Shaqi.
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