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
The tribal feeling which allowed tribesmen and strangers to live side by
side under their own laws, and made the Salic and Ripuarian Franks award
a full wergeld to tribesmen of allied German tribes, while it gave only
a half wergeld to the Gallo-Roman possessor who was not of their blood,
was, it would seem, brought with the invading tribes into Britain.
Danish and English tribesmen were allowed to live side by side under
their own laws and acknowledged as ‘equally dear,’ with a similar
wergeld, while, at all events in the cases which come under notice,
complete strangers in blood were awarded only a half wergeld as in the
Continental laws.
We have not attempted to settle the question how far there was a
Romano-British population left in the towns, but we have found incidental
traces and hints that in Northumbria, Wessex, and Mercia there were
‘wilisc’ men--Welsh or British--who had only a half wergeld, being
treated as strangers both in this respect and also as regards the
substitution of the ordeal for the oaths of kindred (p. 403).
[Sidenote: The ordeal the alternative to the oaths of kinsmen.]
The principle that a man who could not bring to his protection the oath
of his kinsmen must be brought to the ordeal was one of widely extended
tribal custom. And it was emphasised by the adoption of the ordeal as a
Christian ceremony solemnly performed in the churches under both Frankish
and Anglo-Saxon law.
[Sidenote: The man of no kindred becomes a dependent on some one else’s
land.]
There can be little doubt that in the solidarity of the kindred under
tribal custom we have to do with the strongest instinct which everywhere
moulded tribal society. So far as it had its way and was not confronted
by more potent forces it must have almost necessarily ruled such matters
as the division of classes, the occupation of land, and the modes of
settlement.
When we inquire into the grades of society under tribal custom they seem
everywhere to have their roots in the principles of blood relationship. A
man who has no kindred to protect him needs and seeks the protection of a
chieftain or lord. By the force of tribal gravitation he sinks into the
dependent condition of living upon another’s land.
Whether he be a freedman who has risen from the rank of the theow or
thrall, or a free tribesman of low position, or one of a conquered
race, or a stranger immigrant, and whether he be cottier or the holder
of the typical yardland, until in the course of generations a kindred
has grown up around him, he remains in the dependent condition. He is
indeed a freeman as compared with the theow or thrall, but when Alfred
and Guthrum make their compact and agree that Dane and English shall be
reckoned as equally dear at the normal wergeld of the full freeman it is
not of the dependent class they are thinking. They give to this class and
to the Danish leysing or newly made freedman a twy-hynde instead of a
twelve-hynde wergeld.
Public-domain text, read in full here on John Shaqi.
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