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
Let us try, then, in spite of some confusion in the text, to make out the
probable meaning of the action described. Clause 1 makes it clear that
the first public step taken on the part of the slayer was to go to the
Mallus with twelve co-swearers, who with him pledge their faith that he
has given up everything, above ground or below it, towards the wergeld.
There must have been previous negotiations with the kinsmen of the slain,
and a stay of vengeance must have been conceded on the understanding that
if possible the wergeld will be paid. Having thus obtained legal security
for a time, the next stage in the proceeding is one between the slayer
and his kinsmen, without whose help he cannot pay the wergeld.
[Sidenote: The family gathering to arrange for payment of the rest of the
wergeld.]
The graphic details of the second clause seem to involve the presence of
a family gathering met within the enclosure containing the house of the
slayer, and, for anything we know, other houses of near relations. In
this enclosure the kindred have met to deal with a family catastrophe in
which they themselves are involved as well as the slayer. Even if they
have to find only their half of the wergeld, fifty head of cattle from
the family herd or their separate herds, as the case may be, must be to
them a matter of importance. Standing on the threshold of the house from
the four corners of which the slayer has gathered a handful of earth, he
throws it over the representatives of his paternal and maternal kindred.
He has done his part, and now the responsibility rests on them.
The vagueness and difficulty of the next clause result from a text which
has probably been tampered with. But with the help of Tit. LXII. and
the addition of Tit. CI., giving further details, it becomes at least
partly intelligible. The rule that the payment of wergeld was made by
the relatives in the same proportions as they would receive it, if
one of their kinsmen had been slain, is so general that we may fairly
assume that it was followed also by the Salic Franks. We have seen that
according to these clauses, if a father was killed, the sons took the
first half of the wergeld, and that the other half was divided between
three sets of _proximiores_--the three parentillæ or sets of relatives of
both paternal and maternal kindreds--in certain proportions. The slayer
and his sons should pay the first half, and his father and brothers
apparently help them to pay it. The other part ought to fall upon the
three parentillæ nearest of kin on both the paternal and maternal side.
So that Clause 3 becomes partly intelligible. ‘If the father and brothers
have already paid’ what the slayer could not pay of the first half, the
earth has to be thrown upon the three parentillæ nearest of kin of the
mother’s kindred and the three parentillæ nearest of kin of the father’s
kindred. These seem to be the ‘proximiores’ who should pay the other half.
Public-domain text, read in full here on John Shaqi.
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