CHAPTER IX.
_TRIBAL CUSTOM IN SCOTLAND._
I. TRACES OF TRIBAL CUSTOM IN THE LAWS OF THE EARLY KINGS.
[Sidenote: Tribal custom in the ancient laws of Scotland.]
The population of Scotland was so various in origin and language that it would be unreasonable to expect uniformity of custom. Even where Celtic custom was best able to hold its own there must naturally have been a mixture of Cymric and Gaelic elements. In districts, on the other hand, where Frisian and Northumbrian and Danish and Norse influences may have once predominated, whatever survivals there may have been of tribal custom from any of these origins may well have been afterwards submerged under legal forms and ideas from Anglo-Norman sources.
It is worth while, however, to examine what scattered survivals of tribal custom may be found in the laws of the early kings, and in the various documents collected in the first volume of the ‘Ancient Laws of Scotland.’
* * * * *
That tribal custom as to wergeld existed and was recognised is proved by the necessity to abolish what remained of it.
Thus in the ‘Leges Quatuor Burgorum’ is the following clause:--
[Sidenote: Laws of the Four Burgs.]
XVII. _Of bludewyt and siklyk thingis._
And it is to wyt at in burgh sall nocht be herde bludewyt na yit stokisdynt [styngisdynt] na merchet na heregelde na nane suilk maner of thyng.
This wholesale and disdainful disregard of feudal and tribal customs on the part of the townsmen of the four Burgs was followed somewhat later by an Ordinance of Edward I. (A.D. 1305) which again testifies to the wider survival of more directly Celtic tribal usages by forbidding their continuance.[195]
Ordene est que l’usages de Scots et de Brets desorendroit soit defendu si que mes ne soient usez.
Here we have the usages of the Brets and Scots distinctly recognised as still lingering on so late as the beginning of the fourteenth century in some parts of Scotland.
[Sidenote: Laws of King David.]
In the laws of King David[196] there are distinct traces of ancient custom as regards wergelds and the connection of the kindred with their payment and receipt. In section XIV. it is enacted:[197]--
If in any place within the peace of the King any one shall attempt to strike another, he shall pay to the King 4 cows and to the other 1 cow. If he shall really strike, but without drawing blood, 6 cows to the King and 2 cows to the other. If blood be drawn, 9 cows to the King and 3 to the person struck. If he slay the other, he shall give to the King ‘_XXIX ky and a colpindach_’ (juvenca).[198] And he shall assyth to the kin of him slain after the assyse of the land.
Clause XV. deals with violence done in the king’s court:--
If any one draws a knife to another in the King’s Court it shall be stricken through the middle of his hand. If he draws blood, the hand shall be cut off. And if he slay any man, he shall give to the King _XX ky and a colpindach_ [ixˣˣ, Ayr MS.] and he shall make peace with the kin of him slain and with the King ‘after the assyse of the kynrik.’
In both these clauses the wergeld to the kin is additional to the payment to the king (of 180 cows?) for breach of his peace.
Clause XVI. forbids the letting off of a thief for money or friendship. An earl or any one having the freedom and custom of an earl who does this is to pay to the king 100 cows, and other great men not of earl’s rank 34 cows. The thief is to be ‘outlawed through all the king’s land.’
It is clear, then, that in the time of King David the system of wergelds payable to the kindred of the person slain was generally in force, though no amount is mentioned, and that payments were made at this date mostly in cows.
[Sidenote: Assize of King William.]
In the ‘Assize of King William’ under date A.D. 1180 is the following mention of the _wergeld_ to be paid evidently for a thief who has been allowed to escape as above.
XIV. _Of the law which is called weregylt._
Of every thief through all Scotland whether that he be bondman or freeman the wergeld is XXXIV ky and a half.
The following clause is further evidence of the continued right of vengeance on the part of the kin of a person slain.
XV. _Of a man slain in the King’s vengeance._
If any one for theft or rapin dies by law of iron or water, and of him right be done, or if he were slain with theft found with him and afterwards if his kin in vengeance of him slew him that brought him to the law, the King shall have as fully right of such men slayers for the death of him, as of his peace fully broken, without concord or relaxation; unless it be through the counsel or the assent of his kin.
And if it happen by chance that the King grant peace to the adverse party unknown to the kin of him that was slain, nevertheless the kin of him shall take vengeance of them that slew their kin.
[Sidenote: Laws of Alexander II.]
Among the Statutes of Alexander II. under date A.D. 1220 the following fines were imposed upon persons who held land of the king and who absented themselves from the army. (Clause II., p. 68.)
From a thane, 6 cows and a gillot [_juvenca_].
From an _ochtyern_, 15 sheep or 6_s._ (half to King and half to the thane or the knight).
From a carl [_rusticus_], a cow and a sheep to be divided between the King and the thane or knight, but if with the leave of the thane or the knight, then all to the King.
This clause reveals a social division of classes into thanes, _ochtyerns_,[199] and carls or rustics; to which another clause (IV., A.D. 1230) enables us to add the nativus or ‘_kind-born bondman_.’
It is not needful to pursue the inquiry into the laws of the later kings of Scotland. But among the ‘Fragmenta’ in App. V. (p. 375) of the collection there is one which must not be overlooked, although it may be difficult to fix its date. It seems to be made up of two fragments united and is interesting as containing two very different statements of the payment ‘for the life of a man.’
Put into modern English, the first part is as follows:--
All laws either are man’s law or God’s law. By the law of God, a head for a head, a hand for a hand, an eye for an eye, a foot for a foot.
By the law of man _for the life of a man ixˣˣ cows_, for a foot a mark, for a hand as much, for an eye half a mark, for an ear as much, for a tooth 12 pence, for each inch of length of the wound 12 pence, for each inch of breadth of the wound 12 pence. For a stroke under the ear 16 pence, for a stroke with a staff 8 pence, and if he fall with the stroke 16 pence. For a wound in the face he shall give an image of gold [? a coin with the King’s head upon it].
The other part is as follows:--
And by man’s law for breaking of bones 5 ores, for a wound under the clothes 12 pence. For a wound before the sleeve 16 pence, and for each visible wound except the face 15 pence. _For a man’s life 12 marks_; for a wound above the chest 6 solidi, and under the chest 60 pence; for a foot stroke 60 pence; for blood drawn 25 shillings, and beyond the sea 6 cows.
[Sidenote: Amount of the wergeld doubtful.]
Now what are we to make of these ‘Fragmenta’? Clearly the two fragments must be taken separately, for in the first the payment ‘for the life of a man’ is 180 cows and in the second the payment ‘for a man’s life’ is twelve marks.
Mr. Robertson seems to have concluded that the payment of 180 cows was the wergeld according to the Assize of Scotland, or, as he puts it, ‘the manbote for homicide throughout Scotia.’[200] But he arrived at this conclusion apparently by connecting this fragment with the clause already quoted in the Assize of King David which states that a person killing another in any place within the king’s peace ‘shall pay to the king 180 cows and a colpindach.’ He concluded that the payment was 180 cows from the reading ‘ixˣˣ cows,’ as it is found in the Ayr manuscript of one of the clauses, as already stated. But the clause itself shows that this payment to the king was not the wergeld, because after making this payment the slayer had still to ‘assyth to the kin of him slain after the assyse of the land.’
Nor does it seem any more likely that the payment of twelve marks mentioned in the second fragment was the wergeld of Scottish custom. From its amount it seems much more likely to correspond with the payment already alluded to as the ‘wergeld’ of the thief allowed to escape, which, however, might possibly represent that of persons of lowest rank.
The evidence of these undated fragments leaves us in the dark as to what the wergeld of the ancient Assize of Scotland may have been. Confused and mixed statements as to the wergelds are not surprising when the mixture of races is taken into account, and, after all, the phrase ‘after the assize of the land’ or ‘after the assize of the Kynrik’ may refer only to those portions of the kingdom to which the laws of King David specially applied.
II. THE ‘REGIAM MAJESTATEM.’
Further traces of tribal custom are mentioned in the treatise entitled ‘Regiam majestatem’[201] apart from the remarkable addition to it, which also appears again as a separate document, under the heading ‘Leges inter Brettos et Scotos.’
[Sidenote: Scotch version of Glanville.]
The ‘Regiam Majestatem’ itself may be regarded as a version of Glanville’s well-known treatise on English law, applied with alterations and adaptations to Scotland by a Scotch writer conversant with local custom, and probably dating between A.D. 1200 and 1230.[202]
As in the laws of King David and his successors, so in the body of this treatise, references to ancient usages occur with occasional survivals of untranslated Gaelic words which seem to refer them back to Celtic tribal custom.
[Sidenote: Celtic survivals here and there.]
Thus, in Lib. II. s. ix, in reference to the modes by which _nativi_ might obtain freedom, a specially Scotch addition is made, to the effect that if a lord has carnal intercourse with the betrothed wife of his _servus_, and this is proved by the visinage, the _servus_ is thereupon released from the servitude of his lord; and then follows the phrase ‘nec aliud _enache_ habebit a domino suo nisi recuperationem libertatis.’ This untranslated Gaelic word _enache_ has already been met with in the _enec-lann_ of the Irish ‘honour-price,’ and we shall find it used again when we come to the customs of the Bretts and Scots.
So, in Lib. IV. c. 7, in cases of rape the woman (according to the text of Glanville) is to make it known to men in good position (_probi homines_) or to the ‘_prepositus_ of the hundred.’ In this Scotch treatise the writer inserts instead of the words ‘_prepositus_ of the hundred’ ‘_vicecomitatus vel le toshederach_.’ The Gaelic _Toshach_ or chieftain of a district is much in evidence in the marginal records of the ‘Book of Deer.’[203]
Again, in IV. 12, in a passage not found in Glanville, the theft of a calf or ram or whatever can be carried off on the back is described in the local words ‘_berthinsak_ seu _yburthananseca_.’
In the same chapter is inserted the already quoted clause from the Assize of King William as to the wergeld of a thief who has been allowed to escape.
De unoquoque fure per totam Scociam est _wargeld_ triginta vacce et una juvenca sive fuerit liber sive servus.
In IV. xxiii. a pledge is mentioned ‘quod vocatur _culrach_.’
[Sidenote: Cro and galnes of person killed paid to the _parentes_.]
In IV. xxx. of the treatise it is stated that if a person on horseback rides over some one going before him so as to kill him, he must render for the dead man so killed ‘_cro et galnes_’ as if he killed him with his own hands; and it goes on to say that if the rider treads a man to death by riding over him when _backing_ his horse (as it would not then presumably be his fault) he is to pay nothing but ‘the fourth foot of the horse,’ which satisfaction the _parentes_ of the man killed ought to accept.
The mention in this treatise of _cro and galnes_ payable to _parentes_ of the slain seems to imply that the customs relating to payments for homicide were generally in force throughout Scotland and not confined to any particular district. The words ‘cro and galnes,’ apparently meaning the wergeld, meet us again in the document relating to the customs of the Bretts and Scots.
The final clause (IV. liv.) describes the ‘merchet’ of women ‘according to the assize of Scotland.’ It begins by stating that the merchet of a woman, _quecunque mulier fuerit, sive nobilis, sive serva, sive mercenaria_, is ‘una juvenca vel tres solidi’ with 3_d._ as _rectum servientis_. Surely a female slave is here intended.
[Sidenote: Merchet of several grades of women.]
This seems to be the minimum ‘merchet,’ for the clause proceeds:--
And if she be the daughter of a freeman and not of the lord of the town (_dominus ville_) her merchet shall be one cow or six shillings and ‘rectum servientis’ 6_d._ Likewise the merchet [of the daughter] of a thane’s son or _ochethiern_ two cows or twelve shillings and ‘rectum servientis’ 12_d._
Likewise the merchet of the daughter of an earl (_comes_); and that of a queen; twelve cows and ‘rectum servientis’ two solidi.
This clause regarding the ‘merchet’ is useful as giving a scale of values in cows and shillings.
juvenca = 3 shillings. cow = 6 shillings.
And the merchet scale:
{_nobilis_ [?]} _Mulier_ {_serva_ } throughout Scotland ½ cow. {_mercenaria_ }
Daughter of a _liber_ 1 ” ” of a thane’s son or ochethiern 2 cows. ” of an earl or of a queen 12 ”
[Sidenote: Value the cow six Norman shillings: at 1:12 = stater.]
The solidus of this document can hardly be any other than the Anglo-Norman silver shilling of 12 pence of 32 wheat-grains, _i.e._ 384 w.g. The cow equalled six of these shillings or 2304 w.g. At the Anglo-Norman ratio of 1:12 the value of the cow would thus be 192 wheat-grains: that is, exactly the normal ox-unit of two gold solidi of Imperial standard.
This curious result is not only interesting as one more instance of the tenacity of custom in retaining the traditional gold value of the animal used as the unit of payments when made in cattle, but also useful for our present purpose as affording a valuable proof that the Scotch compiler of the ‘Regiam Majestatem’ in appending the important clauses relating to the customs of the Bretts and Scots which follow closely upon this merchet clause was adding to his work a quite independent document, probably of much earlier date.
[Sidenote: Value of the cow in the next document three ores, or at 1:8 = stater.]
In this added document while the payments are again stated in cows, the value of the cow is reckoned, not in shillings, but in _ores_, which the figures, when examined, show to be ores of 16 pence. This reckoning in ores of 16 pence suggests a Norse or Danish influence. For, although the Anglo-Norman reckoning in shillings of 12 pence ultimately conquered and became the prevalent reckoning in the Scotch statutes, there was no doubt a period when the reckoning in ores of 16 pence was in use in Danish England, probably including Northumbria.
This is shown by a law, probably of Cnut’s,[204] which enacted as follows:--
Et ipsi qui portus custodiunt efficiant per overhirnessam meam ut omne pondus sit marcatum ad pondus quo pecunia mea recipitur, et eorum singulum signetur ita quod xv ore libram faciant.
Those who have charge of the towns (_portus_) shall secure that under penalties every weight shall be marked at the weight by which my money is received, and let each of them be marked so that fifteen ores shall make a pound.
The ores of this law, as we shall see, were evidently ores of 16 pence, or 512 wheat-grains (16 × 32), for fifteen of such ores made the Saxon and Anglo-Norman pound of 240 pence, or 7680 wheat-grains.
[Sidenote: Danish ratio of 1:8.]
The fact that the ore of the document describing the customs of the Bretts and Scots was the same ore as that in use with both Danes and English in Danish England and probably Northumbria about A.D. 1000 is an important one. For in this document the value of the cow of the Bretts and Scots is stated to be three ores, _i.e._ 1536 wheat-grains of silver, and at the Scandinavian ratio of 1:8 the gold value of the cow would therefore be once more 192 wheat-grains or two gold solidi of Imperial standard. That the Danish ratio was 1:8 as in the Scandinavian laws we shall find to be involved in the Anglo-Danish compacts making Danes and English ‘equally dear,’ while as late as A.D. 1192 the Abbey of Kelso compounded for payments to the Pope at the same ratio, two solidi of sterlings (24_d._ of 32 wheat-grains), or 768 wheat-grains of silver being paid for the gold solidus of 96 wheat-grains.[205]
[Sidenote: Laws of the Bretts and Scots belong to time of Danish influence.]
We may therefore consider that the document relating to the Bretts and Scots belongs to the period of Danish influence, and is of much earlier date than the work to which it was appended by the Scotch editor of Glanville.
III. LEGES INTER BRETTOS ET SCOTOS.
[Sidenote: Norman French version thirteenth century.]
The remarkable document printed separately in Appendix III. of the ‘Ancient Laws of Scotland’ under the above title is given in three languages--Latin, Norman French, and Scottish English.
The oldest version of it is that of the ‘Berne Manuscript,’ now in the ‘Register House’ at Edinburgh, which is considered to be of the thirteenth century. It appears in this manuscript as a separate document in Norman French, and therefore it would seem that we owe this statement of ancient custom to a Norman scribe. The Latin version added to the ‘Regiam Majestatem’ is of later date. The earliest manuscript is of the fourteenth century.[206]
As given in the ‘Regiam Majestatem’ it consists of four clauses, LV. to LVIII.
[Sidenote: The cro and galnes.]
The clauses are headed ‘Quid sit le cro quod anglice dicitur “grant before the King,”’ ‘De occisis in pace Regis,’ ‘De Kelchyn regis et aliorum dominorum Scocie,’ and ‘De effusione sanguinis.’
It is printed in Appendix III. of the ‘Ancient Laws of Scotland’ among the ‘capitula vetustiora’ under the heading ‘Leges inter Brettos et Scotos.’ The Norman French of the Berne manuscript is accompanied by the Latin from the ‘Regiam Majestatem’ and a Scottish-English version of unknown date.
The first clause is as follows:--
De cro quod anglice dicitur grant befor the Kyng.
De cro le Rey descoce & des altres choses.
Her folowis lee Croo.
* * * * *
Statuit dominus rex quod le Cro domini regis scocie est mille vacce vel tria millia orarum aurearum scilicet tres ore pro vacca. Item le Cro filii regis vel vnius comitis scocie est septies viginti [et decem] vacce vel tres ore pro vacca.
Cro le rei descoce est · mile vaches · u · treis mil ores · e fet a sauer treis ores · a la vache. Cro a vn conte descoce · v del fiz le Rei · viiˣˣ · vaches · ⁊ x · ov · iiiiᶜ ⁊ · L · ores.
Þe lord þe king has statut þat þe Croo of þe king of scotland iᵐ ky or iiiᵐ orarum aurearum bot iii ar for þe kow. Item þe Croo of þe kingis soune or of ane erl of scotland is vii tymes xxᵗⁱ ky and ten ky.
* * * * *
Item le Cro filii vnius comitis vel vnius thani est centum vacce.
¶ Cro a vn fiz a cunt ou a vn thayn · est · C · vaches · u · treis · C · ores.
Item þe Croo of þe sone of ane erl or of a than is jᶜ ky.
* * * * *
Item le Cro filii thani est sexaginta sex vacce et due partes vnius vacce.
¶ Cro a fiz dun thayn · est · lxvi · vaches · ⁊ · ii · pars dune vache · ou · CC · ores.
Item þe Croo of þe sone of a thane is iiiˣˣ ky and vi ky and twapert a kow.
* * * * *
Item le Cro nepotis vnius thani vel vnius ogthiern est quadraginta quatuor vacce et viginti unus denariorum et due partes vnius denarii. Et omnes bassiores in parentela sunt rustici.
¶ Cro · del neuu · a vn thain · u · de vn ogettheyrn est · xliiij · vac͠c · ⁊ · xxi · đ · ⁊ deu pars dun deñ. E tu li plꝰ [bas] en le parente sūt vilayns · ⁊ vnt dreitᶻ a vilayn.
Item þe Cro of þe newow of a than or of ane ogethearn is xliiii ky and xxi penijs and twapert of a peny. Item al þir þat ar lawer þan þir in kyn ar callit carlis.
* * * * *
Item le Cro vnius rustici est sexdecim vacce.
¶ Cro a vn vileȳ · xvi · vac͠c.
Item þe cro of a carl is xvi ky.
* * * * *
Item le Cro cuiuslibet femine virum habentis est minor per terciam partem quam le Cro viri sui et si non habeat virum tunc le Cro ipsius est adeo magnum sicut le Cro fratris sui si quem habet.
¶ Cro a checune fēme q̃ barō at · est de la tierz partie mayns de son barō · et si ele nat nēt de barō · dūkes est le cro ausi gʳnt cū vne de se freres.
Item þe Croo of euerilk woman hafand husband is less be þe thridpert þan þe cro of hyr husbande. And gif scho has nocht a husband þan þe cro of hir is alsmekil as þe cro of hir broder gif scho ony broder has.
* * * * *
Item le Cro et le galnys et le enach vnius cuiusque hominis sunt pares scilicet in respectu de le enach feminarum suarum.
le cro ⁊ le galnis · ⁊ le enach a checū hōme sūt peirs · ceo est a sauer le enach · pur sa fēme.
Item þe Cro and þe gallnes and þe enauch of euerilkaman ar lik þat is to say in respic of enauch of þar wiffis.
It will be most convenient to put these payments of the cro and galnes into a tabular form.
_King of Scotland_ 1000 cows = 3000 ores King’s son and comes (earl) 140 cows = 420 ” Comes’ son and thane 100 cows = 300 ” Thane’s son 66⅔ cows = 200 ” Thane’s grandson or ogthiern 44 cows & 21_d._ and ⅔_d._ All lower in _parentela_ or kin and rustics 16 cows
[Sidenote: Thane’s wergeld 100 cows.]
The cro and galnes seem to be substantially the same thing as the wergeld. The word ‘cro’ is of uncertain meaning. The ‘cro’ of the Brehon laws is translated ‘property.’ It seems also to have had the meaning of ‘death.’ The word ‘galnes’ can hardly be other than the Welsh _galanas_ or wergeld. Whether the phrase ‘cro and galnes’ means two things or one thing, and if two things, what the distinction between them was, it is not easy to see. But evidently the two together made a single payment for each grade of rank. The payments, moreover, are expressed in cows as well as in ores and pence, and the payment of 100 cows seems to mark the _thane_ as the typical and complete tribesman.
The two explanatory clauses introduce a third element, the ‘enach.’
The Cro of a woman having a husband is one third less than the husband’s cro, and if no husband she has the same cro as her brother.
The _Cro_ and the _galnys_ and the _enach_ of every man are alike, that is to say in respect of the _enach_ of their wives [_i.e._ one third less than the husband’s].
The enach, as already said, seems to be the honour-price of the Brehon law. We have seen that, according to the Scotch addition and Glanville’s clause, if a slave was injured by his master, he was to be set free and his freedom was to be in the place of any other ‘enach.’ This accords well with the Irish enec-lann and the Welsh saraad and the Norse rett, all of which referred to insult rather than bodily injury.
[Sidenote: Payments for breach of peace of various persons.]
The next clause relates to homicide ‘in pace regis’ or of other lords. We have already seen that in the laws of King David the manbote or payment to the king for breach of his peace, or for crime committed in his _grith_ or precinct, was a thing distinct from the satisfaction to be made to the kin of the person slain ‘according to the assize of the Kynrik.’ In these early laws the payment for slaying a man in the king’s peace was, according to the corrected text, 180 cows. In the following clauses 180 cows are again the payment for breach of the king’s peace, but there are payments also for breach of the peace of other classes.
De occisis in pace regis.
[]
Of þhaim þat ar slayn in þe peis of þe king and oþer lordis.
* * * * *
Si quis homo sit occisus in pace domini regis sibi pertinent nouies viginti vacce.
¶ Si hūme est ocys en la pes le rei · il a feit · ixˣˣ vac͠c.
Giff ony man be slayn in þe pes of our lord þe king til him pertenis ix tymis xxᵗⁱ ky.
* * * * *
Item si homo sit occisus in pace filii regis vel vnius comitis sibi pertinent quater viginti et decem vacce.
¶ Si hūme seit ocis en la pes · le fiz le rei · v en la pees vn cunte · ilur · a feit · iiijˣˣ · vacc · ⁊ · x.
Item gif a man be slayn in þe pes of þe sone of þe king or of ane erl til him pertenis iiij tymis xxᵗⁱ ky and x ky.
* * * * *
Item si homo sit occisus in pace filii vnius comitis vel in pace vnius thani sibi pertinent sexaginta vacce.
¶ Si hūme seit ocis · en la pees · al fiz dun cunt · v · de vn thain · ilur a feit · lx · vachis.
Item gif a man be slayn in þe pes of þe son of an erl or of a thayn till him pertinis iijˣˣ ky.
* * * * *
Item si homo sit occisus in pace filii vnius thani sibi pertinent quadraginta vacce. Item si homo sit occisus in pace nepotis vnius thani sibi pertinent viginti vacce et due partes vnius vacce.
¶ Si vn seit occis en la pees al fiz dun thain · ili a feit · xxvi · [· _xl_ ·] vac͠c.
Item gif a man be slayn in pes of þe sone of a thayn til him pertenis xl ky. Item gif a man be slayn in þe pece of a nevo of a thayn til him pertinis xxᵗⁱ ky and twapert a kow.
The payments were as under:--
If a man be killed _in pace regis_ 180 cows. } _To the In that of the King’s son or comes 90 ” } person in ” ” comes’ son or thane 60 ” } whose peace ” ” thane’s son 40 ” } he was ” ” thane’s grandson 20⅔ ” } killed._
They seem to be very large, but they are not impossible, seeing that in the Norse law, while the wergeld of the hauld was 27 marks of silver or 96 cows, the payment to the king for the breach of his peace (frith-bot) was 40 marks, _i.e._ 128 cows.[207]
[Sidenote: The Kelchin.]
The next two clauses, under the heading ‘Kelchin’ or ‘Gelchach,’ seem to refer to insult or wounding, (the Welsh _gweli_ = wound). And as the word _enach_ does not occur again in the laws of Bretts and Scots it seems probable that it may have been included under this heading, and that the Kelchin or Gelchach, like the Irish _enach_ and the Welsh _saraad_, referred quite as much to insults to personal honour as to bodily injuries.
_De Kelchyn_
[ ]
_Of lee Kelchyn_
* * * * *
Item le kelchyn domini regis est centum vacce. Item le kelchyn filii regis vel vnius comitis est sexaginta sex vacce et due partes vnius vacce.
¶ Gelchach le rei · a · C · vacc · a cont v al fiz le rei · lx[vi] vac͠c · ⁊ · ii · pars deune vac͠c.
Item þe kelchin of our lord þe king is jᶜ ky. Item þe kelchyn of a sonne of þe kingis or of an erle is iijˣˣ ky [and sex ky and twapert of a kow].
* * * * *
Item le kelchyn filii vnius comitis vel vnius thani est quadraginta quatuor vacce viginti vnus denarii et due partes vnius oboli. Item le kelchyn filii thani est minor per terciam partem quam patris sui et sunt viginti nouem vacce [ ] vndecim denarii et tercia pars vnius oboli. Rusticus nichil habet de kelchyn.
¶ Gelchac · de thayn · v · de fiz a cunt · est xliiij · vac͠c · & · xxi · đ · ⁊ deus pars deune mayl.
Item þe kelchin of a thane or of þe sone of ane erle is xliiij ky and xxi peniis and twapert of a half peny. Item þe kelchin of þe sonne of a thane is les be thrid part þan of his fader þat is to say þar pertenis til him xxix ky and xi peniis and þe thrid part of a half peny. And a carl has na kelchin.
* * * * *
Item si uxor liberi ominis sit occisa vir suus habebit le kelchyn [ ] parentes eius habebunt le cro et le galnes.
¶ Si fēme a vn franc hūme est ocis · son barō auera le kelchin · ⁊ ses parens auerūt le cro & le galnis.
Item gif þe wif of a fre man be slayn hyr husband sal haf þe kelchyn. And hir kyn sal haf þe cro and þe galnes.
* * * * *
Item si uxor rustici sit occisa dominus ipsius terre in qua manet habebit le kelchyn et parentes eius le cro et le galnes.
¶ Et si fēme a vileyn seit ocis · le seygnur del fe v le vilein meint auera le kelchin · ⁊ le vilein auera le turhochret a sa fēme del kelchin · ⁊ le parens [le cro] et le galnis.
Item gif þe woman of a carl be slayn þe lord in quhais lande he duellis sal haf þe kelchin and hyr kyn sal haf þe cro and þe galnes.
* * * * *
[Sidenote: Payments for blood drawn.]
_De effusione sanguinis_
[ ]
_Of blude drawyn_
* * * * *
Item sanguis de capite vnius comitis aut filii regis sunt nouem vacce. Item sanguis filii comitis aut vnius thani sunt sex vacce. Item de sanguine filii thani tres vacce. Item de sanguine nepotis thani due vacce et due partes vnius vacce. Item de sanguine vnius rustici vna vacca.
¶ Le saūc de la teste a vn cūte v · del fiz al rei · est · ix · vaches · del thayn · v del fiz al vn cūte · vi · vachis · del fiz al vn thayn · iij · vac͠c.
Þe blude of þe hede of ane erl or of a kingis son is ix ky. Item þe blud of þe sone of ane erle is vi ky or of a thayn. Item þe blude of þe sone of a thayn is iij ky. Item þe blud of þe nevo of a thayn is twa ky and twapert a kow. Item þe blud of a carl a kow.
* * * * *
De sanguine extracto subtus anhelitum est minus per terciam partem in omnibus supradictis.
¶ Le saunc de suz le alayn · est de la terce parte meyndre.
Item blude drawyn vnder þe aand is thrid pert les of al þir gangand befor.
* * * * *
Et si mulier non habeat virum ius suum erit sicut ius fratris sui si quem habeat.
⁊ ensemēt de lur fēmes est saunc est del tꝰce part mayndre · mes si fēme seit sen baron ··· dūkes ad ele tel dreitur · com sun frere.
And gif a woman haf nocht a husband hyr rycht salbe as of her broder gif scho ony broder has.
* * * * *
Item percussio sine sanguine effuso decem denarii.
Item strikyn without blud drawyn x penijs.
···· ¶ Et si hūme est ocis en le ost · sun seingnʳ · auera le kelchin · ⁊ ses parens le cro · e le galnis · ⁊ le rei · viij · vaches · flatha.
Put into a tabular form these payments are as follows:--
_Kelchyn or Gelchach_
King 100 cows Son of King or comes 66⅔ ” Son of comes and thane 44 ” and 21 _d._ and ⅔ _ob._ Son of thane 29 ” ” 11 _d._ ” ⅓ ” Rusticus or carl _nil_
_De effusione sanguinis or of blude drawyn._
Blood drawn from the head of a Comes or King’s son 9 cows Comes’ son or thane 6 ” Thane’s son 3 ” (? 4) Thane’s grandson 2⅔ ” Rusticus 1 cow
Blood drawn _subtus anhelitum_ one third less than above it.
If a woman have not a husband her right shall be as her brother, if she has one.
Striking without blood drawn 10_d._
That we are right in supposing the kelchin to be analogous to the Welsh _saraad_ seems to be confirmed by the interesting additional information appended to the clauses.
And if the wife of a freeman is slain her husband has the Kelchyn and her kin the Cro and galnes.
Item if the woman of a carl be slain, the lord of the fee where he dwells shall have the Kelchin and the vilein shall have his wife’s _turhochret_ of the Kelchin and her kin shall have the cro and the galnes.
If a man be killed in the host, his lord shall have the Kelchin and his _parentes_ the cro and the galnes and the King eight cows _flatha_.
These clauses of explanation are very important when we try to understand the laws to which they are appended as a whole.
* * * * *
[Sidenote: The thane’s wergeld the normal one of 100 cows.]
Commencing with what seems to be the wergeld, the ‘cro and galnes’ of the thane, who may be taken as the typical freeman, was 100 cows. We have seen that the value of the cow was three ores of silver or, at a ratio of one to eight, 192 wheat-grains of gold. The wergeld was therefore, not only the usual round number of 100 cows, but also in gold value, like that of the Cymric codes and so many others, exactly 19,200 wheat grains or 200 gold solidi.
If we try to trace the connection of this wergeld with those of other tribes, the coincidence with the normal wergeld does not help us much.
It is the same as the Welsh galanas of the uchelwr, and the use in the laws of Cymric and Gaelic words might lead us to look upon the wergeld as a Celtic one. But the equality in the payment is in _gold_ and not in the number of cows. The cro of the thane was 100 cows. The galanas of the Welsh uchelwr was 120 cows. Moreover, the cows in which the Welsh galanas was paid were equated with three scores of silver, _i.e._ three Saxon ounces of 20_d._, while the cows in which the cro was paid were equated with three ores of 16_d._ And this seems to point to a Danish connection.
All these things taken together seem to point to a mixture and confusion of influences rather than to a single origin.
* * * * *
The gradations of rank and position disclosed by the amount of the cro or wergeld seem to be based upon family seniority, and to have a character of their own.
[Sidenote: The gradations of rank in the family.]
The King of course stands at the head of the list with a cro of 1000 cows. His son takes equal rank with the earl with a cro of 140 cows. The earl’s son is of equal rank with the thane, and they have a cro of 100 cows. Then comes the thane’s son with a cro of one third less, or 66⅔ cows, and next the thane’s grandson with a cro one third less again, of 44 cows and 21⅔ pence. All below this in _parentela_ or kin are classed with rustics or carls, with a cro of 16 cows.
Looking at the position of persons at any given moment, from the point of view of the thane, he has the earl and the king above him and the earl’s son as his equal in rank. Their children and grandchildren belong still to the chieftain class, but they are juniors or cadets of the class. Even the grandchildren of the thane are _ogthierns_, or young thanes. In natural course they may presumably take their father’s rank on his death, but not until that happens. And possibly only the eldest son of the earl or of the thane succeeded to the official position of chieftain of his house.
Beyond this there is not much more to be gathered concerning the gradations in social rank. Nor are we told anything about the division of the amount among the members of the kindred receiving or paying the cro as the case might be. We are told only that the cro and galnes belonged to the kin of the person slain.
Turning from the cro and galnes to the _kelchin_: what are we to make of it?
[Sidenote: The kelchin like the Welsh saraad for insult.]
The gradations resemble those of the cro to this extent, that the kelchin of each grade was one third less than that of the one above, but the kelchin was no direct fraction of the cro. The kelchin seems, as we have said, to be something like the Welsh _saraad_ for insult or wounding, the Irish _enec-lann_ or honour-price, and the Norse _rett_ or ‘personal right;’ but it does not seem to correspond altogether with any one of them.
All we know is that on the homicide of a person, whoever he might be, in addition to the cro and galnes, the kelchin had to be paid. But it was a payment which, like the Cymric saraad, according to the interesting explanation given, did not go with the wergeld proper to the kindred or relations in blood. When a wife was slain, the husband, who was not a blood relation or of the kindred of the wife, took the kelchin, while the wergeld proper--cro and galnes--went to her kindred.
[Sidenote: Each grade had a precinct and a fine for breach of it. But not the carl or rustic.]
Turning to the payment which had to be made for breach of the peace or protection of the lord, it was a payment due to the king if the homicide were perpetrated ‘in pace regis,’ and to a person of each grade in succession, even to the thane’s grandson, in case the homicide were committed within his precinct. Only the carl or rustic received no payment, as presumably he was living on the land of a lord, who would, therefore, claim it.
The position of the carl or rustic, or in Norman French the _vilein_, is interesting. If his wife was killed the lord took the kelchin. The homicide was reckoned as an insult and loss to him. The wergeld did not go to the husband but to the kindred of the wife, as in the case of those of higher grade. So that, so far as this at least, there was recognition of kindred in the rustic’s position. His ‘cro and galnes’ was just about one sixth of that of the thane and presumably went to his kin--as his wife’s cro and galnes went to her kin.
There is one other point as yet unexplained--what was the ‘turhochret’?
It occurs in the clause:--
Item if the woman of a carl be slain, the lord of the fee where he dwells shall have the kelchin _and the vilein shall have his wife’s turhochret_ of the kelchin and her kyn shall have the cro and the galnes.
There are so many Gaelic words in this document that there can be little doubt that the _turhochret_[208] is one of them. It seems to have been the part of the kelchin allowed by the lord to go to the husband in respect of the insult to his wife--_i.e._ _her_ share in the kelchin. Whatever it was, when the wife was slain, the husband retained it, while the lord took the rest of the kelchin, and the wife’s kin the cro and galnes of their slain kinswoman. The information given is scanty, but it is difficult to make this passage mean anything else.
[Sidenote: The wife belonged to her own kindred.]
One thing is made remarkably clear in this document: that the wife of the free tribesman did not among the Bretts and Scots pass upon marriage under the full _potestas_ of her husband. On her murder, while it was an insult to him and he therefore could claim the kelchin, the cro and the galnes passed to her kin. The wife, therefore, in a very real sense belonged still to her own kindred.
These rules of tribal custom as regards marriage need no longer surprise us after what we have found elsewhere. They closely resemble in principle Cymric usage and are, after all, what the study of Beowulf prepared us to regard as by no means confined to the Celtic tribes.
IV. RECOGNITION OF THE FOURTH AND NINTH DEGREES OF KINDRED IN SCOTLAND.
In the foregoing sections no distinct reference has been made to the recognition of the fourth and ninth degrees of kindred. It would be misleading to pass from the Scottish evidence without allusion to the subject.
Strongly influenced as custom in Scotland must have been by both Cymric and Gaelic as well as Norse and Danish traditions, it would be strange if no trace were left in Scotland of so marked a feature of tribal policy.
[Sidenote: The nine degrees of kindred.]
It will be enough, however, to refer the reader to the interesting chapter on ‘The Kin’ in the second volume of Mr. Robertson’s ‘Scotland under her early Kings,’ in which he alludes to ‘the words in which the Northern St. Margaret is supposed to have formally renounced her kindred (“al my Kun I forsake to the nithe Kne”), and to the “nine degrees of kindred” within which all connected with the Earl of Fife might claim the privileges of the Clan Mac Duff.
And after what we have seen of the way in which the Norse _leysing_ rose by steps of four generations into increasing freedom as a kindred grew up around him, it may be worth while to recall attention once more to the reverse process by which the _nativus_ or _villanus_ under later law became attached to the land.
[Sidenote: The fourth generation fixes the status of _nativi_.]
Among the fragments of Scotch laws collected under the heading ‘Quoniam attachiamenta’[209] is the clause ‘_De brevi de nativis_’ which may be translated as follows:--
There are different kinds of _nativi_ or bondmen. For some are _nativi de avo et proavo_ which is vulgarly called _de evo et trevo_, whom he [the lord] will claim to be his _nativi_ naturally, by beginning to narrate their ancestors, if their names are known, to wit, of his _great-grandfather_, _grandfather_, and _father_, who are convicted by his saying that they all are his _nativi_ in such and such a villa of his, and in a certain place within the said villa on servile land, and that they rendered and did to him and his ancestors servile service for many days and years, and this “nativitas,” or bondage, can be proved through the parents of the convicted one, if they are alive, or _per bonam assisam_.
Likewise, there is another kind of bondage, similar to this, where some stranger shall have taken some servile land from some lord doing servile service for the same land, and if he die on the same land, and his son likewise, and afterwards _his_ son shall have lived and died on the same land, then all his posterity [_i.e._ his great-grandsons] shall be at the fourth grade altogether in servile condition to his lord, and his whole posterity can be proved in the same way.
There is a third kind of _nativitas_, or bondage, where some freeman, _pro dominio habendo vel manutenencia_ [_i.e._ for protection or maintenance] from some magnate, gives himself up to that lord as his _nativus_ or _bondman_ in his court by the front hair of his head (_per crines anteriores capitis sui_).
Whatever may have been the date and origin of these remarkable clauses, they are valuable as showing how tribal tradition became hardened in course of time into Feudal law, and how, the transition from tribal to Feudal principles having been accomplished, what is known everywhere by the name of ‘serfdom,’ became domiciled in Scotland.