Skip to content
IUScholarWorks Journals
22.03.16 Bothe et al (eds.), Wergild, Compensation and Penance

22.03.16 Bothe et al (eds.), Wergild, Compensation and Penance

At the end of this review I will raise not so much a criticism as a qualm; but my dominant response to this collection was pleasure and gratitude: pleasure because the articles are without exception wonderful; gratitude because it is about time someone published a collection like this. For our understanding of medieval law has changed dramatically in the last two generations, yet when it comes to wergild, most of us still operate with assumptions that go back to the nineteenth century. Stefan Esders’ initial essay offers a very thoughtful synthesis of the contributors’ findings. In particular, he emphasizes that Roman law had nothing like wergild, the Lex Romana Burgundionum (Title 2, “De homicidio”) noting this explicitly. Roman law inflicted corporal or capital punishment on those who committed homicide; it did not allow them to pay compensation to the families of victims. Thus, Esders contrasts the Roman law maxim Iudex non calculat with the fact that rachinburgi were, according to the word’s very etymology, “reckoners” who made a “calculation” (rehhannon). Such observations lead to fundamental questions that recur throughout the collection. What cultural logic made it possible to place a monetary value on a human life? Why was such calculation applied to homicide and injuries of all sorts but not to treason, incest, or robbery? What social and political structures supported a logic of wergild? Conversely, how were wergild tariffs adapted to changing social and political structures, especially the development of elites and the power of kings?

After considering and rejecting a number of possibilities for the origins of wergild, Harald Siems decides to focus on its defining characteristic, that is, the calculation of life in terms of monetary value. He suggests that the payments were, at least in part, compensation for the loss of a victim’s services to those he left behind. He further argues that although theleges express wergilds in monetary value, in practice they were probably paid in material goods (citing Lex Ribuaria 40). In any event, the high payments would have functioned as a sanction against killings and required the mobilization of contributions from kin, friends, lords, and clients. And once established, the logic of wergilds could be extended to injury payments and adapted to different statuses and social positions--including, not least, the “perpetrator wergild” that was paid to a king (e.g., fredus). As a result, wergild became the keystone of an entire socio-legal-political system that could not easily be done away with. Wolfgang Haubrichs provides a lovely, old-fashioned philological analysis of a variety of early legal and administrative terms (bannus, fredus, faidus, witiscalcus, Schultheiß), all hinting at widespread, native West Germanic social practices in which compensation and feuds were central. Haubrichs further notes that a common alternative term for wergild, leodi, was an archaic word for “man,” specifically a man as a warrior. This underscores points made by Esders and other contributors: the development of wergild represented a “masculinization” of society, and the wergild of the free male warrior was always the central valuation from which all other values were calculated. Focusing on the early laws of Kent and Wessex, the late Lisi Oliver offers numerous illustrations of the adaptability of a tariffed system of compensation, particularly in response to the growing differentiation of statuses and the assertion of royal power. She finds, for example, three ranks of laet with wergilds ranging from 40 to 80 shillings, each rank marking a stage in an individual’s movement from slave, to freed but still dependent client, to fully free. There were similar gradations in payments of manbot to king, lord, and freeman for violations of their mund(protection), the gradations being set largely in proportion to the wergilds of the person whose mund had been violated, with a notable tendency in Wessex to increase the severity of the manbot payments owed to free householders for killings of dependents in their dwelling. Wergild was also fitted into other aspects of law and kingship, again especially in Wessex: for example, a thief could pay his wergild to redeem his forfeit life; accordingly, the kin of a slain thief had no claim to his wergild, and quite logically so, since his wergild was effectively set against his theft.

Tom Lambert’s and Han Nijdam’s articles provide what may be the most satisfying models for understanding the social logic in which wergild originated. In her previously published scholarship, Lisi Oliver maintained that Æthelberht’s written code relied on an earlier, orally transmitted set of laws, set out as a hierarchy of tariffs. [1] Accepting that argument, Lambert asks why those laws were only written down under Æthelberht and what the laws would have meant before that. His response to the latter question is that the tariffs make sense only in a male-dominated warrior society that practiced feuding, where vengeance was cast as a response to injuries to honor. However, for worthy men, there was also honor in considering the desire of their social group for peace. Acceptance of wergild payments allowed such men to redress affronts to their honor while gaining honor by making peace. In having the laws written down, Æthelberht was associating himself with this martial society’s valuing of vengeance and peace, honor and order, but placing himself at its head. Nijdam presents a not dissimilar argument with respect to Frisia. He begins with the assumption that wergild is most typical of egalitarian political societies that actively reject control by a centralized authority. This was certainly true of the “Free Frisians” after the mid tenth century. Such societies also tend to prioritize honor. But honor is not a fixed, objective quiddity. It is a quality that must be recognized by others. It is also a kind of capital: one can gain honor and lose it and have more or less of it. It is therefore in some sense quantifiable, where the quantity is a measure of a man’s ability to enforce the amount of honor he claims he is due--hence, the possibility of wergild tariffs, which are to be negotiated up or down, success or failure in negotiating being part of the measure of one’s honor. Like Lambert, Nijdam also utilizes Lisi Oliver’s work, but here, Oliver’s interest in the way tariffication was applied to the human body to create a hierarchy of body parts that reflected the social body. [2] Analogously, Nijdam claims that a Free Frisian’s “force field” of protection (mund, cognate with manus, hand) begins at the body, where it is strongest, diminishing as it extends outwards. So when protecting the mund of a Free Frisian, their laws gave priority to assaults on his actual body, his clothing, and his house--compensated with gold, with land given as surety--and secondary priority to affronts involving his wife, servants, cattle--compensated with silver and textiles.

Lukas Bothe examines wergild and fredus in the Lex Ribuaria. The law was written down for the Austrasian subkingdom c. 633-4 at a time when the Wends had been invading Frankish territories, making Austrasia the bulwark of the Franks’ eastern military defense. This is why, Bothe suggests, the Lex Ribuaria is so concerned to protect the free status of Ripuarian Franks, as shown by the consistent reinforcement of their wergild of 200 solidi, considerably higher than that of peoples characterized as being “from outside” (advenam), that is, non-Ripuarian Franks, Burgundians, Romans, Alamans, Frisians, and Saxons. On the other hand, Austrasia was a kingdom, and the king ruled through officials. So the principle that free Ripuarians had special status competed with a contrary principle that gave high status to royal officials of any ethnicity or class. The higher wergilds of these officials were a deterrent punishment that exalted the king and his agents “without crashing the wergild scheme as a whole” (199). Rob Meens examines the tariffication found in eighth- and early ninth-century continental penitentials. His purpose is, in part, to use the penitentials to demonstrate that bishops and priests played an active role in the resolution of conflicts. Equally important, he shows that some penitentials explicitly state that penitents must pay compensation to the victims before their sins can be absolved. Others speak not of wergild-like compensation but of reparation for harm, though only for particular kinds of harm. Then again, some penitentials mention only penance, with no compensation of any sort. These are mostly Carolingian penitentials of the late eighth and early ninth centuries. Meens suggests that their failure to mention compensation had less to do with any change in practice than it did with the compilers’ programmatic intention to record rules based solely on “proper canon law,” meaning conciliar decrees, papal letters, and patristic texts. Warren Brown uses Merovingian- and Carolingian-era formularies to confirm Meens’ finding that churchmen often involved themselves in reconciling disputants. More important, the formularies prove that vengeance and the payment of wergild really were practiced, as revealed by a number of formulas for “wergild receipts,” that is, charters stipulating that wergild had been paid, often explicitly stating that it had been paid in order to ward off the threat of vengeance.

Helle Vogt shows that wergild was still an ongoing practice in twelfth- and thirteenth-century Denmark (as also in Norway and Sweden), though increasingly circumscribed by royal legislation. Thus, a royal ordinance of 1200 limited payment to kin, and established a system by which wergilds were paid in three equal shares: one share by the killer; two shares by his paternal and maternal kinsmen. Sometime before the mid thirteenth century, another royal ordinance allowed a killer’s kinsfolk to opt out of payment--unless the killer fled, in which case they still had to pay their two-thirds (the killer’s third considered as having fled with him). Finally, Karl Ubl has contributed an important, absolutely splendid article on wergild in the gentilic laws first written down at Charlemagne’s command. The initiative led to the composition of at least four codes: the Lex Saxonum, Lex Thuringorum, Lex Frisionum, and the Ewa ad Amorem (a.k.a., the Lex Francorum Chamavorum, for the Franks of the Rhine delta). What interests Ubl is how different the specifics of these codes’ treatment of wergild is, not only from each other but also from what scholars have presumed were uniform norms mandated by Charlemagne. Though all the codes recognize a separate nobility, the terms for the nobility are different, the gendering of the terms is differently handled, and the wergild amounts are quite different. It is also significant that the Ewa ad Amorem and the Lex Thuringorum generally show the same military concerns as the earlier Lex Ribuaria (as also the original Pactus legis Salica), not least in the prohibition of daughters’ inheriting land--this in stark contrast to the Lex Saxonum. The implication is that these different regions had different kinds of nobility and different degrees of status differentiation between noble and free, male and female, the differences correlating with the extent to which military obligations were associated with free status. Furthermore, in all these law codes the monetary equivalencies underlying wergilds are remarkably inconsistent, both in comparison with each other and with normal, official Carolingian equivalences. Thus, the Lex Saxonum has a “solidus maior” and a “solidus minor,” while in the Lex Frisionum a solidus is worth three denarii instead of twelve and the lex refers to a host of other moneys. Another notable characteristic of these laws is the fact that the Lex Thuringorum, Lex Saxonum, and Lex Frisionum barely if ever mention the royal ban and fredus. So theses leges show a surprising amount of diversity in regional practices, not least in the very areas of law and administration one would have thought most subject to Charlemagne’s empire-wide policies. Some of that diversity must have been due to the ability of regions to maintain their distinct cultures, and the ability of regional elites to maintain their power.

Paul Hyams’ concluding essay makes a very cogent point. Imagining how the payment of wergild would actually have operated, he notes that it must have been part of a long, drawn-out process, as actors weighed possible actions, calculated those actions’ potential benefits and costs, mobilized supporters, and not least, told their story (talu) in court or before gatherings, the story shaping people’s perception of events but also reshaping local alliances. Hyams also contrasts this imagined wergild system with what he calls, only half-jokingly, “the Western Legal Tradition” (WLT) as it developed from the twelfth century on. This new legal culture distinguished more sharply between the temporal and the sacred. Under the influence of the law schools, it also used logical, systematic analysis to make distinctions between different categories of wrong, create distinct forms of action, and establish rules of evidence. And this is where I have my qualms. They apply not only to Hyams’ dichotomous contrast of the WLT from earlier law, but also to many of these articles, which assume (explicitly or implicitly) a contrast between societies governed by a logic of feud and wergild and a later medieval Strafjustiz of punishments and fines inflicted by governmental judicial institutions. Can that contrast really be sustained? In his contribution to this volume, Ralph Mathisen notes that late Roman imperial law detailed a whole array of fines and punishments, but that in practice the punishments were usually imposed only on government officials and those whose crimes defrauded the fisc, while fines for private persons were often derisory. Any number of scholars have found that the same was true for the Strafjustiz of later medieval governments, where city courts established inquisitions to try cases and levied fines according to tariffs listed in city statutes; but in practice, the disputes were actually settled outside of court through peace agreements that often required one party to pay compensation to another. Those agreements were frequently mediated by members of religious orders. [3] Then, too, as Esders himself points out, the thirteenth-century Sachsenspiegel still knows the payment of wergild, even assigning different amounts to a multitude of animals (1, 31). That there were major differences between early and later medieval practices of compensation is undeniable. It is also undeniable that there were significant continuities. How one identifies and explains the salient differences and similarities is beyond me. Perhaps the editors of this fine volume can tackle the problem.



1. Lisi Oliver, The Beginnings of English Law (Toronto: University of Toronto Press, 2002).

2. Lisi Oliver, The Body Legal in Barbarian Law (Toronto: University of Toronto Press, 2011).

3. See especially Daniel Lord Smail, “Common Violence: Vengeance and Inquisition in Fourteenth-Century Marseille,” Past and Present 151 (1996): 28–59; also Katherine Ludwig Jansen, Peace and Penance in Late Medieval Italy (Princeton: Princeton University Press, 2018); Massimo Vallerani, Medieval Public Justice, trans. Sarah Rubin Blanshei (Washington, DC: The Catholic University of America Press, 2012), ch. 4.