any information on Mercian custom. And in other respects, scanty though
it be, the retrospect of early Anglo-Saxon custom from the invaders’
point of view could ill be spared.
[Sidenote: Under Mercian law the oath of twelve-hyndeman = that of six
ceorls.]
There are two valuable fragments on Mercian law.
The first is as follows:--
_Be Merciscan Aðe_
_Of the Mercian Oath_
Twelf-hyndes mannes að forstent vi ceorla að forþam gif man þone
twelf-hyndan man wrecan sceolde he bið full-wrecan on syx ceorlan
⁊ his wer-gyld bið six ceorla wer-gyld.
A twelve-hyndeman’s oath stands for six ceorls’ oaths; because if
a man should avenge a twelve-hyndeman he will be fully avenged on
six ceorls and his wergild will be six ceorls’ wergilds.
This fragment of Mercian law is preceded in the group of fragments ‘on
oaths’ in Thorpe’s edition of the Laws by the following, which may or
may not be of Mercian origin:--
[Sidenote: Mass-priest’s oath = that of the thane.]
Mæsse-preostes að ⁊ woruld-þegenes is on Engla-laga geteald
efen-dyre ⁊ for þam seofon ciric-hadan þe se mæsse-preost þurh
Godes gif geþeah ꝥ he hæfde he bið þegen-rihtes wyrðe.
A mass-priest’s oath and a secular thane’s are in English-law
reckoned of equal value; and by reason of the seven
church-degrees that the mass-priest through the grace of God has
acquired he is worthy of thane-right.
The other fragment of Mercian law is as follows:--
[Sidenote: Mercian wergelds.]
Ceorles wer-gild is on Myrcna lage cc scill. Ðegnes wer-gild is
syx swa micel ꝥ bið xii hund scill. Ðonne bið cynges anfeald
wer-gild vi þegna wer be Myrcna lage ꝥ is xxx þusend sceatta ⁊
ꝥ bið ealles cxx punda. Swa micel is þæs wer-gildes on folces
folc-rihtes be Myrcna lage. And for þam cyne-dome geborað oðer
swilc to bote on cyne-gilde. Se wer gebirað magum ⁊ seo cyne-bot
þam leodum.
A ceorl’s wergeld is by Mercian law cc scillings. A thane’s
wergeld is six times as much, _i.e._ xii hundred scillings.
Then is a king’s simple wergeld vi thanes’ wer by Mercian law,
_i.e._ xxx thousand sceatts, and that is altogether cxx pounds.
So much is the wergeld in the people’s folkright by Mercian law.
And for the ‘Cynedom’ there is due another such sum as _bot_ for
_cyne-gild_. The wer belongs to the kindred and the cynebot to
the people.
The Mercian wergeld of both twy-hynde and twelve-hynde men is thus
stated in scillings, as usual, and the king’s wergeld--six times the
thane’s--would equal 7200 scillings. The Mercian scilling was 4_d._,
and thus, as stated in the text, the king’s wergeld would equal exactly
120_l._ or 28,800 pence or sceatts (in round numbers 30,000 sceatts).
This is useful as evidence that the sceatt of this Mercian wergeld was
the silver penny of the Anglo-Saxon currency of 28·8 wheat-grains--_i.e._
of the _Sceatt series_--before Offa and Alfred, following the example of
Charlemagne, superseded the ‘sceatt’ by the ‘penny’ of 32 wheat-grains.
[Sidenote: Fragment of North People’s Law.]
The fragments printed by Thorpe under the heading ‘North People’s Law’
and by Schmid in his ‘Anhang VII.’ seem to belong to Northumbria or
more generally to the Danelaga. Schmid suggests that the ‘North people’
were the North folk of East Anglia. This, however, is perhaps more than
doubtful, especially when it is considered that the Viking ‘armies’ had
established themselves, not only in East Anglia and Mercia, but still
more completely in Northumbria, many years before the struggle with
Wessex had ended in the compact between Alfred and Guthrum.
The fragment of ‘North People’s Law’[236] opens with the statement that
the king’s gild is 30,000 _thrymsas_--15,000 for the wergeld and 15,000
for the people (_leodum_).
In another MS. the wording follows the statement of Mercian law very
closely, and agrees with the above in describing the amount in thrymsas.
[Sidenote: Wergelds paid in thrymsas of threepence.]
Ðæs cyninges wer-gyld sie mid Engla cynne on folc-riht þryttig
þusend þrimsa ⁊ þæra xv .M. sien þæs wæres ⁊ oðra xv .M. þæs
cynedomes. Se wære belympað to þam mægðe þæs cyne-cynnes ⁊ ꝥ
cynebot to þam land-leod.
Let the king’s wergeld be with the English race by folkright,
30,000 thrymsas, and of these let 15,000 be for the wer and the
other 15,000 for the _cynedom_. The wer belongs to the kindred of
the king and the cynebot to the people.
Now, in the first place, what was the _thrymsa_, which occurs in these
clauses for the first time?
A statement a little further on in one of the two texts of the same
fragment fixes the value of the thrymsa at three pence.[237]
The statement of ‘North People’s Law’ proceeds as follows:[238]--
Arces ⁊ æðelinges wer-gyld is xv þusend þrymsa.
(2) An archbishop’s and an ætheling’s wergeld is xv thousand
thrymsas.
Biscopes ⁊ ealdormannes viii þusend þrymsa.
(3) A bishop’s and an ealdorman’s viii thousand thrymsas.
Holdes ⁊ cyninges heah-gerefan iiii þusend þrymsa.
(4) A hold’s and a king’s high-reeve’s iv thousand thrymsas.
Mæsse-þegnes ⁊ woruld-þegnes ii þusend þrymsa.
(5) A mass thane’s and a secular thane’s ii thousand thrymsas.
Ceorles wer-gild is cc. ⁊ lxvi þrim. ꝥ bið ii hund scill be
Myrcna lage.
(6) A ceorl’s wergeld is cc and lxvi thrymsas, that is cc
scillings by Mercian law.
Put into tabular form these wergelds would be as follows in thrymsas and
Wessex and Mercian scillings:--
Wessex Mercian
Thrymsas shillings shillings
of 5_d._ of 4_d._
King’s wergeld 15,000, cynebot 15,000 30000 = 18000 22500
Archbishop’s and Ætheling’s 15000 = 9000 11250
Bishop’s and Ealdorman’s 8000 = 4800 6000
Holdr’s and King’s high-reeve’s 4000 = 2400 3000
Mass thane’s and secular thane’s 2000 = 1200 1500
Ceorl’s 266⅔ = 160 200
The ceorl has a twyhynde wergeld in Mercian shillings and the thane a
twelve-hynde wergeld in Wessex shillings. There seems to be so far some
confusion. But on the whole this reckoning seems to justify the opinion
generally held that the Northmen coming as conquerors into Northumbria or
the Danelaga had, at the date of these fragments, doubled the wergeld of
the hold or hauld as compared with that of the English thane.
[Sidenote: Wergeld of hauld double that of the thane, but after Alfred’s
victory both equally dear.]
If, as seems reasonable, these fragments may be referred to the period
following upon the Viking conquest and settlement in Northumbria and the
foundation of Halfdan’s kingdom of York (A.D. 876), then the doubled
wergeld of the hauld may be perhaps the high-water mark as it were of the
invasion--the point of vantage at which it was natural for the conquerors
to treat the conquered as a tributary race. And if it may rightly be so
regarded, then it gives an added interest to the compact between King
Alfred and Guthrum in 886. For then, the tide of battle having turned,
the two kings at length met on equal terms and, undoing the earlier
unequal settlement, now agreed to make Dane and Englishman equally dear.
A still more interesting point than the doubling of the conquering Hold’s
wergeld as compared with the conquered thane’s is found in the subsequent
clauses of this fragment, which seem to refer back to ancient tradition
as regards the position of the non-Saxon subjects of Anglo-Saxon
kings.[239]
[Sidenote: Chance given to the Wiliscman to rise as in the laws of Ine.]
And gif Wilisc man geþeo ꝥ he hæbbe hiwisc landes ⁊ mæge cyninges
gafol forð-bringan, þonne bið his wergild cxx scill. And gif he
ne geþeo buton to healfne hide þonne si his wer lxx scill.
(7) And if a Wiliscman thrive so that he have _hiwisc landes_ and
can bring forth the king’s gafol, then his wergeld shall be cxx
scillings. And if he only comes up to a half hide then shall his
wer be lxxx scillings.
And gif he ænig land næbbe ⁊ þeah freoh sy forgilde hine man mid
lxx scill.
(8) And if he have not any land and yet be free, let him be paid
for with lxx scillings.
The other version is practically the same:--
And Wealisc-monnes weregild gif he beo to tham gewelegod ꝥ he
hyred ⁊ eht age ⁊ þam cyng gafol gyldan mæg hit bið þon ccxx
scill. Ac he ne bið butan to healf hyda gerysen þonne sie his
were lxxx scill.
(7) And a Wealisc-man’s wergeld if he be so enriched that he has
family and goods (_hyred and eht_) and can pay the King’s gafol
shall be ccxx scillings [? cxx]. And if he be risen but to half
a hide, then shall his own wer be lxxx scillings.
Gif he land næbbe ac bið freoh gyld mon lxx scill.
(8) If he have no land but is free let him be paid for with lxx
scillings.
Now ‘hiwisc’ and ‘hyred’ both seem to mean _family_. In a roundabout
indirect way ‘familia’ and _hide_ meant apparently very much the same
thing, but as the word _hide_ is used in the same clause the more direct
meaning may surely in this case be the important one.
It is probable that these clauses are variations or fuller expressions
of the tradition described in c. 32 of King Ine’s Laws, which is as
follows:--
Gif Wylisc mon hæbbe hide londes his wer bið c. xx scill., gif he
þonne hæbbe healfe lxxx scill., gif he nænig hæbbe lx scillinga.
If a Wylisc man have a hide of land his ‘wer’ shall be cxx _s._,
but if he have half a hide lxxx _s._, if he have none lx _s._
And the additional information amounts practically to this--that the
possession of a hide seems to have been held generally equivalent to the
possession of a family homestead--family and goods--enabling a man to pay
the king’s gafol.
It is when we pass on from these clauses to the next that fresh and
welcome light seems to be gained upon the connection of the growth of a
family and kindred with rise in status and social rank from a ceorlisc or
twy-hynde position to that of the Gesithcund or twelve-hynde position.
We are now no longer dealing with the Wylisc man but with the ordinary
twy-hynde ceorl. And the mention of the payments in thrymsas reminds us
that we are still looking at things from the North people’s point of view.
The clauses in the two versions are as follows:--
[Sidenote: How under early custom a ceorl could rise into the
twelve-hynde class.]
ix. And gif ceorlisc man geþeo ꝥ he hæbbe v hida landes to cynges
ut-ware ⁊ hine man ofslea forgilde man hine mid twam þusend
þrimsa.
ix. Gif ceorl sie gewelegod to þam þ [he] age v hyda landes ⁊ mon
hine ofslea gyld hine mon mid ii .M. þrimsa.
x. And þeah he geþeo ꝥ he hæbbe helm ⁊ byrnan ⁊ golde fæted
sweord, gif he ꝥ land nafað he bið ceorl swa þeah.
x. And gif he begytað ꝥ he hæbbe byrne ⁊ helm ⁊ ofergyldenene
sweord, þeah þe he land næbbe he bið siðcund.
xi. And gif his sunu ⁊ his sunu-sunu ꝥ geþeoð ꝥ hi swa micel
landes habban siþþan bið se ofsprinc gesiðcundes cynnes be twam
þusendum.
xi. And gif his sunu ⁊ þæs sun-sunu ꝥ begyten ꝥ he swa micel
landes habbað sien hiora after-gengas þæs siðcunda[n] cynnes ⁊
gyld þam mon mid ii .M. þrimsa.
xii. And gif hi ꝥ nabbað ne to þam geþeon ne magan gilde man
cirlisce.
And they may be translated thus:--
9. And if a ceorlish man thrive so that he have v hides of land
to the king’s _utware_ and any one slay him, let him be paid for
with 2000 thrymsas.[240]
9. If a ceorl be enriched to that degree that he have 5 hides of
land to the king’s utware and any one slay him, let him be paid
for with 2000 thrymsas.
10. And though he thrive so that he have a helm and coat of mail,
and a sword ornamented with gold, if he have not that land he is
nevertheless a ceorl.
10. And if he acquire so that he have a coat of mail and a helmet
and an overgilded sword, if he have not that land he is [? not]
sithcund.
11. And if his son and his son’s son so thrive that they have so
much land, afterwards the offspring shall be of gesithcund race
at 2000 (thrymsas).
11. And if his son and the son’s son acquire that they have so
much land, let their successors be of the sithcund kin and let
them be paid for with 2000 thrymsas.
12. And if they have not that nor to that can thrive, let them be
paid for as ceorlish.
These passages are very important, as the most direct evidence we possess
of the way in which under early Anglo-Saxon custom families became
_gesithcund_ by the gradual growth of a kindred whose kinsmen, like the
odal-men of the Norse laws, could reckon four generations in succession
of sufficient landholding.
The evidence is all the more interesting because it seems to come
from the point of view of the Norse or Danish invaders making inquiry
respecting English tradition and recording what had once been the custom
of the conquered districts.
[Sidenote: Another precious fragment, with further information.]
The same remark applies equally to another of these valuable
fragments--‘Of people’s ranks and law.’ It, too, seems to look back and
to record what once had been the custom of the conquered people.
Hit wæs hwilum on Engla lagum ꝥ leod ⁊ lagu for be geþincðum ⁊
þa wæron [þeod-] witan weorðscipes wyrðe ælc be his mæðe, eorl ⁊
ceorl, þegen ⁊ þeoden.
1. It was whilom, in the laws of the English, that people and law
went by ranks, and then were the Witan of worship worthy each
according to his condition, eorl and ceorl, thegen and theoden.
These are the phrases of a writer looking back with regret upon ancient
custom which to him is past or passing away.
After this follow clauses in one of which the word _hyrede_ and the
phrase ‘having so many hides to the king’s _utware_’ again occur, words
that seem to suggest that this fragment, while describing ancient English
custom, hails from a somewhat similar source as the ‘North People’s Law.’
And gif ceorl geþeah ꝥ he hæfde fullice fif hida agenes landes,
cirican ⁊ kycenan, bell-hus ⁊ burh-geat, setl ⁊ sunder-note, on
cynges healle þonne wæs he þonon-forð, þegen-rihtes weorðe.
2. And if a ceorl thrived so that he had fully five hides of his
own land, church and kitchen, bell-house and burh-geat, seat
and special duty in the King’s hall, then was he thenceforth of
thane-right worthy.
This seems to be practically identical with clause 9 of the previous
fragment. Then follows:--
And gif þegen geþeah ꝥ he þenode cynge ⁊ his rad-stefne rad on
his hirede, gif he þonne hæfde þegen þe him filigde þe to cinges
ut-ware fif hida hæfde ⁊ on cynges sele his hlaforde þenode &
þriwa mid his ærende gefore to cinge se moste syþþan mid his
foraðe his hlaford aspelian æt mistlican neodan ⁊ his onspæce
geræcan mid rihte swa hwær swa he sceolde.
And if a thane thrived so that he served the King and on his
summons (_rád-stefne_) rode with his household (_hirede_), if he
then had a thane who him followed, who to the King’s _utware_
five hides had, and in the King’s hall served his lord [the
thane] and thrice with his errand went to the King, he might
thenceforth with his foreoath his lord represent at various needs
and his plaint lawfully conduct wherever he ought.
And seþe swa geþogenne forwyrht an næfde swore for sylfne æfter
his rihte oþþe his þolode.
4. And he who so prosperous a vicegerent had not, swore for
himself according to his right, or it forfeited.
And gif þegen geþeah ꝥ he wearð to eorle þonne wæs he syþþan
eorl-rihtes weorðe.
5. And if a thane thrived, so that he became an eorl, then was he
thenceforth of eorl-right worthy.
These passages we shall have to consider further when we sum up the
evidence upon the Anglo-Saxon division of classes.
[Sidenote: The ceorl must rise into direct service to the king and to
having a kindred around him.]
But there are two peculiarities which may be marked here as pointing
to the archaic character of these precious fragments. First, the
alliteration and rhythmical character of some of them, which points to
an early and traditional origin, and, secondly, the direct relations of
the classes mentioned to the king. The Wilisc man has to bring forth the
king’s gafol. The ceorl who has five hides has them to the king’s utware
and he becomes gesithcund and thane-right worthy with special duty in the
king’s hall, while the thane is all the greater when he has a thane under
him who has himself five hides to the king’s utware and goes with his
errands to the king.
These are marks of direct relationship and service of the gesithcund
classes to the king, to which we shall have to recur. They seem to point
to the gesithcund class with its completeness of kindred as a privileged
class in a semi-official position and from which the king’s officials
were chosen. It is not until this relationship by service to the king has
become established that a ceorl finds an entrance into the gesithcund
class, and he does not become eligible for such service till he is
surrounded by an adequate kindred.
In the meantime we may be thankful to the exigences of the Viking
invasions for the preservation of these valuable fragments of ancient
custom which might otherwise have been lost.
[Illustration]
CHAPTER XIII.
_EARLY ANGLO-SAXON CUSTOM._
I. KING ALFRED’S DOOMS.
[Sidenote: Alfred’s laws not earlier than the Compact with Guthrum.]
In order that the examination of early Anglo-Saxon custom may be free
from the intrusion of elements introduced by the Northmen, it is
necessary to go back to evidence of earlier date than the laws of King
Alfred. Though collected mainly from earlier sources, these laws took
their present form probably after the Compact with Guthrum had been made.
They do not profess to be a full statement of early West-Saxon law. King
Alfred himself declares that he dared not add much of his own, ‘But those
things which I met with either of the days of Ine my kinsman, or of Offa,
King of the Mercians, or of Ethelbert--those which seemed to me the
rightest I have here gathered together and rejected the others.’
Under these circumstances it will be more convenient to refer back to
King Alfred’s laws when needful in connection with the earlier evidence
than to consider them as a separate whole.
There is, however, one subject upon which the evidence of King Alfred’s
laws may properly be considered before passing on to the earlier laws.
[Sidenote: Were the terms ceorl and gafol-gelda equivalent?]
We have seen that in the Compact with Guthrum the Anglo-Saxon ‘ceorl who
sits on gafol-land’ and who was made ‘equally dear’ at 200 scillings
with the Danish lysing was, if the words may be taken strictly, not
necessarily a typical or representative member of the ceorlisc class as
a whole. Only some of the ceorlisc class may have been gafol-geldas on
other people’s land. It is important, therefore, to examine whether King
Alfred’s laws afford contemporary evidence that the ceorlisc and the
twy-hynde classes were practically the same, and whether they were, as
a rule, gafol-geldas. We have seen, from the precious fragments before
quoted, that under ancient ‘English’ law a ceorl could rise out of the
twy-hynde class and become entitled to a twelve-hynde wergeld of 2000
thrymsas.
If such a statement had been found in West-Saxon law, the inference might
at first sight be that the ceorlisc class could hardly have been mainly
a class of gafol-geldas. The laws of Alfred surely ought to throw some
light upon this important matter.
In section 39 is the following:--
[Sidenote: The ceorl below the six-hyndeman.]
Gif hwa on ciorlisces monnes flette gefeohte mid syx scill.
gebete þam ceorl. Gif he wæpne gebrede ⁊ no feohte sie bi healfum
þam. Gif syx-hyndum þissa hwæðer gelimpe þriefealdlice [arise
be þære ciorliscan bote. xii-hyndum men twyfealdlice] be þæs
syx-hyndan bote.
If any one fight in a ceorlisc man’s flet with six scillings
let him make bot to the ceorl. If he draw his weapon and fight
not let it be half of that. If, however, either of these happen
to a six-hynde man let it increase threefoldly according to the
ceorlisc bot; to a twelve-hyndeman twofoldly according to the
six-hynde’s bot.
The ceorlisc man in this section takes the place of the twyhynde man in
contrast with the six-hynde and twelve-hynde classes. The payments are
the bots payable to the owners for fighting within their sacred precinct
or inclosure, and the amounts following the proportions of the wergelds
of the three classes are:--
Ceorlisc man’s 6 scillings
Six-hyndeman 18 ”
Twelve-hyndeman 36 ”
In this section the ceorlisc class seems clearly to take the place of the
twy-hynde class. They seem to be identical.
Section 40 gives similar evidence, in connection with the _burg_ -or
_burh_-bryce or breach of the fence of the sacred precinct.
Cyninges burg-bryce bið cxx scill. Ærcebiscopes hund nigontig
scill. Oðres biscepes & ealdormonnes lx scill. Twelf-hyndes
monnes xxx scill. Syx-hyndes monnes xv scill. Ceorles edorbryce v
scill.…
The King’s burh-bryce shall be cxx scillings. An archbishop’s
ninety scillings. Any other bishop’s and an earldorman’s lx
scillings. A twelve-hyndeman’s xxx scillings. A six-hyndeman’s xv
scillings. A ceorl’s edorbreach v scillings.…
[Sidenote: The ceorl twy-hynde.]
Here again the ceorl takes the place of the twy-hyndeman, and the
burh-bryce is graduated accordingly, the twelve-hyndeman’s being six
times the ceorl’s.
King’s 120 scillings
Archbishop’s 90 ”
Ealdorman’s or bishop’s 60 ”
Twelve-hynde’s 30 ”
Six-hynde’s 15 ”
Ceorl’s edorbreach 5 ”
There may well be some delicate significance in the word _burh_-bryce
being applied only to the twelve-hynde or six-hynde men, and not to the
ceorl, as though the word _burh_ could not be applied to the ceorl’s
homestead. His ‘flet,’ surrounded by its _edor_ or hedge, was perhaps too
humble to be classed with the moated or walled enclosure of the _burh_
of the higher landed classes without a change of epithet. But there is
nothing to show that the ceorl of this clause is not identical with the
ordinary twy-hyndeman.
Lastly, in sections 10 and 18 the three classes are again described as
twelve-hynde, six-hynde, and ceorlisc; while in sections 29, 30, and 31
they are described as twelve-hynde, six-hynde, and twy-hynde.
All this seems to show that for general purposes ‘twy-hynde’ and
‘ceorlisc’ were convertible terms.
[Sidenote: Ceorls must be mostly gafol-geldas.]
It can hardly be said that there is anything in King Alfred’s laws making
a distinction between the twy-hynde class and the ceorlisc class. There
seems to be nothing to suggest that the twy-hynde wergeld was confined
to any particular section of the ceorlisc class. And therefore, so far
as the laws of Alfred are concerned, the description of the twy-hynde
class in the Compact with Guthrum as gafol-geldas equally dear with the
Danish lysing would seem to apply generally to the ceorlisc class as a
whole. And this being so, it would seem probable that, speaking broadly,
by King Alfred’s time the chief practical division of classes had already
resolved itself into that between the landed classes on the one hand and
their gafol-paying tenants on the other.
It is quite true that under King Alfred’s laws there is the six-hynde
class between the twelve-hynde and the twy-hynde or ceorlisc class; but
his laws tell us nothing about this six-hynde class except what may be
inferred from the fact that its members certainly were not included in
the ceorlisc class. It can hardly be likely that King Alfred could, in
his compact with Guthrum, have confined the twy-hynde class to the ‘ceorl
who sits on gafol-land,’ leaving out the six-hynde class altogether, if,
in his laws, he meant by the six-hynde class the ceorls who did not sit
on gafol-land. It might have been possible to suppose that he used the
word ‘ceorl’ in his laws in a wider sense, as including both twelve-hynde
and twy-hynde, had he not introduced the six-hynde class between them and
restricted the meaning of the word ‘ceorlisc’ to the twy-hynde class. He
used it apparently to distinguish the twy-hynde from the other classes
which by inference were not ceorlisc.
What the six-hynde class was and what the ceorlisc class was under
West-Saxon law two centuries earlier than King Alfred’s day must be left
to be discovered from the evidence of the Dooms of Ine.
* * * * *
[Sidenote: The mund-byrd or borh-bryce of various classes.]
In the meantime, the consideration of the position of the ceorlisc class
having brought before us the penalties for breach of the precinct and for
fighting within the precinct of the various classes, it may be well to
consider also the evidence of King Alfred’s laws upon the mund-byrd or
borh-bryce of what we may regard perhaps as the official classes, and in
which apparently, at this date, even the twelve-hynde man had no part.
The mund-byrd or borh-bryce seems to be confined to those in official or
judicial position.
Already in King Alfred’s laws we have lost the word ‘grith’ as we had
already in Cnut’s laws lost the later phrase ‘sac and soc,’ but the
tribal principle underlying the meaning of the words remains the same and
becomes all the clearer as we go back in the evidence.
In s. 3, the borh-bryce and mund-byrd of the king are stated to be _five
pounds of_ ‘mærra pæninga,’[241] an archbishop’s three pounds, and those
of the ealdorman and lesser bishops two pounds, exactly as they were
reported to have been in Cnut’s time in the ‘grith-law’ of the South
Angles.[242]
[Sidenote: Its tribal origin.]
The almost indiscriminate use of the two terms in this clause suggests
again the very slight distinction between them. The man who by giving
his pledge placed himself artificially, so to speak, under the mund or
protection of a person in a judicial position or authority and broke
his pledge became guilty of borh-bryce or mund-byrd, it hardly mattered
which. The penalty apparently included both crimes in one. If we might
use the Brehon phrase it was the _eneclann_, or honour price of the
person whose dignity was injured, which had to be paid.
But, as we have seen, these penalties were not only personal but also
connected with the sanctity of what under Brehon law was called the
‘maigin’ or precinct. The Brehon tract which declares the extent of the
‘inviolable precinct’ of the ‘boaire-chief’ to reach as far as he can
throw a spear or hammer from the door of his house, also states that
those of higher chieftains extended by multiples of this according to
their honour-price, so that the inviolable precinct of the _ri-tuath_
extended to sixty-four spear-casts from his door.[243] We have already
quoted a fragment fixing the extent of the king’s ‘grith’ at ‘three
miles and three furlongs and three acre breadths and nine feet and nine
hand-breadths and nine barleycorns from the burhgeat where the king
is.’[244]
[Sidenote: The ceorl or gafol-gelda had a flet the peace of which could
be broken.]
Under King Alfred’s laws, as we have seen, the penalties for breaking
into this precinct and committing crimes in it were payable to the person
whose ‘peace’ was thus broken, and were not confined to the official
classes as the mund-byrd and borh-bryce were. They went back to the
tribal root-idea of the sanctity of the hearth and homestead of every
tribesman. They extended from the king to the ceorl through all grades.
The penalties for fighting within the precinct were practically the same
in amount as those for the breaking into it. The penalty for fighting in
the ceorlisc-man’s ‘flet’ was practically the same as that for breaking
through his ‘edor’ into it.
When all these penalties are put side by side in the form of a table two
points become evident.
First, how far removed the social position of the twelve-hyndeman was
from that of the ealdorman. The penalty for fighting within his precinct
is not much more than a third of that of the bishop and ealdorman, the
inference being that his official position was much lower than the
ealdorman’s.
Secondly, when we compare the figures in the three columns, while the
burh-bryce and fightwite of the twelve-hynde, six-hynde, and twy-hynde
classes are both graduated in proportion to their wergelds and very
closely resemble one another, it is curious to notice that the fightwite
is based upon a duodecimal and the burh-bryce on a decimal system of
reckoning, as if they had been derived from different original sources.
If King Alfred had originated them he would probably have made them alike.
In the following statement, collected from the several sections of King
Alfred’s Laws for purposes of comparison and future reference, the
amounts are stated in Wessex scillings of five pence.
+----------------------+-----------------+------------+-----------------+
| | Borh-bryce and | | |
| | mund-byrd | Burh-bryce | Fightwite |
+----------------------+-----------------+------------+-----------------+
| | (s. 3) | (s. 40) | |
| | | | |
|Of the king |(5 lbs) 240 _s._ | 120 _s._ |(s. 7) (in the |
| | | |king’s doom) |
| | | | |
|Of the archbishop |(3 lbs) 144 _s._ | 90 _s._ |(s. 15) 150 _s._ |
| | | | |
|Of other bishops and | | | |
| ealdorman |(2 lbs) 96 _s._ | 60 _s._ |(s. 15) 100 _s._ |
| | | | |
|Of do. in his ‘gemot’ | | |(s. 38) 120 _s._ |
| | | | |
|Of the twelve-hyndeman| | 30 _s._ |(s. 39) 36 _s._ |
| | | | |
|Of the six-hyndeman | | 15 _s._ |(s. 39) 18 _s._ |
| | | | |
|Of the ceorlisc man or| | | |
| twy-hyndeman | | 5 _s._ |(s. 39) 6 _s._ |
+----------------------+-----------------+------------+-----------------+
II. THE DIALOGUE OF EGBERT, ARCHBISHOP OF YORK A.D. 732-766.
ECCLESIASTICAL OATHS AND WERGELDS.
There is a gulf of nearly two centuries in the West-Saxon evidence
between the laws of Alfred and the ‘Dooms’ of Ine.[245]
We are taken at a leap, not only beyond all thought of the Northmen’s
invasions, but also half a century behind another great epoch of European
importance.
The Empire of Charlemagne formed a kind of watershed in Anglo-Saxon as in
European history, and was marked, as we have seen, by a permanent change
in the currency of the Western world.
[Sidenote: Position of Northumbria before the time of Charlemagne.]
The Courts of Offa and Egbert were intimately connected with the Imperial
Court of Charlemagne, and the transition from the early Anglo-Saxon
currency of sceatts to that of the heavier pence was a typical result of
the influence of the Empire. It may be that the supremacy of Wessex under
Egbert was indirectly another result of it.
The kingdom of Egbert did not extend over Northumbria, and Northumbria
had its own independent connection with the Court of Charlemagne. It
had its own mode of monetary reckoning in ‘thrymsas,’ and from the
Northumbrian fragments already examined we have gained some glimpses into
its ancient customs.
The document next to be examined refers to Northumbria, and, as it dates
from the period immediately preceding the time of Charlemagne, it helps
to bridge over the gulf between the Laws of Alfred and Ine.
[Sidenote: Egbert, Archbishop of York, A.D. 750.]
It is in the form of a Dialogue or set of questions put to Egbert,
Archbishop of York, by his priests, with his answers thereto, and its
date may be about A.D. 750.
Egbert, Archbishop of York, was an important figure in Anglo-Saxon
history. The brother of Eadbert, the Northumbrian king, the recipient on
his accession to his episcopal dignity of the remarkable letter of Bede
describing the religious anarchy of his diocese, the founder of the great
school at York, in which his pupil Alcuin was educated and from which
he migrated to the Court of Charles the Great, Egbert was an important
personage, and the centre of beneficent influence in the Northumbrian
church and kingdom.
[Sidenote: His Roman and clerical point of view.]
Moreover, this document, so far as it goes and as regards the matters
mentioned in it, deals with the questions raised by it avowedly from an
ecclesiastical point of view. The great ecclesiastic comes down upon his
diocese from a wider world. He had been educated and ordained deacon at
Rome. And just as in the monastic rules of St. Benedict Roman weights
and measures were adhered to, so when this archbishop has to speak of
money matters, ignoring all local currencies, he still thinks and speaks
and calculates in the terms of the Roman Imperial currency, and not in
Anglo-Saxon sceatts and scillings, or in the thrymsas of Northumbrian
usage.
The Dialogue contains several interesting clauses.
[Sidenote: What to be the value of the oaths of clerics.]
The first to be noticed is in answer to the question as to the value to
be attached to the oaths of the bishop, priest, deacon, and monk. The
reply is:--
Ordines supradicti, secundum gradus promotionis, habeant
potestatem protestandi: presbiter secundum numerum cxx
tributariorum; diaconus vero juxta numerum lx manentium; monachus
vero secundum numerum xxx tributariorum, sed hoc in criminali
causa. Cæterum si de terminis agrorum oritur altercatio,
presbitero liceat juramenti sui adtestatione terram videlicet
unius tributarii in jus transferre æcclesiæ. Duobus quoque
diaconis id ipsum conceditur. Testificatio vero trium monachorum
in id ipsum sufficiat.
The said orders according to their grade of promotion shall
have power of protestation. The priest to the number of cxx
tributarii; the deacon up to the number of lx ‘_manentes_;’
the monk to the number ‘xxx tributarii,’ _i.e._ in a criminal
cause. But if the dispute has arisen about the boundaries of
lands it shall be lawful to the priest on attestation of his
oath to transfer, into the right of the church, land, _i.e._ of
one _tributarius_. To two deacons also the same is conceded. Let
attestation of three monks suffice for the same.
Now, it seems very unlikely that such a question as this about the value
of oaths should be asked of the Archbishop if it had already been settled
by law in Northumbria. And so we seem to see him here making a claim and
laying down a principle for the first time in Northumbria the following
of which resulted in his priests being put upon a par with the secular
thane as regards the value of their oaths.
[Sidenote: In Mercia priest’s oath of same value as that of the thane.]
The principle that one man’s oath was worth more than another’s we have
seen already stated in the undated fragment on ‘Mercian oaths,’ which
very possibly represented ancient tradition.
A twelve-hynde oath stands for six ceorls’ oaths, because if a
man should avenge a twelve-hyndeman he will be fully avenged on
six ceorls and his wergeld will be six ceorls’ wergelds (p. 360).
And, further, the right of the priest to be put on equal footing with the
thane we have seen recognised in another fragment.
A mass priest’s oath and a secular thane’s are in English law
reckoned of equal value, and by reason of the seven church
degrees that the mass priest through grace of God has acquired,
he is worthy of thane-right (p. 361).
The same principle was recognised in the further fragment on the North
People’s wergelds.
The usual statement in Continental and Anglo-Saxon laws as regards
compurgation is that a man must clear himself by his oath and the
oaths of so many oath-helpers. But in the Laws of Ine, with which the
Archbishop was doubtless conversant, another method was followed in
some cases. A man must clear himself, not with the oaths of so many
oath-helpers, but with an oath of so many _hides_. The claim of the
Archbishop seems to favour the view, suggested but hardly established by
various passages in the Laws of Ine, that the twelve-hyndeman’s oath was
reckoned at 120 hides.[246]
[Sidenote: Oaths of so many hides.]
All that one can say is that the Archbishop in claiming that the
Northumbrian priest’s oath should be regarded as one of ‘120 tributarii’
seems to have had in his mind what was afterwards generally conceded,
_i.e._ that the priest should be put, in social position, on a par with
the thane or twelve-hynde man. Moreover, the Archbishop’s use in this
connection of the phrase ‘so many _tributarii_’ or ‘_manentes_,’ instead
of so many ‘hides,’ is interesting. It helps us to understand that the
hide as used in the Laws of Ine was probably the same fiscal or gafol
paying unit as the _familia_ of Bede.
Another clause in this interesting document bears more directly upon the
question of homicide, and it is valuable as giving information quite
independent of the Laws.
It is the answer of the Archbishop to the question, ‘What if a layman
shall kill a cleric or a monk, whether the _precium sanguinis_ according
to the law _natalium parentum_ shall be paid to his near relations or
whether his _seniores_ are to be satisfied by a larger amount--which does
your Unanimity sanction?’
The reply is as follows:--
[Sidenote: The wergelds of the clergy to be paid to the church.]
Quicunque vero ex laicis occiderit episcopum, presbiterum,
vel diaconum, aut monachum, agat pœnitentiam secundum gradus
pœnitentiæ constitutos, et reddat precium æcclesiæ suæ; pro
episcopo secundum [placitum] universalis consilii, pro presbitero
octingentos siclos, pro diacono sexingentos, pro monacho vero
quadringentos argenteos; nisi aut dignitas natalium vel nobilitas
generis majus reposcat precium. Non enim justum est, ut servitium
sanctæ professionis in meliori gradu perdat quod exterior vita
sub laico habitu habuisse jure parentum dinoscitur.
Whoever indeed of laymen shall have killed a bishop, priest, or
deacon or monk shall do penance according to the constituted
scale of penitentials, and let him pay the price to his
church--for a bishop according to [the decision] of a general
Council:
For a priest 800 sicli
For a deacon 600 sicli
But for a monk 400 argentei[247]
unless dignity of birth or nobility of kindred demand a greater
_precium_. For it is not just that service in a holy profession
in a higher grade should lose what secular life in lay dress may
be recognised to have by right of parentage.
The wergelds here stated for the clergy are stated in _sicli_ and
_argentei_. The Roman argenteus, as we have seen (after Nero’s time), was
the drachma of silver, and the siclus was a didrachma or quarter of an
ounce. The Archbishop, therefore, was claiming 200 ounces of silver as
the wergeld of his Northumbrian priest.
[Sidenote: Stated in Roman silver currency.]
Whether he knew it or not, this amounted in value to 4000 sceatts (of
20 to the ounce), _i.e._ 800 Wessex and 1000 Mercian scillings. So
that in claiming for his priest a wergeld of 200 ounces of silver he
does not seem to have had in his mind either the Mercian or the Wessex
twelve-hyndeman’s wergeld, of 1200 scillings, of 5 or 4 sceatts, but,
possibly, as we shall see, a Kentish wergeld of 200 Kentish scillings of
20 sceatts.
[Sidenote: Priest’s wergeld to be 200 Roman ounces of silver.]
The Archbishop’s claim falling short of what was ultimately granted in
Northumbria is curious as showing that Northumbrian law, at this time,
before the inroads of the Norse invaders, was still unsettled, and
that the Archbishop may have been influenced by Kentish rather than by
West-Saxon or Mercian precedents. It was after another century, and after
the Norse invasion and conquest, that the wergelds of the mass-thane and
secular-thane in the ‘North People’s Law’ were stated to be alike at 2000
thrymsas, or 1200 Wessex shillings. How much earlier the equation was
made in Northumbria we know not.
The next clause to be noticed is that in reply to question viii., viz.
‘If any monks shall mix themselves up with sacrilege, should _you_ now
prosecute, if the avengement of the crime pertains to laymen who are
their relations?’
The reply is as follows:--
[Apostolus dicit,] omnes causas æcclesiæ debere apud sacerdotes
dijudicari. Si qui vero æcclesiastici crimen aliquod inter
laicos perpetraverint, homicidium, vel fornicationem, vel furtum
agentes, hos placuit a secularibus in quos peccaverunt omnimodo
occupari; nisi animo fuerit æcclesiæ pro talibus satisfacere.
Laici vero qui sacrilega se contagione miscuerint velatis, non
eodem modo quo lex publica fornicarios puniri percensuit, set
duplicato xxx siclorum pecunia, hoc est lx argenteos volumus dare
ecclesiæ adulterantes, quia graves causæ graviores et acriores
querunt curas.
The Apostle declares that all ecclesiastical causes should be
settled by priests. But if any ecclesiastics have perpetrated any
crime among laymen, homicide or fornication or theft, it has been
decreed that they be followed up in every case by laymen against
whom they have sinned, unless it be the intention of the Church
to make satisfaction for them. But laymen who shall have joined
in sacrilegious intercourse with nuns [shall be dealt with] not
in the same manner as the public law decrees fornicators to be
punished, but _double_--by the sum of xxx _sicli_--_i.e._ we wish
adulterers to give to the Church lx _argentei_, because severe
cases require severer and sharper cures.
This passage once again makes it clear that in this ecclesiastical
document of the Archbishop of York 30 sicli = 60 argentei or Roman
drachmæ.
[Sidenote: Ecclesiastical causes to be settled by priests.]
And, apart from this monetary question, the clause is interesting as
marking the claim that all ecclesiastical causes should be settled by the
clergy themselves.
In case of crime by an ecclesiastic against a layman the Church reserved
the right to stop the layman’s prosecution by payment of the wergeld
or other satisfaction. At the same time the Church was to claim double
compensation from laymen committing crime against nuns. It is impossible
to disassociate this document from the letter of Bede describing the
religious anarchy of the diocese caused by the abuses of the loose
monastic system in vogue, and urging the newly appointed prelate, who was
not yet Archbishop, to undertake their energetic reformation.
[Sidenote: The Church succumbed to the wergeld system.]
But for the present purpose the real worth of these statements is the
independent evidence they give of the continued strength of the wergeld
system and the force of tribal custom in the Northumbrian kingdom before
the Norse invasions. The sense of individualism in Christianity was
opposed to the solidarity and joint responsibility of the kindred. But
instead of fighting against the wergeld system the Church had actually
succumbed to it, and adopted it for its own advantage, placing a money
price upon the blood of its several ecclesiastical ranks, making the
value of the priest four times that of the monk.
The system of compurgation, again, was a part of tribal usage. The Church
adopted it and graduated the worth of the oaths of its various grades
according to secular usage, making the oath of the priest in evidence
four times the value of that of the monk.
In other words, in England, as on the Continent, the clergy, instead of
combating tribal custom in these matters, took their place in the order
of secular rank according to their several grades, bishops claiming
the wergeld of princes, and priests that of thanes, with, however, the
obviously useful reservation that if their secular rank by parentage
and birth should be higher than their ecclesiastical grade, the higher
wergeld should be theirs.
All this we see in the course of being introduced into Northumbrian usage
in answer to local inquiry and local needs, upon the authority of perhaps
the very wisest of Saxon prelates.
The wisdom of such accommodation as this on the part of the Church to
pagan tribal usage is not the matter in question. The point of the
evidence is the proof it gives of the continued strength of tribal usage
in England after many generations of occupation and settlement.
III. THE DOOMS OF INE, A.D. 688-725.
The Dooms of King Ine occupy so important a position as the earliest
direct information upon Anglo-Saxon custom apart from Kent that they
demand careful separate study.
We ought to be able to learn something from them of the aim and spirit of
legislation in Wessex two centuries before King Alfred added them to his
laws.
* * * * *
[Sidenote: Ine’s Dooms apart from Alfred’s.]
There is no reason, I think, to suspect that the text of the Dooms of
Ine was altered by Alfred. The words already quoted in which he says
that in his Dooms he collected together what he thought ‘rightest’ of
those things which he met with of the days of Ine and Offa and Ethelbert
without adding much of his own are quite consistent with his preservation
of King Ine’s laws as a whole, though in some points differing from his
own.[248]
King Ine came to the throne in A.D. 688, and he states in his preamble
that he issued his ‘Dooms’ with the counsel of Cenred his father and
of the Bishops of Winchester and London (who had already had twelve or
thirteen years’ experience in their sees) and also with the counsel of
all his _ealdormen_ and his Witan:--
ꝥ te ryht æw ⁊ ryhte cyne-domas þurh ure folc gefæstnode ⁊
getrymede wæron, ꝥ te nænig ealdormonna ne us under-geþeodedra
æfter þam wære awendende þas ure domas.
So that just law and just kingly dooms might be settled and
established throughout our folk; so that none of the _ealdormen_
nor of our subjects should hereafter pervert these our dooms.
[Sidenote: The ealdorman a shire-man in judicial position.]
We mark, then, at once that at this period the most prominent public
official was the _ealdorman_. From clause 8 and clause 9 we learn that
private revenge for a wrong was forbidden before justice had been
demanded from a ‘“scir-man” or other judge.’ And that the ealdorman was a
shire-man we learn from another clause (clause 36).
Seþe þeof gefehð oþþe him mon gefongenne agifð ⁊ he hine þonne
alæte oþþe þa þiefðe gedierne forgielde þone þeof [be] his were.
(36) Let him who takes a thief or to whom one taken is given,
and then lets him go, or conceals the theft, pay for the thief
according to his wer.
Gif he ealdormon sie þolie his scire buton him kyning arian wille.
If he be an _ealdorman_ let him forfeit his ‘shire’ unless the
King be merciful to him.
Here, as in Alfred’s Laws, the ealdorman is an official with judicial
jurisdiction. And we learn more about his social status as compared with
that of other classes from s. 45.
[Sidenote: Burg-bryce of various classes.]
Burg-bryce mon sceal betan c. xx scill. kyniges ⁊ biscepes þær
his rice bið. Ealdormonnes lxxx scill. Kyniges þegnes lx scill.
Gesiðcundes monnes land-hæbbendes xxxv scill. ⁊ be þon ansacan.
(45) Bot shall be made for the _King’s_ burg-bryce, and a
bishop’s where his jurisdiction is, with cxx shillings; for an
_ealdorman’s_ with lxxx shillings; for a _King’s thane’s_ with lx
shillings; for that of a _gesithcund_-man having land with xxxv
shillings: and _according to this let them make legal denial_.
The _burg_-bryce is the same thing as the _burh_-bryce--the breaking
into the _burh_. And if we compare the ‘bots’ of this clause with the
_burh_-bryce of King Alfred’s s. 40 (_supra_, p. 372) we see that he was
not merely copying King Ine’s clause. Nearly as they may resemble one
another, there are marked differences between the two clauses.
The king’s burh-bryce in King Ine’s Laws is the same as King Alfred’s.
The ealdorman’s is eighty scillings instead of sixty. The king’s thane
takes the ealdorman’s place with sixty, and the gesithcund-man’s
burh-bryce in King Ine’s Laws is practically the same as the
twelve-hyndeman’s in King Alfred’s laws.
[Sidenote: The gesithcund-man’s judicial position.]
The gesithcund-man we have met before in one of the fragments of early
English law, but so far as relates to Wessex he appears in the Dooms of
Ine for the first and last time, and we shall have to consider by-and-by
how far he is the same person as the twelve-hyndeman. But for the present
it is sufficient to note that he is mentioned along with the king’s thane
and the ealdorman apparently in order to state the extent to which his
oath was to be taken as valid in judicial evidence, or whatever is meant
by the words ‘and according to this make legal denial.’
[Sidenote: Laws as to theft.]
The chief obstacle to the maintenance of the peace seems to have been the
frequency of thefts and homicide of all kinds. The connection between
homicide and theft is the subject of several clauses in the Laws of Ine.
And as they bring into notice the liability of the kindred it may be well
to consider them in order.
These are some of the clauses in the Laws of King Ine with reference to
the slaying of a thief:--
Gif þeof sie gefongen swelte he deaðe oþþe his lif be his were
man aliese.
(12) If a thief be seized let him perish by death or let his life
be redeemed according to his wer.
Cierlisc mon gif he oft betygen wære gif he æt siþestan sie
gefongen slea mon hond [of] oþþe fot.
(18) A ceorlisc man, if he have often been accused, if he at last
be seized, let his hand or foot be cut off.
Gif feorcund mon oþþe fremde butan wege geond wudu gonge & ne
hrieme ne horn blawe, for þeof he bið to profianne oþþe to
sleanne oþþe to aliesanne.
(20) If a far-coming man or a stranger journey through a wood
out of the highway and neither shout nor blow his horn he is to
be held for a thief either to be slain or redeemed.
[Sidenote: The ge-geldas and kindred of the thief.]
Then comes the question what happens if a man should seize a thief and
slay him as a thief. The next clause goes on to state that in the case
of the thief slain in the wood the slayer must declare that he slew the
man for a thief, and then neither the lord nor the _ge-gildas_ of the
slain could demand a wergeld. But if he should conceal the slaying and
it became known after a time, the way was open for the kindred of the
supposed thief to exculpate him by oath and so claim his wergeld, from
the slayer.
Where there is no concealment, the kindred of the thief must swear that
there shall be no vengeance on him for delivering up the thief.
Se [þe] þeof gefehð [he] ah x. scill. ⁊ se cyning þone þeof ⁊ þa
mægas him swerian aðas unfæhða.
(28) He who seizes a thief shall have ten scillings and the king
the thief; and let the kindred [of the thief] swear to him oaths
of ‘unfæhthe.’
If the man who had seized the thief let him go he was liable to pay
‘wite’--and if, as we have seen, an ‘ealdorman’ did so it was at the risk
of losing his ‘shire.’
Theft seems to have been an increasing crime, for further on in Ine’s
Laws there are repetitions of some of these clauses, with slight
additions, showing that the Dooms of Ine were added to from time to time
(s. 35 and s. 27).
[Sidenote: The ceorlisc and the gesithcund classes.]
We have seen how severe a penalty was attached to the crime against
the king’s peace of letting a thief once seized escape. The following
clause is still more severe upon any one harbouring a fugitive thief
or other outlaw, and it introduces again the division of classes as
regards wergelds into gesithcund and ceorlisc, but without mentioning the
wergelds of each class.
Gif mon cierliscne monnan flieman-feorme teo be his agnum were
geladige he hine. Gif he ne mæge gielde hine [be] his agenum were
⁊ se gesiðmon [eac] swa be his were.
(30) If a man accuse a ceorlisc-man of harbouring a fugitive
[thief?] let him clear himself according to his own wer. If he
cannot, let him pay for him according to his own wer, and the
gesith-man in like manner according to his wer.
This ‘clearing himself according to his own wer’ alludes evidently to the
oath of himself and his oath-helpers and shows that the oath required
to clear the gesithcund-man from the charge was a greater one than that
required to clear a ceorlisc-man. This was doubtless the case throughout,
but apparently it had become needful to strengthen the oath of both
classes. The following clause required that in the oath of both the
gesithcund and ceorlisc-man in denial of homicide there should be among
the oath-helpers ‘a King’s oath of 30 hides.’
[Sidenote: The oaths to be in their hyndens of co-swearers.]
Seþe bið wer-fæhðe betogen ⁊ he onsacan wille þæs sleges mid aðe
þonne sceal bion on þære hyndenne an kyning [æðe] be xxx hida swa
be gesiðcundum men swa be cierliscum swa hwæðer swa hit sie. Gif
hine mon gilt þonne mot he gesellan on þara hyndenna gehwelcere
monnan [and, _but not in H_] byrnan ⁊ sweord on ꝥ wer-gild gif he
þyrfe.
(54) He who is charged with _wer-fæhthe_ and he is willing to
deny the slaying on oath; then shall there be in the ‘hynden’ one
king’s oath of 30 hides as well for a gesithcund-man as for a
ceorlisc-man whichever it may be. If he has to pay him, then may
he give the man of any one of those ‘hyndens’ a coat of mail and
a sword in the wergeld if he need.
The last part of the clause is ambiguous, but on the whole, taking into
account the Latin of the ‘Quadripartitus’ and Liebermann’s suggested
translation and the difficulty of the various other suggested readings,
I think it is most probable that the meaning may be, that if the man
charged cannot get the required ‘king’s oath’ or that of another hynden
without paying for it, he may give ‘a coat of mail and a sword’ to the
‘hynden’ if it should be needful. We may have to recur to this section,
but without attempting to build anything upon this more than doubtful
addition to it. Nothing important, I think, turns upon it.
[Sidenote: Both classes must follow to the fyrd.]
The following is important as showing that both the gesithcund and
ceorlisc classes were under the military obligation to follow to the fyrd.
Gif gesiðcund mon landagende forsitte fyrde geselle cxx scill. ⁊
þolie his landes, unlandagende lx scill. cierlisc xxx scill. to
fierdwite.
(51) If a gesithcund-man owning land neglect the fyrd, let him
pay 120_s._ and forfeit his land, one not owning land 60_s._; a
ceorlisc-man 30_s._ as fyrd-wite.
The recurrence in so many clauses of Ine’s Laws of the division of
classes into gesithcund and ceorlisc leads to the conclusion that it must
have been a very prominent one.
It was accepted in the Laws of Ine as a fact existing and of common
knowledge, with no mark upon it of novelty or innovation. The distinction
was evidently ancient and radical, and yet the word ‘gesithcund’ is not
met with in any later laws.
* * * * *
[Sidenote: Mention of twelve-, six-, and twy-hynde classes.]
Throughout the 76 clauses of the Laws of Ine only one makes direct
mention of the division of classes into twelve-hynde and twy-hynde, the
distinction so generally made in the later laws, and in this clause, as
in King Alfred’s Laws, the six-hynde class also appears:--
Aet twy-hyndum were mon sceal sellan to mon-bot xxx scill. æt
vi-hyndum lxxx scill. æt twelf-hyndum c.xx.
(70) With a twy-hyndeman’s wer shall be given as man-bot xxx
scillings with a six-hynde’s lxxx scillings, [? lx s.], with a
twelve-hynde’s cxx scillings.[249]
The man-bot was, as we have seen, the payment to a lord for the loss of
his man.
There is an indirect mention of wergelds in s. 34, which states that any
one who has been in a foray in which a man has been slain must prove
himself innocent of the slaying and make bot for the foray according to
the wergeld of the slain. If his wergeld be 200_s._ he must make bot with
50_s._, and the like justice was to be done with respect to the ‘dearer
born.’
We may assume from this and the later evidence that already the wergeld
of the twelve-hyndeman was 1200 scillings, and that of the twy-hyndeman
200 scillings, though in the Dooms of Ine this is not otherwise directly
stated. The laws take it for granted that the amount of the wergelds was
common knowledge, as in so many other cases.
* * * * *
[Sidenote: The six-hynde class.]
The mention of the six-hynde class in addition to the twelve-hynde and
twy-hynde classes makes it a matter of importance to learn what manner of
persons were included in the six-hynde class.
The Laws of King Alfred, as we have seen, generally mention the
six-hyndeman with the other classes, but without giving any clue to an
answer to the question to what social rank he belonged. In the Laws of
Ine, however, a distinct clue is given, and it is one which accords
with Continental usage and suggests a reason for the disappearance of
the six-hyndeman from the later laws. He is mentioned again after King
Alfred’s time only in the so-called Laws of Henry I.
The clauses relating to this subject are important enough to claim
consideration in a separate section.
* * * * *
[Sidenote: The gafol-gelda and the gebur.]
One other important social distinction, or division of classes, appears
already in the Laws of Ine, viz. that which existed between possessors
of land and _gafol-geldas_ and _geburs_ who were, as we should say,
_tenants_ on the land of others. We shall have to return to the
consideration of this distinction and to note the fact that it is in
these Laws of Ine that the _gebur_ appears as almost the equivalent
of the _gafol-gelda_, while they afford incidental evidence also that
the typical holding of the gafol-gelda (and thus of the gebur) was the
‘yardland’ or virgate of open-field husbandry.
The mention of the gafol-gelda and the gebur occurs in s. 6.
Gif hwa gefeohte on cyninges huse sie he scyldig ealles his
ierfes ⁊ sie on cyninges dome hwæðer he lif age þe nage. Gif
hwa on mynstre gefeohte hund twelftig scill. gebete. Gif hwa on
ealdormonnes huse gefeohte oþþe on oðrer geþungenes witan lx
scill. gebete he ⁊ oðer lx geselle to wite.
(6) If any one fight in the _king’s house_, let him be liable in
all his property and be it in the king’s dooms whether he shall
or shall not have life. If any one fight in a _minster_, let him
make bot with cxx scillings. If any one fight in an _ealdorman’s_
house or in any other distinguished wita’s, let him make bot with
lx scillings and pay a second lx scillings as wite.
Gif he þonne on gafol-geldan huse oþþe on gebures gefeohte c.xx
scill. to wite geselle ⁊ þæm gebure vi scill.
But if he fight in a _gafol-gelda’s_ house or in a _gebur’s_, let
him pay cxx scillings as wite, and to the gebur vi scillings.
And þeah hit sie on middum felda gefohten hund twelftig scill. to
wite sie agifen.
And though it be fought on midfield let cxx scillings be given as
wite.
[Sidenote: The gafol-gelda and gebur have only a six scilling fightwite.]
This clause is intelligible if we follow the principle that fighting
anywhere is a breach of the king’s peace. The king, therefore, in every
case and wherever it happens is entitled to a wite of 120 scillings.
But if it happens within the house or precinct of an ealdorman or of
any other chief member of the Witan the amount is divided between the
king and his official. If the fighting is in the precinct or house of a
gafol-gelda or gebur the king still gets his full wite of 120 scillings,
and an additional six scillings is to be given to the gebur, just as in
King Alfred’s Laws the same amount is to be given to the ceorlisc man for
fighting in his ‘flet.’
This clause forms a valuable groundwork of evidence as to the position
of the gafol-gelda under West Saxon law, and we shall have to recur to
it when we further consider the position of the ceorlisc class at the
date of King Ine’s Dooms. The omission of the gesithcund class from
this section, unless included as distinguished members of the Witan,
can hardly be accidental, but it is not easy at first sight to divine a
plausible reason for it.
* * * * *
Let us for a moment try to recognise the position to which so far the
Dooms of Ine have brought us.
We seem able in those already quoted to trace a process at work combining
distinctions of classes of different origins and based upon different
lines of thought.
We find a very marked and prominent division of classes into gesithcund
and ceorlisc alongside of hardly more than incidental mention of the
division of classes so prominent afterwards into twelve-hynde and
twy-hynde. In King Alfred’s Laws we could trace no practical distinction
between the twy-hynde and ceorlisc classes. We could not distinguish
between them. All distinction at any rate evaded our notice. We have now
to ask the double question what was the distinction between gesithcund
and twelve-hynde, as well as what was the distinction between ceorlisc
and twy-hynde.
The chief question raised by King Alfred’s Laws was whether any great
distinction existed between the ‘ceorl who sits on gafol land’ and other
members of the ceorlisc class. The Laws of King Alfred gave us no clue
on this point. It seemed as though, after all, the ceorlisc class must
have been so generally gafol-geldas that practically the twy-hynde and
ceorlisc class might be spoken of roughly and inclusively as ‘ceorls
who sit on gafol land,’ and that this ‘sitting on gafol land’ might be,
after all, the fairly distinctive mark of the ceorlisc class for whom
King Alfred claimed a twy-hynde wergeld as ‘equally dear’ with the Danish
lysing.
[Sidenote: The gafol-gelda and gebur of Ine’s laws put in the place of
the ceorlisc man of King Alfred.]
And now in this clause 6 of King Ine’s Laws we find the gafol-gelda or
gebur put directly into the place of the ceorlisc man of King Alfred’s
Laws with the same penalty of six scillings payable to him for fighting
in his house or his ‘flet.’
_King Alfred’s Laws_, s. 39.
If any one fight in a ceorlisc man’s flet, with six scillings let
him make bot to the ceorl.
_King Ine’s Laws_, s. 6.
But if he fight in a gafol-gelda’s house or in a gebur’s, let him
pay … to the gebur six scillings.
It might be said at first sight that here surely is a clear trace of the
degradation of the ceorl into a gafol-gelda during the 200 years between
the Laws of King Ine and King Alfred. For, it might be said, the ceorl of
King Alfred’s Laws has the same bot for the fighting in his house as that
which the gafol-gelda had under Ine’s Laws 200 years earlier. This may be
so. But how do we know that the gafol-gelda of King Ine’s time was not
already the typical ceorl as he seems to have been in King Alfred’s time?
In that case there would be no sign of degradation of the ceorl into the
gafol-gelda. Or at any rate if there had been a degradation from some
original higher position and status it had already taken place before
the time of King Ine. Our judgment on the position of the ceorlisc class
under King Ine’s Laws must still be reserved.
IV. THE POSITION OF STRANGERS IN BLOOD UNDER KING INE’S LAWS.--THE
SIX-HYNDEMAN.
[Sidenote: Strangers in blood.]
The question of the position under West Saxon law of strangers in blood
is one of much interest, and we have reserved the clauses relating to it
for separate consideration.
There may have been several different classes of strangers.
[Sidenote: How were the earlier conquered inhabitants treated?]
How far there was a considerable substratum of conquered Romano-British
inhabitants is a very vexed question. That there were such in the
outlying and recently conquered districts is certain. Mr. Coote’s view
may not be wholly mistaken that a Romano-British population, living,
as on the Continent, under their own laws and customs, existed in most
districts, especially in the towns.
These strangers may some of them have had land and some of them not.
Certainly not all of them were regarded as theows or thralls.
To what class, then, did they belong? And how were they treated? What
degree of freedom was granted them, and what was their wergeld, if they
had any?
It is to the Laws of Ine that we must go for the answers to these
questions. And we start on the inquiry seeking light also upon the
position of the as yet unexplained six-hynde class so often mentioned in
the Laws of King Alfred but never in the later laws.
The only hint we have had as yet as to the meaning of the six-hynde class
is whether gesithcund-men not having land may not have belonged to it.
[Sidenote: The _wealh_ or _Wilisc-man_ with five hides was six-hynde.]
The wergelds of the ordinary classes of tribesmen were doubtless too well
known to require more than incidental mention in King Ine’s Dooms, but
there are several clauses or fragments of clauses specially mentioning
the wergelds of the _wealh_ and of the _Wilisc_-man.
Wealh gif he hafað fif hyda he bið syx hynde.
(24) A _wealh_ if he have five hides ‘he shall be six-hynde.’
Gif Wylisc mon hæbbe hide londes his wer bið c.xx scill. gif he
þonne hæbbe healfe lxxx scill. gif he nænig hæbbe lx scillinga.
(32) If a Wylisc-man have a hide of land his wer shall be cxx
scillings, but if he have half a hide lxxx scillings, if he have
none lx scillings.
Cyninges hors-wealh seþe him mæge geærendian þæs wer-gield bið cc
scill.
(33) The king’s ‘horse-wealh’ who can do his errands, his wergeld
shall be cc scillings.
It will be noticed that the wergeld of the _Wilisc_ man with one hide of
land is one fifth of the wergeld of the _wealh_ with five hides, so that
wealhs and Wilisc men seem to be treated on the same lines--as if the two
words meant the same thing.
[Sidenote: The Gallo-Roman ‘_wala_.’]
It is not easy to draw a distinction between the ‘wealh’ and the
‘Wilisc’ man. ‘Wilisc’ is certainly used as the adjective corresponding
to ‘wealh,’ though sometimes (as _e.g._ in ‘Wilisc ale’) for something
specially Welsh. In the Lex Salica, as we have seen, the Gallo-Roman
living under Roman law, according to the Malberg gloss was a ‘_Wala_’
with a wergeld half that of the ‘ingenuus’ living under Salic law. And,
without pushing this meaning so far as Mr. Coote was inclined to do, we
may fairly, I think, look upon the word ‘wealh’ as generally embracing
not only natives of Wales and West Wales, but also the wider class
of persons of the conquered populations, whether Welsh or Britons or
Romano-Britons, who were not recognised as of Anglo-Saxon blood.
[Sidenote: The _Wallerwente_ of Yorkshire.]
We may call in the later evidence of the Northumbrian Priest-law[250] in
illustration. The use of ores and half-marks in this document and its
being, so to speak, domiciled in York, seem to connect it with the period
of the Northmen’s conquest of Northumbria, when York was its capital and
as yet the tide of battle had not been turned--_i.e._ shortly before
the date of the Compact between Alfred and Guthrum. In this Priest-law
the penalty for the practice of heathen rites on the part of a king’s
thane was ten half-marks, and if he wished to deny the charge it must
be with ten named by himself, ten named by his kindred (_maga_), and
ten _Wallerwente_, and if he failed in the denial he had to pay the ten
half-marks, half of which went to the church and half to the king.
And so also in the case of the ‘landagende man’ who had to pay six
half-marks: he too must deny with as many of his like (_gelicena_) and as
many _wente_ as the king’s thane. And so also in the case of a ‘cyrlisc’
man.
It is quite clear that these _Wallerwente_ were _free_ inhabitants of
the district, for their oaths were taken in evidence, which would not
have been done had they been theows. The Wallerwente were, on the other
hand, not recognised as ‘ceorlisc’ Saxons. They were obviously the native
Celtic inhabitants of the great plain of York[251]--the _gwent_ or basin
of the Derwent and the Ouse. The locality is fixed by the clause which
restricts the Sabbath day’s journey on necessity to six miles out of
York.
[Sidenote: Under Frankish law the Gallo-Romans had half-wergelds.]
Now, we have seen that under Frankish laws the Gallo-Roman population
living under Roman law had _half_-wergelds. If the freeman living
under Salic law had a wergeld of 200 solidi the ‘Romanus possessor’
had a wergeld of 100 solidi. And so in the same way, returning to the
Laws of Ine, while the gesithcund or other landed Wessex freeman was a
twelve-hyndeman, the wealh who had five hides was reckoned as six-hynde.
[Sidenote: The wealh with five hides had a half-wergeld.]
We have seen that the English ceorl who rose to the possession of five
hides and paid gafol to the king, and with coat of mail and over-gilded
sword followed to the fyrd, became gesithcund with a wergeld of 1200
scillings. It is quite in accordance with tribal feeling as shown
in Continental usage that the stranger in blood, whether Welsh or
Romano-British, who had risen in the same way to the possession or
occupation of five hides should be six-hynde with a half-wergeld of 600
scillings.
We have quoted the Northumbrian Priest-law and noted that its penalties
in half-marks and ores suggest that it belongs to the period before King
Alfred’s Compact with Guthrum, during which York was the capital of the
Northmen’s kingdom. It is interesting to see that in the fragment of
North People’s Law quoted in the previous chapter, belonging probably
to the same district and to the same period, some of the clauses with
reference to the Wilisc man are evidently copied from the Laws of Ine
though with some additional matter and perhaps some slight errors in the
figures.
And if a Wilisc-man thrive so that he have a hide of land and can
bring forth the King’s gafol, then is his wergeld 120 scillings.
And if he thrive not except to half a hide, then let his wer be
80 scillings. And if he have not any land, let him be paid for
with 70 scillings [? 60].
[Sidenote: The conquering Northmen gave the hauld a wergeld twice that of
the thane.]
And it is worth notice that it was in this very document that the
Northmen as conquerors, while leaving the English wergeld of the thane
at 2000 thrymsas or 1200 scillings, gave to their own ‘hold’ a double
wergeld of 4000 thrymsas.
[Sidenote: The six-hynde class died out.]
We may therefore regard the six-hyndeman of King Ine and King Alfred’s
Laws as probably the Wilisc man with five hides or more. There does not
appear to be anything in King Alfred’s Laws to lead us away from this
conclusion. Any other would leave the complete silence of King Alfred’s
laws with regard to the Wilisc class unexplained, unless it could be
considered that in the turmoil of the Northmen’s invasions and the stress
of war the Wilisc class had already become more or less amalgamated with
the Saxon population by the force of their common interests against the
invaders.
The silence of the later laws as to a six-hynde class may probably be
explained by the same considerations.
[Sidenote: The Wilisc man under Ine’s law only half as worthy as the
Englishman.]
Passing from the Wilisc man who was six-hynde in consequence of his
landed position to the Wilisc man viewed simply as a stranger in blood,
there is further evidence that as a stranger he was regarded as only half
as ‘worthy’ as an Englishman. In s. 46 of Ine’s Laws it is stated that an
oath-worthy person charged with theft is to deny the charge with an oath
of 120 hides if the accuser be an Englishman, but with only 60 hides if
the accuser be a Wilisc man.
Ðonne mon monnan betyhð ꝥ he ceap forstele oþþe forstolenne
gefeormie þonne sceal he be lx hyda onsacan þære þiefðe gif he
að-wyrðe bið.
(46) When a man charges another that he steals, or harbours
stolen cattle, then shall he deny the theft with lx hides if he
be oath-worthy.
Gif þonne Englisc onstal ga forð onsace þonne be twy-fealdum.
If, however, an English charge of theft[252] come forward, let
him then deny it with twice as many.
Gif hit þonne bið Wilisc onstal ne bið se að na þe mara.
But if it be a Wilisc charge, the oath shall not be the increased
oath.
This clause does not tell us whether the Wilisc man was considered to be
oath-worthy or not. Probably he would not be as against a Saxon. It only
states that when the charge of theft was made by an Englishman the oath
was to be one of twice as many hides as would be required to deny the
charge of a Wilisc man.
[Sidenote: In the ‘Ordinance of the Dun-setas’ strangers have only
half-wergelds and must go to the ordeal as not oath-worthy.]
Corroborative evidence as regards the half-wergelds and oath-worthiness
of the wealh class may be found in an ordinance of later date, but
belonging to Wessex, and it may be quoted as throwing strong light upon
the position of the Wilisc or wealh class (_wealþeode_) in apparently a
border district, where Saxons and wealhs met together with a boundary
of a river between them. It is entitled an ‘Ordinance respecting the
Dun-setas.’[253]
The leading fact throughout this document is that the two peoples met
avowedly as strangers. Its aim was to keep the peace and to protect the
owners of cattle on each side of the stream from the raids of their
neighbours on the other.
They are recognised as strangers to each other and on principle treated
reciprocally as such. Denial of a charge by oath and oath-helpers, unless
by special agreement, is assumed to be of no use and evidently out of
place between strangers in blood. Consequently the ordeal was the only
answer to a charge of theft.
Ne stent nan oðer lád æt tihtlan bute ordal betweox Wealan &
Englan, bute man þafian wille.
There stands no other purgation in an accusation save the ordeal
between Wealas and English unless it be allowed.
This was fully in accordance with tribal custom no less than the further
fact that their wergelds were, obviously for the same reason, to be
half-wergelds.
Gyf Wealh Engliscne man ofsleane þearf he hine hiden-ofer buton
be healfan were gyldan ne Ænglisc Wyliscne geon-ofer þe ma sy he
þegen-boren sy he ceorl-boren healf wer þær æt-fealð.
If a Wealh slay an Englishman he need not pay for him on this
side except with half his wer, no more than the Englishman for a
Wylisc on that side, be he thane-born, be he ceorl-born, one half
of the wer in that case falls away.
[Sidenote: These wylisc men were in Wessex.]
In this document the wealh is treated according to tribal principle
as a stranger in blood, both as regards recourse to the ordeal, and
the half-wergeld. And the word ‘wyliscne’ is used as the appropriate
adjective distinguishing the wealh from the Englishman. So that in this
case ‘wealh’ and ‘wylisc’ mean the same thing. Further, this evidence,
though later in date probably than King Alfred’s Laws, is practically
Wessex evidence, because, though the geographical position of the
Dun-setas is not accurately known, their connection with the West Saxons
is the one thing which is clear.[254]
Returning to the Laws of Ine, as the wergeld of the Wilisc man with five
hides was a half-wergeld of 600 scillings it might be supposed that the
ordinary Wilisc man’s would be a half-wergeld of 100 scillings. But it
was not exactly so, for, according to s. 32 above quoted, the Wilisc man
with one hide had a wergeld of 120 scillings, one with half a hide 80
scillings, one without any land 60 scillings.
In an isolated clause added to s. 23 a somewhat different statement is
made. The wealh gafol-gelda has the same wergeld as if he had a hide of
land, and the wealh theow the same wergeld as the Wilisc man without land.
[Sidenote: Various classes of wealhs and Wilisc men.]
Wealh gafol-gelda cxx scill. his sunu c. Ðeowne lx. somhwelcne
fiftegum. Weales hyd[255] twelfum.
(23) A wealh gafol-gelda cxx scillings, his son c: a theow lx:
some fifty: a wealh’s skin twelve.
That the theow of this passage is the ‘_wealh-theow_’ with a wergeld of
60 scillings is clear from sections 54 and 74, the first of which relates
to the ‘_Wilisc wite theow_.’
Wite-þeowne monnan Wyliscne mon sceal bedrifan be twelf hidum swa
þeowne to swingum. Engliscne be feower & þrittig hida.
(54) A Wilisc wite-theowman shall be followed up with twelve
hides like a theow to the scourging; an English with four and
thirty hides.
The wite-theow was a person who had once been free but from debt or
calamity had sunk into thraldom.
The English ‘wite-theow’ is dealt with thus in the Laws of Ine.
Gif wite-þeow Englisc-mon hine forstalie ho hine mon & ne gylde
his hlaforde. Gif hine mon ofslea ne gylde hine mon his mægum gif
hie hine on twelf-monðum ne aliesden.
(24) If a wite theow, an Englishman, steal himself away, let him
be hanged and nothing paid to his lord. If any one slay him let
nothing be paid to his kindred if they have not redeemed him
within twelve months.
His free kindred might ignore him if they liked: there was no need for
them to pay the wergeld of a kinsman who had forfeited his freedom.
Section 74 relates to the _theow-wealh_, but this term would seem to
apply to the case of the _wealh-wite-theow_.[256]
[Sidenote: The theow-wealh.]
Gif þeow-wealh Engliscne monnan ofslihð þonne sceal seþe hine ah
weorpan hine to honda hlaforde ⁊ mægum oþþe lx scill. gesellan
wið his feore. Gif he þonne þone ceap nelle fore gesellan þonne
mot hine se hlaford gefreogan gielden siþþan his mægas þone wer
gif he mæg-burg hæbbe freo. Gif he næbbe hedan his þa gefan. Ne
þearf se frigea mid þam þeowan mæg-gieldan buton he him wille
fæhðe of-aceapian ne se þeowa mid þy frigean.
(74) If a _theow-wealh_ slay an Englishman, then he who owns
him shall deliver him up to the lord and the kindred or give 60
scillings for his life. But if he will not give that sum for him,
then must the lord enfranchise him. Afterwards let his kindred pay
the wer if he have a free _mæg-burh_. If he have not let his foes
take heed to him. The free need not pay ‘mæg-bot’ with the theow
unless he be desirous to buy off from himself the feud: nor the
‘theow’ with the free.
This clause is repeated in the so-called Laws of Henry I. c. lxx., but
the amount named is 40 scillings instead of 60 scillings. Sixty scillings
is double the manbot of the twy-hynde man in s. 70 of Ine’s Laws, and it
may be the double value of the wealh-theow to his lord.
V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR HYNDENS OF OATH-HELPERS.
[Sidenote: The meaning of twelve-hynde and twy-hynde.]
The silence of the Dooms of Ine upon some of the most important matters
relating to ancient custom is no doubt disappointing, but their position
as almost our only direct evidence of the customs of Wessex for the first
two or three centuries after the conquest of Britain gives to every
hint a value. Some of the clauses are so isolated that if we could not
approach them with light from other sources we should lose the right clue
to their meaning. It is only by following the course we have adopted
of working backwards from the known to the unknown that we can rightly
interpret some of the clauses by reading into them some things not
directly mentioned by them.
And yet if we try to understand such a fundamental matter as the meaning
of the division of classes into _twelve-hynde_ and _twy-hynde_[257] it is
to the Dooms of Ine that we must go.
[Sidenote: Connected with the system of oath-helpers.]
It is in these Dooms that the meaning of the words twelve-hynde and
twy-hynde is most clearly connected with the system of compurgation and
the oaths of the oath-helpers. It is moreover in these Dooms that at
first sight the mystery is made still more mysterious by the statement of
the value of the oaths in so many hides.
[Sidenote: Value of oaths in hides.]
The fact of this connection between the value of the oaths and hides
was first brought to our notice in the Dialogue of Archbishop Egbert
apparently as a matter already well known and established. And it was his
claim that the oaths of his priests should be reckoned as oaths of 120
hides which confirmed what, from the Laws of Ine, was hardly more than
doubtful inference that this was the value of the oath of the gesithcund
or twelve-hynde class.
The Archbishop’s mention of it confirmed it, but left its meaning and
origin as obscure as ever. And yet the whole question of the structure
of Saxon society is so mixed up with the right understanding of the
twelve-hynde and twy-hynde division of classes that unless further light
can be let into it a good deal of what we should like to see clearly must
remain unhappily enveloped in fog.
[Sidenote: Hides were family holdings. The _familia_ of Bede.]
Archbishop Egbert’s substitution of the phrase so many _tributarii_ or
_manentes_ for the ‘so many hides’ of the Laws of Ine obliges us to
regard the _hide_ of Ine’s Dooms in this connection as equivalent to
the ‘familia’ of Bede. The Saxon translator of the Latin text of Bede
translated the word _familia_ sometimes by ‘hide’ and sometimes by
_hiwisc_ or family. In this connection it is also worth noting that,
although writing a century later than Egbert and two centuries after the
date of Ine’s Laws, the translator of Bede had not cast off all traces
of tribal tradition, for he consistently used the word _mægthe_ as the
equivalent of Bede’s ‘provincia.’ He still thought of tribes and peoples
rather than of districts and provinces. His ideas in these things ran on
tribal rather than on territorial lines. So to him the hide was still the
_family_ unit, and the greater kindred or tribe, as in Beowulf, was the
_mægthe_. In Beowulf we saw that some of them conquered others and made
them pay tribute. So they did in Bede’s time.
[Sidenote: _Manentes_ and _tributarii_ of Egbert.]
While, then, we are obliged to connect the value of oaths reckoned as of
so many hides with hides which were family holdings, or, as Egbert calls
them, _manentes_ and _tributarii_, the original meaning of the connection
must be sought for in tribal conceptions.
It seems to be quite clear that in saying that the twelve-hyndeman’s
oath was an oath of 120 hides, and the ceorl’s presumably of 20 hides,
we have not yet necessarily struck the real train of thought underlying
the connection between oaths and hides. For it is absurd to think that
the twelve-hyndeman could pretend to the occupation or possession of 120
hides or family holdings, or the ceorl to 20 hides. They could do no such
thing. The ceorl, in later times at all events, who had the twy-hynde
wergeld was ‘the ceorl who sits on gafol land’--a gafol-gelda on some one
else’s land. And to the great-grandson of the ceorl who had risen to five
hides, the continued possession of five hides was sufficient to qualify
him for a _sithcund_ status worth a wergeld of 1200 shillings or 2000
_thrymsas_.
The question, therefore, needs closer examination if we would rightly
understand the meaning underlying the distinction between the twy-hynde
and twelve-hynde social status.
Let us then in the first place try to understand the meaning of the word
_hynde_ which gives to the distinction between twy-hynde and twelve-hynde
its important significance.
[Sidenote: The meaning of ‘hynden.’]
The word separated from its prefix apparently occurs in only two places
in the Laws. It occurs for the first time in an important clause of the
Laws of Ine. And once more it occurs in the Laws of Athelstan, in the
‘Judicia Civitatis Londoniæ.’ A word which occurs again in Anglo-Saxon
laws after an interval of more than two centuries may and perhaps must
have had a well-known original significance as a legal term though found
nowhere else in Anglo-Saxon literature.
[Sidenote: The set of oath-helpers.]
In Ine s. 54 the word is used twice. The first part of the clause, which
has already been quoted, is as follows:--
(54) He who is charged with werfæhthe [man-slaying] and is
willing to deny the slaying on oath, then shall there be _in the
hynden_ one King’s oath of xxx hides as well for a gesithcund man
as for a ceorlisc man whichsoever it may be.
In this first mention of the _hynden_ the word must mean the set of
oath-helpers supporting their kinsman with their oaths, and the clause
lays down the rule that in every such set of oath-helpers in the case
of ‘slaying’ there must be a ‘King’s oath of thirty hides.’ But what
is this King’s oath of thirty hides which is to be in the _hynden_ of
oath-helpers of both the twy-hynde and twelve-hynde man in case of
man-slaying?
[Sidenote: The 30 hides oath of the King’s thane.]
In the Compact between Alfred and Guthrum is a clause, already quoted,
immediately following the statement of the wergelds of Dane and English,
and the declaration that they were to be ‘equally dear,’ which seems to
be almost a repetition of the clause in Ine’s Laws, but without using the
word _hynden_.
(3) If a King’s thane be charged with man-slaying, if he means to
clear himself by oath, let him do it with twelve King’s thanes,
and if a lesser man than a King’s thane be charged, let him clear
himself with eleven of his like and with one _King’s thane_.
We have seen that the King’s thane is mentioned in the Laws of Ine
(s. 45), and that his social position was much higher than that of
the ordinary _gesithcundman_. The bot for his _burg-bryce_ was sixty
scillings--_i.e._ halfway between that of the ealdorman at eighty
scillings and that of the gesithcundman having land at thirty-five
scillings.
The King’s thane’s oath seems, then, to be what is meant by the King’s
oath of thirty hides in the Laws of Ine. But the King’s thane’s oath
of thirty hides being the oath of a class higher than that of the
gesithcundman, how is it that the oath of the latter could be a 120 hide
oath?--_i.e._ worth four times as much as that of his superior, the
King’s thane.
At first the two statements seem to clash, but on reflection a spark of
light seems to come from the collision. The King’s thane’s oath in this
case is only _one oath in the hynden of twelve_ oath-helpers supporting
the twelve-hynde or twy-hynde man. When a King’s thane was himself
charged with man-slaying the later law declares that he must clear
himself with twelve King’s thane’s oaths. The full oath of the whole
hynden, himself and his co-swearers, would therefore be equivalent to an
oath of 360 hides--_i.e._ worth three times the 120 hide oath of--may
we not now say?--the twelve oath-helpers forming the _hynden_ of the
gesithcundman.
[Sidenote: The single oath of the twelve-hyndeman was of 10 hides.]
The King’s thane’s official position was sufficient to justify the
threefold value of his oath and that of the several oaths of his hynden.
And if the 120 hide oath of the twelve-hyndeman be the full oath of
himself and his hynden of oath-helpers, then his single oath would be a
ten hide oath, which is much more within reason. The analogy would be
complete were it not for the necessity of including in the hynden of the
gesithcundman a King’s thane’s oath of thirty hides; but this may have
been an afterthought. The mention of it in the law of Ine is in itself
presumptive evidence that it was a new and an additional requirement
beyond what Wessex custom had originally required.[258]
[Sidenote: The oath of himself and oath-helpers was of 120 hides.]
So far, then, it seems to be pretty clear that the 120 hide oath of the
twelve-hyndeman was the twelvefold oath of himself and his hynden of
oath-helpers, each of whose single oaths was, like his own, a ten hide
oath.
[Sidenote: The oath-helpers were kinsmen.]
Adhering, then, to the meaning of _hynden_ as the set of oath-helpers,
we have next to keep in mind that the oath-helpers were naturally kinsmen
representing the slayer’s kindred and their responsibility for the
wergeld of the person slain if their kinsman was the slayer, and by this
consideration we are once more thrown back upon tribal custom.
[Sidenote: The twy-hyndeman and leysing’s want of kindred.]
And when in the Compact between Alfred and Guthrum we see the ‘ceorl
who sits on gafol-land’ put in the same position as the Norse ‘leysing’
or newly made freeman whose kindred was imperfect, howbeit in course of
being widened by each generation, we seem again to be put upon the scent
that the twy-hynde condition of the Saxon ceorl may also originally have
had something to do with his imperfect kindred.
When further, in the remarkable fragment already quoted, we see the Saxon
ceorl himself rising in the social scale, getting land ‘to the King’s
utware,’ having a ‘coat of mail, helmet, and over-gilded sword’ and doing
direct service to the King, until at last, his son’s son having had that
land in succession, the great-grandchildren become of _sithcund_ kin
with twelve-hynde wergelds, the scent seems to lie all the more strongly
in the direction of the tribal rules of kindred. For it is as though we
had watched the process of the growth of kindred in this case till the
_sithcund_ condition was reached, and the full hynden had been produced,
thus raising the twy-hynde into a twelve-hynde man.
The leysing, we learned from the Norse laws, being a newly made freedman,
had at first no freeborn kin from whom he could inherit or who could
inherit from him. He had no one of his kin to swear for him or to
fight for him till he had sons and grandsons. For three generations the
descendants were leysings still. And though during that time kinsmen
enough may have grown up around them to swear for them yet still their
oaths may well have been reckoned of lower value than those of the hauld,
each of whose oath-helpers had a full kindred behind him to support him.
It took another three generations to put the leysing in this position.
[Sidenote: The full oath of a man with 12 oath-helpers of full kindred
twelve-hynde.]
There may, then, perhaps be involved in this matter of imperfect and
perfect kindred a principle of tribal custom originally underlying the
terms twelve-hynde and twy-hynde. The oath of full value under tribal
usage would be the oath of a man with a full kindred, _i.e._ with twelve
hyndens, each of full kindred, behind him. Only with a full kindred to
support him was his protection complete, because without it he could
not secure a full oath of twelve sufficiently influential and powerful
oath-helpers. If he could claim from his kindred such an oath, then he
may well have been considered properly a twelve-hyndeman, because such an
oath meant practically that he had the support and protection of twelve
hyndens of kinsmen in case of need.
This might at first sight seem an unnecessarily large requirement if
the _oath_ were regarded only as clearing a man from the charge of
man-slaying. But going back to tribal usage it seems no longer too large
when the alternative is considered. The alternative was the ordeal and,
on failure of the test of innocence, the feud or the payment of a wergeld
of, as we have seen, normally one hundred head of cattle. In either case
the slayer was powerless if alone. He was powerful only in having a
full kindred behind him bound by ties of kinship and tribal usage first
to swear for him instead of his being put to the ordeal, and secondly
to fight for him or to assist him in finding the hundred head of cattle
required to buy off the feud, according to the proverb ‘Buy off the spear
or bear it.’ In either case the completeness of his kindred was the
measure of the power of protection behind him.
[Sidenote: The oath of the ceorl worth only one sixth of that of the
twelve-hyndeman and thus only twy-hynde.]
The twy-hyndeman considered as the leysing or freedman would not be in
this strong position. His social status, resulting from his imperfect
kindred, must be a low one. If he slew a twelve-hyndeman, from the
point of view of the feud he would be helpless. The kindred of the
twelve-hyndeman slain by him could not be satisfied merely by the
slaughter of an inferior. Tribal custom of the Continental Saxons allowed
vengeance for homicide by a thrall to be taken upon seven thralls. Under
Mercian usage, as we have seen, it had been settled that the oath of the
ceorl was to be taken as worth one sixth of that of the twelve-hyndeman,
because the life of six ceorls was held to be equivalent in the matter
of vengeance to that of one twelve-hyndeman. And thus it may be that,
in the case of man-slaying, his oath and that of his oath-helpers,
all of inferior value, came, under Anglo-Saxon custom, to be reckoned
in comparison with that of the man of full kindred as worth only ‘two
hyndens’ as against his twelve.
In the other passage in which the word ‘hynden’ occurs it has not so
distinctly the meaning of ‘oath-helpers.’ It is not used in relation to
homicide or wergelds, but still its use and its meaning are instructive.
[Sidenote: The hynden-men of the city frith-gegildas.]
The use of the word in the ‘Judicia Civitatis Lundoniæ’[259] is in
connection with the organisation of ‘frith-gegildas’ for the prevention
and punishment of theft. These ‘frith-gegildas’ were groups or ‘hyndens’
with a common purse. And contributions were to be made for the common
benefit. In the eighth clause it was enacted that the hynden-men should
be collected every month, each twelve to a common meal. ‘And if it should
then happen that any kin be so strong and so great within land or without
land whether xii-hynde or twy-hynde that they refuse us our right and
stand up in defence of a thief, that we all of us ride thereto with the
reeve within whose “manung” it may be.’
These hyndens were not directly groups of kinsmen and oath-helpers,
but they were artificial groups formed and bound by a pledge for
mutual protection, and the use of the word ‘hynden’ in this sense is
significant. There were hyndens of oath-helpers under tribal custom, and
now in the city hyndens of frith-gegildas were formed for mutual defence
against powerful kindreds outside their city who were in the habit of
protecting thieves from justice.
This was the way apparently that a substitute was found in the towns for
the absent kindreds. And as time went on these artificial hyndens of
_gegildas_ or _congildones_ no doubt in some measure took the place of
the hyndens of kinsmen in cases of homicide as well as in cases of theft.
[Sidenote: Wealth and fullness of kindred often concurrent.]
Naturally in the course of time the possession of property and social
status would gradually take the place of the completeness of kindred, and
the two elements in status would easily be associated together in common
estimation. The value of a man’s oath would depend more and more on the
number of hides of land he was reckoned to possess, or for which he was
responsible to the ‘King’s utware.’
If we may follow Schmid’s translation of ‘utware’ as ‘Heerbann’ and
picture to ourselves the ceorl who had risen to the social position of a
man with a kindred and having five hides to the King’s gafol, with his
coat of mail and helmet and over-gilded sword coming up at the call of
the King to the fyrd with so many followers, whether kinsmen or tenants,
from the five hides under his charge and so becoming ‘gesithcund’ in
regard to the King’s service, then there would be force in the further
clause which declares that, although he had acquired a kindred and a coat
of mail and helmet and over-gilded sword, yet _if he have not that land,
he is still but a ceorl_.
The power and strength and status of a person would still depend upon the
combination of the two elements, and both would have to be reckoned with.
A passage has already been quoted in which the possibility is admitted of
a kindred becoming so powerful--_magna et fortis_--as to defy the King’s
law and defend the thief.[260] There is another passage relating to
breaches of the peace in Kent in which the two sources of this power of
defiance are mentioned together. The dangerous person may either be _so
rich_ or be of _so great a kindred_ that he could not be punished--‘adeo
dives vel tantæ parentelæ ut castigari non possit.’[261]
VI. THE GESITHCUND AND CEORLISC CLASSES IN THEIR CONNECTION WITH LAND.
Pursuing the question of division of classes mentioned in the Dooms of
Ine we turn now to the consideration of the most prominent distinction
which runs through the clauses of the Dooms, viz. that of _gesithcund_
and _ceorlisc_.
Roughly speaking, the two distinctions may have been gradually coming
more and more to mean much the same thing. As a rule no doubt in King
Ine’s time ceorlisc men were twy-hynde and gesithcund men twelve-hynde.
[Sidenote: The unit of 10 hides of land.]
The same class which, regarded from the point of view of the wergeld,
possessed completeness of kindred and the twelve-hynde oath, when looked
at from another point of view was gesithcund, _i.e._ more or less
directly in the service of the King and belonging to the official and
landed class. So that the value of the oath of both twelve-hynde and
gesithcund men may have become easily associated with a territorial unit
of ten hides of land.
Now, the fact of the connection of the value of the oath with ten hides
of land is pretty good proof that for practical purposes and in common
usage the holding of ten hides was looked upon as in some way or other
a typical unit of holding of the gesithcund or landed class. There is
nothing new in this suggestion, but its lack of novelty does not detract
from its value. And an examination from a tribal point of view of the
isolated passages in the Dooms of Ine relating to this typical holding of
ten hides may possibly throw further and useful light upon the position
of the gesithcund class.
While we speak of the gesithcund class as almost equivalent to the
landed class it is obvious that it would be wrong to consider every
gesithcundman as a landowner. Attention has already been called to the
following clause:
(51) If a gesithcundman owning land neglect the fyrd, let him
pay 120_s._ and forfeit his land. One not owning land 60_s._, a
_ceorlisc_ man 30_s._ as fyrd-wite.
The gesithcundman _not_ possessing land may either be one who has
forfeited his land or a cadet of the class not having yet attained to the
position of landholding and yet being gesithcund by birth.
Nor would it do to let modern notions of landownership intrude themselves
so far into the question as to make us regard the gesithcund and landed
class as a class of land-_owners_ in the modern sense. If the typical
holding of ten hides be that of the gesithcundman, we may have to regard
him rather as a gesith of the King put into possession of the ten hides
by way of stewardship than as anything like the absolute owner of them.
[Sidenote: Ten hides the unit for food rents to the chieftain or King.]
The typical holding of ten hides may perhaps be usefully regarded, from a
fiscal point of view, as a unit for purposes of revenue, at a time when
that revenue under tribal custom consisted chiefly of food rents paid in
kind for the King’s or the chieftain’s use.
Clause 70 of the Dooms of Ine fixes in detail the food rent of ‘ten
hides’ ‘to fostre’ or ‘on feorm.’
If the unit of ten hides were not the customary unit for these food rents
on the Royal domains why should the details of the food rent of ten hides
have been made the subject of an isolated clause like this?
[Sidenote: Land grants of 10 hides.]
Again, if we turn to the grants made by King Ine to the monasteries, they
become intelligible if the system of management of the Royal domains in
units and multiples of ten hides may be understood to underlie them. When
Ine grants to Aldhelm, then Abbot of Malmesbury, ‘45 cassati’ in the
county of Wilts, the grant is found to consist of groups of ‘manentes’
in four different places. And the groups consist of 5, 20, 10, and
10.[262] When Ine makes a grant to Abbot Bernald of land in Somersetshire
it consists of three groups of 20, 20, and 20 _cassati_ or _manentes_
from three different estates.[263] And when he makes a similar grant to
Glastonbury it consists of 10, 10, 20, 20 hides and one hide in five
different places in Somersetshire.[264]
So also when Bede mentions the donations by King Oswy to the Abbess Hilda
of 12 _possessiuncula terrarum_ he adds that six were in the province
of Deira and six in Bernicia and that each of them consisted of 10
_familiæ_, so that in all there were 120.[265]
Now it would seem that as ealdormen were set over shires so gesithcund
men may have been set over smaller units of 10 hides or multiples of 10
hides, holding them as lænland, not only for services rendered, but also
with some kind of subordinate official or even judicial functions.
[Sidenote: Official position of the gesithcundman.]
Schmid long ago pointed out that the translator of Bede in six passages
translated the Latin _comes_ by ‘gesith’ or ‘gesithcundman.’[266] This
seems to imply that his position was in some sense an official one,
subordinate indeed to the ealdorman’s, as we may also learn from the
translator of Bede. For while he translates the ‘_villa comitis_’ of
Bede as the ‘_gesith’s hus_’ he translates the ‘_villa regis_’ as the
residence of the king’s ealdor (‘botl cyninges ealdor’).[267]
We found in s. 45 of King Ine’s Laws above quoted that the
gesithcundman’s burg-bryce was thirty-five scillings while the
ealdorman’s was eighty scillings. Still, though the lowest official in
the scale, it was something that he should be named with the King, the
ealdorman, and the King’s thane as having a burg-bryce according to which
he was to make legal denial (ansacan).
The omission from this clause as to burg-bryce of classes below him seems
to mark that while even the ceorlisc man--_i.e._ even the gafol-gelda
or gebur--was responsible for the peace within his ‘flet’ and received
a fight-wite when it was broken by fighting in it, the gesithcundman
belonged to the class with some sort of extra jurisdiction beyond that
which attached to every man whose homestead was by long tribal custom a
sacred precinct.
[Sidenote: His judicial and magisterial duties.]
And there is a clause in the Laws of Ine which seems to refer to the
something like judicial duties of the gesithcundman, for it shows that
neglect of them causing a suit which he ought to have settled to be
carried to a higher court--before the ealdorman or the King--deprived
him of his right to share in the ‘wite-ræden,’ whatever they were,
appertaining to the suit.
Gif gesiðcund mon þingað wið cyning oþþe wið kyninges
ealdormannan for his inhiwan oþþe wið his hlaford for þeowe oþþe
for frige nah he þær nane witerædenne se gesið forþon he him
nolde ær yfles gestieran æt ham.
(50) If a gesithcundman has a suit with the King or with the
King’s ealdorman for his household or with his lord for bond or
for free; he (the gesith) shall not there have any ‘witeræden’
because he would not correct him before of his evil deeds at home.
That he had special duties to discharge in connection with the ‘fyrd’
was shown not only by one of the qualifications of the gesithcund status
being the possession of a coat of mail, helmet, and over-gilded sword,
but also by the fyrd-wite of 120 scillings and the loss of his land, if
he neglected the fyrd.
[Sidenote: His duty to secure the King’s gafol from his land.]
That he was put into his landed position under conditions to secure the
management of the land for the provision of the King’s gafol is shown by
the following clauses, which in regard to one important particular at
least point out what was expected of him and further suggest that there
was reason to fear that sometimes he might be inclined to desert his post
without having performed the conditions upon which his land was held.
_Be gesiðcundes monnes fære._
_If a gesithcund leaves [the land]._
Gif gesiðcund man fare þonne mot he habban his gerefan mid him ⁊
his smið ⁊ his cild-festran.
(63) If a gesithcundman leaves, then may he have with him his
reeve [?] and smith and his foster-nurse.
Seþe hæfð xx hida se sceal tæcnan xii hida gesettes landes
þonne he faran wille.
(64) He who has 20 hides, he shall show 12 hides of _geset land_
if he want to leave.
Seþe hæfð x hida se sceal tæcnan vi hida gesettes landes.
(65) He who has 10 hides shall show 6 hides of _geset land_.
Seþe hæbbe þreo hida tæcne oðres healfes.
(66) If he have three hides let him show one and a half.
[Sidenote: He must settle tenants on the land.]
These clauses suggest very clearly that the gesithcundman had been
entrusted with the ten hides or twenty hides, or sometimes a smaller
number, under the special obligation to provide the food rent by settling
tenants upon the land.
[Sidenote: Method of settling gafol-geldas and geburs on yardlands.]
Let us pass, then, to what evidence the Dooms of Ine afford as to the
customary method of settling tenants on the land.
The very next sections to those just quoted are as follows:--
_Be gyrde londes._
_Of a yardland._
Gif mon geþingað gyrde landes oþþe mære to ræde-gafole ⁊ geereð,
gif se hlaford him wile þ land aræran to weorce ⁊ to gafole, ne
þearf he him onfon gif he him nan botl ne selð. ⁊ þolie þara æcra.
(67) If a man agrees for a yardland or more to gafol and ploughs
it, if the lord wants to raise the land _to work and to gafol_,
he need not take it upon him if he [the lord] does not give him a
_botl_, and let him give up (?) the acres.
Gif mon gesiðcundne monnan adrife, fordrife þy _botle, næs þære
setene_.
(68) If a man drive off a gesithcundman, let him be driven from
the _botl_, not the _setene_.
[Sidenote: The yardland was the usual holding of the _gebur_, with a pair
of oxen.]
Working from the known to the unknown, in a former volume we found that
under the open-field system of husbandry the hide at the time of the
Domesday survey and earlier was generally held to contain four virgates
or yardlands, and that so far as arable land was concerned each yardland
was a bundle, so to speak, of about thirty scattered strips or acres.
Tracing the yardland further back, the interesting point was gained from
the tenth-century document known as the ‘Rectitudines &c.,’ that ‘in
some regions’ the custom in allotting a yardland to a tenant called a
‘_gebur_’ was to give him with his yardland to _land-setene_ seven acres
already sown and a _pair of oxen_, and certain other things theoretically
by way of loan, so that on the gebur’s death everything returned to
the lord, though in practice the holding and land-setene were no doubt
continued to his successor on payment of a ‘relief.’ And this system
of settling gafol-geldas and geburs, or whatever such tenants might be
locally called, on yardlands seems to be that alluded to in the Dooms
of Ine. The clauses incidentally referring to gafol-geldas, geburs, and
yardlands thus become intelligible and important in the light of the
later evidence. This I endeavoured to show in a former volume.[268]
[Sidenote: The hide of four yardlands agricultural.]
Now, this system of settling tenants on yardlands by allotting to each a
pair of oxen, so that four of them should be able to combine in forming
the common plough-team of the hide, obviously belongs to a time when
agriculture had become sufficiently important for the unit of occupation
and so of gafol-paying and services to be generally agricultural rather
than pastoral. But while the _hide_ thus seems to have been connected
in the Dooms of Ine mainly with arable farming, it does not follow that
it always had been so everywhere. The word ‘hide’ may have originally
been applied to a holding devoted more to the grazing of cattle than the
growing of corn.
The remarkable document which has been called ‘The Tribal Hidage,’ to the
meaning and date of which Mr. W. J. Corbett[269] has opened our eyes,
shows that forty or fifty years before the date of the Dooms of Ine the
whole of England then subject to the Anglo-Saxons was, as we should say,
rated in hides according to its tribes or mægthes, possibly for the
fiscal purposes of the Bretwaldaship. And it would seem likely that under
the common designation of hides pastoral as well as agricultural units
for food rents must have been included. This seems to be indicated by the
fact that the hides and virgates of the pastoral districts of West Wales
in the Exon Domesday book are many times greater than those of other
parts of England, and vary very much in area.
[Sidenote: In pastoral districts co-aration of the waste.]
In the pastoral or grazing districts recently conquered from West Wales
early tribal usage would be very likely to survive. And there may well
have been some continuity in the methods of tribal agriculture. Judging
from what we know from the Cymric Codes, there might not yet be permanent
division of the fields into strips and virgates but rather co-aration of
such portions of the waste each year as suited the requirements of the
tribesmen.
[Sidenote: The team of 8 oxen said not to be German.]
The open-field system of agriculture was in its main principles and
chief methods common to German and Celtic tribes. But we are told that
the Germans knew nothing of co-operative ploughing and the team of
eight oxen on which the agricultural hidage of England was so clearly
based. For the team of eight oxen we must go to the Cymric Codes and the
practice in the Isle of Man and Scotland. It was common to these Celtic
regions, even to its details--the yoke of four oxen abreast and the
driver walking backwards in front of the team.[270] In such a matter as
the method of ploughing there may well have been continuity.
We seem to see in the Laws of Ine the process going on of transition from
the tribal form of the open-field system--the co-aration of the waste--to
the more fixed forms of settled and permanent agriculture.
[Sidenote: The allotment of stock and homestead by the lord to the gebur
was the basis of the tenancy.]
Thus, without pressing analogies too far, there may be a root of tribal
custom discernible even in the system of settling geburs on yardlands.
Something very much like it was followed on the Continent under Roman
usage. But the case of the veteran to whom a pair of oxen with seed of
two kinds was given as his outfit only partly resembled the case of the
gebur. In the case of the gebur the outfit of oxen remained in theory the
property of the lord, and returned to him on the death of the tenant.
This was the essential point which created the semi-servile tenancy.
With the homestead went the ‘setene’ or outfit and the corresponding
obligation not only of gafol but also of week-work, and out of the
peculiar relation so established may have grown up in West Wales, as
in Wales itself and Ireland, very easily the doctrine that after its
continuance for four generations the tenant became _adscriptus glebæ_.
The allotment of stock by the Irish chieftain formed, as we have seen, in
a cattle-breeding rather than an agricultural community the traditional
tie between himself and his tenants, whether tribesmen or strangers. The
Cymric chieftain of a kindred followed very nearly the same traditional
practice when he gave to the young tribesman on his attaining the age of
fourteen his _da_ (or allotment of cattle) for his maintenance, thereby
establishing the relation of ‘man and kin’ between him and the chief.
The same tribal principles were, moreover, applied to strangers both in
Ireland and Wales. The Irish ‘fuidhir’ thus settled on the chieftain’s
land became, as we have seen, after four generations _adscriptus glebæ_,
and so did the _Aillt_ or _Alltud_ settled on the Cymric chieftain’s
land. And the same number of generations attached the _nativus_ to the
land under early Scotch law.
Now, if under tribal usage this was so, it need not be surprising that
in the newly conquered districts of West Wales or more generally in
Wessex at the time of King Ine, when the extension of agriculture was an
immediate necessity, something like the same traditional system should
continue or come again naturally into use, producing something like the
same kind of dependence of one class upon the other.
[Sidenote: This system of settlement very general.]
It is necessary to point out that this method of settling tenants on
yardlands with an outfit of a pair of oxen &c. was more or less general,
because doubts have been recently thrown upon it. Its prevalence as a
custom does not rest entirely on the evidence of the ‘Rectitudines’ but
on several incidental mentions of it in various and distant quarters.
[Sidenote: Kent.]
For instance, in the will of a reeve named Abba of Kent (about A.D.
833)[271] is the gift of a ‘half swulung’--_i.e._ what elsewhere would
have been described as a half hide--and with that land were to go four
oxen, two cows, and fifty sheep, that is two oxen and one cow and
twenty-five sheep to each _gioc_ or yardland.
[Sidenote: Glastonbury.]
And again, the Inquisition of Glastonbury (A.D. 1189)[272] describes
the holder of a yardland almost in the same terms as those used in the
‘Rectitudines’ in the description of the _gebur_. He is said to hold a
yardland for 32_d._ (probably 1_d._ per acre), and every Monday he must
plough a half-acre and harrow it, and he works every day in the week but
on Sunday. He has from his lord one heifer (_averum_) and two oxen and
one cow and seven acres of corn sown and three acres of oats (to start
with)--ten acres in all sown--and six sheep and one ram. King Ine made
grants of land, as we have seen, to Glastonbury, and it is interesting
to find the custom of allowing two oxen, one cow, and six sheep to the
yardland as described in the ‘Rectitudines’ still going on in West Wales
five hundred years after Ine’s time on the estates of the Abbey.
[Sidenote: Winchester.]
Take again the charter MLXXIX. mentioned by Kemble (i. p. 216). This
charter shows that the Bishop of Winchester (A.D. 902) had leased fifteen
hides of land to a relative of the Bishop, requiring that he must settle
there (_inberthan_)[273] men who would be fixed (_hamettan_) to the
place. He himself had ‘hamet’ Lufe and her three bairns, and Luhan and
his six bairns, and these must remain on the land whoever might hold it.
There were also three _witetheows_ _bur_bærde and three more _theow_bærde
belonging to the Bishop, with their descendants (_and hire team_). At
this date the settling of new tenants (may we not say?) some of them as
geburs and some as theows was still going on in Wessex A.D. 902.
It is quite true that the holders of these yardlands are not everywhere
always described as _geburs_. But we are dealing with the _thing_, not
the name. The word _gebur_, however, was of much wider use than merely in
one or two localities.
[Sidenote: Tyddenham.]
It is not only in the ‘Rectitudines’ that the gebur and his services are
mentioned. On the Tyddenham Manor of King Edwy on the ‘geset-land’ there
were ‘geburs’ with yardlands (gyrdagafollandes)--as mentioned in the
former volume (p. 150). And other examples may be quoted.
[Sidenote: Shaftesbury. Hatfield.]
In the will of Wynfled[274] there is mention of lands at Shaftesbury
and ‘the geburs that on those gafollands sit’ (_þara gebura di on þam
gafollandes sittað_). And as incidental evidence that the geburs became
in course of time _adscripti glebæ_, it is worth while to remember that
early in the eleventh century the monks of Ely in connection with their
Manor of Hatfield kept record of the children of the geburs on their
estate who had married with others of neighbouring manors, so that
they might not lose sight of them and their rights over them. And the
importance with which their rights were regarded is emphasised by the
fact that the record was kept upon the back of an ancient copy of the
Gospels belonging presumably to the altar of St. Etheldreda.[275]
Now, if such in part was the relation between the gesithcundman and the
tenants of the yardlands of his ‘geset-land’ arising from the allotment
or loan of stock, may not something of the same kind lie at the root of
the relation between the gesithcundman himself and the King? Lord as he
may have been over his ceorlisc gafol-geldas, was not the gesithcundman
himself a servant of the King looking after the King’s gafol, a kind of
middleman, tied to his post with the ealdorman above him in the hierarchy
of Royal service, liable to lose his land if he neglected his duty?
[Sidenote: How far the gebur was _adscriptus glebæ_.]
It is an interesting question how far the ceorlisc class were _adscripti
glebæ_ under the Laws of Ine, but when we try to find this out we
discover that both classes seem to be under some kind of restraint as to
‘going away’ (_fære_). If a gesithcundman ‘fare’ we have seen under what
restrictions it must be. There is another clause which deals with the
case of persons who shall ‘fare’ without leave from their lords.
Gif hwa fare unaliefed fram his hlaforde oþþe on oðre scire hine
bestele ⁊ hine mon geahsige fare þær he ær wæs ⁊ geselle his
hlaforde lx scill.
(s. 39) If any one go from his lord without leave or steal
himself away into another shire and he be discovered, let him go
where he was before and pay to his lord 60 scillings.
Judged in the light of later laws to the same or nearly similar effect,
this clause must probably be regarded rather as early evidence of the
relation between lord and man established generally for the maintenance
of the public peace, than as bearing directly upon the question of the
attachment of the smaller class of tenants to the soil.[276] And yet if
the relation of the ordinary freeman to, let us say, the ealdorman of
the shire was such that he might not move into another shire without
leave, and until it was ascertained whether his action was _bona fide_,
or perhaps with the object to escape from debt or vengeance for a wrong
committed, the restriction would be likely to be still stronger when
a tenant was under fixed obligations to his lord, or had, by taking a
yardland and homestead, settled on his lord’s land and accepted stock
under conditions of gafol and week-work regulated by general usage.
The idea of freedom as a kind of masterful independence of the individual
was not one inherited from tribal modes of thought, nor likely to be
fostered by the circumstances of the times which followed upon the
Anglo-Saxon conquest of Britain. When this fact is fully recognised, the
gulf between the gesithcund and ceorlisc classes does not seem so deep,
after all, as it would be if, instead of approaching the question from a
tribal point of view, we were looking for allodial landowners on the one
hand and expecting the ceorl to be a member of a village community of
independent peasant proprietors on the other hand.
[Sidenote: The king’s food rents or gafol how paid.]
But we are not doing this, and, returning to the gesithcundman, perhaps
we have after all taken for granted quite enough that the general
environment in Wessex was agricultural rather than pastoral. Even as
regards King Ine himself, there may have been a good deal of the tribal
chieftain still left in his relations to his gesithcund followers and
officials. We have spoken of his tribal food rents; but how did he gather
them?
[Sidenote: The _firma unius noctis_.]
No doubt the King’s gafol may partly have been paid in money. But so far
as it was paid in kind it must have been carried by his tenants to his
Winchester palace, or one of his other manors, according to the system
prevalent at the time, followed for centuries after in West Wales, viz.
the system of the ‘night’s entertainment’ (_firma unius noctis_)--a
system followed by tribal chieftains and their Royal successors in
Scandinavia as well as in Britain.
When the Domesday survey was made of what was once West Wales there was
found still existing, especially in Dorsetshire, the survival of a very
practical arrangement of Royal food rents which may have been in use in
King Ine’s time and date back possibly before the West Saxon conquests.