are grouped in the survey so that each group might supply the _firma
unius noctis_, the money equivalent of which is stated to be 104_l._,
_i.e._ 2_l._ per night’s entertainment for one night each week in the
year. This mode of providing the _firma unius noctis_ is illustrated by
the legend which represents King Ine himself and his queen as moving from
manor to manor for each night’s entertainment, their moveable palace of
poles and curtains being carried before them from place to place upon
sumpter mules.
Now, if we might regard the gesithcundman as one of a class to whom ten
hides or twenty hides had been allotted by King Ine on a system providing
in this practical way _inter alia_ for the night’s entertainments, it
would be natural that the food rent of the unit of ten hides should be
fixed. And further, it would be natural that if the gesithcundman should
wish to throw up his post and desert the land entrusted to his management
he should be restricted, as we have seen, by conditions intended to
secure that the provision for the King’s entertainment or gafol in lieu
of it should not materially suffer.
[Sidenote: The gesithcundman sometimes evicted.]
We have seen that as the ealdorman was to lose his ‘shire’ if he let go a
thief, so the gesithcundman was to pay a fyrdwite, and to lose his _land_
if he neglected the _fyrd_. It was possible, then, that he might have
to be evicted. And a clause in the Dooms of Ine has already been quoted
which seems to refer to the eviction of a gesithcundman.
Be gesiðcundes monnes dræfe of londe.
(68) If a gesithcundman be driven off land.
Gif mon gesiðcundne monnan adrife, fordrife þy botle næs þære
setene.
If one drive off a gesithcundman, let him be driven forth from
the homestead (_botl_), not the _setene_.
If he was evicted he was to be driven from the _botl_ or homestead, not
the _setene_. What can the _setene_ have been?
[Sidenote: Were the stock and crops always his own?]
The land granted or intrusted to the gesithcundman for the performance of
corresponding duties is not likely to have been mere waste. Part of it
might surely already be ‘geset land,’ let to tenants of yardlands. On the
rest of it still held in demesne there would probably be some herds of
cattle. In these early days the cattle and corn on the land were far more
valuable than the mere land itself. If, therefore, a fixed food rent was
payable to the King, may it not be inferred that sometimes the typical
holding of ten hides included the stock let with it, just as, according
to the ‘Rectitudines,’ the yardland did? Following strictly the analogy,
the original stock on the land and in the hands of the tenants would be
the ‘setene’ of the gesithcundman, theoretically, like the land itself,
belonging, not to him, but to his lord? It might have been sometimes so.
But at the same time there might be other cases in which the possession
of cattle may have led to the tenure. The ceorl or the wealh who had
risen to having five hides may have brought the cattle or setene with
him. And to evict him from his own cattle and crops as well as from the
_botl_ might be unjust.
The text as it stands seems to mean that the gesithcundman is not to
be evicted _from_ the _setene_, and the clause seems to be intended to
protect his rights and to prevent his being evicted from his own stock
and crops on the land. The clause is not clear, but it adds to the
sense that in the case of the gesithcundman we are not dealing with a
landowner who can do what he likes with his own, any more than in the
case of the ceorlisc gafol-geldas we are dealing with a class of peasant
proprietors.
[Sidenote: Position of the two classes in Ine’s time.]
Difficult as it may be to come to a clear understanding of some of these
isolated passages in the Dooms of Ine, they may at least have saved us
from the pitfall of a fatal anachronism. Their difficulties, forcing us
to think, may in some degree have helped us to realise the point of view
from which the two classes--gesithcund and ceorlisc--were regarded in
early Wessex legislation.
[Sidenote: The gesithcund class the landed class. The ceorlisc class the
tenant class paying gafol to the landed class.]
Throughout Wessex, speaking generally, they seem to have been regarded
as the two prominent classes in practical agricultural life. The general
facts of everyday observation marked off the gesithcundman as belonging
to the ruling class, holding land direct from the King as the King’s
gesith, while the ceorlisc man, speaking generally, in his relation to
land was the gafol-gelda or gebur sometimes probably holding his yardland
on the King’s demesne, but mostly perhaps and more and more often as the
tenant of the gesithcundman. This, it would seem, had become so general
that in King Alfred’s day and perhaps even in King Ine’s, ignoring the
exceptional classes between the gesithcund and the other class, there was
no absurdity in King Alfred’s claiming that equally dear with the Danish
lysing the ‘ceorl who sits on gafol land’ should have a twy-hynde wergeld.
The division into gesithcund and ceorlisc classes was doubtless a
somewhat rough and wide generalisation. There were, we know, men without
land who belonged to the gesithcund class, and ceorls who were not
tenants of yardlands. And even among the tenants of yardlands some paid
gafol only and others both gafol and week-work. But for our purpose the
fact to be noted is that the generalisation was sufficiently near the
truth for it to be made.
[Sidenote: The ceorlisc class would include newly made freedmen.]
We must not infer that these two classes included strictly the whole
population. Judging from Continental evidence, Wessex must have been very
exceptional indeed if there were not everywhere numerous _theows_ or
thralls. From this class Anglo-Saxon wills and other documents show that
there was a constant stream of freedmen or theows who by emancipation
were allowed to creep up into the ceorlisc class, partly as the result of
Christian impulse, and partly probably from the lack of tenants to occupy
the yardlands left vacant by the desolation caused by constant wars.
Thus while, broadly speaking, the gesithcund and the ceorlisc classes
may have corresponded to the twelve-hynde and twy-hynde classes, they
were not absolutely identical. The two lines of distinction had not
the same origin and did not run absolutely parallel. But they may well
have worked in the same direction. The original distinction founded
upon the possession or absence of the perfect kindred and ‘hyndens
of oath-helpers’ was rooted in tribal instincts and never wholly
extinguished throughout Anglo-Saxon history. The gesithcund class, most
perfect in their kindred and nearest in their relation to the King,
influenced perhaps by traditions of Roman land management, naturally
grew up into a twelve-hynde and landed class, while the ceorlisc class,
recruited from outside and from below, just as naturally became their
tenants.
[Sidenote: The gulf between the two classes existed in King Alfred’s
time.]
Thus in England, as elsewhere, we may easily believe that the gulf
between classes resulting from tribal instincts and confirmed by
difference in wergelds was hardened and widened by the conditions of
landholding in the conquered country, which tended to raise the one class
more and more into manorial lords and depress the other into more or
less servile tenants. The Compact between Alfred and Guthrum affords the
strongest evidence that already in King Alfred’s time the process was far
enough advanced for a pretty hard line to be drawn between them.
VII. COMPARISON OF WESSEX AND MERCIAN WERGELDS WITH THOSE OF CONTINENTAL
TRIBES.
Before passing from the Wessex to the Kentish laws it may be well to mark
the position to which the evidence hitherto examined has brought us with
regard to the amount of the wergelds.
[Sidenote: Continental wergelds of 200 and 160 gold solidi for the full
freeman.]
We have had again and again to come back to the question of the status of
the twelve-hynde and twy-hynde classes as shown by their wergelds. By the
Compact between King Alfred and Guthrum the English wergelds were brought
into line with Norse and other Continental wergelds. The statement of the
higher wergeld in gold made possible a comparison of the Anglo-Saxon with
Continental wergelds.
The result of the inquiry into the Continental wergelds of the
full freeman was that they seemed to fall very distinctly into two
classes--the Frankish and Norse wergeld of 200 gold solidi, on the
one hand, and the Frisian, Saxon, Alamannic, Bavarian, and possibly
Burgundian wergeld of 160 gold solidi on the other hand.
The ratio between these two wergelds is as 5:4.
Now, this is exactly the ratio between the two twelve-hynde wergelds of
the Anglo-Saxon laws, _i.e._ of Wessex and of Mercia. Both were of 1200
scillings, but the Wessex scilling was of five pence and the Mercian of
four pence.
[Sidenote: The Wessex and Mercian wergelds ancient.]
Finding twelve-hynde and twy-hynde wergelds in the Laws of Ine, we seem
to be bound to regard the distinctions between the two classes as going
back to a time two centuries at least before the inroads of the Northmen.
The position of the Dooms of Ine as they have come down to us annexed to
the Laws of King Alfred might possibly have raised a doubt as to whether
the incidental mention of the wergelds might not have been inserted in
the text by the scribes of King Alfred. But if the Mercian wergelds were
of ancient tradition, independently of the Wessex evidence, the statement
of the Wessex wergelds in the Dooms of Ine need not be doubted. At the
same time, the amount of the Wessex wergeld is confirmed by the wergeld
of the secular thane in the Northumbrian statement, for 2000 thrymsas are
equal to 6000 pence, and thus the wergeld of the thane accords with the
Wessex twelve-hyndeman’s wergeld. And as this statement seems to have
been rescued from times anterior to the Northmen’s invasion, it is so far
independent evidence. In the same document the ceorl’s wergeld of 200
Mercian scillings is also mentioned.
The concurrence of independent traditions thus seems to trace back
the difference between the Wessex and Mercian wergelds as well as the
difference between the twelve-hynde and twy-hynde classes in both cases
into the early Anglo-Saxon period. And if we may date them back to the
time of King Ine--two centuries before the invasion of the Northmen--they
may well go back earlier still. For wergelds which have already become
traditional in the seventh century may not improbably have been brought
by the invading tribes with them into Britain in the fifth and sixth
centuries. The fact that the Mercian and Wessex wergelds differed makes
it unlikely that the traditional wergelds were first adopted in Britain
or acquired from the Romano-British population. That they differed
exactly in the same ratio as the two classes of Continental wergelds
differed is a fact which points still more strongly to a Continental
origin.
[Sidenote: At 1:10 Wessex wergeld of 6000 pence = 200 gold solidi, and
the Mercian of 4800 pence = 160 gold solidi.]
Moreover, the Wessex and Northumbrian wergeld of 1200 scillings of five
pence--_i.e._ 6000 pence or sceatts at a ratio of 1:10--was equal to 600
tremisses or 200 gold solidi.
The Mercian wergeld of 1200 scillings of four pence--_i.e._ 4800 pence or
sceatts--at the same ratio was equal to 480 tremisses or 160 gold solidi.
That the ratio of 1:10 was not an unlikely one is shown by its being the
ratio under the Lex Salica between the forty scripula of silver and the
gold solidus before the Merovingian reduction of the standard weight of
the latter and the issue of silver tremisses.[277] It was also the ratio
at which twelve Roman argentei or drachmæ of silver were apparently
reckoned as equal to the Merovingian gold solidus.
The correspondence at this ratio of the Wessex twelve-hynde wergeld with
the Frankish wergeld of 200 gold solidi, and of the Mercian twelve-hynde
wergeld with the other Continental wergelds of 160 gold solidi, is
sufficiently striking to be taken into account in any speculation as to
the respective origins of the West Saxon and Mercian invading tribes. But
that is not the object of this essay. It is enough to have noted a fact
which may or may not turn out to be of some historical significance.
The value of the wergelds to this inquiry consists in the light they
throw upon the solidarity of tribal society and the position in social
rank of the various classes of Anglo-Saxon society. But we have yet to
examine the laws of the Kentish kings, and it will be best to suspend any
further judgment on these points until this remaining part of our task
has been done.
[Illustration]
CHAPTER XIV.
_THE LAWS OF THE KENTISH KINGS._
I. DISTINCTION FROM ANGLO-SAXON LAWS, A.D. 596-696.
The laws of the Kentish kings, if they had been on all fours with the
other Anglo-Saxon laws, would have taken back the general evidence for
Anglo-Saxon custom another hundred years earlier than the Laws of Ine,
and nearer the time of the conquest of Britain. As it is, however, they
have to be treated as in part exceptional.
[Sidenote: Belgic agriculture.]
It is very probable that for a long period the proximity of Kent to the
Continent had resulted in the approximation of its social and economic
conditions to those of the opposite shore of the Channel. The south-east
corner of Britain was described by Cæsar as having been colonised by
Belgæ and as having been for some time under Belgic rule. The Belgic
tribes were the furthest advanced of Celtic tribes and, according to
Cæsar, had fostered agriculture, while his informants spoke of the
interior of Britain as pastoral.
Under Roman rule the prominence of agriculture was continued. Ammianus
Marcellinus describes large exports of British corn to supply Roman
legions on the Rhine. He speaks of the British _tributarii_ in a way
which suggests that this part of Britain under Roman rule had become
subject to economic arrangements similar to those of the Belgic provinces
of Gaul.
[Sidenote: The sulungs and yokes of Kent.]
The introduction, by invitation, of the Jutes into Kent and their
settlement, in the first instance at all events, under a friendly
agreement of payment of _annonæ_, may have given an exceptional character
to the results of ultimate conquest. The permanent prominence of
agriculture is perhaps shown by the fiscal assessment in ‘sulungs’ and
‘yokes’ instead of hides and virgates.
[Sidenote: Early clerical influences.]
The exceptional conditions of the Kentish district were continued by
its being the earliest to come into close contact with the court of the
Merovingian Franks, and with ecclesiastical influences from Rome. The
mission of St. Augustine resulted in the codification of Kentish custom
into written laws a century earlier than the date of the earliest laws of
Wessex.
The peculiar character of Kentish custom may have been further maintained
by the partial isolation of Kent. The kingdom of the Kentish kings,
though lessened in Ethelbert’s time by the encroachment of Wessex,
had maintained its independence of both the Northumbrian and Mercian
supremacy or Bretwaldorship.
Apart from any original difference in custom between Jutish and other
tribes this isolation naturally produced divergence in some respects from
the customs of the rest of Anglo-Saxon England and may perhaps partly
explain why the Laws of the Kentish Kings came to be included in only one
of the early collections of Anglo-Saxon laws.
Further, when we approach the subject of Kentish wergelds we do so with
the direct warning, already alluded to, of the writer of the so-called
Laws of Henry I., that we shall find them differing greatly from those of
Wessex.
[Sidenote: Wergelds said to differ from those of Wessex and Mercia.]
This we have said according to our law and custom, but the
difference of wergeld is great in Kent, _villanorum et baronum_.
Moreover, in after times Kentish custom differed from that of other parts
of England in the matter of succession. The custom of Gavelkind prevailed
in Kent. And among the statutes after the Norman Conquest there is an
undated statement setting forth peculiar customs of Kent in matters where
they differed from those of the rest of the kingdom.
Some of these differences may have been of later origin, but a comparison
of the laws themselves with other Anglo-Saxon laws is conclusive upon the
point that important differences always existed and, what is more, were
recognised as existing.
Although the Kentish laws are not included with other Anglo-Saxon laws in
any manuscript but that of Rochester, yet they were known to King Alfred.
He mentioned them in the proem to his laws as well as the Mercian laws as
among those which he had before him in framing his own. Moreover, we have
seen that at the time of the Danish invasion certain differences between
the Kentish and other laws were known and noted correctly in the fragment
‘Of Grith and of Mund.’
Finally, in its system of monetary reckoning the Kentish kingdom seems to
have been peculiar from the first. And as our knowledge of the Kentish
wergelds is essential to an understanding of the division of classes,
a good deal must depend upon a previous understanding of the currency
in which the amounts of the wergelds are described. Before proceeding
further it is necessary, therefore, to devote a section to a careful
consideration of the subject. The experience already gained will not be
thrown away if it should help us to understand the meaning of the scætts
and scillings of the Kentish laws.
II. THE SCÆTTS AND SCILLINGS OF THE KENTISH LAWS.
All the payments mentioned in the Kentish laws are stated in scætts and
scillings--naturally, by far the larger number of them in the latter.
What were these scætts and scillings? First, what were the scætts?[278]
[Sidenote: The scætts of 28·8 wheat-grains like Merovingian tremissis.]
We have already seen that before the time of Offa the silver coinage
current in England consisted mainly of the silver tremisses of
Merovingian standard, _i.e._ twenty to the Roman ounce, or 28·8
wheat-grains. These are known to numismatists as silver pence of the
_Sceatt_ series.
That these silver coins were those known by the name of sceatts we seem
to have the direct and independent evidence of the following fragment ‘On
Mercian Law,’ already quoted but sufficiently important to be repeated
here.[279]
Ceorles wergild is on Myrcna lage cc scill.
The ceorl’s wergeld is in the law of the Mercians 200 scillings.
Þegnes wergild is syx swa micel, þæt bið twelf hund scill.
The thane’s wergeld is six times as much, _i.e._ 1200 scillings.
Þonne bið cynges anfeald wergild six þegna wer be Myrcna laga þæt
is xxx þusend sceatta, and þæt bið ealles cxx punda.…
Then is the King’s simple wergeld six thanes’ wergeld by Mercian
law, _i.e._ 30,000 sceatts, and that is in all 120 pounds.…
Now, as previously observed, the sum of 30,000 sceatts must evidently be
taken as a round sum. The statement that the King’s simple wergeld was
120 pounds or six times the thane’s wergeld of 1,200 Mercian scillings
seems to make this clear, for 7200 Mercian scillings of four sceatts
(28,800 sceatts) would amount exactly to 120 pounds.[280]
[Sidenote: The sceatts minted by Kentish moneyers.]
That the sceatts of this fragment of Mercian law were the same silver
coins as the scætts of the Kentish laws is further confirmed by
numismatic evidence. The evidence of the coins themselves and of the
names of the moneyers impressed on them seems to make it probable
that to a large extent till the time of Egbert, who was intimate with
Charlemagne, and perhaps even till the time of his grandson Ethelbald,
in the words of Mr. Keary, ‘Kent still provided all the currency of
the South.’[281] It would seem, therefore, that practically during the
whole period of the issue of the silver pence of the Sceatt series the
greater part of them were minted by Kentish moneyers. And thus numismatic
evidence applies not only to the coinage of Wessex but also to that of
Mercia.[282]
We can hardly be wrong, then, in thinking that this valuable fragment
of Mercian law in using the word sceatt referred back to ancient custom
before the sceatt had been superseded by the penny, and therefore must be
good evidence that the silver coins called sceatts in Mercia were similar
to those called scætts in Kent. In other words the Kentish _scætt_,
notwithstanding the slight difference in spelling, was almost certainly
the silver _sceatt_ of 28·8 wheat-grains, _i.e._ twenty to the Roman
ounce.
It is quite true that the word _sceatt_ was used in the laws in two
senses, sometimes for ‘money’ or ‘property,’ and sometimes for the
coin.[283] But so also was the _scætt_ of the Kentish laws.[284] And it
may not always be easy to ascertain with certainty which meaning is the
right one.
But the Kentish and Mercian laws were not alone in using the word for the
silver coin. The phrase ‘sceatts and scillings’ was elsewhere used to
denote the typical smaller and larger monetary unit, or perhaps we ought
to say the silver and the gold unit.
In the tenth-century translation of the New Testament the word _denarius_
is translated by ‘pæning;’ for long before this the penny of 32
wheat-grains had superseded the old coinage of the ‘Sceatt series.’ But
in the translation of Ulphilas the word ‘_skatt_’ is used for the silver
_denarius_.[285]
At the same time it is important to observe that the word _scilling_ was
the Gothic word applied to the _gold solidus_ in legal documents of the
sixth century during Gothic rule in Italy.
According to the bilingual records in the archives of the Gothic
church of St. Anastasia at Ravenna payments were made in so many
‘skilligans.’[286] So that probably silver skatts and certainly gold
scillings were familiar to the Goths of Italy.
[Sidenote: Sceatts and scillings.]
Again, sceatts and scillings were evidently the two monetary units
familiar to the mind of Cædmon or whoever was the author of the metrical
translation of Genesis. In c. xiv. 23 Abraham is made to swear that he
would take neither ‘sceat ne scilling’ from the King of Sodom.
Moreover, in the fragment on Oaths[287] in the Anglo-Saxon Laws (Thorpe,
p. 76) the same phrase is used:
On lifiendes Godes naman. ne ðearf ic N. sceatt ne scylling. ne
pænig ne pæniges weorð.
(s. 11) In the name of the living God I owe not to N. _sceatt nor
scilling_, not penny nor penny’s worth.
Surely in both cases the phrase ‘sceatt ne scilling’ refers to coins or
units of account of two denominations in current use, as in the Kentish
laws.
It is even possible perhaps to find an illustration of the reckoning in
sceatts and scillings in the well-known passage in the ‘Scald’s Tale’
already quoted.
se me beag forgeaf
on tham siex hund wæs
smætes goldes
gescyred sceatta
scilling-rime.
He me a bracelet gave
on which six hundred was
of beaten gold
scored of sceatts
in scillings reckoned.
If these words may be properly translated literally ‘Of sceatts in
scillings reckoned’[288] and are taken to mean ‘600 sceatts in scillings
reckoned,’ the phrase accords very closely with the method of reckoning
in the Salic laws--‘so many hundred denarii, _i.e._ so many solidi.’
Returning to the sceatts and scillings of the Laws of Ethelbert, the most
obvious suggestion would be that the currency in Kent was similar to that
on the other side of the Channel under the Merovingian princes. The two
courts were so closely connected by Ethelbert’s marriage, and probably by
trade intercourse, that the most likely guess, at first sight, would be
that the Kentish scætts were silver tremisses and the Kentish scillings
gold solidi like those of the Lex Salica.
We have seen that the Merovingian currency was mainly in _gold
tremisses_, and as many of the 100 gold tremisses contained in the
celebrated ‘Crondale find’ are believed by numismatists to have been
coined in Kent, by English moneyers, the currency of gold tremisses in
England is directly confirmed, though the silver currency seems very soon
to have superseded it.[289]
[Sidenote: The scilling of 20 scætts = one ounce of silver.]
At the date of Ethelbert’s Laws (A.D. 596) the Merovingian currency
was still mainly gold--_i.e._ gold tremisses, three of which went to the
gold solidus of the Salic Laws. And if the scilling of Ethelbert, like
the solidus of the Franks, had been a solidus of forty denarii we might
have concluded at once that Ethelbert’s scilling, like the Merovingian
solidus, was a solidus of three gold tremisses, or forty silver sceatts.
But the facts apparently will not allow us to come to this conclusion.
Schmid has shown--I think, conclusively--by inference from certain
passages in Ethelbert’s Laws, that the Kentish scilling was of _twenty_
scætts instead of forty.[290] We therefore must deal with the Kentish
scilling on its own evidence.
Now, twenty sceatts of 28·8 wheat-grains, as we have seen, made the
Roman ounce of 576 wheat-grains. The Kentish scilling was therefore the
equivalent of an ounce of silver. And so in the Kentish laws, so far as
reckoning in silver was concerned, the same method was adopted as that of
the Welsh, who reckoned in _scores_ or _unciæ_ of silver, and that which
became the common Frankish and Norman reckoning of twenty pence to the
ounce and twelve ounces to the pound.
Indeed, when we consider that under common Scandinavian custom gold and
silver were weighed and reckoned in marks, _ores_, and ortugs, it would
seem natural that the Kentish immigrants from the North should have been
already familiar with a reckoning in _ores_ or ounces of silver.
But why did they call the ounce of silver a scilling? We might as well
perhaps ask why the Wessex scilling was five pence and the Mercian
scilling four pence. But the word _scilling_ had, as we have seen, been
used by the Goths in Italy for the gold solidus. And on the Continent
the gold solidus in the sixth and seventh centuries, and indeed till
the time of Charlemagne, was so far the recognised symbol of value that
the wergelds of the Northern tribes, whether they remained in the north
or emigrated southwards, were invariably stated in their laws in gold
solidi. The most natural inference would therefore seem to be that the
Kentish scilling, like that of the Salic law, must have been a gold
solidus equated, however, in account with twenty silver pence or scætts.
[Sidenote: The Kentish scilling probably a solidus of two gold tremisses
like the Saxon solidus.]
Now, at the ratio of 1:10 the ore or ounce of twenty silver scætts would
equal a gold solidus of two gold tremisses instead of three.[291] And
when it is considered that the main Merovingian currency on the other
side of the Channel was of gold tremisses it seems natural that the ounce
of silver should be equated with an even number of gold tremisses.
Nor would there be anything unprecedented or unusual in a gold solidus of
two tremisses instead of three. For we have seen that when Charlemagne
conquered the Frisians and the Saxons, he found that the solidi in
which they had traditionally paid their wergelds were not always,
like the Imperial and the Salic solidi, of three gold tremisses, but
that each district had its own peculiar solidus. The solidus of the
southern division of Frisia was of two and a half gold tremisses. The
solidus of the middle district was the ordinary gold solidus of three
tremisses. The traditional solidus of the district presumably nearest to
the Jutes, _i.e._ on both the Frisian and the Saxon side of the Weser,
was the solidus of two tremisses. The Saxon solidus of two tremisses,
representing the one-year-old bullock, was that in which according to the
Lex Saxonum the Saxon wergelds had been traditionally paid.
We have no distinct mention of a Jutish solidus, but as the Jutes
probably came from a district not far from that of the North Frisians and
Saxons there would be nothing abnormal or surprising in their reckoning
in the same solidus as their neighbours, viz. in the gold solidus of two
tremisses, and in the Kentish immigrants continuing the same practice.
But this as yet is only conjecture.
So far, then, as the facts of the prevalent coinage and currency are
concerned, all that can be said is that the hypothesis that the Kentish
scilling was that of two gold tremisses has a good deal of probability in
its favour. But there is other and more direct evidence of the truth of
the hypothesis.
In the first place, as already stated, in the preface to King Alfred’s
Laws he expressly mentions his knowledge of the laws, not only of Ine and
of Offa, but also of Ethelbert, the inference being that in his own laws
he retained, _inter alia_, some of the enactments of Ethelbert which were
in his own view worth retaining.[292]
[Sidenote: Confirmation by other evidence. The King’s mund-byrd of five
pounds common to Wessex and Kent.]
Now, King Alfred _fixed the king’s mund-byrd at five pounds_ of silver,
_i.e._ 240 Wessex scillings, while he must have known that in the Kentish
law the king’s mund-byrd was fifty Kentish scillings. The difference in
scillings must have struck him, but he probably knew perfectly well what
the Kentish scillings were. For when we compare these two mund-byrds we
find that at a ratio between gold and silver of 1:12 (which, as we have
seen, was the Frankish ratio of Charlemagne’s successors) fifty Kentish
scillings of two gold tremisses did equal exactly five pounds. Fifty
Kentish scillings or 100 Merovingian gold tremisses, at 1:12 were equal
to 1200 silver tremisses or sceatts of the same weight, _i.e._ five
pounds of 240 sceatts; or, in other words, 100 gold tremisses (_nova
moneta_) were equal at the same ratio to five pounds of 240 of King
Alfred’s pence of 32 wheat-grains. The equation was exact.
And further, we have seen that in the time of Cnut the Kentish king’s
mund-byrd was well known and declared to be five pounds according to
Kentish law, although in that law it was stated to be 50 scillings.
The passage has already been quoted from the MS. G of Cnut’s Church law,
s. 3, in which, after stating that ‘the grith-bryce of the chief minster
in cases entitled to “bot” is according to the king’s mund, that is five
pounds by English law,’ the additional information is inserted,[293]
On cent lande æt þam mund bryce v pund þam cingce.
In Kent land for the mund-bryce v pounds to the King.
Further in the same MS. G of Cnut’s secular law, s. 63, is the
following:[294]--
Gif hwa ham socne ge wyrce ge bete ꝥ mid .v. pundan. þam cingce
on engla lage ⁊ on cent æt ham socne v. þam cingce ⁊ þreo þam
arce bisceope ⁊ dena lage swa hit ærsteod ⁊ gif hine mon þær
afylle licge ægilde.
If anyone commit hamsocn let him make bot for it with v pounds
to the King by English law, and in Kent from hamsocn v to the
King and three to the archbishop and by Danish law as it formerly
stood, and if he there be killed let him lie unpaid for.
It is not very clear what the _ham-socn_ was. In the Latin versions it
is translated by ‘invasio domi.’ And it seems to be the same thing as
the ‘heimsókn’ of the Norse laws.[295] It seems to be a breach of the
peace within the sacred precinct of the ‘heim,’ and the penalty seems to
place it on the same ground as the borh-bryce and mund-byrd of the king
so as to have become in Cnut’s time one of the crimes which in Kent also
involved a penalty of fifty Kentish scillings.[296]
Here, then, the inference again is that fifty Kentish scillings were
equal in Cnut’s time to five pounds of silver.
It is quite true that these two statements of Kentish law are not found
in the other manuscripts of Cnut’s laws, so that in one sense they may be
regarded as interpolations, but in the MS. G they are not insertions made
afterwards. In both passages the words form an integral part of the text,
which throughout is written in a clear and excellent hand.
It is difficult to suggest any reason for the insertion of these two
statements of Kentish law other than the deliberate intention to point
out that the amount of the Kentish king’s mund-byrd of fifty Kentish
scillings was the same as the Wessex mund-byrd of five pounds of silver.
In addition, therefore, to the fact that at a ratio of 1:12 between gold
and silver the two amounts were alike, these passages seem to show that
the penalty of fifty Kentish scillings had become permanently recognised
in Cnut’s time as equal to the English penalty of five pounds of
silver.[297]
If the comparison had been made throughout in silver sceatts, the
equation would not have held good so exactly, for 1000 sceatts would not
have equalled exactly five pounds, _i.e._ 1200 of the same sceatts. The
exact equation seems to have been between fifty Kentish gold scillings of
two tremisses, and five pounds of silver at the current Frankish ratio of
1:12. So that the direct evidence of these passages from Cnut’s laws goes
very far to verify the hypothesis derived from numismatic considerations
that the scilling of the Kentish laws was a gold scilling of two
tremisses, like that of the Continental Saxons and North-East Frisians.
[Sidenote: Scætts cannot have been farthings.]
It is, however, only fair to say that Schmid, while adhering to the view
that the Kentish scilling was of twenty sceatts, has suggested that these
sceatts may have been, not silver tremisses or pence, but _farthings_, so
that the Kentish scilling of twenty farthings might be identical with the
Wessex scilling of 5_d._[298] Konrad von Maurer held the same view.[299]
But if this could be supposed for a moment, the Kentish scætt would then
be only one quarter of the sceatt of the fragment of Mercian law, and
the mund-byrd of King Ethelbert would be only a quarter of that of the
Wessex King, notwithstanding the assertion in MS. G of the Laws of Cnut
that the Kentish mund-byrd was five pounds of silver, like those of other
English laws. With all deference, therefore, to the view of these great
authorities, a careful examination of the evidence seems to lead to the
conclusion that it cannot be maintained. Nor does there appear to be any
reason why the Kentish scilling should be expected to be the same as the
Wessex scilling, as we know that the Wessex scilling of 5_d._ differed
from the Mercian scilling of 4_d._
[Sidenote: Kentish scilling therefore of two gold tremisses or twenty
silver scætts or Roman ounce.]
We adhere, then, to the view that the Kentish scilling was a scilling of
two gold tremisses like the Saxon solidus, and that it was equated with
the ore or Roman ounce of silver, _i.e._ twenty sceatts.
The reader will be able to form his own judgment as to whether
examination of the various clauses of the Kentish Laws and the amounts of
the wergelds and other payments now to be considered will confirm this
conclusion or not. I think it will be found substantially to do so.
III. THE LAWS OF ETHELBERT.
The Laws of Ethelbert begin with the heading: ‘These are the dooms which
King Ethelbert established in the days of Augustine.’
[Sidenote: Evidence of clerical influence.]
This heading probably did not form a part of the original laws, but it
may serve to remind us that ecclesiastical influence must be reckoned
with in their consideration and that some of their clauses may have
been modifications of ancient custom rather than statements of what it
originally was.
The first clause is as follows:--
Godes feoh ⁊ ciricean .xii. gylde.
Biscopes feoh .xi. gylde.
Preostes feoh .ix. gylde.
Diacones feoh .vi. gylde.
Cleroces feoh .iii. gylde.
Cyric-frið .ii. gylde.
M[æþel] frið .ii. gylde.
The property of God and of the Church 12 fold
A bishop’s 11 ”
A priest’s 9 ”
A deacon’s 6 ”
A clerk’s 3 ”
Church frith 2 ”
[Moot] frith 2 ”
This clause is read by Thorpe and Schmid and Liebermann as enacting that
thefts were to be paid for on this scale, so many multiples of the value
of the goods stolen.[300]
Clause 2 enacts:--
[Sidenote: Mund-byrd of the King 50 scillings.]
Gif cyning his leode to him gehateð. ⁊ heom mon þær yfel gedo .ii.
bote. ⁊ cyninge .l. scillinga.
If the King call his _leod_ to him and any one there do them
evil, the bot is twofold and 50 scillings to the King.
Here are two distinct things. The bot is the payment to the person called
to the King. While thus in attendance any injury is to be paid for
twofold. The payment of fifty scillings to the King is the mund-byrd or
payment for breach of his protection or peace.
Clause 3 is as follows:--
Gif cyning æt mannes ham drincæð ⁊ þær man lyswæs hwæt gedo twi
bote gebete.
If the King drink at any one’s ‘ham’ and any one there does
something wrong, then let him pay twofold bot.
That is, the presence of the King at a subject’s house is the same thing
as the subject being in the King’s protection, and the bot for any wrong
done to the subject, while the King is there, is doubled.
Clause 4 enacts:--
Gif frigman cyninge stele .ix. gylde forgylde.
If a freeman steal from the King, let him pay ninefold.
It seems at first sight hardly likely that the Archbishop should be
compensated elevenfold and the King only ninefold, but as this is
repeated in the statement of the Kentish law in the fragment ‘Of Grith
and of Mund’ the text may be taken as correct.
Clause 5 enacts:--
Gif in cyninges túne man mannan ofslea .l. scill. gebete.
If a man slay another in the King’s tun, let him make bot with 50
scillings.
The bot here again is evidently the mund-byrd payable to the King for
breach of his protection, _i.e._ fifty Kentish scillings.
Clause 6 enacts:--
Gif man frigne mannan ofsleahð cyninge .l. scill to
drightin-beage.
If any one slay a freeman, 50 scillings to the King as
_drihtin-beag_.
Here again the payment is to the King, but in this case, if the word
is to be taken literally, it is not perhaps for breach of his peace,
but for the _killing of his man_. He claims it as his ‘drihtin-beag’ or
lord’s-ring. It is, to use the later Saxon phrase, the King’s manbot or
value to him of his man killed.
[Sidenote: King’s smith and outrider pay a _medume_ wergeld.]
Up to this point the question of wergeld has not been mentioned at all.
But in clause 7 is the following:[301]--
Gif cyninges ambiht-smið oþþe laad-rinc mannan ofslehð. meduman
leodgelde forgelde.
If the King’s _ambiht-smith_ [official-smith] or _laad-rinc_
[outrider] slay a man, let him pay a _medume leodgeld_.
Liebermann would insert the word ‘man’ after ‘gif’ and so read this
clause as stating the wergeld of the King’s smith and laadrinc-man when
_slain_ to be a ‘medume wergeld’ (mittleres wergeld). But the clause is
complete as it stands without the insertion of ‘man,’ and, read as it
is, means that the smith and the outriders of the King, if they slay a
man, are to pay a ‘medume leodgeld.’ But what does this mean? The word
_medume_ was translated by Wilkins by ‘moderata.’ Thorpe read the phrase
as meaning ‘a _half_ wergeld;’[302] Schmid as a ‘fit and proper’ one; and
Liebermann would take it to refer to the wergeld of a person of middle
rank or position. We must leave the true meaning for the present in doubt.
[Sidenote: Reason why not a full wergeld. Their dangerous work.]
Apart from the amount of the wergeld, if we would understand this
passage we have surely first to consider for what reason these two
royal officials should be singled out from all others and made liable
to pay wergelds. The inference must be that in the performance of
their duties they were peculiarly liable to injure others. The King’s
smith in his smithy forging a weapon, and the outrider forcing a way
for the King through a crowd, might very easily through carelessness
or in the excitement of work cause the death of another. The necessity
apparently had arisen to check their action by making them liable to pay
a wergeld.[303] But the wergeld was not to be the usual one. It was to be
a ‘medume leodgelde.’
For the present the exact meaning may be left open, but whether the
true reading be a half-wergeld or not, the inference seems to be
that a _full_ wergeld was not to be paid. Probably it had come to be
recognised that a person engaged in a specially dangerous trade could
not be held responsible to the same extent as in the case of an ordinary
homicide.[304] These considerations are important, because the ‘medume’
wergeld will again claim notice and every hint is valuable when, as in
the case of these laws, we have only hints to guide us.
In Clause 8, the King’s mund-byrd is declared to be fifty scillings; and
the next two clauses relate to injuries done to the King’s servants.
[Sidenote: Bots for harm done to King’s servants.]
Gif man wið cyninges mægden-man geligeð .l. scillinga gebete.
10. If any one lie with a King’s maiden, let him pay a bot of 50
scillings.
Gif hio grindende þeowa sio .xxv. scillinga gebete. Sio þridde
.xii. scillingas.
11. If she be a grinding slave, let him pay a bot of xxv
scillings. The third [class] xii scillings.
Cyninges fed-esl .xx. scillinga forgelde.
12. Let the King’s _fed-esl_ be paid for with xx scillings.
These bots are evidently payable to the King for injuries done to him by
abuse of his servants of different grades. They were not wergelds.
We have now done with these bots to the King, and the laws turn to
consider injuries done and bots due to the _eorl_.
[Sidenote: Bots due to the eorl.]
Gif on eorles tune man mannan ofslæhð .xii. scill. gebete.
13. If a man slay another in an _eorl’s_ tun, let him make bot
with xii scillings.
Gif wið eorles birele man geligeð .xii. scill. gebete.
14. If a man lie with an _eorl’s birele_, let him make bot with
xii scillings.
And then from the bots due to the eorl the laws pass to those due to the
ceorl. The following clauses show that under the Kentish laws the ceorl
also had a mund-byrd.
[Sidenote: Bots due to the ceorl.]
Ceorles mund-byrd .vi. scillingas.
15. A ceorl’s mund-byrd vi scillings.
Gif wið ceorles birelan man geligeð .vi. scillingum gebete. aet
þære oðere þeowan .l. scætta. aet þare þriddan .xxx. scætta.
16. If a man lie with a ceorl’s birele, let him make bot with vi
scillings; if with the slave of the second class l scætts; if
with one of the third class xxx scætts.
Thus we get a scale of mund-byrds or penalties due for breach of the
peace or protection of the King, the eorl, and the ceorl:--
[Sidenote: Mund-byrd of King, eorl, and ceorl.]
King’s mund-byrd 50 scillings
Eorl’s ” 12 ”
Ceorl’s ” 6 ”
but so far we have learned nothing about the amount of their wergelds.
Clause 17 fixes the bot for inroad into a man’s ‘tun’ at six scillings
for the first person entering, three for the next, and one for the rest.
[Sidenote: Lending a weapon in a brawl.]
Then follows an interesting set of clauses, which I think must be read
together, as all referring to the case of what might happen in a brawl in
which one man lends a weapon to another.
Gif man mannan wæpnum bebyreþ ðær ceas weorð ⁊ man nænig yfel ne
gedeþ .vi. scillingum gebete.
18. If a man furnishes weapons to another _where there is
strife_, and the man does no harm, let him make bot with vi
scillings.
Gif weg reaf sy gedon .vi. scillingum gebete.
19. If _weg-reaf_ [street robbery] be done, let him make bot with
vi scillings.
Gif man þone man ofslæhð .xx. scillingum gebete.
20. If any one slay _that_ man [_i.e._ to whom he lent the
weapons], let him [the lender] make bot with xx scillings.
Gif man mannan ofslæhð medume leod-gild .c. scillinga gebete.
21. If a man slay another, let him [the lender] make bot with a
medume leod-geld of c scillings.
Gif man mannan ofslæhð æt openum græfe .xx. scillinga forgelde
⁊ in .xl. nihta ealne leod forgelde.
22. If a man slay another, let him at the open grave[305] pay xx
scillings and in 40 nights pay a full[306] leod.
Gif bana of lande gewiteþ þa magas healfne leod forgelden.
23. If the slayer depart from the land, let his kindred pay a
half leod.
These clauses taken together and followed carefully, I think, become
intelligible.
[Sidenote: How treated in Alfred’s and in Ine’s laws.]
A man lends weapons to another who is engaged in a brawl, and the
question arises how far he is to be responsible for what happens in
the brawl. In the case dealt with in these clauses two things are
involved--the lending of the weapons and the joining thereby in the
fray. In the later laws there are provisions for both points. Under King
Alfred’s laws (s. 19) the man who lends his weapon to another who kills
some one therewith has to pay at least one third of the wergeld unless he
can clear himself from evil intention.
Under Ine’s laws (s. 34) a man who joins in a fray in which someone is
killed, even if he can clear himself from the slaying, has to pay as
bot (_gebete_) one fourth of the wergeld of the slain person whether
twy-hynde or ‘dearer born.’ Under Alfred (29 to 31) the actual slayer
has to pay the wergeld, and in addition each of the others in the fray
has to pay as ‘hloð-bote’ 30 scillings for a twy-hynde man, 60 for a
six-hynde, and 120 for a twelve-hynde man.
These later precedents may materially help us in the understanding of the
Kentish clauses.
Clauses 18 and 19 make the lender of the weapon pay a bot of six
scillings though no evil be done or only street robbery occur.
Clause 20 provides for the case in which the man to whom he lent the
weapon was slain, and in this case the bot is raised to twenty scillings.
[Sidenote: The lender pays a _medume_ wergeld for person slain.]
Clause 21 seems to deal with the case of some one else being slain, and
makes the lender liable to pay a bot of a ‘medume leod-gild’ of 100
scillings for mixing in the fray. It would be natural that the bot should
be greater if another was slain than if the man to whom he lent the
weapons had been slain. And if the later precedents are to guide us, the
bot of a ‘medume wergeld’ should not in amount equal the whole wergeld
but only a proportion of the wergeld. If the bot of 100 scillings might
be considered as equal to a _half_-wergeld we should gain a clue to what
the whole wergeld might be. And this would be a tempting inference. But
we are not, it seems, as yet warranted in making it. We must therefore at
present content ourselves with the conclusion that the ‘medume wergeld’
cannot mean a whole wergeld, otherwise the lender of the weapon would pay
as _bot_ as much as the wergeld would be if he had killed the man himself.
Clause 22 makes 20 scillings payable at the open grave and the whole leod
in forty nights. It refers apparently to the actual slayer’s liability
to pay the whole wergeld (_ealne leod_); and finally clause 23 states
that if the slayer depart from the land his kindred shall pay _half_
the wergeld of the slain person. We are not told to whom the bot of the
‘medume wergeld’ of 100 scillings was to be paid, nor whether it was to
be a part of the wergeld or additional to the ‘ealne leod’ paid by the
actual slayer. The later laws, as we have seen, afford precedents for
both alternatives.
[Sidenote: Kindred liable for half the wergeld and slayer for the other
half.]
Another point of interest arises from the last clause. In the absence
of the slayer his kindred had to pay only a half wergeld (_healfne
leod_). Does this justify the inference that in all cases of wergelds the
liability of the kindred was confined to one half? It will be remembered
that in the so-called ‘Canones Wallici’ (_supra_, p. 109), if the slayer
had fled, the _parentes_ of the slayer had fifteen days allowed for their
payment of one half or flight from the country. And only when they had
paid their share could the slayer return and make himself safe by paying
the other half--the ‘medium quod restat.’ It seems not unlikely that in
the Kentish case also ecclesiastical influence had limited the liability
of the kindred to the half-wergeld.
Clauses 25 and 26 are important, and we shall have to recur to them.
[Sidenote: The three grades of læts.]
Gif man ceorlæs hlaf-ætan ofslæhð .vi. scillingum gebete.
25. If any one slay a ceorl’s hlafæta, let him make _bot_ with vi
scillings.
Gif læt ofslæhð þone selestan .lxxx. scill forgelde. Gif þane
oðerne ofslæhð .lx. scillingum forgelde. þane þriddan .xl.
scillingum forgelden.
26. If [any one] slay a _læt_ of the best class, let him pay lxxx
scillings; of one of the second, let him pay lx scillings; of the
third, let him pay xl scillings.
To these three grades of læts we shall have to return when we sum up the
evidence on the division of classes.
[Sidenote: Edor-breach.]
Next follow three clauses upon edor-breach. The first relates to the
breach by a freeman of the enclosure or precinct presumably of a freeman,
the penalty being the same as the ceorl’s _mund_. The second imposes a
threefold bot upon theft from within the precinct. And the third refers
to a freeman’s trespass over the edor or fence.
Gif friman edor-brecðe gedeð vi scillingum gebete.
27. If a freeman commit edor-breach, let him make bot with vi
scillings.
Gif man inne feoh genimeð se man iii gelde gebete.
28. If any one take property [? cattle] from within, let him pay
a threefold bot.
Gif fri-man edor gegangeð iv scillingum gebete.
29. If a freeman trespass over a fence, let him make bot with iv
scillings.
After these clauses about _edor-breach_ is the following:
Gif man mannan ofslea agene scætte. ⁊ unfacne feo gehwilce gelde.
30. If a man slay another, let him pay with his own money
(scætte) and with any sound _feo_ [cattle].
Gif friman wið fries mannes wif geligeð his wer-gelde abicge ⁊
oðer wif his agenum scætte begete. ⁊ þæm oðrum æt þam gebrenge.
31. If a freeman lie with a freeman’s wife, let him pay his
wergeld, and another wife obtain with his own scætte and bring
her to the other.
[Sidenote: Bots for injuries. For eye, hand, or foot 50 scillings.]
Then follow chapters relating chiefly to injuries done and wounds
inflicted, and the bots payable to the person injured for the same. It
is not needful to mention more of these than the most important one,
viz. that for the destruction of an eye, hand, or foot. The bots for all
these in most other laws were alike. In Ethelbert’s Laws the bot for
each of the three is fifty scillings, which happens to be the same as the
mund-byrd of the King.
After the clauses for injuries there are several relating to women.
[Sidenote: Injuries to women.]
Gif fri wif locbore les wæs hwæt gedeþ xxx scll gebete.
73. If a lock-bearing free wife does wrong, xxx scillings bot.
Mægþbot sy swa friges mannes.
74. The maiden-bot is like a freeman’s.
Mund þare betstan widuwan eorlcundre l scillinga gebete. Ðare
oþre xx scll, ðare þriddan xii scll. þare feorðan vi scll.
75. The mund of the best eorlcund widow is a bot of l scillings.
Of the second rank xx scillings, of the third xii scillings, of
the fourth vi scillings.
Gif man widuwan unagne genimeþ, ii gelde seo mund sy.
76. If a man carry off a widow not in his mund, her mund shall be
twofold.
The clause relating to the mund of the four grades of apparently eorlcund
(?) widows does not help us much to an understanding of what the grades
of Kentish society may have been. But it emphasises a remarkable trait
of these laws of Ethelbert. Every class is divided in these laws into
grades. The clergy are divided into grades from bishops to clerks. The
female servants of the King’s household are divided into three classes,
and so are the servants of the ceorl’s household. The læts are divided
into three classes. And now the widows, whether all eorlcund or not, are
divided into four classes for the purpose of their mund. The significance
of these divisions will be apparent hereafter. In the meantime the mund
is probably the amount to be paid by a second husband to the parents or
kindred of the widow.
Passing from the mund of the widow, the following clauses throw some
light upon the position of the wife under Kentish custom.
[Sidenote: Position of a wife under Kentish custom.]
Gif mon mægþ gebigeð, ceapi geceapod sy gif hit unfacne is. Gif
it þonne facne is ef þær æt ham gebringe ⁊ him man his scæt agefe.
77. If any one buy a maid, let the purchase stand if without
guile. But if there be guile, let him bring her home again and
let them give him his money back.
Gif hio cwic bearn gebyreþ, healfne scæt age gif ceorl ær swylteþ.
78. If she bears a living child, let her have half the property
if the husband die first.
Gif mid bearnum bugan wille healfne scæt age.
79. If she wills to go away with her children, let her have half
the property.
Gif ceorl agan wile swa an bearn.
80. If the husband wills to have [them], [let her have] as one
child.
Gif hio bearn ne gebyreþ fæderingmagas fioh agan ⁊ morgengyfe.
81. If she bear no child, let [her] paternal kindred have the
property and morgengift.
It is obvious from these clauses that under Kentish custom the position
of the wife was very much the same as under Cymric and continental German
custom. The marriage was a fair contract between the two kindreds.
The next clause enjoins a payment of fifty shillings to the ‘owner’ of a
maiden if she be carried off by force.
[Sidenote: The Kentish esne.]
Lastly there are the following clauses relating to the position of the
esne under Kentish custom. The esne is considered to be a ‘servus’
working for hire rather than a theow.
Gif man mid esnes cwynan geligeþ be cwicum ceorle ii gebete.
85. If a man lies with an esne’s wife, the husband alive, double
bot.
Gif esne oþerne ofslea unsynnigne, ealne weorðe forgelde.
86. If one esne kills another innocently, let the full worth be
paid for.
Gif esnes eage ⁊ foot of weorðeþ aslagen ealne weorðe hine
forgelde.
87. If an esne’s eye and foot are struck out or off, let the full
worth be paid for it.
Gif man mannes esne gebindeþ vi scll gebete.
88. If a man bind a man’s esne, vi scillings bot.
There is nothing in these clauses, I think, to show that the bot was
payable to any one but the owner of the esne.
What the ‘full worth’ of the esne was we are not told.
IV. THE LAWS OF HLOTHÆRE AND EADRIC, A.D. 685-6.
Between the date of the Laws of Ethelbert and those of other Kentish
kings which have been preserved nearly a century had intervened. So that
these later laws of Kent are nearly contemporary with King Ine’s Dooms of
Wessex.
[Sidenote: Eorlcund and ceorlisc classes.]
As in Ethelbert’s laws, the main division of classes of freemen seems
still to have been that between eorlcund and ceorlisc. But we get further
valuable information.
The Laws of Hlothære and Eadric open with clauses which seem to fix the
wergeld of the eorl at three times that of the ordinary freeman.
[Sidenote: The owner’s liability for an esne’s homicides.]
They deal with the liability of an owner of an _esne_[307] for his
servant’s homicides.
[Sidenote: If an esne slay an eorl.]
Gif mannes esne eorlcundne mannan ofslæhð. þane þe sio þreom
hundum scill gylde se agend þone banan agefe ⁊ do þær þrio
manwyrð to.
1. If any one’s esne slay an _eorlcund_ man, one that is paid for
with three hundred scillings, let the owner give up the slayer,
and add _three manwyrths_ thereto.
Gif se bana oðbyrste feorðe manwyrð he to-gedo ⁊ hine gecænne mid
godum æwdum ꝥ he þane banan begeten ne mihte.
2. If the slayer escape, let him add a fourth _manwyrth_ and let
him prove with good compurgators that he could not catch the
slayer.
The next two clauses are as follows:--
[Sidenote: If he slay a freeman.]
Gif mannes esne frigne mannan ofslæhð þane þe sie hund scillinga
gelde se agend þone banan agefe ⁊ oþer manwyrð þær to.
3. If anyone’s esne slay a freeman, one that is paid for with 100
scillings, let the owner give up the slayer and a second manwyrth
thereto.
Gif bana oðbyrste, twam manwyrðum hine man forgelde ⁊ hine
gecænne mid godum æwdum ꝥ he þane banan begeten ne mihte.
4. If the slayer escape, let [the owner] pay for him with two
manwyrths and let him prove with good compurgators that he could
not catch the slayer.
This reading of these clauses is not that of Thorpe or of Schmid, but
that approved by the best authorities.[308]
[Sidenote: Were the wergelds 300 and 100, or are they half-wergelds?]
Following this reading as philologically the most correct one, the
inference at first sight might be that under Kentish law the wergeld of
the eorlcundman was 300 Kentish scillings and that of the freeman 100
scillings.
But there may be reason to doubt the correctness of such an inference.
[Sidenote: The clauses limit and lessen the owner’s liability.]
For the present we may leave the question of the amount of the wergelds
to consider the meaning of the clauses in their main intention. And
this seems to be clear. Henceforth the owner of an esne was not to be
accountable for the wergeld of the person slain or any part of it further
than that if an eorlcundman payable for with 300 scillings be slain he
must hand over the esne and _three_ times his manworth in addition; and
in the case of the freeman payable for with 100 scillings he must hand
over the esne and add _one_ manworth in addition. That is to say, the
esne was in both cases to be handed over and a manworth for each hundred
scillings of the amount at which the person slain is paid for.
Now, I think, we must conclude that these clauses were intended to
make an innovation upon ancient custom rather than to confirm it. And
therefore it may be well to compare with them the parallel evidence of
the laws of other tribes, as to the responsibility of an owner for his
slave’s homicides.
[Sidenote: Under tribal custom at first complete.]
Under the Welsh Laws (ii. p. 105) the liability of the owner of a slave
for his homicides was apparently complete.
If a bondman commit homicide of whatever kind, it is right for
the lord of the bondman to pay for the deed of his bondman as for
a murderer, for he is a murderer.
And this probably must be taken as the general rule of tribal custom in
its early stages.
In the laws of the Saxons and of the Anglii and Werini the ancient German
tribal custom was still preserved. The owner of an animal or a slave was
liable for any injury done by either, very much as if it had been done by
himself (‘Lex Sax.’ xii. Ang. and Wer. 16 and 52).
[Sidenote: Then made a half-wergeld only, and the slave to be handed over
for the other half.]
But it would seem that Roman and Christian feeling very early suggested
that this was hard upon the innocent owner. Hence in some of the laws
the compromise was made that the owner should pay only a _half_-wergeld
and hand over the offending animal or slave instead of the other half.
That this innovation was not altogether acceptable to tribal feeling is
shown by clauses in the ‘Pactus III.’ of the Alamannic laws. The whole
wergeld was to be paid by the owner if his horse, ox, or pig killed a man
(s. 18). But an exception was made in the case of the dog. If a man’s dog
killed any one, a _half_-wergeld (medium werigeldum) was to be paid, and
if the whole wergeld was demanded, all the doors but one of the house of
the person making the demand were to be closed and the dog was to be hung
up nine feet from the only one left open for ingress or egress, and there
it must remain till it fell from putrefaction. If it was removed or any
other door was used, the wergeld was to be returned (s. 17).
Grimm (‘D. R.’ p. 665) has pointed out that in the _Ostgotalaga_ (Drap.
13, 2) a similar archaic practice is described when a _slave_ had killed
a man. The _owner_ of the slave under this law ought to pay the whole
wergeld, and if he did not do so the _slave_ was to be hung up at _his_
(the owner’s) house door till the body putrefied and fell. Thus the same
archaic method of punishing the delinquent was retained in both cases.
But the significant point is that so long as the whole wergeld was due
from the owner it was at the owner’s door that the body of the slayer was
to be hung up, while when the _half_-wergeld only was to be paid, the dog
was to be hung up at the door of the person who improperly demanded the
whole wergeld. Thus, as in so many other cases, the twelfth-century laws
of the North preserved the earlier custom of the payment of the whole
wergeld, while the Alamanni, after migration into contact with Roman and
Christian civilisation, in their laws of the seventh century modified
the custom, at the same time retaining the archaic method of forcing
compliance with the modification. It must be remembered that every change
which relieved the innocent owner from liability, wholly or in part,
robbed the kindred of the person slain of the whole or the part of the
wergeld.
The compromise of payment of the half-wergeld and the handing over of the
offending animal or slave was not confined to the Alamannic laws.
In the Ripuarian Law xlvi. the animal which had killed a man was to be
handed over and received ‘in medietatem wirigildi’ and the owner was to
pay the other half.
[Sidenote: So in Codex I. of Lex Salica, but afterwards owner released
from the half-wergeld.]
In the Lex Salica the same rule was at first applied to the case of
homicide by a slave or læt. A half-wergeld was to be paid and the slave
or læt handed over for the other half.[309] This was the rule according
to the Codex I. But in the later Codices, VII. to X., and in the ‘Lex
Emendata,’ the lord, if innocent, was allowed to get off altogether
from the half-wergeld and had only to give up the slave or the læt.
This further innovation seems to have been connected with the Edict of
Chilperic (_circ._ A.D. 574) and thus probably represented the result of
ecclesiastical influence at very nearly the date of the earliest Kentish
laws.
[Sidenote: In the Canons of sixth century the slave was to be given up
and another besides.]
We have only to recur to the Canons of the Celtic Church of Brittany
and South Wales of the sixth and seventh centuries, considered in the
earlier part of this volume, to recognise the hand of the Church in these
innovations upon earlier tribal custom. They extended to Celtic as well
as to German districts. In Canon 5 of the so-called ‘Canones Wallici’ the
rule was laid down that ‘if any master should permit his slave to carry
arms, and the slave killed a freeman, the owner must hand over the slave
and another besides’ (_supra_, p. 108).
The half-wergeld here is omitted altogether, and, as in the case of the
Kentish freeman, two slaves are to be given up instead of one.
[Sidenote: In the Burgundian Law slave to be given up and the owner to be
free.]
These Canons were nearly contemporary with the later Kentish laws, and
the same stage of innovation seems to have been reached in both. A still
further and final stage had been reached in the Burgundian Law already
quoted (_supra_, p. 124) in which in the case of homicide by a slave,
unknown to his master, the slave was to be delivered up to death and the
master was to be free from liability. The _parentes_ of the slain person
were to get nothing, not even the slave, ‘because, as we enact that the
guilty shall be extirpated, so we cannot allow the innocent to suffer
wrong.’ The whole process of change had taken place in the Burgundian
district by the sixth century. But it would seem that in Kent the middle
stage only had been reached at the date of the laws of Hlothære and
Eadric.
Evidence that the further stage had at last been reached in Anglo-Saxon
law is perhaps to be found in the nearly contemporary law of Ine (s.
74) which enacts that if a _theow-wealh_ slay an Englishman, the owner
shall deliver him up to the lord and the kindred or give sixty scillings
for his life. Here no further manworths are required. But possibly the
peculiar position of the _theow-wealh_ may have something to do with
it, so that we ought not perhaps to assume as certain that the clause
represented a still further general innovation upon tribal custom beyond
that described in the Kentish clauses.
[Sidenote: Kentish clauses meant to modify the previous rule: which may
have been the half-wergeld of 300 and 100 scillings.]
Returning to the Kentish clauses and assuming that their direct intention
was to modify previous custom, we are now in a position fairly to judge
what the _previous_ rule may have been.
Reasoning from the analogy of other laws, it seems most likely to have
been to make the owner pay a half-wergeld of the person slain and hand
over the esne for the other half--the stage of custom reached in the
Ripuarian Laws and Salic Laws of Codex I.
And if this were in fact the former custom previous to the enactment in
these clauses, then without departing from the correct literal reading
of the text it may be that the words in the parenthesis in each clause
may refer, not to the eorlcundman’s or the freeman’s wergild--the word
‘_leod_-geldi’ is not used--but to the amount hitherto payable in the
particular case of a man slain by an esne. The 300 and 100 scillings may
be the _half_-wergeld hitherto payable, instead of which thenceforth the
owner of the esne is to pay three manworths or one manworth in addition
to handing over the esne.
If previous to the innovation the eorlcundman had been paid for in such
a case with three hundred shillings and the freeman with one hundred, the
words in their strictly correct literal meaning might perhaps rightly be
read thus:--
If any one’s esne slay an eorlcundman, one who _is_ [now] paid
for at three hundred scillings, let the owner [in future] give up
the slayer and add _three_ manworths [of the esne] thereto.
If anyone’s esne slay a freeman, one who _is_ [now] paid for at
_one_ hundred scillings, let the owner [in future] give up the
slayer and add one manworth [of the esne] thereto.
This reading of the clauses, putting emphasis upon what is _now_ the gild
(þane ꝥ sie)--the _three_ and the _one_ hundred scillings--in contrast
with what the owner has in future to do, _i.e._ pay _three_ manworths
and _one_ manworth instead of the _three_ hundred and _one_ hundred
scillings in addition to the handing over of the esne--seems to me more
than any other rendering to account for the insertion of the parenthesis
stating the amounts payable for the eorlcundman and freeman. If the
word _leod-gylde_ had been used it might have been different. But I am
informed on the best authority that the words _gylde_ and _gelde_ in the
two clauses are not substantives but used in an adjectival sense, and in
this case they would apply to a half-wergeld payable as correctly as to a
whole one.
[Sidenote: Was 100 scillings the half-wergeld and so the medume wergeld
of King Ethelbert’s laws?]
At the same time the mention of 100 scillings, if the payment be a
_half_-wergeld, may help to an understanding of the _medume_ leodgeld
of 100 scillings mentioned in Ethelbert’s Laws. It suggests that the
_medume_ wergeld was a modified or middle one which, like the _medium_
werigeldum and _medium_ precium of the mediæval Latin of the Alamannic
and other laws, had come to mean a _half_ one. Perhaps, after all, if
we recognise clerical influence in the framing and modification of the
Kentish laws, the translation of the Latin ‘_medium werigeldum_’ by the
Anglo-Saxon ‘_medume leodgeld_’ is not very unnatural.
Before we leave the laws of Hlothære and Eadric there are one or two
further clauses worth notice.
[Sidenote: System of oath-helpers.]
Clause 5 reminds us that, though scarcely mentioned in these laws, the
system of compurgation was in force. A freeman charged with a crime has
to clear himself by the oaths of a number of ‘free æwda-men.’
Clause 6 makes mention of the protection of a woman by her kindred:--
[Sidenote: Position of the wife.]
Gif ceorl acwyle be libbendum wife ⁊ bearne riht is ꝥ hit ꝥ bearn
medder folgige ⁊ him mon an his fædering-magum wilsumne berigean
geselle his feoh to healdenne oþþæt he .x. wintra sie.
6. If a husband (ceorl) die wife and child yet living, it is
right that the child follow the mother: and let that sufficient
guardian be given to him [the child] from among his paternal
kinsmen to keep his property [cattle?] till he be ten winters old.
These clauses, unimportant perhaps in themselves, are useful as showing
that behind the silence of the laws tribal custom still lingered on,
however seldom and slightly it might be brought into evidence as fresh
circumstances might suggest new clauses.
[Sidenote: Mund-byrds unchanged.]
There are also some clauses which are useful as showing the continuance
of the mund-byrds of king and ceorl of King Ethelbert’s Laws, unchanged
in amount, a century later.
By s. 11, if a man uses abusive words to another in any one’s ‘flet,’
‘let him pay one scilling to him who owns the “flet” and six scillings
to him to whom he said the words and twelve scillings to the King.’ So
also in s. 12, one scilling is to be paid to the owner of the ‘flet,’
six scillings to the person wronged, and twelve scillings to the king.
The six scillings to the person insulted or wronged is the _mund_ of the
freeman or ceorl. Lastly, in s. 13 in case of a slaying in a drinking
bout:--
Gif man wæpn abregde þær mæn drincen ⁊ þær man nan yfel ne deð
scilling þan þe ꝥ flet age ⁊ cyninge xii scill.
If a man draw a weapon where men are drinking and no harm be
done, then a scilling to him who owns the flet and xii scillings
to the King.
Gif ꝥ flet geblodgad wyrðe forgylde þem mæn his mund-byrd ⁊
cyninge l. scill.
If the flet be stained with blood, let him pay to the man [who
owns the flet] his mund-byrd and 50 scillings to the King.
[Sidenote: Mund-byrd of the King still 50 scillings and of the ceorl 6.]
Thus we have again the mund-byrds of King Ethelbert’s Laws:--
Of the King 50 scillings.
Of the ceorl 6 scillings.
The crime of killing another in a drinking bout is a breach of the _mund_
of the owner of the ‘flet’ as well as a breach of the peace of the King.
V. THE LAWS OF KING WIHTRÆD, A.D. 690-696.
One more chance remains for further information regarding Kentish
wergelds, viz. in the ‘Laws of King Wihtræd,’ who became King of the
Kentish men about A.D. 690 and, according to Bede, died A.D. 725. A
century had passed since the Laws of Ethelbert were enacted, in the time
of St. Augustine. Brihtwald was now Archbishop of Canterbury, and at an
assembly of Church and people ‘the great men decreed, with the suffrage
of all, these dooms, and added them to the lawful customs of the Kentish
men.’ These laws are mainly ecclesiastical both in their origin and
subject.
[Sidenote: Mund-byrd of King and Church both 50 scillings, and so no
change in the Kentish currency.]
In the first two clauses the Church was declared to be ‘free from
gafols,’ and the mund-byrd of the Church was declared to be the same
as the King’s, viz. fifty scillings--as in Ethelbert’s Laws. There is
therefore no marked change in the Kentish currency, though by this time
it must have been almost entirely silver so far as any Kentish coinage
was concerned.
Clause 5 introduces us for the first time in the Kentish laws to the
distinction between the _gesithcund_ and _ceorlisc_ classes.
Gif þæs geweorðe gesiðcundne mannan ofer þis gemot ꝥ he unriht
hæmed genime ofer cingæs bebod ⁊ biscopes ⁊ boca dom se ꝥ gebete
his dryhtne .c. scill. an eald reht. Gif hit ceorlisc man sie
gebete .l. scill.…
When it happens to a gesithcundman after this gemot that he
enters into unlawful marriage against the command of the King and
the bishop and the book’s doom, let him make bot for it to his
lord with 100 scillings according to ancient law. If he be a
_ceorlisc_ man, let him make bot with 50 scillings.…
It would not do to conclude from this single allusion to gesithcund
and ceorlisc men that the Kentish division of classes--eorlisc and
ceorlisc--had given way before the Wessex division of classes--gesithcund
and ceorlisc.
There had been no interval between this and the last set of Kentish laws
long enough to have made likely any radical change in social conditions,
and as the ‘ancient law’ alluded to was probably ecclesiastical and not
especially Kentish, either in its origin or its terms, it would not
be wise to build anything upon the use of the word ‘gesithcund’ beyond
recognising the natural tendency of neighbouring peoples under the same
ecclesiastical influence to approximate in phraseology especially in
regard to matters of general ecclesiastical interest.
Clauses which follow regulating the penalties for work on Sundays, or
neglect of baptism, or a ceorl’s making offerings to devils without
his wife’s knowledge, or a man’s giving flesh meat to his family on
fast days, do not interest us in this inquiry further than as revealing
lingering traces of paganism and the ecclesiastical character of these
laws of Wihtræd.
There are, however, a few clauses which incidentally come within the
lines of our inquiry.
[Sidenote: The position of the freedman under Kentish custom.]
Clause 8 is especially interesting as showing that when freedom was given
by a lord to his man and he became folkfree, still, even though he left
the district, his _inheritance_, his _wergeld_, and the _mund_ of his
family remained with the freedom-giver.
Gif man his mæn an wiofode freols gefe se sie folc-fry.
freolsgefa age his erfe ænde wer-geld ⁊ munde þare hina sie ofer
mearce þær he wille.
If any one give freedom to his man at the altar, let him be
folkfree; let the freedom-giver keep the heritage and wergeld and
the _mund_ of his family, be he over the march wherever he will.
[Sidenote: His wergeld goes to his lord.]
Here tribal custom asserts itself. The freedman, though freed at the
_altar_, is to be _folkfree_, and yet, although folkfree and able to go
wherever he will, he cannot _inherit_, because he is nobody’s heir. He
had no free parents from whom to inherit. His lord inherited what his
unfree man might leave behind him. The freedman’s wergeld if he were
slain still went to his lord, for he had no free kindred to claim it.
His family remained in the lord’s _mund_ unless they also had been set
free.
These points were doubtless all incident to the position of a newly
made freedman under Kentish custom, and this enactment was probably
needful only to make it clear that freedom given _at the altar_, whatever
churchmen might think, was not to modify the customary rules incident to
freedom-giving. The evidence of the clause is, however, valuable because
for one moment it accidentally lifts the veil and shows that Kentish
tribal custom was in these matters much the same as we have found tribal
custom elsewhere, and it is particularly valuable as direct evidence that
there was a class of freedmen under Kentish custom as everywhere else.
There are also the following clauses on oaths.
[Sidenote: Clauses on oaths of different persons.]
Biscopes word ⁊ cyninges sie unlægne buton æðe.
16. A bishop’s and a King’s word is unimpeachable without an oath.
Mynstres aldor hine cænne in preostes canne.
17. A ‘Minster’s ealdor’ clears himself in the same way as a
priest.
Preost hine clænsie sylfæs soðe in his halgum hrægle ætforan
wiofode þus cweðende ‘Ueritatem dico in Xp̄o, non mentior.’
Swylce diacon hine clænsie.
18. A priest clears himself by his own declaration in his holy
garments before the altar, saying ‘I speak the truth in Christ, I
do not lie.’ And so also does the deacon.
Cliroc feowra sum hine clænsie his heafod-gemacene ⁊ ane his hand
on wiofode oðre ætstanden að abycgan.
19. A cleric shall clear himself as one of four of his like; with
one hand on the altar, the others standing by and accompanying
the oath.
Gest hine clænsie sylfes aðe on wiofode swylce cyninges þeng.
20. A stranger (gest) shall clear himself by his own oath at the
altar, and in the same manner as a ‘King’s thane.’
Ceorlisc man hine feowra sum his heafod-gemacene on weofode ⁊
þissa ealra að sie unlegnæ.…
21. A ceorlisc man shall clear himself with four of his like at
the altar, and the oath of all these shall be unimpeachable.…
[Sidenote: Under clerical influence the single oath of the stranger to be
taken as good.]
These statements regarding oaths, like other laws of Wihtræd, betray
their ecclesiastical origin, and following directly after the imposition
of penalties for what may be called ecclesiastical sins, very difficult
of proof, seem to have been inserted with special reference to them.
They are interesting, however, as reminding us again that the system of
oath-helpers was not absent from Kentish custom.
Section 20 of this clause is also interesting, which places the
_stranger_ (gest)--may we not say the ‘King’s guest’?--in the same
position as the ‘King’s thane’ as to the validity of his single oath.
Both seem to be specially under the King’s protection: in the case of the
King’s thane, on account of his official or military position; in the
case of the stranger, probably because of the absence of his kindred.
The King being in the place of kin to the stranger, his single oath is
accepted.
These laws end with clauses referring to theft more or less closely
resembling those so prominent in King Ine’s Dooms.
[Sidenote: Clauses as to theft like those in Ine’s laws.]
They state that a thief slain as a thief was to be without wergeld. If a
freeman were caught in the act of thieving, the King might either kill
him, or sell him over sea, or release him on payment of his wergeld. He
who should seize and hold him was to be entitled to the half-wergeld, or
if he were put to death to seventy scillings. A man coming from far or a
foreigner, when off the public way, who should neither call aloud nor
blow a horn, was to be taken to be a thief, and put to death or redeemed
by a wergeld.
The last clause resembles Ine s. 20 so closely as to suggest a common
origin.
(Wihtræd, 28)
Gif feorran cumen man oþþe fræmde buton wege gange ⁊ he þonne
nawðer ne hryme ne he horn blawe for ðeof he bid to profianne
oþþe to sleanne oþþe to alysenne.
(Ine, 20)
Gif feor cuman man oððe fremde buton wege geond wudu gonge ⁊ ne
hryme ne horn blawe for ðeof he bid to profianne oððe to sleanne
oððe to alysanne.
The close resemblance between these clauses confirms the suggestion that
the expression ‘gesithcund’ in the Kentish laws of Wihtræd may have been
borrowed from Wessex. Nowhere else than in these contemporary laws of Ine
and Wihtræd does the term gesithcund appear, except in the fragments of
Mercian law, which may thus belong to the same period.
VI. THE DIVISION OF CLASSES UNDER KENTISH CUSTOM.
We have now examined the Kentish laws especially regarding the amount of
the wergelds and mund-byrds. Although we may not have arrived at absolute
certainty, yet some light may have been thrown upon the important matter
of the division of classes.
[Sidenote: Mund-byrds of King, eorl, and ceorl.]
So far as the amounts of the wergeld are concerned, the contrast was
between the eorl and the freeman, the wergeld of the eorl being three
times that of the freeman. But as regards the mund-byrd the contrast was
between eorl and ceorl. The mund-byrds were:--
King 50 Kentish scillings
Eorl 12 ”
Ceorl 6 ”
There must evidently be either identity of meaning or much overlapping
in the terms freeman and ceorl. Otherwise the ceorl would be without a
wergeld and the freeman without a mund-byrd.
And yet, on the other hand, there was probably some reason why the
particular words used were chosen in the several clauses, and to a
certain extent it may not be far to seek.
[Sidenote: The ceorl was a man with a household and flet and so had a
mund-byrd.]
So far as the word _ceorl_ had a special sense, it meant the married
man,[310] the husband with a homestead and household, like the
North-country husbandman with his husbandland. In this special sense
every ceorl may have been a freeman, but every freeman may not have
been a ceorl. Hence in the clauses as regards mund-byrd the contrast
is between the eorl and the ceorl. Both were men with homesteads and
households. Unless they had persons under their ‘mund’ they could not
have had corresponding mund-byrds. The freeman who did not happen to be
a man with a homestead and household could have no mund-byrd, because he
had no precinct within which his peace could be broken, and no household
under his protection. But he could have a wergeld.
So, again, in the clauses quoted relating to injuries done to servants in
the Laws of Ethelbert:--
14. If a man lie with an eorl’s birele, let him make bot with xii
scillings.
16. If a man lie with a ceorl’s birele, let him make bot with vi
scillings. If with a theow of the second class, l sceatts; if
with one of the third class xxx sceatts.
25. If any one slay a ceorl’s hlafæta, let him pay bot with vi
scillings.
The ceorl in this contrast is again a husbandman with a homestead and
household and with bireles and theows and hlafætas under his roof or
in his ‘ham.’ Wherever in the Kentish laws the word ‘ceorl’ is used in
any other sense, I think the meaning is confined to that of the married
man--the husband, as in the phrase ‘husband and wife.’
So regarded, the division for purposes of mund-byrd into eorlisc and
ceorlisc classes was natural, and so also, for purposes of wergeld, was
the distinction between eorl and freeman. As regards the wergeld, we may
consider the terms ceorl and freeman as practically interchangeable,
inasmuch as every ceorl was certainly a freeman, and the unmarried
freeman was probably a cadet or member of the household of some eorlisc
or ceorlisc man.
* * * * *
Continental society included everywhere, as we have seen, such classes
as the Roman liti and liberti composed of strangers and freedmen who
had not so far risen in the social scale as to have fully recognised
rights of inheritance and whose wergeld never was of the same amount as
that of the full freeman. It is in connection with such classes that the
tribal distinction of blood came in. If for the full freeman we were to
substitute the word _tribesman_, with all the background of hyndens of
kinsmen to fight and to swear for him involved in the term, then from the
same point of view we must expect to find in Kent, as everywhere else,
strangers in blood below the tribesmen, like the aillts and alltuds and
taeogs of the Cymric Codes, the fuidhirs of the Brehon Laws, if not the
liberti and liti of the Gallo-Romans, or, perhaps still more nearly to
the point, the leysing classes of the Norse Laws.
[Sidenote: The Kentish freedman and læt resembled the Norse leysing.]
We have already found incidental mention of the Kentish freedman. He
cannot after enfranchisement have been classed as an esne or a theow.
There would seem to be no other class mentioned to which he could belong,
unless it might be that of the læts of Ethelbert’s Laws.
It is worth while, therefore, to recur to the single clause in
Ethelbert’s Laws already quoted respecting the læts and to examine it
more closely. Within the compass of its few words there may perhaps be
found evidence connecting the status of the Kentish læt with what we have
learned of the status and conditions of the Norse leysing.
26. If a man slay a læt of the best class, let him pay 80
scillings; if one of the second class, let him pay 60 scillings;
of the third, let him pay 40 scillings.
The clause does not mention to whom the payments are to be made, whether
to the læt himself or, as in the case of the freedman, to his late owner
or lord. But the payments are not called leodgelds as are the wergelds of
freemen.
[Sidenote: Three classes in both cases.]
Looking to the payments themselves they are graduated for three classes
of læts. There were also, under Norse custom, three classes of leysings
gradually growing by successive steps towards a higher grade of freedom
as kindreds grew up around them and became more and more nearly perfect
till at last the ninth generation from the first freedman became fully
free. Why may not the three grades of Kentish læts have been doing the
same?
Let us compare the amounts of the payments for the slaying of the
three classes of Kentish læts with those for the three classes of Norse
leysings.
We have seen over and over again that the Kentish scilling regarded as
twenty sceatts was an ore or a Roman ounce of silver. Therefore the
Kentish payments, stated in ounces of silver, were as follows:--
Best class of læt 80 ounces of silver
Second class 60 ” ”
Third class 40 ” ”
The Norse ore was also in wheat-grains a Roman ounce of silver. The
wergelds of the three classes of leysings in the Norse laws were as
under:--
Frialsgiafi or newly made freedman 40 ores of silver
Leysing after making ‘freedom ale’ 60 ” ”
Leysinjia-son or highest rank of }
leysing whose great-grandfather } 80 ” ”
was a leysing[311] }
[Sidenote: And the wergelds similar.]
So that the wergelds of the three classes of Kentish læts corresponded
exactly in amount with those of the three classes of Norse leysings, when
reckoned both in silver.
We may further compare these payments for the Kentish læts with those
for the freedman of the nearly contemporary Bavarian laws. They are
stated in gold solidi of three tremisses, and the Kentish solidus was
of only two tremisses. We have seen that the Bavarian freedman was paid
for with forty solidi, _i.e._ sixty Kentish scillings. The payment thus
corresponded with that for the Kentish læt of the second class.
[Sidenote: The grades the result of growth of kindred.]
These correspondences are unexpected and very significant, but the
significance is made still more important by the clause in the Laws of
Wihtræd describing the position of the newly made freedman under Kentish
custom. The description of his position might almost be taken as a
description of the ‘frialgiafi’ or newly made leysing of the Norse laws.
Under Kentish law the freedman was to be folkfree, but ‘the freedom-giver
was to keep the heritage and wergeld and mund of his family, be he over
the march wherever he will.’ This was, as we have seen, almost exactly
the position of the Norse leysing before he had made his freedom ale. He
had as yet no kindred to swear and to fight for him. He was still under
the mund and protection of his lord. His descendants could only obtain
the protection of a kindred and become wholly free from the _thyrmsl_
of the lord, when in the course of generations a kindred had grown up
gradually around them.
So too, as we have seen, under the Bavarian laws the freedman’s
wergeld went to his lord.[312] Under the Frisian law the wergeld of
the _litus_ went to his lord.[313] Under Ripuarian law even the ‘homo
denarialis’--the freedman who became a Frank with a full wergeld--was
recognised as having at first no kindred. If he had no children, his
property went to the fisc. And it was not till the third generation
that his descendants had full rights of inheritance.[314] We have
already found abundant evidence of the continued force of tribal custom
and tribal instincts in regard to the importance of kindred while
considering the meaning and function of the hyndens in connection with
the twelve-hynde and twy-hynde classes of the Anglo-Saxon laws. These
remarkable correspondences between the position held by the læts in Kent
and that of the leysings and freedmen and liti of the Continental laws,
without our making too much of them, may fairly be taken as additional
evidence of the tenacity of tribal custom in these matters.[315]
VII. THE AMOUNT OF THE KENTISH WERGELDS.
[Sidenote: Probable Kentish wergelds eorl 600, freeman 200, Kentish
scillings.]
Once more we return to the amount of the wergelds of the Kentish eorl and
freeman.
We have seen reason to believe that the payments of 300 and 100 scillings
of the laws of Hlothære and Eadric were half-wergelds, and that the full
wergelds were 600 and 200 scillings.
If they may be so considered they are at once put on line with the
Frankish wergelds. The threefold wergeld of the eorl becomes evidently
due to his noble birth or official position. And, if the Kentish and
Frankish solidi had been alike, the similarity of the wergelds would have
been complete.
[Sidenote: As in the Frankish laws.]
The wergelds of the Frankish group of laws were found to be as follows:--
Lex Salica, Graphio or ingenuus in truste Regis 600 solidi }
Frank or Barbarian living under Salic law 200 ” }
Lex Ripuariorum, Comes &c. in truste Regis 600 ” }
Ingenuus 200 ” }
Lex Angliorum et Werinorum, Adalingus 600 ” }
Liber 200 ” }
Lex Chamavorum, Homo Francus 600 ” }
Ingenuus 200 ” }
In all these cases the wergeld of the Royal official or person in high
rank is threefold that of the _liber_ or _ingenuus_.[316]
[Sidenote: Confirmed by comparison with the King’s mundbyrd.]
Confining attention now to the position of the Kentish freeman, further
confirmation of the view that his wergeld was 200 Kentish scillings may
be derived from a comparison of the King’s mundbyrd with his wergeld, and
the corresponding Continental payments _pro fredo_ with the wergelds of
the _liber_ and _ingenuus_ of the Continental laws.
The Kentish mundbyrd of 50 Kentish scillings was one fourth of the
Kentish freeman’s wergeld if 200 Kentish scillings.
The Mercian mundbyrd of five pounds of silver was one fourth of the
Mercian wergeld of 1200 scillings of four pence, or twenty pounds.
The Wessex mundbyrd of five pounds would be one fourth of the Wessex
wergeld proper if the latter might be looked upon as the same as the
Mercian with the mundbyrd added.[317]
The Alamannic and Bavarian payments _pro fredo_ of 40 solidi were one
fourth of the Alamannic and Bavarian wergeld of 160 solidi.
And Brunner[318] and others consider that, although the payment _pro
fredo_ was sometimes an extra payment, the 200 solidi of the Frankish
wergeld equalled 160 solidi with one fourth added _pro fredo_.
Now, if instead of holding the Kentish freeman’s wergeld to be 200
Kentish scillings we were to take it to be the _medume_ wergeld of 100
scillings, we should destroy the correspondence of the King’s mundbyrd
with the wergeld, and make the mundbyrd half the wergeld instead of a
quarter: unlike what it was in the other laws. This hardly seems a likely
supposition.
[Sidenote: And also with payment for eye, hand, and foot.]
We get still further evidence if we compare the payments for the eye,
hand, and foot in the Kentish and Continental laws. We have seen that the
Kentish payment was 50 scillings, _i.e._ the same as the King’s mundbyrd
and one fourth of the wergeld of 200 scillings. In the Alamannic and
Bavarian laws and in those of the Chamavi the payment for these, like
the payment _pro fredo_, was one quarter of the freeman’s wergeld. In
the Frankish laws it was one half. But the reason of this is, not that
either the Frankish payment _pro fredo_ or the wergeld is less than in
other laws, but that the payment for the eye, hand, and foot is greater.
The Frankish payment for the eye, hand, or foot was 100 solidi of three
tremisses, _i.e._ half as much again as the Kentish freeman’s wergeld
would be if only 100 Kentish scillings of two tremisses; which again
seems unlikely.
At first sight the Wessex payments for the eye, hand, and foot present an
anomaly. The Wessex twelve-hynde wergeld of 1200 Wessex scillings of five
pence at a ratio of 1:10 corresponds, as we have seen, with the Frankish
freeman’s wergeld of 200 solidi. The payment for the eye, hand, and foot
in King Alfred’s Laws is 66⅔ Wessex scillings, _i.e._ only one eighteenth
of the twelve-hynde wergeld. But the explanation no doubt is that in
the Laws of King Alfred the payments for injuries are stated for the
_twyhynde_-man’s grade, those for the eye, hand, and foot being one third
of the twyhyndeman’s wergeld of 200 Wessex scillings.
[Sidenote: Kentish freeman’s wergeld most likely 200 Kentish scillings,
or 4000 sceatts.]
On the whole, therefore, these considerations seem to strengthen the
supposition that the Kentish freeman’s wergeld was 200 Kentish scillings.
That the Kentish wergeld should differ from that of Mercia and Wessex
need not surprise us, seeing that we started with the warning that we
should find it so as regards both the _barones_ and _villani_. To the
writer of the so-called Laws of Henry I. the eorl was no doubt the _baro_
and the freeman or ceorl the _villanus_ of Norman phraseology. And we
need not wonder at his confusion if he had nothing but the laws to guide
him. It is necessary, however, to look at the question of the wergelds
from a broader point of view than his could be.
It must not be forgotten that the Continental wergelds of the Merovingian
period were all stated in gold solidi. The first emigrants into Britain
must have known this perfectly well. Kentish moneyers coined gold
tremisses, and when they afterwards coined silver it was in silver
tremisses of the same weight, which earned the name in England of
‘sceatts.’
Any exact comparison of English and Continental wergelds must obviously
be dependent upon the ratio between gold and silver.
[Sidenote: Archbishop Egbert’s priest’s wergeld also 4000 sceatts--_i.e._
200 ounces of silver or _Mina Italica_ of gold.]
The Kentish scilling of two gold tremisses at 1:10 was reckoned in the
Laws of Ethelbert as equal to 20 sceatts--_i.e._ to the Roman ounce--and
the wergeld, if of 200 scillings, was thus, as we have seen, a wergeld in
silver of 200 ounces or 4000 sceatts. We have seen also that Archbishop
Egbert claimed for his priests a wergeld of 200 ounces of silver, which
thus would accord exactly with the Kentish wergeld of 200 scillings. It
might almost seem that he may have consulted his colleague the Archbishop
of Canterbury and fixed his clerical demand in accordance with the
Kentish wergeld rather than with that of Wessex or Mercia.
Nor was there anything unnatural or abnormal in the Kentish wergeld of
200 ounces of silver, inasmuch as 200 Roman ounces of silver at a ratio
of 1:10 would equal the _Mina Italica_ of twenty Roman ounces or of two
ancient Roman pounds of gold.
We may therefore with confidence, but without claiming certainty, fairly
state the Kentish wergelds in Kentish scillings and sceatts, thus:--
[Sidenote: Kentish wergelds.]
Kentish
scillings Sceatts
Eorl 600 (possibly 300?) = 12,000
Freeman 200 (possibly 100?) = 4,000
Læt (1) 80 = 1,600
” (2) 60 = 1,200
” (3) 40 = 800
And when put together in this way the proportion between the wergeld of
the freeman and that of the læts becomes important. In the Norse laws
the leysing’s wergeld was one sixth that of the hauld or odalman. In the
Bavarian and Saxon laws the wergeld of the _litus_ was one fourth that of
the freeman. Anything like these proportions in Kent would make a wergeld
as low as 100 scillings for the freeman very improbable.
[Sidenote: The sceatts could not have been farthings.]
Lastly, perhaps it may be fair to the reader to recur once more to the
question of the Kentish scilling. If any doubt should remain as to
whether we are right in regarding the sceatt as the silver coin of that
name, twenty of which went to the Roman ounce until it was superseded by
the penny of Offa and Alfred, surely that doubt must now be dispelled.
For if, according to the view of Schmid and others, the sceatt were to
be taken as a farthing or _quarter_ of a sceatt, the correspondence of
Kentish with Continental wergelds and payments _pro fredo_ would be
altogether destroyed. The eorl’s triple wergeld at a ratio of 1:10 would
be only one sixth (and if 300 scillings only one twelfth) of that of the
Frankish noble or official, while the Kentish freeman’s wergeld would be
reduced to one sixth (or if 100 scillings to only one twelfth) of that of
the Continental _liber_ or _ingenuus_.
One perhaps must not say that such a result would be impossible. But
would it be a likely one? We should have to suppose that the Jutish
chieftain, perfectly familiar with the Continental wergeld of the
freeman as 200 or 160 gold solidi, equated by long tradition with the
round number of 100 head of cattle, upon settlement in Kent reduced the
wergeld of the freeman to one sixth or one twelfth of what it was in the
country he came from. From what we know of the tenacity of tribal custom
everywhere, especially as regards the amount of the wergelds, it is
difficult to conceive of his doing so.
VIII. RESULT OF THE KENTISH EVIDENCE.
We are now in a position to take a broader view of the wergelds,
Continental, Kentish, Wessex, and Mercian.
[Sidenote: The Kentish, Wessex, and Mercian wergelds thus brought into
line with the normal Continental wergeld of 200 and 160 gold solidi or
100 head of cattle.]
To the incidental mention of the fact that the Kentish freeman’s wergeld,
if 200 Kentish scillings, equalled the gold _Mina Italica_ may be added
the further incident that it was equal to 100 ‘sweetest cows’ of the
Alamannic laws. Whether accidental coincidences or not, these facts bring
us back to the point with which this inquiry started, viz. the widespread
normal wergeld of 100 head of cattle and its very general traditional
equation with a gold mina.
The main facts elicited as to the amount of the wergelds in the course of
this inquiry are these.
At the date of the Kentish Laws and generally during the seventh century
we find three wergelds in use in England for the freeman:--
The Wessex wergeld of 6000 sceatts at 1:10 = 600 gold tremisses
” Mercian ” 4800 ” { at 1:10 = 480 ” ”
{ at 1:12 = 400 ” ”
” Kentish ” 4000 ” at 1:10 = 400 ” ”
And on the Continent we find the two wergelds:--
Frankish 200 solidi = 600 gold tremisses
The other 160 ” = 480 ” ”
Now, in the fairly contemporary laws of the Ripuarian Franks, and of the
Burgundians, the traditional values of animals we have found to be stated
as follows:--
Ox 2 solidi = 6 gold tremisses
Cow 1 solidus = 3 ” ”
And in the nearly contemporary Alamannic laws the traditional values
were:--
Best ox = 5 gold tremisses
Medium ox and sweetest cow = 4 ” ”
[Sidenote: The differences covered by ratio between gold and silver 1:10
and 1:12.]
Within the range of these variations in the ratio between gold and
silver, and in the local value of animals, there seems to be ample room
and reason for the variations in the money values of the wergelds.
(1) 100 oxen of 6 tremisses (_i.e._ 600 tremisses) equal the Frankish
wergeld of 200 gold solidi, and at 1:10 the Wessex wergeld of 6000
sceatts.
(2) A long hundred of 120 cows of 4 tremisses (_i.e._ 480 tremisses)
would equal the wergeld of 160 gold solidi, and at 1:10 the Mercian
wergeld of 4800 sceatts.
(3) 100 cows at 4 tremisses (_i.e._ 400 tremisses) make the Kentish
wergeld of (if we are right) 200 Kentish scillings of 2 tremisses, and
at 1:10, 4000 sceatts. If we change the ratio to 1:12, then a Kentish
wergeld of 100 cows of 4 tremisses would in silver equal the Mercian
wergeld of 4800 sceatts. In other words, the difference between the
Kentish and Mercian wergeld may be explained, either as one between 100
and 120 cows, or, the number of cows remaining at 100, between the ratios
of 1:10 and 1:12.
There is thus in these fairly contemporary values of Western Europe,
in the seventh century, or within the Merovingian period, so obviously
room for the variations in the wergelds that, whether as to origin the
differences may be of historical interest or not, at any rate for our
present purpose we are fairly warned by the general coincidence in the
wergelds not to make too much of the differences.
[Sidenote: Kentish freeman and the twelve-hyndeman = Continental
_freeman_.]
The Kentish laws, therefore, lead us with some confidence to recognise
the practical identity of the wergeld of the Kentish freeman with that,
not of the Wessex ceorl, but of the twelve-hyndeman.
We have been led cautiously step by step to this result, and, whether
the problem raised by it be capable of solution or not, it is important
that it should be fairly stated and considered. Even if the Kentish
freeman’s wergeld was only 100 Kentish scillings, it would more nearly
correspond with the six-hyndeman’s wergeld than with that of the Wessex
ceorl. On the other hand, the wergelds of the Kentish læts are very
fairly on a level with that of the Wessex ceorl. Taking an average
between the second and third class of læts the correspondence would be
exact.[319]
[Sidenote: Kentish læt and the twy-hyndeman = the Continental _freedman_.]
If, therefore, the wergeld of the Kentish freeman may be regarded as
practically equivalent to that of the Continental _liber_ or _ingenuus_
on the one hand, and to that of the twelve-hyndeman of the Anglo-Saxon
laws on the other hand, and if that of the Kentish læt was like that of
the Norse leysing and of the twy-hyndeman, then once more it becomes
natural and right, and in accordance with ancient custom, that in
the Compact between Alfred and Guthrum the twelve-hyndeman should be
made ‘equally dear’ with the Norse hauld, and so with the _liber_ or
_ingenuus_ of the Continental laws, while the twy-hyndeman should be held
‘equally dear’ with the Danish leysing.
[Illustration]
CHAPTER XV.
_GENERAL CONCLUSIONS._
[Sidenote: Bearing of the results upon the division of classes and the
character of holdings.]
Before concluding this Essay it may be well in a final chapter to
consider its results in their bearing upon the conditions of early
Anglo-Saxon society, and especially with regard to the division of
classes and the character of the holdings.
The object has been to approach these difficult questions from the point
of view of tribal custom.
[Sidenote: The amount of wergelds the main clue.]
The main clue to an understanding of the division of classes has been the
amount of the wergelds.
[Sidenote: The general correspondence in wergelds throughout Western
Europe.]
The trouble taken to arrive at a correct knowledge of the currencies
in which the wergelds were paid, tedious as it may have seemed to the
reader, will not have been thrown away if it has led to the recognition
of the fact that there was a very general correspondence in the amount
of the wergelds tenaciously adhered to by the tribes of Western Europe,
whether remaining in their old homes or settled in newly conquered
countries. The amount of the wergelds was not seemingly a matter of race.
Cymric and German customs were singularly similar.
If the Irish eric fine formed an exception, Irish tribal custom
nevertheless had many things in common with Cymric and German custom in
other respects.
[Sidenote: The solidarity of the kindred connected with family holdings.]
It was from a study of the wergelds and the rights and liability of
relatives in their receipt and payment that some idea was gained of the
solidarity of the kindred under tribal custom. And this solidarity of the
kindred was found to be closely connected with the family character of
tribal land-holdings, of which the Cymric gwely was a typical example.
Where direct evidence of this family element was wanting the liability of
the kindred for the wergeld remained as an indication that it once had
existed.
[Sidenote: The normal wergeld of 200 gold solidi or 100 head of cattle.]
In reviewing the evidence of these matters and attempting to bring the
results to a focus, we begin with the fact that with comparatively
few exceptions the normal wergeld of the full or typical freeman
was everywhere so large--200 gold solidi, the heavy mina of gold,
traditionally representing 100 head of cattle. This wergeld was too large
by far for the individual slayer to pay, and possible only as a payment
from one group of kindred to another.
[Sidenote: The Anglo-Saxon wergelds brought with them into Britain.]
We have seen reason to infer from the Kentish, Wessex, and Mercian
wergelds that the Anglo-Saxon tribes shared in these traditions, and,
so to speak, brought their wergelds with them into Britain. And we have
found that Anglo-Saxon custom as regards the wergelds was substantially
similar to that of the Continental tribes.
[Sidenote: No feud or wergeld within the kindred.]
From Beowulf we learned that, as there could be no feud within the
kindred, a homicide within the kindred could not be avenged or compounded
for. There was no galanas or wergeld in such a case under either Cymric
or German custom, and evidence was found in the so-called Laws of Henry
I. that it had been so also under Anglo-Saxon custom. Up to the time of
the Norman Conquest the punishment of parricide was practically left by
the laws to the spiritual jurisdiction of the Church (_supra_, p. 335).
[Sidenote: Wergelds paid and received by paternal and maternal relations.]
The principle which required both paternal and maternal relations to
join in the payment and receipt of wergelds, and nearly always in the
proportion of two thirds and one third, was also common to Cymric and
German tribes. This principle depended upon a view of marriage likewise
common to both. A blood relationship was established as regards children
of a marriage, while husband and wife for many purposes remained in their
own kindreds. There being no blood relationship between husband and wife,
the husband’s kindred alone were liable for his crimes and the wife’s
alone for her crimes, and neither the husband nor the wife received any
portion of the other’s wergeld or was liable for his or her homicides.
Such was the custom under the Cymric codes and the laws of the Bretts and
Scots, and Anglo-Saxon custom as described in the so-called Laws of Henry
I. was similar.
[Sidenote: The half wergeld of strangers in blood.]
The tribal feeling which allowed tribesmen and strangers to live side by
side under their own laws, and made the Salic and Ripuarian Franks award
a full wergeld to tribesmen of allied German tribes, while it gave only
a half wergeld to the Gallo-Roman possessor who was not of their blood,
was, it would seem, brought with the invading tribes into Britain.
Danish and English tribesmen were allowed to live side by side under
their own laws and acknowledged as ‘equally dear,’ with a similar
wergeld, while, at all events in the cases which come under notice,
complete strangers in blood were awarded only a half wergeld as in the
Continental laws.
We have not attempted to settle the question how far there was a
Romano-British population left in the towns, but we have found incidental
traces and hints that in Northumbria, Wessex, and Mercia there were
‘wilisc’ men--Welsh or British--who had only a half wergeld, being
treated as strangers both in this respect and also as regards the
substitution of the ordeal for the oaths of kindred (p. 403).
[Sidenote: The ordeal the alternative to the oaths of kinsmen.]
The principle that a man who could not bring to his protection the oath
of his kinsmen must be brought to the ordeal was one of widely extended
tribal custom. And it was emphasised by the adoption of the ordeal as a
Christian ceremony solemnly performed in the churches under both Frankish
and Anglo-Saxon law.
[Sidenote: The man of no kindred becomes a dependent on some one else’s
land.]
There can be little doubt that in the solidarity of the kindred under
tribal custom we have to do with the strongest instinct which everywhere
moulded tribal society. So far as it had its way and was not confronted
by more potent forces it must have almost necessarily ruled such matters
as the division of classes, the occupation of land, and the modes of
settlement.
When we inquire into the grades of society under tribal custom they seem
everywhere to have their roots in the principles of blood relationship. A
man who has no kindred to protect him needs and seeks the protection of a
chieftain or lord. By the force of tribal gravitation he sinks into the
dependent condition of living upon another’s land.
Whether he be a freedman who has risen from the rank of the theow or
thrall, or a free tribesman of low position, or one of a conquered
race, or a stranger immigrant, and whether he be cottier or the holder
of the typical yardland, until in the course of generations a kindred
has grown up around him, he remains in the dependent condition. He is
indeed a freeman as compared with the theow or thrall, but when Alfred
and Guthrum make their compact and agree that Dane and English shall be
reckoned as equally dear at the normal wergeld of the full freeman it is
not of the dependent class they are thinking. They give to this class and
to the Danish leysing or newly made freedman a twy-hynde instead of a
twelve-hynde wergeld.
[Sidenote: The twy-hynde class was the dependent class of gafolgeldas,
with a lower wergeld.]
It might at first sight be supposed that this twy-hynde condition of the
dependent class in England, so far as it may have included Anglo-Saxons,
must have been the result of degradation in social status between the
first settlements and the time of King Alfred, but we have sought in
vain for evidence of an earlier higher position in the Laws of King Ine.
And, on the whole, even when regarded solely from a tribal point of
view, it does not seem unlikely that strangers in blood and freedmen and
dependent followers of the conquering chieftains should find themselves
after conquest and settlement in the economic condition of tenants and
gafolgeldas on the lands of protecting lords. Nor would it be strange
that, when in a new country and under other influences this uniform
dependent economic condition had once become a general fact, the whole
class, in spite of variety of origins, should find itself marked by a
twy-hynde wergeld.
[Sidenote: The twy-hynde class were equated.]
It does not follow, however, that because in the compact between Alfred
and Guthrum the twy-hynde class were reckoned as equally dear with the
Norse leysing that the Anglo-Saxon ‘ceorl who sits on gafol-land’ was
generally in as low a social position as the Norse newly made freedman.
It is enough that according to the evidence, he was a dependent tenant,
let us say, under the lordship of a twelve-hynde man or if settled upon
royal demesne of some gesith or official of the king.
[Sidenote: With the Norse leysing.]
Still it may be well to look once again at the position of the Norse
leysing, because, after all, it is with the leysing that the Anglo-Saxon
twy-hynde gafolgelda was equated in a compact made after King Alfred’s
victory, and so when the two chieftains seemed to be treating on equal
terms. Surely King Alfred was not intending to degrade the Anglo-Saxon
dependent class. Presumably he was making a good bargain for them.
[Sidenote: The low condition of the leysing.]
The early Norse laws were settled long after the date of this compact,
upon the conversion of South Norway, and, as in other cases, they were
framed with the express purpose of making room in the legal system for
the Christian Church and so in some sense with its sanction. And yet so
deep was the gulf between classes even then that a certain portion of
the churchyard was set apart for leysings, and in no case were they to
be buried in the portion reserved for classes above them. And if after
giving his freedom-ale and so attaining the first step in freedom and
independence the leysing should die leaving destitute children whose
support ought not to be thrown back upon his lord, we have seen that the
way out of the difficulty was to dig a grave in the churchyard into which
the leysing’s children were to be placed and left to starve to death,
the last survivor being the only one which the lord thenceforth had to
maintain.[320] This was the position of the leysing at the bottom of the
ladder of freedom.
[Sidenote: But he rose by steps as a kindred grew around him.]
But we found the leysing of the Norse laws rising by steps into greater
freedom and better social position. And the process throughout was
founded upon the gradual growth of kindred. It was the lack of kindred to
swear for them and defend them which placed them low in the social scale,
and it was the gradual growth of kindred generation after generation
which marked the steps of their rise into better social position with
higher wergelds.
[Sidenote: In England it was so once, but the rungs of the ladder drop
out.]
When we turn to the Anglo-Saxon laws we seem to detect similar tribal
principles originally at work but with differences which may very
probably be referred to the circumstances attendant upon conquest and
settlement in Britain.
The law of tribal gravitation here as elsewhere, aided, no doubt, by
other potent forces, had been at work placing the man with an imperfect
kindred in a dependent position at the bottom of the social ladder.
And it is important to note that at first the middle rungs of the ladder
by which a man could climb out of the dependent position seem to have
been present here as in Norway. The evidence is scanty, but sufficiently
important.
From the Kentish laws the presence of stepping-stones into greater
freedom may be inferred in the case of the three classes of _læts_ with
their rising wergelds. And in a precious fragment of ancient custom
happily rescued from oblivion we found evidence that, originally at all
events, there had been a way out of the ceorl’s twy-hynde condition at
the fourth generation of landholding connected with payment of gafol to
the king’s utware and direct service to the king. But we recognised that
the collector of the fragment looked longingly back to ancient custom,
speaking of it in the past tense, as if it was no longer in force.[321]
It would obviously not be wise to trust solely to the negative evidence
of the silence of the laws, but in this case the silence seems to confirm
the evidence of the fragment. For the pathetic tone of the fragment finds
an echo in the fact that all traces of the middle rungs in the ladder
seem to have vanished from the later laws. There is no mention in Ine’s
laws or in Alfred’s of there being or having been several grades of
freedmen or læts. Even the half wergeld of the six-hynde stranger who
has risen to the possession of five hides silently disappears after King
Alfred’s time. From whatever cause, so far as the evidence goes, the
twy-hynde class seems to have become a homogeneous class in which, in
spite of different origins, distinctions were merged in a common economic
condition. Differences of origin were perhaps forgotten as the result of
comradeship in the long struggle against the Danish foe.
[Sidenote: And this kept open the gulf between twy-hynde and twelve-hynde
classes.]
We thus seem to be driven to recognise the width and to some extent the
bridgelessness, already in King Alfred’s time if not in King Ine’s, of
the gulf between the position of the twelve-hynde landed class and that
of the twy-hynde dependent class of gafolgeldas and geburs who were
tenants on their land.
It seems probable that, though technically and really free in the sense
of not being thralls, the twy-hynde class, broadly speaking, may have
found themselves very early, if not from the first, placed in an economic
condition of service and servitude, including work as well as gafol,
which by the ultimate disappearance of the middle rungs of the ladder
might very easily slide into what is loosely called the ‘serfdom’ of
later times.
In the meantime we realise that the abjectness of this semi-servile
condition may be very easily exaggerated by modern associations with the
terms ‘service’ and ‘serfdom.’