CHAPTER XXIV.

LEGISLATION OF THE LATER KINGS.

In the period which followed the Norman Conquest “the laws of good King

Edward” was a phrase often on the lips of Englishmen; yet it was but

a phrase, for Edward the Confessor, on the threshold of whose reign

we are now standing, added, as far as can be ascertained, no laws to

the Anglo-Saxon collection. Danish Canute, on the other hand, holds an

honourable place in our legal history; for his Dooms, which fill one

hundred pages in Liebermann’s volume, show somewhat of the instinct of

a codifier as well as a genuine desire to deal equal justice to the

Danish and the English inhabitants of the land.

From the death of Alfred--the last king whose laws have been specially

dealt with--till the death of Canute, an interval elapsed of more than

130 years or about four generations, and in almost every reign some

fresh Dooms received the sanction of the reigning king and his _witan_.

It will be well for us briefly to survey the course of this legislation

and to see what light it throws on the social condition of the country,

and what changes it reveals in political institutions. When we consider

the laws of this period from a social and economic point of view, one

fact stands out at once in strong relief. The immense majority of

these laws relate to one crime, theft, and to one form of that crime,

the theft of cattle. We have before us a population of herdsmen and

sheep-masters whose chief concern it is to guard their live stock from

the sly, roving cattle-lifter, and to recover them when thus purloined.

Herein these tenth-century laws bear a striking resemblance to the

border laws,[213] the code according to which, in the fourteenth,

fifteenth, and sixteenth centuries, rough justice was administered

between cattle owners and cattle raiders on both sides of the Scottish

border.[214] Sometimes, too, the grievances which we hear of in these

laws and the rough redress of those grievances which they contemplate,

seem to carry us into the same world of which we have read in stories

of the Wild West of America only one generation ago. It seems probable

that the immense importance thus assigned to the possession and the

theft of cattle is partly due to the fact that, owing to the settlement

of Danes on the north-east of the Watling Street, a large part of

England had now become like Northumberland and Roxburgh, a “border

country,” and was subject to all the insecurity of that position.

In order to give greater assistance to the owner of cattle, Edward

the Elder ordained that every landowner should have men in readiness

on his land to guide those who were seeking to recover their lost

property; and these men were straitly warned not for any bribe to

divert the owner from his quest, nor give shelter to any convicted

thief. Athelstan directed that if any one claimed a beast as his

rightful property, he should get one out of five persons nominated by

the judge to swear “that it is by folk-right his”; and the defendant

must get two out of ten persons similarly nominated, to swear the

contrary. But, perhaps, the most interesting of all this class of

ordinances is that contained in the _Judicia Civitatis Lundoniæ_,

framed by the chief officers of Church and State, the bishops and

reeves (or representatives of the king), not without the consent of

all the citizens. We have in these ordinances, under the sanction

of Anglo-Saxon royalty, some wonderfully modern devices for the

interposition of the community, to lessen the loss inflicted by robbery

on the individual.

The document begins: “This is the decision which the bishops and the

reeves who belong to London, have made and secured with pledges in

our peace-guild, whether of nobles or of commonalty” (_eorlisce_ or

_ceorlisce_), “to supplement the enactments made at various meetings of

the _witan_”. The first chapter ordains that the punishment of death

shall be inexorably inflicted on any thief over twelve years of age

stealing goods to the value of more than twelve pennies, and that any

one endeavouring by force of arms to rescue a thief shall pay a fine of

120 shillings to the king.

The second chapter introduces us to a curious arrangement between the

citizens, in the nature partly of a Trade Protection Society and partly

of a Society for Mutual Insurance against Theft. “Each one of us shall

pay four pennies to a common stock within twelve months, in order to

indemnify the owner for any animal which may have been stolen after

that time, and we will all join in the quest after the stolen animal.

Every one who has a beast worth thirty pennies shall pay his shilling,

except poor widows who have no patron or land.” It may be said, Why

is the prescribed payment four pennies at the beginning of the law

and a shilling at the end? The answer no doubt is that London still

adhered to the currency of Mercia, in which only fourpence went to the

shilling. The contributors were to be arranged in ten groups of ten

each, the oldest of whom was to serve notices and keep the accounts;

and these ten seniors with “an eleventh man” whom they were to choose,

were to form a sort of governing board, keeping the money and deciding

as to contributions into, and payments out of, the common fund. Every

man who heard the summons must join in the quest after the stolen

animal so long as the trace remained. The quest was to be continued

either on the northern or southern march till every member of the guild

who had a horse was riding it. He who had no horse of his own must go

and work for a lord who should ride in the quest instead of him. Then

comes the question at what rate were the stolen beasts to be valued.

The ordinary tariff of compensation is as follows:--

For a horse 10 shillings.

„ an ox 30 pennies or 7½ „

„ a sheep 5 „ or 1¼ „

„ a stolen slave (_theow_), half a pound = 30 shillings.

Apparently if the thief was captured and compelled by a court of law to

refund a higher price than any of the above, if, for instance, he was

made to pay for a valuable ox ten shillings instead of seven shillings

and a half, the surplus was divided among the members of the guild,

the owner receiving only the sum to which he was entitled under the

tariff.

The ordinance continues: “Whosoever takes up that which is the

common cause of all of us shall be our friend. We will all be one,

in friendship and in enmity. The first man to strike down a thief

shall receive twelve pennies from the common purse for having made so

good a beginning. The owner of a stolen animal is not to relax his

diligence” (because of the insurance), “but must pursue it to the end,

and he shall be reimbursed for the expenses of his journey out of the

common fund.... We will meet once a month if we have leisure ... with

filling of casks and everything else that is suitable, and we must then

see which of our decisions have been complied with, and the twelve

men shall have their food together, and eat as much as seems good to

themselves and dispose of the food that is left [to the poor] according

to the will of God.”

The state of society here presented to us is one of peculiar interest.

We seem to see these cattle-owning citizens of London, whose flocks

and herds were grazing outside the walls of the city in Smithfield

or Moorfields. They follow the track of their stolen beasts across

the wilds of Middlesex or Surrey (“the Northern and the Southern

March”). When the cattle are caught, fierce vengeance is taken on

the depredator. If the pursuit fails, the luckless owner can, after

all, console himself with the tariff price which he receives from the

guild treasury. And then once a month they meet to settle the affairs

of their guild, “with filling of casks and everything else that is

suitable,” and so a vista is opened, at the end of which after the

lapse of centuries, we behold the stately banquets of the Guild-hall of

London.

It is possible that to this need of grappling with agrarian crime we

owe the institution of the Hundred which was a prominent feature in the

organisation of medieval England, after as well as before the Conquest,

and exists, though now little more than a survival, even in our own

day. It is at least worthy of notice that the first clear mention of

the Hundred-court, which is in the reign of Edgar, occurs in close

connexion with the theft of cattle, and we might almost be justified in

saying that this is the main business which in those beginnings of its

existence was thought likely to come before it.

There has been much discussion as to the kind of unit, five-score of

which made up the Anglo-Saxon Hundred, but on the whole the prevailing

opinion seems to be that it was composed, in theory at least if not

invariably in practice, of a hundred hides or households.[215] The

charter, if we may so call it, of the Hundred-court is furnished us

by a document which is believed to date from the reign of Edgar and

which begins: “This is the arrangement, how men shall hold the Hundred.

First, that they always gather themselves together once in four weeks:

and that each man shall do right to the rest. Second, that they set

forth to ride after thieves. If occasion arise, let a man [whose beast

has been stolen] give notice to the Hundreds-man, and he then to the

Tithing-men, and let them all fare forth as God shall point the way,

that they may arrive there [at the place where the beast is hidden].

Let them do justice on the thief as was before ordained by [King]

Edmund, and hand over the price to him who owns the animal and divide

the rest [of the fine] half to the Hundred and half to the lord.”

We observe that we have here a regular local court, armed with very

summary powers and able to inflict fines, probably heavy fines, after

it has restored the value of the stolen property to the rightful owner.

Of these fines, however, the Hundred-court may retain for itself only

half, the other half going to “the lord”. The assumption that there

will be in every case a lord, who will thus share in the profits of the

criminal jurisdiction exercised by his neighbours of the Hundred, seems

to mark a step towards the manorial jurisdiction of later centuries and

strikes a somewhat different note from that sounded in the laws of Ine.

It would seem that there was a tendency among powerful and lawless men

to treat the Hundred-court with contempt and ignore its jurisdiction.

“If any one shall put difficulties in the way and refuse to obey the

decision of the Hundred and this is afterwards proved against him,

he shall pay 30 pennies to the Hundred: and for a second offence 60

pennies, half to the Hundred and half to the lord. If he do it the

third time he shall pay half a pound (120 pennies), and for the fourth

offence he shall forfeit all that he has and be outlawed, unless the

king allow him to remain in the land.” By the time that Canute took the

matter in hand[216] sharper remedies had been found to be necessary.

He who refused the judgment of the Hundred was fined--apparently for

the first offence--30 shillings, not pennies. For a similar contempt of

the Earl’s court he had to pay a fine of 60 shillings, and twice that

amount for despising the judgment of the king.

Before passing from the subject of the Hundred, it should be observed

that the corresponding institution in most of the Danish counties of

England was called the _wapentake_, a name which is said to be derived

from that clashing together of their weapons whereby the Scandinavians,

like their Teutonic predecessors in the days of Tacitus, were wont

to signify their assent to the propositions laid before them by the

masters of their assemblies. The counties in which the Wapentake

generally took the place of the Hundred were York, Lincoln, Nottingham,

Derby, Leicester and Rutland.[217]

“And let men seek the Hundred-gemôt in such manner as was arranged

aforetime, and three times in the year let them hold the Burh-gemôt

and twice the Shire-gemôt, and there let the bishop of the shire and

the ealdorman be present, and there let both of them expound God’s

law and the world’s law.” By these words of King Edgar[218] we are

brought into contact not only with the Hundred, but also with two other

organisations still very prominent in the political life of England,

the Borough and the Shire.

The _Burh_ or _Burg_, in the sense of a fortified town, first comes

into notice about the beginning of the tenth century and is evidently

the offspring of the Danish invasions. Not that the word was not before

that time in familiar use among the Anglo-Saxons,[219] but that it

seems rather to have denoted the walled enclosure round the dwelling

of a great landowner, than the close-packed streets of a medieval

borough. The breaking of such a _burh_ (_burh-bryce_), the forcible

entry into the precincts of a dwelling, was punished by the laws of

Ine and Alfred with fines carefully graduated according to the rank of

the owner. “A king’s _burh-bryce_ is 120 shillings; an archbishop’s,

90; another bishop’s or an ealdorman’s, 60; a _twelf-hynd_ man’s, 30;

a _six-hynd_ man’s, 15 shillings. The breaking down of a ceorl’s hedge

(_edor-bryce_) is 5 shillings.”[220] The meaning of the law evidently

is, that “the man whose _wer_ is 600 shillings will probably have some

stockade, some rude rampart round his house; he will have a _burh_,

whereas the ceorl whose _wer_ is 200 shillings will not have a _burh_,

but will only have a hedge round his house”.[221]

It was into a country full of unwalled _tuns_ or villages, and

scattered country houses calling themselves _burhs_, but poorly

protected by moat and stockade, that the Danes came pouring in the

reigns of Egbert, Ethelwulf and Alfred. Winchester itself, as we have

seen, was “broken down” by them. York and London were taken, and

apparently in this, the first stage of their invasion, no town which

they seriously attacked was able to resist their onslaught. But then

the invaders gave their victims a lesson in self-defence. As soon

as they had taken up a position in town or country they fortified

themselves by erecting a strong “work” (the word is of constant

occurrence in these pages of the Chronicle), and the hardest part of

Alfred’s task was often the capturing of these hastily reared Danish

fortifications. In the years of peace between the invasions of Guthrum

and of Hasting, Alfred, imitating his opponents, reared many _burhs_

which he filled with armed men. The establishment of these forts which

stood up as islands out of the hostile sea, had evidently much to do

with the deliverance of the land from the flood of Danish invasion in

the terrible years between 892 and 896. The entry of the Chronicle for

the year 894 tells us how a portion of the invading army was attacked

“by bands of Englishmen, almost every day and night, both from the

_fyrd_ and also from the _burhs_; for the king had divided his _fyrd_

into two parts so that they were always half at home and half out,

except the men whose duty it was to hold the _burhs_”. And a little

farther on we hear of the valorous deeds of the _burh-ware_ of Chester

and of London, which had an important influence on the successful issue

of the war.

We have seen, in a previous chapter, how the stalwart brother and

sister, Edward and Ethelfled, reconquered central England for the

English, and how they secured their conquests by the great line of

forts which they planted everywhere along and sometimes far within

the frontier which had divided the two nations. Chester, Shrewsbury,

Bridgnorth, Stafford, Warwick, Bedford, Huntingdon, Manchester and

many more, were _burhs_ which owed their foundation or renewal to the

stout-hearted Lady of the Mercians and her brother. It must not be

forgotten, however, that the bulk of the population around, and even in

some of these _burhs_, must have remained Danish. Leicester, Stamford

and Nottingham are included in the list of forts founded by Edward

and his sister, yet they with Lincoln and Derby made up that Danish

confederation of the Five Boroughs with which Edmund had to fight in

942 and which went over so readily to Sweyn in 1013.

In the main, however, we may no doubt consider these new, strongly

fortified _burhs_ or, as we may now venture to call them, “boroughs” as

the homes of loyal Englishmen, keen for resistance to an invading foe,

but also keen for commercial enterprise. Very early the kings perceived

the importance of insisting on internal peace and orderly life within

the limits of the borough. Thus Edmund claims for it the same right of

inviolate sanctuary as for the church itself. “If any man seek refuge

in a church or in my _burh_ and any one thereafter assault him or

treat him ill, he who does this shall be liable to the same punishment

as is aforesaid.” Where security was thus provided for, against

external enemies by thick walls and deep ditches, against internal

strife and anarchy by the proclamation of the king’s peace, wealth was

sure to accumulate. Markets were fixed in boroughs, and in order to

guard against the ever-dreaded theft of cattle it was ordained with

increasing stringency that purchases and sales should take place within

their limits. By a law of Edgar[222] it was directed that in every

[large] borough thirty-three men should be chosen as “witnesses”;

in the smaller boroughs and the hundreds twelve would suffice; and

from these we must suppose a smaller number were chosen to attest the

validity of every sale by which cattle changed hands. Judging from

the example of Londonburh, the greatest of all the boroughs, we may

conclude that in these trading, fighting, debating communities much

of the most vigorous life of England was to be found in the tenth and

eleventh centuries.

We have to note in passing that the obligation to assist in the

maintenance and repair of these national defences was one of those

which pressed upon all free Englishmen. _Fyrd-fare_, _burh-bote_ and

_bridge-bote_, the duty of serving in the national army, the duty

of building or repairing fortresses, and the like duty in respect

of bridges, constituted the triple obligation, the often-mentioned

_trinoda necessitas_, from which no estate of thegn or of ceorl, with

whatever other immunities it might be favoured, was ever, except in

very rare cases, allowed to be exempt.

* * * * *

Returning to the consideration of King Edgar’s law about local

government we observe that it ordains that the _shire-gemôt_ shall

be held twice a year under the presidency of the bishop of the shire

and the ealdorman. The question of the origin of the existing forty

counties into which England is divided is an extremely interesting one,

but it can hardly yet be said to have received its final solution. We

can see at a glance that some of our counties such as Kent, Essex,

Middlesex, Sussex, Surrey, represent old kingdoms or sub-kingdoms of

the early “Heptarchic” period. Norfolk and Suffolk are but the two

divisions of East Anglia. Yorkshire and Northumberland may stand fairly

well for Deira and Bernicia, the generous endowment of St. Cuthbert’s

tomb being interposed between them in the shape of the county of

Durham. The formation of the three counties of Cumberland, Westmorland

and Lancashire out of Celtic Strathclyde and its adjoining territory is

a late and somewhat obscure piece of history; while on the other hand

the emergence of Cornwall, Devon, and perhaps we may add Somerset, out

of the former kingdom of West Wales, is pretty easily understood by

what the Chronicle tells us of the successive victories of West Saxon

kings. Wessex itself, as we see from the Chronicle, must have been at

an early period, at any rate in the course of the eighth century,

divided into its four often-mentioned shires, Hampshire, Berkshire,

Wiltshire and Dorset. When, however, all these older counties have

been dealt with, there yet remains before us an interesting question

as to the formation of the counties which are still known colloquially

as “the shires,” the score of counties which lie between the Thames

and the Humber, between Wales and East Anglia, and which evidently

represent pretty fairly the old kingdom of Mercia. These, as a rule,

cluster each one round some borough which has given its name to the

county. One half of these are called after strong places which, as

we are distinctly told, owed their foundation or their renewal to

Edward and Ethelfled; these ten being Cheshire, Shropshire,[223]

Staffordshire, Nottinghamshire, Leicestershire, Huntingdonshire,

Bedfordshire, Hertfordshire, Warwickshire and Herefordshire, and we

may reasonably conjecture that the remaining shires were carved out

nearly at the same time and on a similar plan. There is a great and

obvious distinction between all these midland shires named after one

central _burh_, and counties which recall the name of a tribe such as

the Sumorsaetan or the South Saxons. The reason for that distinction

is evidently that the Mercian shires were made as part of a definite

political organisation, after the repulse of the Danish invaders by

whom many of the old landmarks had been overthrown.[224] It is probable

that many territorial divisions which would have become counties, had

Mercia kept the peaceful tenor of her way through the ninth and tenth

centuries, districts such as those of the Pecsaetan in the county of

the Peak and the Gyrwas in the county of the Fens, may have disappeared

from the map of central England owing to the ravages of the Danes. That

map is in fact, as remarked by Maitland, a palimpsest, under whose

broad black county-names many erased characters lie hidden.[225]

We have seen that a law of King Edgar’s ordains that the ealdorman

shall sit by the side of the bishop at the meeting of the shire, and

shall expound worldly law while the bishop gives utterance to the

divine. In the early period of the West Saxon monarchy, when there

was an ealdorman to every shire, this enactment causes no difficulty;

but it is clear that during the course of the ninth century there was

a constant tendency to lessen the number of ealdormen and increase

the size of their dominions, and we can then no longer say that every

shire had its own ealdorman. Some men like Ethelred, brother-in-law of

Edward the Elder, ealdorman of Mercia; like Athelstan the half-king

of East Anglia; and like all the later Northumbrian earls, ruled over

territories as large as the old Anglo-Saxon kingdoms. In the reign

of Canute we have seen that three earls--as the ealdormen were now

called--ruled over three-fourths of England. If the law of Edgar still

continued in force, we must imagine these great officials travelling

from shire to shire, and holding the _gemôt_ in each. It is a probable

suggestion, however, that when the power of the ealdorman was thus

widely extended, new officers, the shire-reeves, from whom our modern

sheriffs derive their title, were called into being, in order to

administer the counties under the ealdorman. This suggestion can

hardly, however, be yet spoken of as more than a conjecture.[226]

The ealdorman, as was just now remarked, changed his title in the

eleventh century for that of earl. There can be no doubt that this

change was due to Danish influence and was an imitation of the word

_jarl_, by which the chiefs of the Danish host were often designated.

Eorl was, however, also a word known to the Anglo-Saxons, and by

its use in the laws of Ine and elsewhere it seems to have been very

nearly equivalent to thegn. In the laws of Ethelred of Kent, of

Alfred and of Athelstan, it is frequently used as the antithesis to

ceorl, “no man whether eorl or ceorl” being used in the same way that

“gentle or simple” was used in the middle ages. Between this generic

use of the word, however, and the title of powerful rulers like

Leofric and Godwine there was a wide and important difference; and

to avoid confusion it seems better to use the word earl only in its

later signification, in which it replaces the term ealdorman and is

equivalent to the Danish _jarl_ and the Latin _comes_. One important

point to notice is that never before the Norman Conquest does the title

of earl become absolutely hereditary, though there are certain great

families which seem to have had practically an overwhelming claim to

share the earldoms among them. No earl, however, even in the latest

days of the Anglo-Saxon kingdom, seems to have had a recognised right

of transmitting his earldom to his son.[227]

We have several incidental evidences of the social changes wrought by

the two unquiet centuries between Egbert and Canute. The tendency of

all those marches and counter-marches, those harryings and hardly held

“places of slaughter,” to depress the peaceful cultivator and raise the

mere fighting man, is shown by a curious document called “The Northern

People’s Laws” (North-leoda laga) and supposed to date from the tenth

century. In this document we have the most complete table of wergilds

that is anywhere to be found in Anglo-Saxon law.[228] In the following

table they are, for convenience of comparison, converted into West

Saxon shillings of five penings each:--

The Wergild for the king is 18,000 shillings.

Archbishop and Etheling 9,000 „

Bishop and ealdorman 4,800 „

_Hold_ and king’s high-reeve 2,400 „

Mass-thegn (priest) and secular thegn 1,200 „

Ceorl 160 „

Here we see that the ceorl, the free agriculturist, has sunk in the

social scale. He was a two hundred, he is now only a hundred and

sixty man. The wergilds in the upper ranks of society are, perhaps,

unaltered, but, as before remarked, we have very imperfect information

about these till we come to this very document. The important thing

to observe is the position of the _hold_. This is a Danish word and

signifies properly a fighting man. Here, however, this simple Danish

warrior, possibly without any large landed possessions, has only by his

sword carved his way up into a position in which he boasts a wergild

fifteen times as great as that of the honest Saxon ceorl. He is half

as big a man as a bishop or ealdorman, and twice as big as an ordinary

thegn.[229]

* * * * *

Another interesting document which dates probably from the reign

of Canute is that which is called the _Rectitudines singularum

personarum_,[230] and is a compendium of the whole duty of man, or at

least of the services which he is bound to render to those above him

in the social order. The thegn has his obligations--in the language of

a much later age, “property has its duties as well as its rights”--he

must be “worthy of his book-right,” that is, observe the conditions

of his charter and do three things on account of his land, serving

with the _fyrd_, _burh_-building and bridge-work. Also on many estates

other obligations accrue at the king’s behest: such as making the

fence for the game on the king’s demesne; the equipment of a war-ship;

keeping watch on the coast, at the royal headquarters or in the _fyrd_;

alms-giving; Church-scot, and many other payments of various kinds.

The _Geneat_ seems to have belonged to a class dependent on a lord,

but in a certain sense superior. He had “to pay rent (_land-gafol_) in

money or in kind, to ride and guide, lead loads, reap and mow, cut the

deer-hedge and keep it in repair, build and fence round the fortress,

make new roads to the _tun_, keep ward and go errands far and near just

as one may order him about”. It is evidently supposed, however, that he

has a horse, probably several horses of his own, although he has to be

thus submissive to the bidding of a lord. We may, perhaps, see in these

_geneats_ the descendants of ceorls who, under the pressure of the

times, have lost their absolutely independent position and have been

fain to “commend” themselves to the protection of some great thegn or

religious house.[231]

The cottager (_cotsetla_) is personally free and does not pay rent,

but he has to render a certain amount of service to his lord in return

for his holding, the normal size of which is five acres. The amount of

service varies according to the custom of different estates; but a very

usual arrangement is that he shall work every Monday throughout the

year for his lord and three days every week in harvest time.

“The _Gebur’s_ duties,” says the document, “are various; in some places

they are heavy, in others they are quite moderate.” He seems, however,

to have somewhat less of personal freedom than the men belonging to

either of the two previous classes. His minimum of work is for two days

in the week; he has to put in three days, not only in harvest time,

but from the beginning of February to Easter; and all the time from

Martinmas (Nov. 11) till Easter he may be called upon, in rotation with

his fellows, to lie out at night beside his lord’s fold keeping watch

over the sheep. On some lands the _gebur_ pays _gafol_ of honey, on

some of meat and on some of ale. The lord provides him with implements

for his work and utensils for his house, but then, _per contra_, when

his time has come to take the journey (of death) his lord takes all

that he leaves behind. Evidently the _gebur_ is, if not yet actually a

serf, in a condition much nearer serfdom than either the _geneat_ or

the _cotsetla_.

After this follow descriptions of the duties of the bee-keeper, the

pork-butcher, the swine-herd, the sower, the shepherd, the wood-ward

and many other agricultural labourers; the whole forming a most

interesting picture of a large and well-managed English estate in the

eleventh century.

* * * * *

In studying the laws of Alfred’s successors throughout the tenth

century, we are struck by the evident desire of the royal legislators

to draw tighter the reins of government and to combat the tendencies

towards disintegration and anarchy which they found in the body

politic. Under Edward the Elder the great pact between Alfred and

Guthrum was the corner-stone of the social fabric and to deal out equal

justice between Englishman and Dane was the chief aim of a righteous

ruler, but, unfortunately, the king found that he had much cause to

complain of timid, corrupt and inefficient servants. The offence of

_oferhyrnesse_, contempt of the royal word and commandment, is one

which is now first mentioned, and of which we often hear afterwards

from Edward and his descendants. Of this offence, punishable by a fine

of 120 shillings, any _gerefa_ (“reeve” or magistrate) was guilty who

failed to administer justice according to the testimony of the sworn

witnesses, or to hold his _gemot_ once in every four weeks for the

administration of justice. _Oferhyrnesse_ was also the offence of any

person who presumed “to cheapen except in a port,” that is, to conduct

any process of bargain and sale except within the limits of a market

town and in the presence of a _port reeve_, to whose testimony he could

afterwards appeal to prove that he was not dealing in stolen goods.

Strong and vigorous ruler as _Athelstan_ was, he needed to put forth

all his powers in order to repress the growing tendency to anarchy and

injustice. “If any of my _gerefan_,” says he, “disobey this edict or be

more slack concerning this matter than I have ordained, he shall pay

the penalty of his _oferhyrnesse_, and I will find some one else who

will attend to what I say.... I have learned that our peace is worse

held than I like, and my _witan_ say that I have borne it too long. I

have therefore ordered that all such peace-breakers shall get out of my

kingdom with wives and children, and all that they have, and shall go

whither I direct. If they return to this realm they shall be treated

like thieves caught in the act.” King Athelstan’s influence, however,

was not always exerted on the side of increased severity. The citizens

of London record that he conveyed to the archbishop his opinion, that

it was a lamentable thing that so young a man as one between the ages

of twelve and fifteen should be put to death for any offence, or any

man for stealing a chattel of less value than twelve pennies, and that

he altered the law accordingly, raising the limit of age and of value

in both cases.

In order to make the punishment of crime, especially of the one most

common crime, cattle-stealing, more certain, it was ordered by Edward

the Elder[232] that every man should have his _geteama_, a person

doubtless of known character and position, who would act as his

advocate or guarantor in any transactions of purchase and sale. It

was probably a development of the same idea when Edgar ordained as

follows: “This then is what I will, that every man shall be under a

_borh_ whether he be within boroughs or without them and that witnesses

be appointed in every borough and in every hundred”.[233] The law was

repeated and strengthened by Canute who thus announced his decision:

“And we will that every free man if he be over the age of twelve years

shall be included in a hundred and a tithing, that he may have right

to clear himself from accusation and right to receive _wer_ if any one

assail him. Otherwise he shall have none of the rights of a free man

be he householder (_heorth-faeste_) or follower. Let every one then be

brought into the hundred and have a _borh_, and let the _borh_ hold

him and bring him at all times to judgment. Many a powerful man wishes

by hook or crook to protect his man and thinks that he can easily

do it, whether he be free or _theow_. But we will not tolerate this

injustice.”[234]

Of this institution of the _tithing_, whereby the poorer class of

free men were grouped together in clusters of ten, we heard among the

citizens of London in the reign of Athelstan. That grouping was for

purposes of mutual protection; this seems rather to be in order to

enforce mutual responsibility. It is not to be wondered that organisms,

so low down in the social system, have not made much mark in the

Anglo-Saxon law-book; but it seems to be generally agreed that from

them was derived that institution of frank-pledge which, under the

Norman kings, was so efficient a machine for the repression of disorder.

* * * * *

In the laws of the later Anglo-Saxon kings we seem to hear less about

oath-helping and much more about ordeals than we heard in the laws of

their predecessors. Does this change betoken the growth of superstition

or a decay of honesty and public spirit and a diminished confidence

in the veracity of the oath-helpers? The chief modes of ordeal among

the Anglo-Saxons were three, and an accused person seems to have had

his right of choosing between them. In all there was a direct appeal

to the Almighty to show by the ordeal the innocence or guilt of the

accused; and the Church by solemn services, prayers and fastings gave

her sanction to the appeal. (1) If the ordeal was by cold water, the

accused person was hurled into a vessel of water, after a prayer had

been uttered that “the creature, water” might reject this person if

he were guilty or receive him if innocent, according to the course of

nature, into her bosom. In this ordeal to float was fatal, to sink was

salvation. (2) In the ordeal of fire the accused must carry a mass of

red-hot iron weighing one pound a distance of nine feet, or must plunge

his hand up to the wrist into a vessel of boiling water to pick out

of it a stone. After either of these trials the hand was bandaged and

sealed up. If, after the lapse of three days, when the bandages were

removed, there was raw flesh visible, the man was guilty, if the hand

showed clean skin he was innocent. If the crime laid to his charge were

that of conspiring against the king’s life, then the ordeal must be

of threefold severity; the mass of hot iron must weigh three pounds,

or the arm of the accused must be plunged in up to the elbow. (3) The

ordeal of the test-morsel (_corsnaed_) was chiefly practised upon

ecclesiastics and consisted in the obligation to swallow a piece of

bread or cheese upon which a solemn anathema had been pronounced for

any but an innocent partaker. As Ethelred said in one of his laws:[235]

“If an accusation is laid against a servant of the altar who has no

friends and who cannot call upon any oath-helper, let him go to the

_corsnaed_ and there fare as God shall will”.

* * * * *

The judicial processes even in the ordinary courts of the realm

certainly seem to us sufficiently blundering and barbarous; but at the

end of the period which we are now considering, other courts of private

jurisdiction were coming into being, and whether they administered

better or worse justice who shall say? In the reign of Canute we first

find a clear case of a grant of _sake_ and _soke_ to the Archbishop

of Canterbury, a kind of grant which was given with lavish hand by

the king whose reign lies next before us, Edward the Confessor.[236]

Without entering upon the question whether the Danish king was really

the first to bestow this special privilege upon his courtiers, lay or

ecclesiastical, we may safely assert that, at any rate in the eleventh

century, our kings were freely attaching judicial functions to the

ownership of lands. For this is, undoubtedly, what is meant by these

words _sake_ and _soke_, or _sac_ and _soc_. The first probably means

a “matter” or “cause”;[237] the second, “a seeking out” or “inquiry”.

The meaning in any case is clear. The abbot or wealthy thegn who “had

sake and soke” had, merely in right of the king’s grant, and generally

as appurtenant to the land which the king had given him, the right to

try causes of dispute arising in his district. Apparently that right

included both what we should call civil and criminal causes; and,

of course, the right must have carried with it power to enforce his

decisions, and also--no unimportant matter--the right to receive the

fines and other profits arising from the administration of justice.

What may have been the limits of this jurisdiction--for there must

surely have been some causes too grave for any mere holder of _sake_

and _soke_ to meddle with--and how it may have impinged upon the

sphere in which _shire-mot_ and _burh-mot_ exercised their powers, are

questions the answer to which is not yet before us. It is evident,

however, that we have here judicial tribunals which might very easily

grow into the manorial courts which flourished under the Norman

and Plantagenet kings and the survivals of which exist among us to

this day. And altogether the whole effect produced on our minds by

a comparison of the laws of these later kings with the laws of the

heptarchic kings is, that during the three centuries which elapsed from

Ine to Canute the distinction between classes had been growing broader,

that the eorl was mightier and the ceorl much weaker than in that

older stratum of society; that, though certainly feudalism was not yet

materialised in England, the spirit which prompted it was in the air;

and that, possibly, even without any Norman Conquest, something like

the Feudal System might have come, by spontaneous generation, in our

land.

The history of England, from the earliest times to the Norman Conquest · 第 24 / 27 章