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.