THE MUTUAL GUARANTEE. MÆGBURH. TITHING.
HUNDRED.
The organization in Marks and in the Gá or Scír was a territorial one,
based upon the natural conformation of the country, common possession of
the soil and usufruct of its produce. It has been already said that both
of these divisions had their separate courts of justice or parliaments,
their judges and executive officers. But some further machinery was
required to secure the public peace, to provide for the exercise of
what, in modern society, we call the police, and to ensure the rights of
the individual markman, in respect to other markmen, as well as his
conformity to the general law. A corporate existence was necessary,
which should embrace a more detailed system of relations than was to be
found either in the Mark or in the Shiremoot. Strictly speaking, the
former of these was principally busied with the questions which arose
out of its own peculiar nature, that is, with offences against the
integrity of the frontier, the forest, the rights of common in the
pastures and meadows, and other delinquencies of a public character. On
the other hand, the Shiremoot, though it must have taken cognizance of
disputed questions between several Marks, and may, even from the first,
have exercised some description of appellate jurisdiction, must
naturally have considered the higher and more general attributes of
legislation and foreign policy, the national rather than municipal
administration, as belonging to its peculiar and appropriate province.
Perhaps also the exigencies of military discipline may gradually have
rendered a more complicated method of enrolment necessary, by means of
which companies and regiments might be kept upon a permanent footing,
and called into immediate action when occasion demanded their services;
while, at the same time, due provision was made for the tilling the
lands of those whose personal exertions were required in defence of the
public weal[433].
-----
Footnote 433:
For the Frankish custom see the Capitulary of the year 807. Pertz,
iii. 149, and Dönniges, Deut. Staatsr. pp. 92, 93.
-----
There were two forms in which these various objects might be attained;
these were, subordinate organizations of men, not excessive in number,
or too widely dispersed, and founded either upon the bond of blood or
the ties of family, including that of adoption, or merely upon an
arbitrary numerical definition. Each of these plans had advantages as
well as defects: the family bond alone did not secure a sufficient
territorial unity, although in practice it had at first considerable
influence upon the location of individual households; moreover it gave
rise to an inequality continually on the increase, and necessarily
threatening to the independence of the free men. On the other hand, any
merely arbitrary, numerical classification would have excluded a most
important social element, the responsibility of man to man in the bond
of kindred, the feelings and engagements of family affection, family
honour and family ambition. The problem was finally solved by a partial
union of the two methods: in all probability, the law of compromise
which reigns throughout all history, gradually brought about a fusion of
two separate principles, widely differing in point of antiquity, and
thus superinduced the artificial upon the natural bond, without entirely
destroying the influence of the latter.
For I think it unquestionable that the artificial bond was really later
in point of time: since, in the first place, indefinite and vague
arrangements usually precede the definite and settled; and next, because
Tacitus takes no notice whatever of any but the family bond, which he
represents as stringent in the highest degree. We have already seen that
Caesar declares the divisions of the land to have taken place according
to families or relationships, _cognationes_[434], from which we may
infer at first a considerable amount of territorial unity. From his far
more observant successor we learn that the military organization was
based upon the same principle; that the composition of the troop or
regiment depended upon no accidental arrangement, but was founded upon
families or relationships[435]; and that every man was bound to take up
the enmities as well as the friendships of his father or kinsman[436].
But leaving these earlier evidences, it still seems that the Mǽgburh or
_Family-bond_ is an institution whose full comprehension is necessary to
a clear conception of the Anglosaxon public and private life.
-----
Footnote 434:
See above, p. 39, note 1.
Footnote 435:
“Quodque praecipuum fortitudinis incitamentum est, non casus nec
fortuita conglobatio turmam aut cuneum facit, sed familiae et
propinquitates.” Germ. vii.
Footnote 436:
“Suscipere tam inimicitias seu patris seu propinqui quam amicitias
necesse est.” Germ. xxi.
-----
The idea of the family is at once the earliest and strongest of human
ties; in its development it is also the most ennobling to the individual
and salutary to the state; on it depend the honour and dignity of woman,
the unselfish education of man, the training of children to obedience
and love, of parents to protection and justice, of all to love of
country and enlightened subordination to the state. Where it does not
exist, man becomes an instrument in the hands of others, or the blind
tool of systems. In its highest form it is the representative of that
great mystery by which all Christians are one brotherhood, united under
one Father and King. Throughout the latter day of ethnic civilization,
when the idea of _state_ had almost ceased to have power, and the idea
of _family_ did not exist, there was a complete destruction both of
public and private morality; and the world, grown to be a sink of filth
and vice, was tottering to the fall which Providence in mercy had
decreed for its purification. The irruption of the German tribes
breathed into the dead bones of heathen cultivation the breath of a new
life; and the individual dignity of man as a member of a family,—the
deep-seated feeling of all those nations,—while it prepared them to
become the founders of Christian states which should endure, made them
the wonder of the philosophers and theologians of Rome, Greece and
Africa, and an example to be held up to the degenerate races whom they
had subdued[437]. The German house was a holy thing; the bond of
marriage a sacred and symbolic engagement[438]; holy above man was woman
herself. Even in the depths of their forests the stern warriors had
assigned to her a station which nothing but that deep feeling could have
rendered possible: this was the sacred sex, believed to be in nearer
communion with divinity than men[439]. In the superstitious tradition of
their mythology, it was the young and beautiful Shieldmays, the maiden
Wælcyrian, who selected the champions that had deserved to become the
guests of Wóden. The matrons presided over the rites of religion,
conducted divinations[440], and encouraged the warriors on the field of
battle[441]; Veledas and Aurinias, prophetesses in the bloom of youth
and beauty, led the raw levies of the North to triumph over the veteran
legions of Rome. Neither rank nor wealth could atone for violated
chastity[442]; nor were in general any injuries more severely punished
than those which the main strength of man enabled him to inflict on
woman[443]. That woman, nevertheless, _in the family_, held a
subordinate situation to men, lies in the nature of the family itself,
and in the disposition and qualities which have been implanted in woman,
to enable her to fulfil her appointed duties in the scheme of
Providence; qualities not different in _degree_, but _kind_, from those
of her helpmate, that they may be the complement of his, and, united
with his, make up the full and perfect circle of humanity. As an
individual, woman was considered a being of a higher nature; as a member
of the state, she was necessarily represented by him upon whom nature
had imposed the joyful burthen of her support, and the happy duty of her
protection,—a principle too little considered by those who, with a
scarcely pardonable sciolism, have clamoured for what they call the
rights of woman. Woman among the Teutons was near akin to divinity, but
not one among them ever raved that the _femme libre_ could be _woman_.
-----
Footnote 437:
What had struck Tacitus with astonishment and admiration in the first
century (Germ. xviii. xix.), seemed equally remarkable to the thinkers
of the Roman world in the fourth and fifth. Innumerable passages
confirmatory of the averments in the text might be cited from
Augustine, Orosius, Salvianus, or even Procopius,—testimonies all the
more valuable because supplied by hostile witnesses, by the conquered
of the conqueror, the orthodox of the Arian.
Footnote 438:
Tac. Germ. xix.
Footnote 439:
Ibid. viii.
Footnote 440:
Caes. Bell. Gall. i. 50.
Footnote 441:
Tac. Germ. vii. viii. After the defeat of the Cimbri by Marius, their
women applied to the Consul, to have their chastity respected, and
themselves assigned as serfs to the vestal virgins. On receiving a
refusal they put their children and then themselves to death. The dogs
that had accompanied them, long defended their corpses. See Florus,
iii. 3, and Orosius, v. 16.
Footnote 442:
Tac. Germ. xix.
Footnote 443:
For this a general reference to the _Barbarian_ laws must suffice.
Alaríc even went the length of putting to death a noble Goth, who,
during the sack of the city, had violated the daughter of a Roman
citizen.
-----
Hence the profound importance attached to chastity, and the undoubted
influence of alliances by marriage[444], through which separate kindreds
are fused into one body, adopting common interests, pursuing common
objects, and recognizing in the bond which unites its members,
obligations which are still exhibited in oriental countries, which we
trace throughout the middle ages of Europe, but which are gradually
vanishing under the conditions of our modern mercantile society.
-----
Footnote 444:
A beautiful evidence of this lies in the epic name for woman; in
Anglosaxon poetry she is called freoðowebbe, _the weaver of peace_.
Beów. l. 3880. Trav. S. l. 11.
-----
It lies in the very nature of things that among a people animated with
such principles as have now been described, and so placed by
circumstances on tracts of land far more than sufficient for their
support, the very earliest organization should be based upon the family
relations. Dwelling near to one another, united by a community of
interests and the endearing ties of mutual relationship, or the scarcely
weaker bond of adoption,—strong as regards other families in direct
proportion to their union among themselves,—the mǽgð or family offer all
the guarantees in their own natural position which the primitive state
can require. In the popular councils the largest and most distinguished
family has necessarily the greatest weight; but association of others,
severally less powerful, is always capable of counteracting danger which
might arise in a free state from the ambition of any of its portions. In
the absence of a central power,—or rather its dispersion through all the
several members of the community, the collection of revenue and the
maintenance of the peace must be left to the heads of the several
fractions, whether villages (as in the East), or families, which at one
time are identical with villages. The police therefore especially
belongs to the family, and is by it exercised over all the individuals
that compose it; hence also the grave misconduct of the individual may
justly have the effect of destroying the social position of the whole
mǽgð. In Beówulf, the warriors who deserted their prince in his utmost
need, are sternly told by his successor, that not only they, but their
whole mǽgburh will thenceforth have forfeited the rights of citizenship,
folcrihtes sceal
ðǽre mǽrge
monna ǽghwylc
ídel hweorfan,
not, _each of you individually_, but _each and every man_ of your kin,
cognation or mǽgsceaft, shall be deprived of his rights of citizenship:
from which we must infer that the misconduct of one person might
compromise his relatives, who are held responsible for his actions[445].
And this rule, coupled with the fact of all serving together, under one
selected from among themselves, and each under the eye of his nearest
and dearest friends, supplied a military organization capable of
enabling the _barbarians_ to cope with far more disciplined and
scientific military systems than their own; serving to explain the
almost irresistible power with which, like the Turks of more recent
times, the Teutons of old burst upon the nations exposed to their
onset[446]. The wergyld, or price of blood, the earliest institution of
this race, only becomes perfectly intelligible when considered from this
point of view: the _gens_ or family at large are injured by the loss of
their associate, and to them compensation must be made; so they, in
turn, must make compensation for him, since rights and duties are
commensurate. This principle, however darkly, is still involved in the
theory of our civil actions for seduction.
-----
Footnote 445:
See the remarkable passage cited at p. 188, note 1.
Footnote 446:
Weight and momentum combined are the secret of modern tactics, and
_morally speaking_ (i. e. the appearance in superior force on certain
points), of modern strategics also. Cavalry charging in successive
echelons would always break infantry but for the check which man and
horse experience in their speed from the file-firing of the squares:
the mere weight of the horse _falling dead into the first rank_ would
break it if he reached it. If the weight of the advancing body be
greater than that of the resisting, the latter is destroyed. A
successful charge of cavalry won the battle of Marengo, an
unsuccessful one lost that of Waterloo. Modern warfare was more
changed by the substitution of iron for wooden ramrods, by which the
momentum of musket-balls was increased, than by almost any other mere
change of detail. Steam-carriages and scythe-chariots, the Macedonian
phalanx—nay, even squadrons of horse, are only _larger bullets_, which
may be launched with more or less success: all these are mechanical
discoveries consequent upon the fact that the individuals of which
armies are composed are lower in the scale of moral dignity than of
old. Once group men in masses, and they become subject, more or less,
according as discipline has destroyed their individuality, to the
mechanical laws which govern the relations of all masses. No doubt a
stone wall will turn any charge of cavalry; and so will a regiment of
infantry, in exact proportion as you teach it to stand like a stone
wall, that is, as you destroy the individual action of each soldier.
The Romans stood above two feet apart; our men touch each other at the
elbows. Our armies are fitter perhaps for aggressive movements. The
Germans probably charged tumultuously; but the scyldburh, or _wall of
shields_, was hardly less capable of receiving a charge than our own
squares.
-----
It lies in the very nature of things that this, albeit a natural, cannot
be an enduring system. Its principal condition is neighbourhood, the
concentration of the family upon one spot: as population increases, and
with it emigration, the family bond gradually becomes weaker, and at
last perishes as a positive and substantive institution, surviving only
fragmentarily in the traces which it leaves upon the latter order that
replaces it. War, commerce, cultivation,—the effect and cause of
increasing population,—gradually disperse the members of the _sibsceaft_
or cognation, and a time arrives when neighbours are no longer kinsmen.
At this point the old organization ceases to be effective, and a new one
becomes necessary, unless the ancient principle is to be entirely
abandoned. But principles are not easily abandoned in early stages of
society; a young nation finds it easier to adopt artificial arrangements
founded upon the ancient form: nor is it necessary that the later should
have totally superseded its predecessor; it is enough that when the
earlier ceases to fulfil its object, the latter should be directed to
supply its obvious deficiency, and be united with it, as circumstances
best permit.
Throughout the earliest legislation of the Teutonic nations, and
especially in our own, we find arrangements, based upon two distinct
principles, in active operation. The responsibility of the family lies
ever in the background, the ultimate resort of the state against the
individual, of the individual against the state. But we also find small
bodies of men existing as corporations, founded upon number and
neighbourhood, and thus making up the public units in the state itself.
From the first, we find the inhabitants of the Mark classed in tens and
hundreds (technically in England, Tithings and Hundreds) each probably
comprising respectively a corresponding number of members, together with
the necessary officers, viz. a tithing-man for each tithing, and a
hundred-man for the hundred, thus making one hundred and eleven men, or
Heads of houses in the territorial hundred[447]. The Frankish law names
the officers thus alluded to: in it the tithing-man is _Decanus_, the
hundred-man _Centenarius_[448]. The Anglosaxon law does not indeed
mention its divisions by these names till a comparatively late period,
when their significations had become in some respects altered; but it
seems probable that it does imply them under the term Gegyldan,
_fellows, brothers of the gyld_. In a case of aggravated crime it is
provided that the offender’s relatives shall pay a third part of the
fine, his gegyldan a third part, and if he cannot pay the remainder
himself, he is to become an outlaw, _i. e._ forfeit his land and flee,
perhaps formally abjure the country[449]. Now it is perfectly clear that
a law expressed in such general terms as these, cannot be directed to a
particular and exceptional condition; that it does not apply to the
accidental existence of gegyldan, but on the contrary assumes every man
to have such: we cannot therefore construe it of voluntary associations
formed for religious, social or funereal objects[450], and for the
purposes of this law we must look upon gegylda as a general name borne
by every individual in respect of some gyld or association of which he
was taken to be a member. The only meanings which the root _gyld_
enables us to attach to the word gegylda are these; either, _one who
shares with others in paying_; or, _one who shares with others in
worshipping_. If we adopt the former rendering, we must suppose that
certain contributions were made by a number of persons to a common
purse, partly for festive purposes, partly as a mutual guarantee and
club-fund for legal costs, for the expenses of reciprocal aid and
defence, perhaps even for mortuary celebrations and charitable
distributions. Another, though perhaps a less probable, suggestion is
that such gegyldan may have been jointly responsible for taxes, or the
outfit of armed men who attended in the _fyrd_ or military expedition,
on behalf of them all. But this we cannot further illustrate, in the
absence of all record of the financial system of the early Teutonic
monarchs, even those of Charlemagne himself, which would have been
invaluable guides to us through the intricacies of that dark subject of
enquiry. The second meaning given to gegylda would rest upon the
assumption of some private and as it were hero-worship, common to the
gyld-brothers,—a fact familiar enough to us in the Athenian φυλαι and
Roman _gentes_; but the existence of any such foundation for the gyld
among the Anglosaxons is extremely improbable, when we consider the
small numbers that appear to have constituted the association, and that
no trace of any such worship remains in our heathen mythology[451]. I
therefore prefer the first rendering of the word, and look upon gegyldan
as representing those who mutually pay for one another; that is, under a
system of pecuniary mulcts, those who are mutually responsible before
the law,—the associates in the tithing and the hundred.
-----
Footnote 447:
There is some difficulty in deciding whether the head of the tithing
was included in the ten, or beside it. I have proceeded upon the
supposition that he was not included, consequently that there were
really eleven men in the tithing. The leading authority (Jud. Civ.
Lond. Æðelst. v. § 3. Thorpe, i. 230) is totally and irreconcilably
contradictory on the point.
Footnote 448:
The Decani appear to be the same as the _Decimales homines_ of
Æðelred’s law. Thorpe, i. 338.
Footnote 449:
Leg. Ælf. § 27.
Footnote 450:
Such voluntary associations were not unusual. Several deeds of
agreement of such clubs are given in an Appendix to this Chapter.
There seems to have been similar clubs among the Hungarians: they were
called “Kalender-Bruderschaften,” from usually meeting on the first
day of every month. Fessler, Gesch. der Ungern, i. 725.
Footnote 451:
The later guilds of trades, dedicated to particular Saints, are quite
a different thing; in form these bear a most striking resemblance to
the φυλαί.
-----
It is well known that in the later Anglosaxon law, and even to this day,
the tithing and hundred appear as local and territorial, not as
numerical divisions: we hear of tithings where there are more, and
tithings where there are fewer people; we are told of the _spoor_ of
cattle being followed into one hundred, or out of another[452]. I do not
deny that in process of time these divisions had become territorial; but
this does not of necessity invalidate the doctrine that originally the
numbers were calculated according to the heads of families, or that the
extent of territory, and not the taxable, military or corporate units,
formed at first the varying quantity. Had it been otherwise we should
naturally have found a much greater equality in the size of the
territorial hundreds throughout at least each Saxon kingdom; nor in all
probability would the numbers of the hundreds in respective counties
differ so widely,—a difference intelligible only if we assume
population, and not space, to have been the basis of the original
calculation. Moreover to a very late period, in one part of England the
abstract word Teoðung was replaced by the more concrete Tenmantale
(tyn-manna-tǽl)[453], to which it is impossible to give any meaning but
the simple one the words express, viz. the tale or count of ten _men_.
Again, as late as the tenth century, in a part of England where men, and
not acres, became necessarily the subjects of calculation, viz. in the
city of London[454], we find the citizens distributing themselves into
Friðgylds or associations for the maintenance of the peace, each
consisting of ten men; while ten such gylds were gathered into a
Hundred. The remarkable document known as “Judicia Civitatis
Londinensis” gives the following detailed account of the whole
proceeding:
-----
Footnote 452:
Leg. Eádg. Hund. § 5. Thorpe, i. 260.
Footnote 453:
Leg. Ed. Conf. xx.
Footnote 454:
I do not for a moment imagine that this was an entirely new
organization. The document which contains the record seems to be the
text of a solemn undertaking, almost a treaty of alliance, between the
City and king Æðelstan, for the better maintenance of the public
peace. It is perhaps worth attention that the Tyn-manna-tǽl was a
denomination peculiar to another large city—York: but the same
authority from which we learn this fact, identifies the institution
with that in common use throughout the land. Leg. Ed. Conf. xx.
-----
“This is the ordinance which the bishops and the reeves belonging to
London have ordained, and confirmed with pledges, among our friðgylds,
as well eorlish as ceorlish, in addition to the dooms which were fixed
at Greatley, at Exeter, and at Thundersfield.
“Resolved: That we count every ten men together, and the chief one to
direct the nine in each of those duties which we have all ordained, and
afterwards the hyndens of them together, and one hynden-man who shall
admonish the ten for our common benefit; and let these eleven hold the
money of the hynden, and decide what they shall disburse, when aught is
to pay, and what they shall receive, should money accrue to us at our
common suit[455]....
“That we gather to us once in every month, if we can and have leisure,
the hynden-men and those who direct the tithings, as well with
butt-filling, or as else may please us, and know what of our agreement
has been executed. And let these twelve men[456] have their refection
together, and feed themselves as they themselves think right, and deal
the remains of the meat for love of God[457].”
-----
Footnote 455:
Æðelst. v. 3, § 1. Thorpe, i. 230.
Footnote 456:
The MS. reads xii, twelve, but it seems almost certain that we ought
to understand eleven, that is one man for each tithing and one for the
hundred or hynden.
Footnote 457:
Æðelst. v. 8. § 1. Thorpe, i. 236.
-----
Now as this valuable record mentions also territorial tithings,
containing different amounts of population[458], it seems to me to
furnish important confirmation of the conclusion that the gegyldan of
Ini and Ælfred, the members of the London tithings or friðgylds of ten,
and the York _tenmantale_, are in truth identical. And it is further in
favour of this view that the citizens called the members of such
gildships, gegyldan[459]:—
“And we have also ordained, respecting every man who has given his
pledge in our gyldships, that, should he die, each gyld-brother
(gegylda) shall give a gesufel-loaf for his soul, and sing a fifty
(psalms), or cause the same to be sung within xxx days.”
-----
Footnote 458:
“Swá of ánre teoðung ðǽr máre folc sig.” Thorpe, i. 232.
Footnote 459:
“And we cwǽdon eác be ǽlcum ðára manna ðe on úrum gegyldscipum his wed
geseald hæfð, gif him forðsíð gebyrige, ðæt ǽlc gegylda gesylle ǽnne
gesufelne hláf for ðǽre sáwle, and gesinge án fíftig, oððe begite
gesungen binnan xxx nihtan.” Æðelst. v. 8. § 6. Thorpe, i. 236.
Upon a review of the preceding passages it may be inferred that the
hynden consisted of ten tithings, and consequently answered to what we
more commonly call a hundred: it may perhaps be suggested that, if any
distinction existed between these two terms, the hynden represented the
numerical, the hundred the territorial division. But their original
identity may be argued from an important passage in the law of Ini. He
ordains[460]: “He that is charged with mortal feud, and is willing to
deny the slaying on oath; then shall there be in the hynden one king’s
oath of thirty hides, as well for a noble as a churl, be it whichever it
be.“
-----
Footnote 460:
“Seðe bið werfǽhðe betogen, and he onsacan wille ðæs sleges mid áðe,
ðonne sceal beón on ðǽre hyndenne án cyningáð be xxx hída, swá be
gesíðcund men swá be ceorliscum, swá hwæðer swá hit sý.” Ini. § 54.
Thorpe, i. 136. Upon this passage the late Mr. Price had the following
note, which is interesting, though I cannot agree with his conclusion:
“It has been already observed that the hynden consisted of ten
persons, and, like hynde in the words twýhynde, sixhynde, twelfhynde,
appears to have been formed from hund, of which the original meaning
was _ten_. The hynden therefore will correspond to the _turba_ of the
Civil Law (‘quia Turba decem dicuntur.’ Leg. Præt. 4. § Turbam), the
_Tourbe_ of the French Coutumes: 'Coutume si doit verefier par deux
tourbes et chacun d’icelles par dix temoins.' Loisel. liv. v. tit. 5.
c. 13.” But the correspondence noted will entirely depend upon the
fact of the hynden really being a collection of ten men, which I do
not admit. There is no dispute as to the meaning of _Turba_ or
_Tourbe_: but if, as it is not impossible, _turba_ should be really
identical with þorp, _vicus_, it might deserve consideration whether
the original village was not supposed to consist of ten families and
so to form the tithing or gyldscipe.
-----
Now hynden can only mean one of two things, viz. a collection of ten or
a collection of a hundred, according as we render the word _hund_.
Admitting that at some very early period hund did mean ten, we yet never
find it with any such signification in any book or MS., or indeed at all
except in the numerals hundseofontig, hundeatatig, hundnigontig,
hundtwelftig, where its force is anything but clear, when we compare
those words with fíftig, sixtig, twentig, etc. On the other hand the
adjective hynde does clearly denote something which has the quality of a
hundred; thus a twyhynde or twelfhynde man is he whose life is worth
respectively two or twelve _hundred_ shillings. Again it is clear that
the Judicia Civitatis Londinensis intends by hynden a collection of a
hundred, and not of ten, men, inasmuch as it distinguishes this from the
tithings. And further, it must be admitted, upon the internal evidence
of the law itself, that a hundred and not a tithing is referred to,
since so small a court as that of the ten men could not possibly have
had cognizance of such a plea as manslaughter, or been competent to
demand a king’s oath of thirty hides. But as such a plea might well be
brought before the hundred-court, it is probable that such was meant.
Lastly it was the custom for the hundred-court to be holden monthly, and
we observe the same provision with the London hynden; at which it is
very probable that legal matters were transacted, as well as accounts
investigated; for it is expressly declared that their meeting is to
ascertain how the undertakings in the record have been executed; that
is, how the peace has been kept. I therefore conclude that the Hynden
and the Hundred are in fact and were at first identical; with the
hypothetical reservation, that at a later period the one word
represented a numerical, the other a territorial division, when these
two had ceased to coincide: in corroboration of which view it may be
observed that the word Hynden does not occur in the laws later than the
time of Æðelstán, nor Hundred earlier than that of Eádgár.
It is true that no division founded upon numbers can long continue to
coincide with the first corresponding territorial allocation, however
closely they may have been at first adjusted. In spite of every attempt
to regulate it, population varies incessantly; but the tendency of
land-divisions is to remain stationary for ages[461]; a holy horror
prevents the alteration of that which has been sanctified in men’s minds
by long continuance, was perhaps more deeply sanctified at the first by
religious ceremonies. The rights of property universally demand the
jealous guardianship of boundaries. Moreover the first tithings, or at
all events the first hundreds, must have had elbowroom enough within the
Mark to allow for a considerable elasticity of population without the
necessity of disturbing the ancient boundary; and thus we can readily
understand two very distinct things to have grown up together, out of
one origin, namely a constantly increasing number of gylds, yet a nearly
or entirely stationary tale of territorial tithings and hundreds. I
cannot but think that, under happier circumstances, this view might lead
us to conclusions of the utmost importance with respect to the history
of our race: that if it were possible for us now to ascertain the
original number of hundreds in any county of which Beda in the eighth
century gives us the population, and also the population at the period
of the original division, we should find the two data in exact
accordance, and thus obtain a clue to the movement of the population
itself down to Beda’s time. Looking to the permanent character of
land-divisions, and assuming that our present Hundreds nearly represent
the original in number and extent, we might conclude that, if in the
year 400 Kent was first divided, Thanet then contained only one hundred
heads of houses, or hydes, upon three thousand acres of cultivated land,
while in the time of Beda, three centuries later, it comprised six
hundred families or hides upon eighteen thousand acres.
-----
Footnote 461:
It is very remarkable how many modern parishes may be perambulated
with no other direction than the boundaries found in the Codex
Diplomaticus. To this very day the little hills, brooks, even meadows
and small farms, bear the names they bore before the time of Ælfred,
and the Mark may be traced with certainty upon the local information
of the labourer on the modern estate.
-----
It is a common saying that we owe the institution of shire, tithing and
hundred divisions to Ælfred. Stated in so broad a manner as this, I am
compelled to deny the assertion. No one can contemplate the life and
acts of that great prince and accomplished man without being filled with
admiration and respect for his personal energy, his moral and
enlightened policy, and the sound legislative as well as administrative
principles on which he acted. But we must nevertheless not in the
nineteenth century allow ourselves to be blinded by the passions and
prejudices which ruled in the twelfth. The people, oppressed by foreign
power, no doubt, long looked back with an affectionate regret to the
memory of “England’s Darling;” he was the hero of a suffering nation;
his activity and fortune had once cleared the land of Norman tyranny;
his arm had smitten the forefathers of those whose iron yoke now weighed
on England: he was the reputed author of those laws, which, under the
amended and extended form enacted by the Confessor, were now claimed by
the English people from their foreign kings: he was, in a word, the
representative, and as it were very incarnation, of English nationality.
We may smile at, but must yet respect, the feeling which made him also
the representative of every good thing, which connected every
institution or custom that his suffering countrymen regretted, with his
time-hallowed name. It is unnecessary to detail the many ways in which
this traditional character of Ælfred continually reappears; the object
of these remarks is merely to point out that the attribution to him of
the system of tithings, hundreds and the like, is one of many groundless
assertions connected with his name. Not one word in corroboration of it
is to be found in Asser or any other contemporaneous authority; and
there is abundant evidence that the system existed long before he was
born, not only in other German lands, but even among ourselves. Still I
am unwilling to incur the responsibility of declaring the tradition
absolutely without foundation: on the contrary it seems probable that
Ælfred may have found it necessary, after the dreadful confusion and
devastation of the Danish wars, to make a new muster or regulation of
the tithings, nay even to cause, in some districts, a new territorial
division to be established upon the old principle; and this is the more
credible, since there is reason to believe that the same causes had
rendered a new definition of boundaries generally necessary even in the
case of private estates: the strongest argument against this lies
however in the total silence of all contemporary writers. A less tenable
supposition is, that Ælfred introduced such divisions for the first time
into the countries which he united with Wessex; as it is impossible to
conceive any Anglosaxon state to have existed entirely without them.
The form and nature of the institution, long known in the English law
under the name of Frankpledge[462] may be compendiously described in the
words of the laws called Edward the Confessor’s[463]. According to that
document,—
“Another peace, the greatest of all, there is, whereby all are
maintained in firmer state, to wit in the establishment of a guarantee,
which the English call Friðborgas, with the exception of the men of
York, who call it Tenmannetale, that is, the number of ten men. And it
consists in this, that in all the vills throughout the kingdom, all men
are bound to be in a guarantee by tens, so that if one of the ten men
offend, the other nine may hold him to right. But if he should flee, and
they allege that they could not have him to right, then should be given
them by the king’s justice a space of at least thirty days and one: and
if they could find him they might bring him to justice. But for himself,
let him out of his own restore the damage he had done, or if the offence
be so grave let justice be done upon his body. But if within the
aforesaid term he could not be found, since in every friðborh there was
one headman whom they called friðborg-heved, then this headman should
take two of the best men of his friðborh, and the headman of each of the
three friðborgs most nearly neighbouring to his own, and likewise two of
the best in each, if he can have them; and so with the eleven others he
shall, if he can, clear both himself and his friðborh both of the
offence and flight of the aforesaid malefactor. Which if he cannot do,
he shall restore the damage done out of the property of the doer, so
long as this shall last, and out of his own and that of his friðborh:
and they shall make amends to the justice according as it shall be by
law adjudged them. And moreover the oath which they could not complete
with the _venue_, the nine themselves shall make, viz. that they had no
part in the offence. And if at any time they can recover him, they shall
bring him to the justice, if they can, or tell the justice where he
is[464].”
-----
Footnote 462:
An early confusion gave rise to the reading of Freoborh, _liberum
plegium_, free pledge, frank-pledge, for Friðborh, the pledge or
guarantee of peace, _pacis plegium_. The distinction is essential to
the comprehension of this institution.
Footnote 463:
This is given here only as the most detailed account: the principle
was as old as the Anglosaxon monarchy itself, or older. The law of
Eádgár thus expresses it: “Let every man so order, that he have a
surety, and let the surety (c) bring and hold him to every right; and
if any one then offend and escape, let the surety bear what he ought
to bear. But if it be a thief, and the surety can get hold of him
within twelve months, let him surrender the thief to justice, and let
what he before paid be restored to him.” Eádg. ii. § 6. Thorpe, i.
268.
“This then is my will, that every man be in surety, both within the
towns and without the towns.” Eádg. ii. supp. § 3. Thorpe, i. 274.
“Let every freeman have a true _borh_, who may present him to every
right, should he be accused.” Æðelred, i. § 1. Thorpe, i. 280.
“If he flee from the ordeal, let the _borh_ pay for him according to
his _wer_.” Æðelr. iii. § 6. Thorpe, i. 296.
“And we will that every freeman be brought into a hundred and into a
tithing, who desires to be entitled to _lád_ or _wer_, in case any one
should slay him after he have reached the age of xii years: or let him
not otherwise be entitled to any free rights, be he householder, be he
follower. And let every one be brought into a hundred and a surety,
and let the surety hold and lead him to every plea.” Cnut, ii. § 20.
Thorpe, i. 386.
The stranger or friendless man, who had no _borh_, i. e. could not
find bail, must be committed, at the first charge; and instead of
clearing himself by the oaths of his friends, must run the risk and
endure the pain of the ordeal. Cnut, ii. § 35. Thorpe, i. 396.
Footnote 464:
“De friðborgis, et quod soli Eboracenses vocant friðborch
Tenmannetale, i. e. sermo decem hominum,” etc. Leg. Edw. Conf. xx.
Thorpe, i. 450.
-----
Thus the object of the gylds or tithings was, that each man should be in
pledge or surety (_borh_) as well to his fellow-man as to the state for
the maintenance of the public peace: that he should enjoy protection for
life, honour and property himself, and be compelled to respect the life,
honour and property of others: that he should have a fixed and settled
dwelling where he could be found when required, where the public dues
could be levied, and the public services demanded of him: lastly that,
if guilty of actions that compromised the public weal or trenched upon
the rights and well-being of others, there might be persons especially
appointed to bring him to justice; and if injured by others, supporters
to pursue his claim and exact compensation for his wrong. All these
points seem to have been very well secured by the establishment of the
Tithings, to whom the community looked as responsible for the conduct of
every individual comprised within them; and coupled with the family
obligations which still remained in force in particular cases, they
amply answered the purpose of a mutual guarantee between all classes of
men. The system possessed the advantage of being necessarily regulated
by neighbourhood, and it was free from some disadvantages which might
have attended an exclusive reliance upon kinsmanship: the frðiborgas not
having the bond of blood between them, which might have induced an
improper partiality in favour of one of their members; and as they stood
under responsibility for every act of a gyldsman, being interested in
preventing an undue interference on the part of his family. We thus see
that the gyldsmen were not only bound to present their fellows before
the court of the freemen when specially summoned thereto, but that they
found their own advantage in exercising a kind of police-surveillance
over them all: if a crime were committed, the gyld were to hold the
criminal to his answer; to clear him, if they could conscientiously do
so, by making oath in his favour; to aid in paying his fine if found
guilty; and if by flying from justice he admitted his crime, they were
to purge themselves on oath from all guilty knowledge of the act, and
all participation in his flight; failing which, they were themselves to
suffer mulct in proportion to his offence. On the other hand they were
to receive at least a portion of the compensation for his death, or of
such other sums as passed from hand to hand during the progress of an
Anglosaxon suit. Being his neighbours, the _visnetum_, _vicinage_ or
_venue_, they were his natural compurgators or witnesses, and
consequently, being examined on oath, in some sense the _jurati_ or
_jurors_ upon whose verdict his weal or woe depended. And thus the
importance of character, so frequently appealed to even in our modern
jurisprudence, was carried to the highest extent.
We may reasonably conclude that the close intercourse thus created, was
improved to private and social purposes, and that these gylds, like the
much larger associations of the same name in after times, knew how to
combine pleasure with business. The citizens of London hint at a monthly
_symposium_ or treat, with _butt-filling_, when the tithingmen met
together to settle the affairs of their respective hundreds,—a trait not
yet extinct in the civic, or indeed the national, character. There can
also be little doubt that the gylds even formed small courts of
arbitration, as well as police, for the settlement of such trifling
disputes between members of the same gyld, as were not worthy of being
reserved for the interference of a superior tribunal[465]; and it is
also probable that the members considered themselves bound to aid in the
festivities or do honour to the obsequies of any individual
gyld-brother: the London gyldsmen were to distribute alms, and cause
religious services to be performed at the decease of a fellow; and it is
obvious that this sharing in a religious obligation, the benefits of
which were to extend even into another life, must have impressed
somewhat of a solemn and sacred character upon the whole
institution[466].
-----
Footnote 465:
The law of Eádweard the Confessor shows this clearly: “Cum autem
viderunt quod aliqui stulti libenter forisfaciebant erga vicinos suos,
sapientiores coeperunt consilium inter se, quomodo eos reprimerent, et
sic imposuerunt iusticiarios super quosque decem friðborgos, quos
decanos possumus dicere, Anglice autem tyenðe-heved vocati sunt, hoc
est caput decem. Isti autem inter villas, inter vicinos tractabant
causas, et secundum quod forisfacturae erant, emendationes et
ordinationes faciebant, videlicet de pascuis, de pratis, de messibus,
de certationibus inter vicinos, et de multis huiusmodi quae frequenter
insurgunt.” § xxviii. How clearly has the jurisdiction of the Tithing
here superseded that of the ancient _Mark_!
-----
Footnote 466:
In what may be called the Act of Constitution of Orcy’s Gyld at
Abbotsbury, this feature is very prominent. I have therefore appended
the instrument in an Appendix to this chapter, although as a voluntary
gyld it differs in some respect from those heretofore under
consideration. The trade-guilds of the Middle Ages paid also especial
attention to the religious communion of their members.
Much of what has been observed respecting the tithing, applies also to
the hundred. This, it has been seen, was originally a collection of ten
tithings, and was presided over by a hundredes ealdor[467], or
hundred-man, who exercised a jurisdiction over his circuit and its
inhabitants. From the concurrent practice of later periods we may
conclude that his court was holden monthly for the hearing of such civil
and lighter criminal causes as could not be settled in the tithing, or
interested more tithings than one[468]. It is not probable that the
higher criminal causes could at any period be pursued in the
hundred[469], but that they were necessarily reserved for the
consideration of the folcmót or shire-court, which met three times in
the year. In the later legislation, trial of capital offences was
reserved for the scyremót, and the words of Tacitus[470] seem to imply
that this was the case in his time also: perhaps even such causes as
involved the penalties of outlawry may have been beyond the jurisdiction
of the hundred. It is however less as a court of justice than as part of
a system for the maintenance of peace, that we are to contemplate the
hundred. It may be securely affirmed that where the tithing alone could
not be made responsible, or more tithings than one were involved in a
similar difficulty as to crimes committed by their members, resort was
had to the responsibility of the collective hundred,—a principle which,
it is well-known, subsists even to this day.
-----
Footnote 467:
The word Borseholder renders it probable that the _capitalis_,
tynmanna heáfod, yldesta, etc., bore among the Saxons the name of
Borgesealdor, _princeps plegii_.
Footnote 468:
This again we learn from the law attributed to Eádweard the Confessor.
“Cum autem maiores causae insurgebant (that is greater than those
which concerned the tithing), referebant eas ad alios maiores
iusticiarios, quos sapientes supradicti super eos constituerant,
scilicet super decem decanos, quos possumus vocare centenarios, quia
super centum friðborgos iudicabant.” § xxix.
Footnote 469:
I find no instance of a hundredes man having the _blut-bann_ or _ius
gladii_: but in the time of Eádgár, he seems to have had power to
administer the single and threefold ordeal; whether only in the case
of serfs does not appear. Inst. Hundr. Thorpe, i. 260.
Footnote 470:
“Licet apud concilium accusare quoque et discrimen capitis intendere.”
Germ. xii.
-----
At a comparatively late period, we occasionally find a consolidation of
hundreds into one body, for judicial purposes, presided over by the
ealdorman of the shire, or his geréfa, and forming a subsidiary court to
the shiremoot: and after immunities, or private jurisdictions, had
become rapidly extended, it is certain that such consolidations were not
unusual, in the hands of great civil or ecclesiastical authorities, and
that they, by means of their officers or geréfan, held plea in several
hundreds at once; they thus substituted their own power for that of the
ealdorman or the sheriff, in the last instance, throughout the district
comprehended by their immunity; either replacing the old hundred-men by
geréfan or bailiffs, or suffering the hundreds to be still governed and
administered in the way common to all such divisions, by the elective
officer[471].
It stands to reason that the system above described applied only to the
really free. It was the form of the original compact between the
independent members of an independent community. But as by the side of
the free landholders, there dwelt also unfree men of various ranks, so
also there existed modifications of the original compact, suited to
their condition. Those who in a more or less stringent degree were
dependent, could not be members of the tithing, the hundred or the
folcmót. They stood to right among themselves, in their lord’s court,
not in the people’s, and in the latter they could not appear for
themselves. The institution therefore which provided that the lord might
maintain a Comitatus or _following_, provided also that its members
should all be in his mund (protection) and borh (surety), and that he
should make answer for them in the courts from which they were
themselves excluded[472].
-----
Footnote 471:
Eádweard the Confessor granted the hundred of Hornmere in Berkshire to
Ordríc, abbat of Abingdon; “so that no sheriff or mootreeve may hold
therein any plea or moot, without the Abbat’s own command and
permission.” Cod. Dip. No. 840. He also granted the hundred of Godley
in Surrey to Wulfwold, Abbat of Chertsey, and forbade the sheriff to
meddle in the same. Cod. Dip. No. 840, 849.
Footnote 472:
“And let every lord have his household in his own _borh_. Then if any
of them should be accused, and escape, let the lord pay the man’s
_wer_ to the king. And if any accuse the lord that the escape was by
his counsel, let him clear himself with five thanes, being himself the
sixth. If the purgation fail him, let him forfeit his _wer_ to the
king; and let the man be an outlaw.“ Æðelr. i. § 1. Thorpe, i. 282.
“And let every lord have his household in his own _borh_, and if any
one accuse his man of any thing, let the lord answer for him within
the hundred, wherein he is cited, as just law is. And if he escape,”
etc. Cnut, ii. § 31. Thorpe, i. 394, 396. “Archiepiscopi, episcopi,
comites, barones et milites suos, et proprios servientes suos,
scilicet dapiferos, pincernas, camerarios, cocos, pistores, sub suo
friðborgo habebant, et ipsi suos armigeros et alios servientes suos
sub suo friðborgo; quod si ipsi forisfacerent, et clamor vicinorum
insurgeret de eis, ipsi haberent eos ad rectum in curia sua, si
haberent sacham et socam, tol et theam, et infangenethef.” Edw. Conf.
xxi. Thorpe, i. 451.
-----
It is difficult to decide whether the lords or nobles were at first
comprised within the popular corporations: it appears most probable that
they were not; that they were sufficient to their own defence, and, even
from the earliest historical periods, in possession of that _immunity_
which released their lands from the jurisdiction of the popular
tribunals. In respect therefore to the gylds, they may be supposed to
have held an independent, though not necessarily hostile, position,
regulated indeed by the public law: and if they stood to right with
their men, in the folcmót, it was the collective power and dignity of
the state with which they had to deal, and not the smaller associations,
founded upon necessities of which they were not conscious. Their
dependents were under their guarantee and surety, as the members of
every man’s household, his wife, children and serfs, were under _his_:
for them he was responsible to the community at large, but he owed no
suit or service to others, and if he persisted in upholding wrong, I
fear the only corrective was to be found in the inalienable _ius belli_,
which resumes its power instantly upon the violation of that tacit
understanding among men, that the well-being of society depends upon a
regulated mutual forbearance. Those were not ages in which acts of
self-defence or righteous retribution could be misnamed revolutions. But
all these remarks are intended to apply only to a state of society in
which the nobles were few and independent, the people strong and united;
where the people were in truth the aristocracy[473], and the nobles only
their chiefs. The holder of an immunity (having sacn and sócn) in later
times, under a consolidated royalty representing the national will, and
in a state from which the element of the people had nearly vanished,
through the almost total vanishing of small independent freeholds, was
necessarily placed in a very different position.
-----
Footnote 473:
The freeman is a member of an aristocracy in respect of _all_ the
unfree, whether these be temporarily so, as his children and guests,
or permanently so, as his serfs. To be in the πολίτευμα, which others
are not, to have the franchise which others have not, to have the
freedom of a city which others have not, all these are forms of
aristocracy,—the aristocracy of Greece, Rome and England. The Peers in
England are not themselves exclusively an aristocracy: they are the
born leaders of one, which consists now of ten-pound householders,
freemen in towns, and county tenants under the Chandos clause.
-----
It now remains only to bestow a few words upon the manner in which the
original obligations of the family bond were gradually brought to bear
upon the artificial organization.
Upon a careful consideration of the latter it appears that its principal
object was gained when either offences were prevented, or the offender
presented to justice: the consequences of crime, in all but a few
excepted cases, fell not upon the gegyldan (if they could clear
themselves of participation) but upon the mǽgas or relatives[474].
The laws of Æðelberht, Wihtræd and Hloðhere know nothing of gegyldan:
with them the mǽgas are still wholly responsible, and even their
intervention is noticed in three cases only: Æðelberht provided that in
the event of a manslayer flying the country, the family should pay half
the wergyld of the slain[475]. Again he enacts, that if a married woman
die without bearing children, the property she brought her husband, and
that which he settled upon her after consummation, shall return to her
paternal relatives[476]. According to the legislation of Hloðhere, if a
man died, leaving a wife and child, the mother was to have the custody
of the child till his tenth year, but the paternal kinsmen were to
administer his property, under satisfactory pledge for due discharge of
their duty[477]. The regulations of Ini allow us to enter still further
into the nature of the family engagement. He enacted that if a stranger
came through the wood out of the highway, and attempted to slink through
in secret, without shouting or blowing his horn, he should be taken to
be a thief, and might be slain or forced to pay according to his
presumed crime: and if the slayer were then pursued for his wergyld, he
might make oath that he slew him for a thief, and the lord and the
gegyldan of the dead man should not be allowed to make oath to the
contrary: but if the slayer had at the time concealed the deed, and it
was only afterwards discovered, a presumption of unfair dealing was
raised against him, and the kindred of the dead man were entitled to
make oath of his innocence[478]. Again if a stranger were slain, the
king was to have two parts of his wergyld, the son or relatives of the
dead man might claim the third; but if there were no relatives, the king
claimed half, the count half[479]. Besides a provision for a surviving
child, similar to that of Hloðhere[480], the law of Ini contains no
further regulation with regard to the mǽgas of the freeman. Four several
chapters referring to serfs who are guilty of theft, rest upon the
principle that his kin have renounced the mǽgburh by suffering him to
remain in serfage, and together with the obligations of kinsman have
relinquished their own right of avenging his injuries or making pursuit
for his wrongs[481].
-----
Footnote 474:
“And if any one charge a person in holy orders with feud (fǽhðe) and
say that he was a perpetrator or adviser of homicide, let him clear
himself with his kinsmen, who must bear the feud with him, or make
compensation for it. And if he have no kin, let him clear himself with
his associates or fast for the ordeal by bread, and so fare as God may
ordain.” Æðelr. ix. § 23, 24. Thorpe, i. 344. Cnut, i. § 5. Thorpe, i.
362. The associates or _geferan_ here are probably his fellows in
orders. But a monk being released from all family relations could not
be implicated in the responsibilities of the mǽgburh (ibid. § 25);
“for he forsakes his law of kin (mǽgðlage) when he submits to monastic
law.” Cnut, i. § 5. Thorpe, i. 362.
Footnote 475:
“Gif bana of lande gewíteð, ða mǽgas healfne leód forgylden.” Æðelb. §
23. Thorpe, i. 8.
Footnote 476:
“Gif heó bearn ne gebyreð, fæderingmǽgas feoh ágen and morgengyfe.”
Æðelb. § 81. Thorpe, i. 24.
Footnote 477:
“Gif ceorl ácwyle be libbendum wífe and bearne, riht is ðæt hit, ðæt
bearn, médder folgige; and him man an his fæderingmǽgum wilsumne
berigean geselle, his feoh tó healdenne oððǽt he tynwintre síe.”
Hloðh. § 6. Thorpe, i. 30.
Footnote 478:
“Gif feorcund man oððe fremde bútan wege geond wudu gonge, and ne
hrýme né horn bláwe, for þæóf he bið tó prófianne, oððe tó sleánne
oððe tó álýsanne. Gif mon ðæs ofslægenan weres bidde, he mót gecýðan
ðæt he hine for þeóf ofslóge, nalles ðæs ofslægenan gegildan né his
hláford. Gif he hit ðonne dyrneð, and weorðeð ymb lang yppe, ðonne
rýmeð he ðám deádan tó ðám áðe, ðæt hine móton his mǽgas unscyldigne
gedón.” Ini, § 20, 21. The collocation of gegyldan and mǽgas in this
law seems to show clearly that Ini looked upon them as the same thing:
hence that in the original institution the gyld and the family were
identical, though afterwards, for convenience' sake, the number and
nature of the gyld were otherwise regulated, when the kinsmen had
become more dispersed.
Footnote 479:
“Gif mon ælþeódigne ofslea, se cyning áh twǽdne dǽl weres, þriddan
dǽll sunu oððe mǽgas. Gif he ðonne mǽgleás síe, healf cyninge, healf
se gesíð.” Ini, § 23.
Footnote 480:
Ini, § 38.
Footnote 481:
Ini, § 24, 28, 35, 74. Thorpe, i. 118, 120, 124, 148.
-----
The duties of the mǽgsceaft or kinship are developed with considerable
detail in the law of Ælfred: the most general regulation is that which
acknowledges the right of a man to have the aid of his kindred in all
those excepted cases where the custom and the law still permitted the
waging of fǽhðe or private war: “After the same fashion, may a man fight
on behalf of his born kinsman, if any wrongfully attack him; except
indeed against his lord: that we permit not[482].” Other clauses provide
that where a wrongdoer is taken into custody, and agrees peaceably to
abide the decision of the law, his relatives shall have due notice[483]:
“If he pledge himself to a lawful act, and belie himself therein, let
him humbly surrender his arms and his goods to his friends, to hold for
him, and let him remain for forty days in prison in a king’s tún; let
him there suffer as the bishop may direct him; and let his kinsmen feed
him, if he have himself no food; but if he have no kinsmen, or no food,
let the king’s reeve feed him.” Again if a man is accidentally slain
while hewing wood with others, his kinsmen are to have the tree, and
remove it from the land within thirty days, otherwise it shall go to the
owner of the wood[484]. The most important case of all, however, is that
of a divided responsibility between the kinsmen and the gegyldan, which
Ælfred thus regulates: “If one that hath no paternal kindred fight and
slay a man, if then he have maternal relatives, let them pay a third
part of the _wer_, his gyldbrethren a third part, and for a third part
let him flee. If he have no maternal relatives, let his gyldbrethren pay
half, and for half let him flee. And if any one slay such a man, having
no relatives, let half be paid to the king, half to the
gyldbrethren[485].” It was also the principle of Ælfred’s law,
recognized but not introduced by him, that no man should have the power
of alienating from his mǽgsceaft, booklands whose first acquirer had
entailed them upon the family,—a principle which tends, as far as human
means seem capable of ensuring it, to ensure its permanent
maintenance[486].
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Footnote 482:
“Æfter ðǽre ylcan wísan mót mon feohtan mid his geborenum mǽge, gif
hine mon on woh onfeohtað; búton wíð his hláford, ðæt we ne lýfað.”
Ælf. § 42. Thorpe, i. 90.
Footnote 483:
“Gif he ðonne ðæs weddie ðe him riht sý tó gelǽstanne and ðæt áleóge,
selle mid eádmédum his wæpn und his ǽhta his freóndum tó gehealdanne,
and beó feowertig nihta on carcerne on cyninges túne; þrowige ðǽr swá
biscop him scrífe, and his mǽgas hine féden gif he self mete næbbe;
gif he mǽgas næbbe, oððe ðone mete næbbe, féde cyninges geréfa hine.”
Ælf. § 1. Thorpe, i. 60. There is a similar provision in Ælf. § 5.
Thorpe, i. 64. Ælf. § 42. Thorpe, i. 90.
Footnote 484:
Ælf. § 13. Thorpe, i. 70.
Footnote 485:
“Gif fæderenmǽga mǽgleás mon gefeohte and mon ofsleá, and ðonne gif he
médrenmǽgas hæbbe, gylden ðá ðæs weres þriddan dǽl, þriddan dǽl ða
gegyldan, for þriddan dǽl he fleó. Gif he médrenmǽgas náge, gylden ða
gegyldan healfne, for healfne he fleó. Gif mon swá gerádne mon ofsleá,
gif he mǽgas náge, gylde mon healfne cyninge, healfne ðám gegyldan.”
Ælfr. § 27, 28. Thorpe, i. 78, 80.
Footnote 486:
Ælfr. § 41. Thorpe, i. 88.
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The reciprocal rights and duties of the mǽgburh were similarly
understood by Eádweard: he enacted that if a malefactor were deserted by
his relatives, and they refused to make compensation for him, he should
be reduced to serfage; but in this case his wergyld was to abate from
the kindred[487]. And Æðelstan distinctly holds the mǽgð responsible for
their kinsman. He says, “If a thief be put into prison, let him remain
there forty days, and then let him be ransomed for 120 shillings, and
let the kindred go surety for him that he shall cease from theft for the
future. And if after that he steal, let them pay for him with his
wergyld, or replace him in prison[488].” But he goes further than this,
and imposes upon them the duty of finding a lord for him, or exposing
him to the penalty of outlawry: “And we have ordained respecting those
lordless men of whom no law can be got, that the kindred be commanded to
domicile him to folkright, and find him a lord in the folkmote; and if
then they will not or cannot produce him at the term, let him
thenceforth be an outlaw, and let whoso cometh at him slay him[489]:” a
provision which obviously cannot apply to free landowners, who would
have been included in a tithing, and could not have been thus
compulsorily commended to a lord. Where a man is slain as a thief, the
relatives are to clear him, if they can[490], inasmuch as they would
have a right to pursue the slayer and claim the compensation for their
kinsman’s death. Again it is provided that if a lord has so many
dependents that he cannot personally exercise a due supervision over
them, he shall appoint efficient reeves or bailiffs in his several
manors, to be answerable to him. And if need be, the bailiff shall cause
twelve relatives of any man whom he cannot trust, to enter into sureties
for him[491].
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Footnote 487:
Eadw. ii. § 9. Æðelst. v. cap. 12, § 2. Thorpe, i. 164, 242.
Footnote 488:
Æðelst. i. § 1, 6; v. cap. 1, § 4, cap. 9. Thorpe, i. 198, 202, 228,
238.
Footnote 489:
Æðelst. i. § 2. Thorpe, i. 200. Upon the just principle that “He may
die without law who refuseth to live by law.” “Utlagatus et weyviata
capita gerunt lupina [wolves’ heads] quae ab omnibus impune poterunt
amputari: merito enim sine lege perire debent, qui secundum legem
vivere recusant.” Flet. lib. i. cap. 27, § 12, etc.
Footnote 490:
Æðelst. i. § 11. Thorpe, i. 204.
Footnote 491:
“Ut omnis homo teneat homines suos in fideiussione sua contra omne
furtum. Si tunc sit aliquis qui tot homines habeat quod non sufficiat
omnes custodire, praeponat sibi singulis villis praepositum unum, qui
credibilis sit ei, et qui concredat hominibus. Et si praepositus
alicui eorum hominum concredere non audeat, inveniat xii plegios
cognationis suae qui ei stent in fideiussione.” Æðelst. ii. § 7.
Thorpe, i. 217.
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Eádmund permitted the mǽgð to avoid the consequences of their kinsman’s
act, by refusing to abet him in his feud[492]. I imagine that this law
must be taken in connection with that of Eádweard[493], and that it
implies a total desertion of the criminal by his kindred, with all its
consequences, viz. loss of liberty to him, and of his wergyld to them.
The troubled time of Æðelred, “the ill-advised,” supplies another
attempt to secure peace by holding the relatives strictly and personally
responsible: in his law we find it enacted, “If breach of the peace be
committed within a town, let the inhabitants of the town go in person,
and take the murderers, alive or dead, or their nearest of kin, head for
head. If they will not, let the ealdorman go; if he will not, let the
king go; if he will not, let the whole district be in a state of
war[494].” Though this perhaps is less a settled rule of law than the
convulsive effort of an authority striving in vain to maintain itself
amid civil discords and the horrors of foreign invasion, it still
consecrates the old principle, and returns to the true basis on which
Anglosaxon society was founded, namely treaties of peace and mutual
guarantee between the several parties that made up the State.
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Footnote 492:
Eádm. ii. § 1.
Footnote 493:
Eádw. ii. § 9.
Footnote 494:
Æðelr. ii. § 6. Thorpe, i. 286.
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Such were the means by which the internal peace of the land was
attempted to be secured, and it is evident that better could hardly have
been devised in a state of society where population was not very widely
dispersed, and where property hardly existed, save in land, and almost
equally unmanageable cattle. The summary jurisdiction of our police
magistrates, our recognizances and bail and binding over to keep the
peace, are developments rendered necessary by our altered circumstances;
but these are nevertheless institutions of the same nature as those on
which our forefathers relied. The establishment of our County-courts, in
which justice goes forth from man to man, and without original writ from
the Crown, is another step toward the ancient principle of our
jurisprudence, in the old Hundred.
A further inquiry now arises, as to the basis upon which all
calculations as to satisfaction between man and man were founded; in
other words to the system of Wergylds and its various corollaries: this
will form the subject of a separate chapter.