In s. 59 of the secular laws of Cnut under the heading ‘Of Borh-bryce’ is a statement that if any one break the king’s ‘borh’ the bot is five pounds; an archbishop’s or ætheling’s ‘borh’ three pounds; a leod-bishop’s or ealdorman’s ‘borh’ two pounds. This is a re-enactment of clause 3 of King Alfred’s dooms. In the latter the words ‘borh-bryce’ and ‘mund-byrd’ appear to be interchangeable. Both mean the breach of protection or mund.

There is finally a fragment[230] which fixes the extent of the king’s ‘grith’ to be ‘three miles and three furlongs and three acre breadths and nine feet and nine hand breadths and nine barleycorns from the “burhgeat” where the king is.’

Within this area the ‘grith’ or protection of the king extends, and the use of the word ‘grith’ seems to place this fragment among those belonging to the Danish group.

In this ‘grith’ or area of protection, taken together with the grith of various persons in regard to the duration of the protection, and the grith of the various assemblies or courts, and, finally, in the mund of various persons marked by the amount of the mund-bryce, there is surely a foundation in ancient custom for the jurisdiction involved in the sac and soc of the later period.

We have seen in the clauses of the so-called Laws of Henry I. allusion to the ‘sac and soc’ of the lord on whose land a homicide has been perpetrated and under whose jurisdiction the wed or pledge has been given for the payment of wergeld. According to earlier phraseology, the lord’s grith or peace has been broken. He has a territorial jurisdiction over the giving of the wed by which it is to be restored, and he is entitled to fightwite accordingly. If his own man has been slain, whether on his own land or not, his mund has been broken and the manbot of his man is payable to him. The phrase ‘soc and sac’ is probably of Scandinavian origin. It does not seem to go back earlier than the time of Cnut.[231] It is not found in his laws. But the principle at the root of the ‘grith’ and the ‘mund’ was not one newly introduced at this period. We shall find it again in the earliest laws, and we have already found it at work under Irish custom. The Irish chieftain’s ‘precinct’ or area of protection extended on his ‘green’ as far as he could throw his hammer, and the value of his protection varied, as we have seen, with his ‘honour price.’

III. THE ‘FRITH’ BETWEEN ETHELRED II. AND OLAF TRYGGVASON, A.D. 993.

The real Danish invasion of England, which ended in the accession of Cnut to the kingdom of all England, commenced with the arrival of Olaf (Tryggvason), afterwards King of Norway, in A.D. 991. The fatal battle of Malden had been fought and 10,000 pounds of silver paid for a temporary peace. At length the treaty was made between Ethelred and Olaf on the latter embracing Christianity.

The article on homicide in this ‘frith-mal’ is the only one which need be quoted here:—

The points to be noted here are these. It is for the crime of a freeman slaying a freeman that the wergeld of twenty-five pounds is to be paid. And this wergeld of twenty-five pounds of silver is the wergeld of 1200 Wessex scillings. So that the freeman of this clause is the twelve-hyndeman.[233]

For the purpose of this ‘frith’ between Ethelred and Olaf the twelve-hyndeman and not the twy-hyndeman is the typical freeman. And the Dane also is to be paid for by a twelve-hyndeman’s wergeld.

The twy-hyndeman escapes without notice. No class is mentioned between the twelve-hynde freeman and the thrall; and the thrall whether Danish or English is paid for with a pound of silver.

Finally, the compact is described in Anglo-Saxon pounds, not in Danish marks and ores.

It is an English statement of the ‘frith’ between the English king and ‘the army that Anlaf (Olaf) and Justin and Guthmund, Stegita’s son, were with.’ And accordingly at the end of clause 7 is recorded the humiliating admission that ‘twenty-two thousand pounds of gold and silver were given to “the army in England for the frith.”’

CHAPTER XII.
ANGLO-SAXON CUSTOM FROM THE VIKING OR NORTHMEN’S POINT OF VIEW.

I. THE COMPACT BETWEEN KING ALFRED AND GUTHRUM, A.D. 886.

At the date of the compact between Ethelred II. and Olaf Tryggvason more than a century had passed since the earlier compact between Alfred and Guthrum. And during that century the successors of Alfred had gradually succeeded in recovering their hold upon the English nation. During the whole of this time, following Continental tribal usage, both English and Danes had presumably lived under their own laws and customs.

But whether it be right to speak of the Northmen of the time of King Alfred as Danes or not, it is necessary to distinguish the difference between the two invasions.

Cnut’s invasion was avowedly intended to establish a kingdom, or rather to bring England within the area of his great Danish kingdom. Olaf was on the point of making himself King of Norway; and the founding of kingdoms was, so to speak, in the air. It was an era of conquest and Cnut’s invasion of England was in fact the first step towards the Norman Conquest.

The Vikings who invaded England in the days of Alfred, on the other hand, were independent chieftains—the last of the class of the early Frankish and Anglo-Saxon type. Their invasion was not a Danish invasion in the sense that it came from a Danish kingdom. The Vikings of this earlier period were chieftains of moving armies living upon the country they invaded. Their armies were composed of Northmen, and, again to quote the words of Mr. Keary, ‘in the history of the Scandinavian nations they were the representatives in the countries of their origin of a bygone or passing order of things’—‘the opponents of the extended sort of kingship which was the new order of the day in Denmark, Sweden, and Norway.’[234]

Let us for a moment follow the course of the movements of these Viking armies which preceded the compact between Alfred and Guthrum.

In 867 the ‘army’ was in the North, took possession of York, and subdued Northumbria. In 868 Mercia was invaded, and till 871 the incursions were practically confined to Northumbria and Mercia, and parts of East Anglia. In 871 the invasion of Wessex commenced, and in the same year Alfred, on the death of his brother Ethelred, became King of Wessex. In 874 the ‘army’ was again chiefly in Mercia and Northumbria and began definitely to settle in the latter. The southern half of Northumbria became the Kingdom of York under Halfdan, A.D. 876.

The other part of the army under Guthrum proceeded to attack Wessex, and the winter of 877-8 was marked by the retirement of Alfred into the island of Æthelney.

In 878 came the victory of Æthandune, which was followed by the baptism of Guthrum and the partition of England. In 880 Guthrum and his army settled in what became the Danelaga. And in 886 the final compact was entered into between Alfred and Guthrum the text of which has been preserved.

It will be convenient first to consider this compact and then the various fragments of Northumbrian and Mercian law the production or preservation of which may be traced to this period.

The text of the compact is preserved in the tenth-century Manuscript B. Its first clause defines the boundaries between that part of England which was to remain English and the Danelaga. With this matter at the moment we are not specially concerned. Then follows the most material clause (2):—

Now, in the first place, it is evident that this text describes the wergeld of two classes or ranks of persons.

Dane and Englishman of the first class are to be held equally dear at eight half-marks of pure gold.

The other class embraces the Saxon ‘ceorl who sits on gafol land’ and the Danish lysing. These also are equally dear at 200 scillings.

Let us look at these two classes separately. The first class of Dane and English men without other definition are to be paid for by eight half-marks of gold. The money is Danish. Eight half-marks contained thirty-two ores. And this, as we have seen, at the Norse ratio of 1:8 was the same thing as 32 marks of silver. The wergeld of the hauld of the Gulathing law we found to be most probably 30 marks of silver. The Danish man of this clause thus seems to be represented in Norse law by the hauld. In other words, Guthrum from his point of view took the hauld as the typical freeman, just as we found him so taken in the Gulathing law.

It will be remembered that this wergeld of the hauld was equated with 96 cows and that in its gold value reckoned in wheat-grains it amounted to 200 Merovingian gold solidi.

From the English point of view it was not far otherwise. The twelve-hyndeman with a wergeld of 1200 scillings was evidently the typical freeman Alfred had in view. 1200 Mercian scillings of four pence, i.e. 4800 pence, at the Norse ratio of 1:8 equalled 600 gold tremisses or 200 gold solidi. 1200 Wessex scillings of five pence at a ratio of 1:10 would also equal 200 gold solidi.

The equation was therefore well within the range of reasonable compromise. And behind both these wergelds—that of the hauld and of the twelve-hyndeman—there seems to be the curious traditional (conscious or unconscious) reference so often repeated to the ancient normal wergeld of 200 gold solidi and the heavy gold mina. At this normal wergeld Dane and Englishman were to be held equally dear.

Turning now to the other class, the wergeld is described in English scillings and the wergeld is that of the twy-hyndeman—two hundred scillings—i.e. one sixth of the wergeld of the other class. On the Danish side the equivalent of the twy-hyndeman was the lysing, i.e. the ‘leysing’ or newly made freedman of the Gulathing law, who had not yet made his freedom-ale and whose wergeld was one sixth of that of the hauld ‘according to his rett.’

Here again the correspondence is complete. The English twy-hyndeman is put by this compact on the same standing as to wergeld as the Norse leysing or newly made freedman who had not yet made his freedom-ale.

But we gain another point from this remarkable clause. We are warned by it not to be drawn too easily into a rash generalisation from the use of the Saxon word ceorl.

It is not the ‘ceorl’ as such who is the twy-hyndeman and put upon the same social level as the Danish lysing. It is clearly only the ‘ceorl who sits on gafol land.’ It is on the last words that the distinctive emphasis must be put. If we had nothing but this clause to guide us we might conclude that all above the ‘ceorl who sits on gafol land’ were twelve-hynde.

II. THE COURSE OF PROCEDURE IN PAYMENT OF WERGELD.

There are two statements of the course of procedure in the payment of wergelds which may conveniently be mentioned at this point. The first occurs in the ‘Laws of King Edmund,’ who reigned A.D. 940-946. And the other is contained in a fragment belonging probably to the time following soon after the Compact between Alfred and Guthrum.

King Edmund, in order to abate the ‘manifold fightings’ resulting from the system of feud and wergeld, made stringent regulations under which wergelds were to be claimed, making it voluntary on the part of the kindred to join in payment of the wergeld.

This relaxation of the rules as to payment of wergeld seems to leave matters very much as they were, with the one exception that for the sake of peace and to lessen the risk of ‘manifold fightings,’ a year was given to the slayer’s kindred to save his life by helping him to pay the wergeld if they chose, while if they chose to forsake him and did not harbour or help him in any way they were free. The kindred of the slain in the meantime were left to pursue their feud but only upon the slayer. This of course was another instance of the partial breaking down of the ancient tribal solidarity of the kindred in favour of the principle, long before adopted in some of the Continental codes, limiting the punishment of crime to the criminal himself.

Whether this innovation of King Edmund’s was adhered to the evidence of the Laws of Henry I. may lead us to doubt, but for our purpose the law making the innovation is evidence of the ancient solidarity of the kindred, the attempt to loosen which had become necessary in the tenth century.

A clause which follows shows that it was expected that wergelds would still be paid:—

The further course of procedure is best given in the earlier fragment alluded to.

The fragment[235] is headed ‘How a twelve-hyndeman shall be paid for.’ It opens with the statement, ‘A twelve-hyndeman’s wer is twelve hundred scillings. A twy-hyndeman’s wer is two hundred scillings.’ And then it proceeds:—

This is in accordance with the clause in Alfred and Guthrum’s compact, which, however, makes the additional provision by way of precaution that one of the twelve co-swearers must be a king’s-thane. The clause continues:—

The king’s mund-byrd, as we have seen, was equal to five pounds according to both English and Kentish custom.

These steps in the procedure are very nearly the same as those quoted in the so-called ‘Laws of Henry I.’ and these clauses may probably be looked upon as more or less repeating for the benefit of both peoples what Anglo-Saxon custom may have been before the Viking invasions of England. But of this we cannot be certain.

III. FRAGMENTS OF MERCIAN AND THE NORTH PEOPLE’S LAW.

We now have to consider a group of fragments of uncertain date which seem to belong to the period of the Northmen’s settlement in Northumbria and invasions in Mercia.

The settlement of the Viking invaders made it necessary to fix the relation of their wergelds to those of the conquered English, and also to gather up fragments of Mercian custom. As the Dooms of Mercian kings have not come down to us, these fragments have a special value.

The importance of Mercia in King Offa’s time gives a special interest to any information on Mercian custom. And in other respects, scanty though it be, the retrospect of early Anglo-Saxon custom from the invaders’ point of view could ill be spared.

There are two valuable fragments on Mercian law.

The first is as follows:—

This fragment of Mercian law is preceded in the group of fragments ‘on oaths’ in Thorpe’s edition of the Laws by the following, which may or may not be of Mercian origin:—

The other fragment of Mercian law is as follows:—

The Mercian wergeld of both twy-hynde and twelve-hynde men is thus stated in scillings, as usual, and the king’s wergeld—six times the thane’s—would equal 7200 scillings. The Mercian scilling was 4d., and thus, as stated in the text, the king’s wergeld would equal exactly 120l. or 28,800 pence or sceatts (in round numbers 30,000 sceatts).

This is useful as evidence that the sceatt of this Mercian wergeld was the silver penny of the Anglo-Saxon currency of 28·8 wheat-grains—i.e. of the Sceatt series—before Offa and Alfred, following the example of Charlemagne, superseded the ‘sceatt’ by the ‘penny’ of 32 wheat-grains.

The fragments printed by Thorpe under the heading ‘North People’s Law’ and by Schmid in his ‘Anhang VII.’ seem to belong to Northumbria or more generally to the Danelaga. Schmid suggests that the ‘North people’ were the North folk of East Anglia. This, however, is perhaps more than doubtful, especially when it is considered that the Viking ‘armies’ had established themselves, not only in East Anglia and Mercia, but still more completely in Northumbria, many years before the struggle with Wessex had ended in the compact between Alfred and Guthrum.

The fragment of ‘North People’s Law’[236] opens with the statement that the king’s gild is 30,000 thrymsas—15,000 for the wergeld and 15,000 for the people (leodum).

In another MS. the wording follows the statement of Mercian law very closely, and agrees with the above in describing the amount in thrymsas.

Now, in the first place, what was the thrymsa, which occurs in these clauses for the first time?

A statement a little further on in one of the two texts of the same fragment fixes the value of the thrymsa at three pence.[237]

The statement of ‘North People’s Law’ proceeds as follows:[238]—

Put into tabular form these wergelds would be as follows in thrymsas and Wessex and Mercian scillings:—

The ceorl has a twyhynde wergeld in Mercian shillings and the thane a twelve-hynde wergeld in Wessex shillings. There seems to be so far some confusion. But on the whole this reckoning seems to justify the opinion generally held that the Northmen coming as conquerors into Northumbria or the Danelaga had, at the date of these fragments, doubled the wergeld of the hold or hauld as compared with that of the English thane.

If, as seems reasonable, these fragments may be referred to the period following upon the Viking conquest and settlement in Northumbria and the foundation of Halfdan’s kingdom of York (A.D. 876), then the doubled wergeld of the hauld may be perhaps the high-water mark as it were of the invasion—the point of vantage at which it was natural for the conquerors to treat the conquered as a tributary race. And if it may rightly be so regarded, then it gives an added interest to the compact between King Alfred and Guthrum in 886. For then, the tide of battle having turned, the two kings at length met on equal terms and, undoing the earlier unequal settlement, now agreed to make Dane and Englishman equally dear.

A still more interesting point than the doubling of the conquering Hold’s wergeld as compared with the conquered thane’s is found in the subsequent clauses of this fragment, which seem to refer back to ancient tradition as regards the position of the non-Saxon subjects of Anglo-Saxon kings.[239]

The other version is practically the same:—

Now ‘hiwisc’ and ‘hyred’ both seem to mean family. In a roundabout indirect way ‘familia’ and hide meant apparently very much the same thing, but as the word hide is used in the same clause the more direct meaning may surely in this case be the important one.

It is probable that these clauses are variations or fuller expressions of the tradition described in c. 32 of King Ine’s Laws, which is as follows:—

And the additional information amounts practically to this—that the possession of a hide seems to have been held generally equivalent to the possession of a family homestead—family and goods—enabling a man to pay the king’s gafol.

It is when we pass on from these clauses to the next that fresh and welcome light seems to be gained upon the connection of the growth of a family and kindred with rise in status and social rank from a ceorlisc or twy-hynde position to that of the Gesithcund or twelve-hynde position. We are now no longer dealing with the Wylisc man but with the ordinary twy-hynde ceorl. And the mention of the payments in thrymsas reminds us that we are still looking at things from the North people’s point of view.

The clauses in the two versions are as follows:—

And they may be translated thus:—

These passages are very important, as the most direct evidence we possess of the way in which under early Anglo-Saxon custom families became gesithcund by the gradual growth of a kindred whose kinsmen, like the odal-men of the Norse laws, could reckon four generations in succession of sufficient landholding.

The evidence is all the more interesting because it seems to come from the point of view of the Norse or Danish invaders making inquiry respecting English tradition and recording what had once been the custom of the conquered districts.

The same remark applies equally to another of these valuable fragments—‘Of people’s ranks and law.’ It, too, seems to look back and to record what once had been the custom of the conquered people.

These are the phrases of a writer looking back with regret upon ancient custom which to him is past or passing away.

After this follow clauses in one of which the word hyrede and the phrase ‘having so many hides to the king’s utware’ again occur, words that seem to suggest that this fragment, while describing ancient English custom, hails from a somewhat similar source as the ‘North People’s Law.’

This seems to be practically identical with clause 9 of the previous fragment. Then follows:—