These passages we shall have to consider further when we sum up the evidence upon the Anglo-Saxon division of classes.

But there are two peculiarities which may be marked here as pointing to the archaic character of these precious fragments. First, the alliteration and rhythmical character of some of them, which points to an early and traditional origin, and, secondly, the direct relations of the classes mentioned to the king. The Wilisc man has to bring forth the king’s gafol. The ceorl who has five hides has them to the king’s utware and he becomes gesithcund and thane-right worthy with special duty in the king’s hall, while the thane is all the greater when he has a thane under him who has himself five hides to the king’s utware and goes with his errands to the king.

These are marks of direct relationship and service of the gesithcund classes to the king, to which we shall have to recur. They seem to point to the gesithcund class with its completeness of kindred as a privileged class in a semi-official position and from which the king’s officials were chosen. It is not until this relationship by service to the king has become established that a ceorl finds an entrance into the gesithcund class, and he does not become eligible for such service till he is surrounded by an adequate kindred.

In the meantime we may be thankful to the exigences of the Viking invasions for the preservation of these valuable fragments of ancient custom which might otherwise have been lost.

CHAPTER XIII.
EARLY ANGLO-SAXON CUSTOM.

I. KING ALFRED’S DOOMS.

In order that the examination of early Anglo-Saxon custom may be free from the intrusion of elements introduced by the Northmen, it is necessary to go back to evidence of earlier date than the laws of King Alfred. Though collected mainly from earlier sources, these laws took their present form probably after the Compact with Guthrum had been made.

They do not profess to be a full statement of early West-Saxon law. King Alfred himself declares that he dared not add much of his own, ‘But those things which I met with either of the days of Ine my kinsman, or of Offa, King of the Mercians, or of Ethelbert—those which seemed to me the rightest I have here gathered together and rejected the others.’

Under these circumstances it will be more convenient to refer back to King Alfred’s laws when needful in connection with the earlier evidence than to consider them as a separate whole.

There is, however, one subject upon which the evidence of King Alfred’s laws may properly be considered before passing on to the earlier laws.

We have seen that in the Compact with Guthrum the Anglo-Saxon ‘ceorl who sits on gafol-land’ and who was made ‘equally dear’ at 200 scillings with the Danish lysing was, if the words may be taken strictly, not necessarily a typical or representative member of the ceorlisc class as a whole. Only some of the ceorlisc class may have been gafol-geldas on other people’s land. It is important, therefore, to examine whether King Alfred’s laws afford contemporary evidence that the ceorlisc and the twy-hynde classes were practically the same, and whether they were, as a rule, gafol-geldas. We have seen, from the precious fragments before quoted, that under ancient ‘English’ law a ceorl could rise out of the twy-hynde class and become entitled to a twelve-hynde wergeld of 2000 thrymsas.

If such a statement had been found in West-Saxon law, the inference might at first sight be that the ceorlisc class could hardly have been mainly a class of gafol-geldas. The laws of Alfred surely ought to throw some light upon this important matter.

In section 39 is the following:—

The ceorlisc man in this section takes the place of the twyhynde man in contrast with the six-hynde and twelve-hynde classes. The payments are the bots payable to the owners for fighting within their sacred precinct or inclosure, and the amounts following the proportions of the wergelds of the three classes are:—

In this section the ceorlisc class seems clearly to take the place of the twy-hynde class. They seem to be identical.

Section 40 gives similar evidence, in connection with the burg- or burh-bryce or breach of the fence of the sacred precinct.

Here again the ceorl takes the place of the twy-hyndeman, and the burh-bryce is graduated accordingly, the twelve-hyndeman’s being six times the ceorl’s.

There may well be some delicate significance in the word burh-bryce being applied only to the twelve-hynde or six-hynde men, and not to the ceorl, as though the word burh could not be applied to the ceorl’s homestead. His ‘flet,’ surrounded by its edor or hedge, was perhaps too humble to be classed with the moated or walled enclosure of the burh of the higher landed classes without a change of epithet. But there is nothing to show that the ceorl of this clause is not identical with the ordinary twy-hyndeman.

Lastly, in sections 10 and 18 the three classes are again described as twelve-hynde, six-hynde, and ceorlisc; while in sections 29, 30, and 31 they are described as twelve-hynde, six-hynde, and twy-hynde.

All this seems to show that for general purposes ‘twy-hynde’ and ‘ceorlisc’ were convertible terms.

It can hardly be said that there is anything in King Alfred’s laws making a distinction between the twy-hynde class and the ceorlisc class. There seems to be nothing to suggest that the twy-hynde wergeld was confined to any particular section of the ceorlisc class. And therefore, so far as the laws of Alfred are concerned, the description of the twy-hynde class in the Compact with Guthrum as gafol-geldas equally dear with the Danish lysing would seem to apply generally to the ceorlisc class as a whole. And this being so, it would seem probable that, speaking broadly, by King Alfred’s time the chief practical division of classes had already resolved itself into that between the landed classes on the one hand and their gafol-paying tenants on the other.

It is quite true that under King Alfred’s laws there is the six-hynde class between the twelve-hynde and the twy-hynde or ceorlisc class; but his laws tell us nothing about this six-hynde class except what may be inferred from the fact that its members certainly were not included in the ceorlisc class. It can hardly be likely that King Alfred could, in his compact with Guthrum, have confined the twy-hynde class to the ‘ceorl who sits on gafol-land,’ leaving out the six-hynde class altogether, if, in his laws, he meant by the six-hynde class the ceorls who did not sit on gafol-land. It might have been possible to suppose that he used the word ‘ceorl’ in his laws in a wider sense, as including both twelve-hynde and twy-hynde, had he not introduced the six-hynde class between them and restricted the meaning of the word ‘ceorlisc’ to the twy-hynde class. He used it apparently to distinguish the twy-hynde from the other classes which by inference were not ceorlisc.

What the six-hynde class was and what the ceorlisc class was under West-Saxon law two centuries earlier than King Alfred’s day must be left to be discovered from the evidence of the Dooms of Ine.

In the meantime, the consideration of the position of the ceorlisc class having brought before us the penalties for breach of the precinct and for fighting within the precinct of the various classes, it may be well to consider also the evidence of King Alfred’s laws upon the mund-byrd or borh-bryce of what we may regard perhaps as the official classes, and in which apparently, at this date, even the twelve-hynde man had no part.

The mund-byrd or borh-bryce seems to be confined to those in official or judicial position.

Already in King Alfred’s laws we have lost the word ‘grith’ as we had already in Cnut’s laws lost the later phrase ‘sac and soc,’ but the tribal principle underlying the meaning of the words remains the same and becomes all the clearer as we go back in the evidence.

In s. 3, the borh-bryce and mund-byrd of the king are stated to be five pounds of ‘mærra pæninga,’[241] an archbishop’s three pounds, and those of the ealdorman and lesser bishops two pounds, exactly as they were reported to have been in Cnut’s time in the ‘grith-law’ of the South Angles.[242]

The almost indiscriminate use of the two terms in this clause suggests again the very slight distinction between them. The man who by giving his pledge placed himself artificially, so to speak, under the mund or protection of a person in a judicial position or authority and broke his pledge became guilty of borh-bryce or mund-byrd, it hardly mattered which. The penalty apparently included both crimes in one. If we might use the Brehon phrase it was the eneclann, or honour price of the person whose dignity was injured, which had to be paid.

But, as we have seen, these penalties were not only personal but also connected with the sanctity of what under Brehon law was called the ‘maigin’ or precinct. The Brehon tract which declares the extent of the ‘inviolable precinct’ of the ‘boaire-chief’ to reach as far as he can throw a spear or hammer from the door of his house, also states that those of higher chieftains extended by multiples of this according to their honour-price, so that the inviolable precinct of the ri-tuath extended to sixty-four spear-casts from his door.[243] We have already quoted a fragment fixing the extent of the king’s ‘grith’ at ‘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.’[244]

Under King Alfred’s laws, as we have seen, the penalties for breaking into this precinct and committing crimes in it were payable to the person whose ‘peace’ was thus broken, and were not confined to the official classes as the mund-byrd and borh-bryce were. They went back to the tribal root-idea of the sanctity of the hearth and homestead of every tribesman. They extended from the king to the ceorl through all grades. The penalties for fighting within the precinct were practically the same in amount as those for the breaking into it. The penalty for fighting in the ceorlisc-man’s ‘flet’ was practically the same as that for breaking through his ‘edor’ into it.

When all these penalties are put side by side in the form of a table two points become evident.

First, how far removed the social position of the twelve-hyndeman was from that of the ealdorman. The penalty for fighting within his precinct is not much more than a third of that of the bishop and ealdorman, the inference being that his official position was much lower than the ealdorman’s.

Secondly, when we compare the figures in the three columns, while the burh-bryce and fightwite of the twelve-hynde, six-hynde, and twy-hynde classes are both graduated in proportion to their wergelds and very closely resemble one another, it is curious to notice that the fightwite is based upon a duodecimal and the burh-bryce on a decimal system of reckoning, as if they had been derived from different original sources. If King Alfred had originated them he would probably have made them alike.

In the following statement, collected from the several sections of King Alfred’s Laws for purposes of comparison and future reference, the amounts are stated in Wessex scillings of five pence.

II. THE DIALOGUE OF EGBERT, ARCHBISHOP OF YORK A.D. 732-766. ECCLESIASTICAL OATHS AND WERGELDS.

There is a gulf of nearly two centuries in the West-Saxon evidence between the laws of Alfred and the ‘Dooms’ of Ine.[245]

We are taken at a leap, not only beyond all thought of the Northmen’s invasions, but also half a century behind another great epoch of European importance.

The Empire of Charlemagne formed a kind of watershed in Anglo-Saxon as in European history, and was marked, as we have seen, by a permanent change in the currency of the Western world.

The Courts of Offa and Egbert were intimately connected with the Imperial Court of Charlemagne, and the transition from the early Anglo-Saxon currency of sceatts to that of the heavier pence was a typical result of the influence of the Empire. It may be that the supremacy of Wessex under Egbert was indirectly another result of it.

The kingdom of Egbert did not extend over Northumbria, and Northumbria had its own independent connection with the Court of Charlemagne. It had its own mode of monetary reckoning in ‘thrymsas,’ and from the Northumbrian fragments already examined we have gained some glimpses into its ancient customs.

The document next to be examined refers to Northumbria, and, as it dates from the period immediately preceding the time of Charlemagne, it helps to bridge over the gulf between the Laws of Alfred and Ine.

It is in the form of a Dialogue or set of questions put to Egbert, Archbishop of York, by his priests, with his answers thereto, and its date may be about A.D. 750.

Egbert, Archbishop of York, was an important figure in Anglo-Saxon history. The brother of Eadbert, the Northumbrian king, the recipient on his accession to his episcopal dignity of the remarkable letter of Bede describing the religious anarchy of his diocese, the founder of the great school at York, in which his pupil Alcuin was educated and from which he migrated to the Court of Charles the Great, Egbert was an important personage, and the centre of beneficent influence in the Northumbrian church and kingdom.

Moreover, this document, so far as it goes and as regards the matters mentioned in it, deals with the questions raised by it avowedly from an ecclesiastical point of view. The great ecclesiastic comes down upon his diocese from a wider world. He had been educated and ordained deacon at Rome. And just as in the monastic rules of St. Benedict Roman weights and measures were adhered to, so when this archbishop has to speak of money matters, ignoring all local currencies, he still thinks and speaks and calculates in the terms of the Roman Imperial currency, and not in Anglo-Saxon sceatts and scillings, or in the thrymsas of Northumbrian usage.

The Dialogue contains several interesting clauses.

The first to be noticed is in answer to the question as to the value to be attached to the oaths of the bishop, priest, deacon, and monk. The reply is:—

Now, it seems very unlikely that such a question as this about the value of oaths should be asked of the Archbishop if it had already been settled by law in Northumbria. And so we seem to see him here making a claim and laying down a principle for the first time in Northumbria the following of which resulted in his priests being put upon a par with the secular thane as regards the value of their oaths.

The principle that one man’s oath was worth more than another’s we have seen already stated in the undated fragment on ‘Mercian oaths,’ which very possibly represented ancient tradition.

And, further, the right of the priest to be put on equal footing with the thane we have seen recognised in another fragment.

The same principle was recognised in the further fragment on the North People’s wergelds.

The usual statement in Continental and Anglo-Saxon laws as regards compurgation is that a man must clear himself by his oath and the oaths of so many oath-helpers. But in the Laws of Ine, with which the Archbishop was doubtless conversant, another method was followed in some cases. A man must clear himself, not with the oaths of so many oath-helpers, but with an oath of so many hides. The claim of the Archbishop seems to favour the view, suggested but hardly established by various passages in the Laws of Ine, that the twelve-hyndeman’s oath was reckoned at 120 hides.[246]

All that one can say is that the Archbishop in claiming that the Northumbrian priest’s oath should be regarded as one of ‘120 tributarii’ seems to have had in his mind what was afterwards generally conceded, i.e. that the priest should be put, in social position, on a par with the thane or twelve-hynde man. Moreover, the Archbishop’s use in this connection of the phrase ‘so many tributarii’ or ‘manentes,’ instead of so many ‘hides,’ is interesting. It helps us to understand that the hide as used in the Laws of Ine was probably the same fiscal or gafol paying unit as the familia of Bede.

Another clause in this interesting document bears more directly upon the question of homicide, and it is valuable as giving information quite independent of the Laws.

It is the answer of the Archbishop to the question, ‘What if a layman shall kill a cleric or a monk, whether the precium sanguinis according to the law natalium parentum shall be paid to his near relations or whether his seniores are to be satisfied by a larger amount—which does your Unanimity sanction?’

The reply is as follows:—

The wergelds here stated for the clergy are stated in sicli and argentei. The Roman argenteus, as we have seen (after Nero’s time), was the drachma of silver, and the siclus was a didrachma or quarter of an ounce. The Archbishop, therefore, was claiming 200 ounces of silver as the wergeld of his Northumbrian priest.

Whether he knew it or not, this amounted in value to 4000 sceatts (of 20 to the ounce), i.e. 800 Wessex and 1000 Mercian scillings. So that in claiming for his priest a wergeld of 200 ounces of silver he does not seem to have had in his mind either the Mercian or the Wessex twelve-hyndeman’s wergeld, of 1200 scillings, of 5 or 4 sceatts, but, possibly, as we shall see, a Kentish wergeld of 200 Kentish scillings of 20 sceatts.

The Archbishop’s claim falling short of what was ultimately granted in Northumbria is curious as showing that Northumbrian law, at this time, before the inroads of the Norse invaders, was still unsettled, and that the Archbishop may have been influenced by Kentish rather than by West-Saxon or Mercian precedents. It was after another century, and after the Norse invasion and conquest, that the wergelds of the mass-thane and secular-thane in the ‘North People’s Law’ were stated to be alike at 2000 thrymsas, or 1200 Wessex shillings. How much earlier the equation was made in Northumbria we know not.

The next clause to be noticed is that in reply to question viii., viz. ‘If any monks shall mix themselves up with sacrilege, should you now prosecute, if the avengement of the crime pertains to laymen who are their relations?’

The reply is as follows:—

This passage once again makes it clear that in this ecclesiastical document of the Archbishop of York 30 sicli = 60 argentei or Roman drachmæ.

And, apart from this monetary question, the clause is interesting as marking the claim that all ecclesiastical causes should be settled by the clergy themselves.

In case of crime by an ecclesiastic against a layman the Church reserved the right to stop the layman’s prosecution by payment of the wergeld or other satisfaction. At the same time the Church was to claim double compensation from laymen committing crime against nuns. It is impossible to disassociate this document from the letter of Bede describing the religious anarchy of the diocese caused by the abuses of the loose monastic system in vogue, and urging the newly appointed prelate, who was not yet Archbishop, to undertake their energetic reformation.

But for the present purpose the real worth of these statements is the independent evidence they give of the continued strength of the wergeld system and the force of tribal custom in the Northumbrian kingdom before the Norse invasions. The sense of individualism in Christianity was opposed to the solidarity and joint responsibility of the kindred. But instead of fighting against the wergeld system the Church had actually succumbed to it, and adopted it for its own advantage, placing a money price upon the blood of its several ecclesiastical ranks, making the value of the priest four times that of the monk.

The system of compurgation, again, was a part of tribal usage. The Church adopted it and graduated the worth of the oaths of its various grades according to secular usage, making the oath of the priest in evidence four times the value of that of the monk.

In other words, in England, as on the Continent, the clergy, instead of combating tribal custom in these matters, took their place in the order of secular rank according to their several grades, bishops claiming the wergeld of princes, and priests that of thanes, with, however, the obviously useful reservation that if their secular rank by parentage and birth should be higher than their ecclesiastical grade, the higher wergeld should be theirs.

All this we see in the course of being introduced into Northumbrian usage in answer to local inquiry and local needs, upon the authority of perhaps the very wisest of Saxon prelates.

The wisdom of such accommodation as this on the part of the Church to pagan tribal usage is not the matter in question. The point of the evidence is the proof it gives of the continued strength of tribal usage in England after many generations of occupation and settlement.

III. THE DOOMS OF INE, A.D. 688-725.

The Dooms of King Ine occupy so important a position as the earliest direct information upon Anglo-Saxon custom apart from Kent that they demand careful separate study.

We ought to be able to learn something from them of the aim and spirit of legislation in Wessex two centuries before King Alfred added them to his laws.

There is no reason, I think, to suspect that the text of the Dooms of Ine was altered by Alfred. The words already quoted in which he says that in his Dooms he collected together what he thought ‘rightest’ of those things which he met with of the days of Ine and Offa and Ethelbert without adding much of his own are quite consistent with his preservation of King Ine’s laws as a whole, though in some points differing from his own.[248]

King Ine came to the throne in A.D. 688, and he states in his preamble that he issued his ‘Dooms’ with the counsel of Cenred his father and of the Bishops of Winchester and London (who had already had twelve or thirteen years’ experience in their sees) and also with the counsel of all his ealdormen and his Witan:—

We mark, then, at once that at this period the most prominent public official was the ealdorman. From clause 8 and clause 9 we learn that private revenge for a wrong was forbidden before justice had been demanded from a ‘“scir-man” or other judge.’ And that the ealdorman was a shire-man we learn from another clause (clause 36).

Here, as in Alfred’s Laws, the ealdorman is an official with judicial jurisdiction. And we learn more about his social status as compared with that of other classes from s. 45.

The burg-bryce is the same thing as the burh-bryce—the breaking into the burh. And if we compare the ‘bots’ of this clause with the burh-bryce of King Alfred’s s. 40 (supra, p. 372) we see that he was not merely copying King Ine’s clause. Nearly as they may resemble one another, there are marked differences between the two clauses.

The king’s burh-bryce in King Ine’s Laws is the same as King Alfred’s. The ealdorman’s is eighty scillings instead of sixty. The king’s thane takes the ealdorman’s place with sixty, and the gesithcund-man’s burh-bryce in King Ine’s Laws is practically the same as the twelve-hyndeman’s in King Alfred’s laws.

The gesithcund-man we have met before in one of the fragments of early English law, but so far as relates to Wessex he appears in the Dooms of Ine for the first and last time, and we shall have to consider by-and-by how far he is the same person as the twelve-hyndeman. But for the present it is sufficient to note that he is mentioned along with the king’s thane and the ealdorman apparently in order to state the extent to which his oath was to be taken as valid in judicial evidence, or whatever is meant by the words ‘and according to this make legal denial.’

The chief obstacle to the maintenance of the peace seems to have been the frequency of thefts and homicide of all kinds. The connection between homicide and theft is the subject of several clauses in the Laws of Ine. And as they bring into notice the liability of the kindred it may be well to consider them in order.

These are some of the clauses in the Laws of King Ine with reference to the slaying of a thief:—

Then comes the question what happens if a man should seize a thief and slay him as a thief. The next clause goes on to state that in the case of the thief slain in the wood the slayer must declare that he slew the man for a thief, and then neither the lord nor the ge-gildas of the slain could demand a wergeld. But if he should conceal the slaying and it became known after a time, the way was open for the kindred of the supposed thief to exculpate him by oath and so claim his wergeld, from the slayer.

Where there is no concealment, the kindred of the thief must swear that there shall be no vengeance on him for delivering up the thief.

If the man who had seized the thief let him go he was liable to pay ‘wite’—and if, as we have seen, an ‘ealdorman’ did so it was at the risk of losing his ‘shire.’

Theft seems to have been an increasing crime, for further on in Ine’s Laws there are repetitions of some of these clauses, with slight additions, showing that the Dooms of Ine were added to from time to time (s. 35 and s. 27).

We have seen how severe a penalty was attached to the crime against the king’s peace of letting a thief once seized escape. The following clause is still more severe upon any one harbouring a fugitive thief or other outlaw, and it introduces again the division of classes as regards wergelds into gesithcund and ceorlisc, but without mentioning the wergelds of each class.

This ‘clearing himself according to his own wer’ alludes evidently to the oath of himself and his oath-helpers and shows that the oath required to clear the gesithcund-man from the charge was a greater one than that required to clear a ceorlisc-man. This was doubtless the case throughout, but apparently it had become needful to strengthen the oath of both classes. The following clause required that in the oath of both the gesithcund and ceorlisc-man in denial of homicide there should be among the oath-helpers ‘a King’s oath of 30 hides.’