The last part of the clause is ambiguous, but on the whole, taking into account the Latin of the ‘Quadripartitus’ and Liebermann’s suggested translation and the difficulty of the various other suggested readings, I think it is most probable that the meaning may be, that if the man charged cannot get the required ‘king’s oath’ or that of another hynden without paying for it, he may give ‘a coat of mail and a sword’ to the ‘hynden’ if it should be needful. We may have to recur to this section, but without attempting to build anything upon this more than doubtful addition to it. Nothing important, I think, turns upon it.

The following is important as showing that both the gesithcund and ceorlisc classes were under the military obligation to follow to the fyrd.

The recurrence in so many clauses of Ine’s Laws of the division of classes into gesithcund and ceorlisc leads to the conclusion that it must have been a very prominent one.

It was accepted in the Laws of Ine as a fact existing and of common knowledge, with no mark upon it of novelty or innovation. The distinction was evidently ancient and radical, and yet the word ‘gesithcund’ is not met with in any later laws.

Throughout the 76 clauses of the Laws of Ine only one makes direct mention of the division of classes into twelve-hynde and twy-hynde, the distinction so generally made in the later laws, and in this clause, as in King Alfred’s Laws, the six-hynde class also appears:—

The man-bot was, as we have seen, the payment to a lord for the loss of his man.

There is an indirect mention of wergelds in s. 34, which states that any one who has been in a foray in which a man has been slain must prove himself innocent of the slaying and make bot for the foray according to the wergeld of the slain. If his wergeld be 200s. he must make bot with 50s., and the like justice was to be done with respect to the ‘dearer born.’

We may assume from this and the later evidence that already the wergeld of the twelve-hyndeman was 1200 scillings, and that of the twy-hyndeman 200 scillings, though in the Dooms of Ine this is not otherwise directly stated. The laws take it for granted that the amount of the wergelds was common knowledge, as in so many other cases.

The mention of the six-hynde class in addition to the twelve-hynde and twy-hynde classes makes it a matter of importance to learn what manner of persons were included in the six-hynde class.

The Laws of King Alfred, as we have seen, generally mention the six-hyndeman with the other classes, but without giving any clue to an answer to the question to what social rank he belonged. In the Laws of Ine, however, a distinct clue is given, and it is one which accords with Continental usage and suggests a reason for the disappearance of the six-hyndeman from the later laws. He is mentioned again after King Alfred’s time only in the so-called Laws of Henry I.

The clauses relating to this subject are important enough to claim consideration in a separate section.

One other important social distinction, or division of classes, appears already in the Laws of Ine, viz. that which existed between possessors of land and gafol-geldas and geburs who were, as we should say, tenants on the land of others. We shall have to return to the consideration of this distinction and to note the fact that it is in these Laws of Ine that the gebur appears as almost the equivalent of the gafol-gelda, while they afford incidental evidence also that the typical holding of the gafol-gelda (and thus of the gebur) was the ‘yardland’ or virgate of open-field husbandry.

The mention of the gafol-gelda and the gebur occurs in s. 6.

This clause is intelligible if we follow the principle that fighting anywhere is a breach of the king’s peace. The king, therefore, in every case and wherever it happens is entitled to a wite of 120 scillings. But if it happens within the house or precinct of an ealdorman or of any other chief member of the Witan the amount is divided between the king and his official. If the fighting is in the precinct or house of a gafol-gelda or gebur the king still gets his full wite of 120 scillings, and an additional six scillings is to be given to the gebur, just as in King Alfred’s Laws the same amount is to be given to the ceorlisc man for fighting in his ‘flet.’

This clause forms a valuable groundwork of evidence as to the position of the gafol-gelda under West Saxon law, and we shall have to recur to it when we further consider the position of the ceorlisc class at the date of King Ine’s Dooms. The omission of the gesithcund class from this section, unless included as distinguished members of the Witan, can hardly be accidental, but it is not easy at first sight to divine a plausible reason for it.

Let us for a moment try to recognise the position to which so far the Dooms of Ine have brought us.

We seem able in those already quoted to trace a process at work combining distinctions of classes of different origins and based upon different lines of thought.

We find a very marked and prominent division of classes into gesithcund and ceorlisc alongside of hardly more than incidental mention of the division of classes so prominent afterwards into twelve-hynde and twy-hynde. In King Alfred’s Laws we could trace no practical distinction between the twy-hynde and ceorlisc classes. We could not distinguish between them. All distinction at any rate evaded our notice. We have now to ask the double question what was the distinction between gesithcund and twelve-hynde, as well as what was the distinction between ceorlisc and twy-hynde.

The chief question raised by King Alfred’s Laws was whether any great distinction existed between the ‘ceorl who sits on gafol land’ and other members of the ceorlisc class. The Laws of King Alfred gave us no clue on this point. It seemed as though, after all, the ceorlisc class must have been so generally gafol-geldas that practically the twy-hynde and ceorlisc class might be spoken of roughly and inclusively as ‘ceorls who sit on gafol land,’ and that this ‘sitting on gafol land’ might be, after all, the fairly distinctive mark of the ceorlisc class for whom King Alfred claimed a twy-hynde wergeld as ‘equally dear’ with the Danish lysing.

And now in this clause 6 of King Ine’s Laws we find the gafol-gelda or gebur put directly into the place of the ceorlisc man of King Alfred’s Laws with the same penalty of six scillings payable to him for fighting in his house or his ‘flet.’

It might be said at first sight that here surely is a clear trace of the degradation of the ceorl into a gafol-gelda during the 200 years between the Laws of King Ine and King Alfred. For, it might be said, the ceorl of King Alfred’s Laws has the same bot for the fighting in his house as that which the gafol-gelda had under Ine’s Laws 200 years earlier. This may be so. But how do we know that the gafol-gelda of King Ine’s time was not already the typical ceorl as he seems to have been in King Alfred’s time? In that case there would be no sign of degradation of the ceorl into the gafol-gelda. Or at any rate if there had been a degradation from some original higher position and status it had already taken place before the time of King Ine. Our judgment on the position of the ceorlisc class under King Ine’s Laws must still be reserved.

IV. THE POSITION OF STRANGERS IN BLOOD UNDER KING INE’S LAWS.—THE SIX-HYNDEMAN.

The question of the position under West Saxon law of strangers in blood is one of much interest, and we have reserved the clauses relating to it for separate consideration.

There may have been several different classes of strangers.

How far there was a considerable substratum of conquered Romano-British inhabitants is a very vexed question. That there were such in the outlying and recently conquered districts is certain. Mr. Coote’s view may not be wholly mistaken that a Romano-British population, living, as on the Continent, under their own laws and customs, existed in most districts, especially in the towns.

These strangers may some of them have had land and some of them not. Certainly not all of them were regarded as theows or thralls.

To what class, then, did they belong? And how were they treated? What degree of freedom was granted them, and what was their wergeld, if they had any?

It is to the Laws of Ine that we must go for the answers to these questions. And we start on the inquiry seeking light also upon the position of the as yet unexplained six-hynde class so often mentioned in the Laws of King Alfred but never in the later laws.

The only hint we have had as yet as to the meaning of the six-hynde class is whether gesithcund-men not having land may not have belonged to it.

The wergelds of the ordinary classes of tribesmen were doubtless too well known to require more than incidental mention in King Ine’s Dooms, but there are several clauses or fragments of clauses specially mentioning the wergelds of the wealh and of the Wilisc-man.

It will be noticed that the wergeld of the Wilisc man with one hide of land is one fifth of the wergeld of the wealh with five hides, so that wealhs and Wilisc men seem to be treated on the same lines—as if the two words meant the same thing.

It is not easy to draw a distinction between the ‘wealh’ and the ‘Wilisc’ man. ‘Wilisc’ is certainly used as the adjective corresponding to ‘wealh,’ though sometimes (as e.g. in ‘Wilisc ale’) for something specially Welsh. In the Lex Salica, as we have seen, the Gallo-Roman living under Roman law, according to the Malberg gloss was a ‘Wala’ with a wergeld half that of the ‘ingenuus’ living under Salic law. And, without pushing this meaning so far as Mr. Coote was inclined to do, we may fairly, I think, look upon the word ‘wealh’ as generally embracing not only natives of Wales and West Wales, but also the wider class of persons of the conquered populations, whether Welsh or Britons or Romano-Britons, who were not recognised as of Anglo-Saxon blood.

We may call in the later evidence of the Northumbrian Priest-law[250] in illustration. The use of ores and half-marks in this document and its being, so to speak, domiciled in York, seem to connect it with the period of the Northmen’s conquest of Northumbria, when York was its capital and as yet the tide of battle had not been turned—i.e. shortly before the date of the Compact between Alfred and Guthrum. In this Priest-law the penalty for the practice of heathen rites on the part of a king’s thane was ten half-marks, and if he wished to deny the charge it must be with ten named by himself, ten named by his kindred (maga), and ten Wallerwente, and if he failed in the denial he had to pay the ten half-marks, half of which went to the church and half to the king.

And so also in the case of the ‘landagende man’ who had to pay six half-marks: he too must deny with as many of his like (gelicena) and as many wente as the king’s thane. And so also in the case of a ‘cyrlisc’ man.

It is quite clear that these Wallerwente were free inhabitants of the district, for their oaths were taken in evidence, which would not have been done had they been theows. The Wallerwente were, on the other hand, not recognised as ‘ceorlisc’ Saxons. They were obviously the native Celtic inhabitants of the great plain of York[251]—the gwent or basin of the Derwent and the Ouse. The locality is fixed by the clause which restricts the Sabbath day’s journey on necessity to six miles out of York.

Now, we have seen that under Frankish laws the Gallo-Roman population living under Roman law had half-wergelds. If the freeman living under Salic law had a wergeld of 200 solidi the ‘Romanus possessor’ had a wergeld of 100 solidi. And so in the same way, returning to the Laws of Ine, while the gesithcund or other landed Wessex freeman was a twelve-hyndeman, the wealh who had five hides was reckoned as six-hynde.

We have seen that the English ceorl who rose to the possession of five hides and paid gafol to the king, and with coat of mail and over-gilded sword followed to the fyrd, became gesithcund with a wergeld of 1200 scillings. It is quite in accordance with tribal feeling as shown in Continental usage that the stranger in blood, whether Welsh or Romano-British, who had risen in the same way to the possession or occupation of five hides should be six-hynde with a half-wergeld of 600 scillings.

We have quoted the Northumbrian Priest-law and noted that its penalties in half-marks and ores suggest that it belongs to the period before King Alfred’s Compact with Guthrum, during which York was the capital of the Northmen’s kingdom. It is interesting to see that in the fragment of North People’s Law quoted in the previous chapter, belonging probably to the same district and to the same period, some of the clauses with reference to the Wilisc man are evidently copied from the Laws of Ine though with some additional matter and perhaps some slight errors in the figures.

And it is worth notice that it was in this very document that the Northmen as conquerors, while leaving the English wergeld of the thane at 2000 thrymsas or 1200 scillings, gave to their own ‘hold’ a double wergeld of 4000 thrymsas.

We may therefore regard the six-hyndeman of King Ine and King Alfred’s Laws as probably the Wilisc man with five hides or more. There does not appear to be anything in King Alfred’s Laws to lead us away from this conclusion. Any other would leave the complete silence of King Alfred’s laws with regard to the Wilisc class unexplained, unless it could be considered that in the turmoil of the Northmen’s invasions and the stress of war the Wilisc class had already become more or less amalgamated with the Saxon population by the force of their common interests against the invaders.

The silence of the later laws as to a six-hynde class may probably be explained by the same considerations.

Passing from the Wilisc man who was six-hynde in consequence of his landed position to the Wilisc man viewed simply as a stranger in blood, there is further evidence that as a stranger he was regarded as only half as ‘worthy’ as an Englishman. In s. 46 of Ine’s Laws it is stated that an oath-worthy person charged with theft is to deny the charge with an oath of 120 hides if the accuser be an Englishman, but with only 60 hides if the accuser be a Wilisc man.

This clause does not tell us whether the Wilisc man was considered to be oath-worthy or not. Probably he would not be as against a Saxon. It only states that when the charge of theft was made by an Englishman the oath was to be one of twice as many hides as would be required to deny the charge of a Wilisc man.

Corroborative evidence as regards the half-wergelds and oath-worthiness of the wealh class may be found in an ordinance of later date, but belonging to Wessex, and it may be quoted as throwing strong light upon the position of the Wilisc or wealh class (wealþeode) in apparently a border district, where Saxons and wealhs met together with a boundary of a river between them. It is entitled an ‘Ordinance respecting the Dun-setas.’[253]

The leading fact throughout this document is that the two peoples met avowedly as strangers. Its aim was to keep the peace and to protect the owners of cattle on each side of the stream from the raids of their neighbours on the other.

They are recognised as strangers to each other and on principle treated reciprocally as such. Denial of a charge by oath and oath-helpers, unless by special agreement, is assumed to be of no use and evidently out of place between strangers in blood. Consequently the ordeal was the only answer to a charge of theft.

This was fully in accordance with tribal custom no less than the further fact that their wergelds were, obviously for the same reason, to be half-wergelds.

In this document the wealh is treated according to tribal principle as a stranger in blood, both as regards recourse to the ordeal, and the half-wergeld. And the word ‘wyliscne’ is used as the appropriate adjective distinguishing the wealh from the Englishman. So that in this case ‘wealh’ and ‘wylisc’ mean the same thing. Further, this evidence, though later in date probably than King Alfred’s Laws, is practically Wessex evidence, because, though the geographical position of the Dun-setas is not accurately known, their connection with the West Saxons is the one thing which is clear.[254]

Returning to the Laws of Ine, as the wergeld of the Wilisc man with five hides was a half-wergeld of 600 scillings it might be supposed that the ordinary Wilisc man’s would be a half-wergeld of 100 scillings. But it was not exactly so, for, according to s. 32 above quoted, the Wilisc man with one hide had a wergeld of 120 scillings, one with half a hide 80 scillings, one without any land 60 scillings.

In an isolated clause added to s. 23 a somewhat different statement is made. The wealh gafol-gelda has the same wergeld as if he had a hide of land, and the wealh theow the same wergeld as the Wilisc man without land.

That the theow of this passage is the ‘wealh-theow’ with a wergeld of 60 scillings is clear from sections 54 and 74, the first of which relates to the ‘Wilisc wite theow.’

The wite-theow was a person who had once been free but from debt or calamity had sunk into thraldom.

The English ‘wite-theow’ is dealt with thus in the Laws of Ine.

His free kindred might ignore him if they liked: there was no need for them to pay the wergeld of a kinsman who had forfeited his freedom.

Section 74 relates to the theow-wealh, but this term would seem to apply to the case of the wealh-wite-theow.[256]

This clause is repeated in the so-called Laws of Henry I. c. lxx., but the amount named is 40 scillings instead of 60 scillings. Sixty scillings is double the manbot of the twy-hynde man in s. 70 of Ine’s Laws, and it may be the double value of the wealh-theow to his lord.

V. THE TWELVE-HYNDE AND TWY-HYNDE MEN AND THEIR HYNDENS OF OATH-HELPERS.

The silence of the Dooms of Ine upon some of the most important matters relating to ancient custom is no doubt disappointing, but their position as almost our only direct evidence of the customs of Wessex for the first two or three centuries after the conquest of Britain gives to every hint a value. Some of the clauses are so isolated that if we could not approach them with light from other sources we should lose the right clue to their meaning. It is only by following the course we have adopted of working backwards from the known to the unknown that we can rightly interpret some of the clauses by reading into them some things not directly mentioned by them.

And yet if we try to understand such a fundamental matter as the meaning of the division of classes into twelve-hynde and twy-hynde[257] it is to the Dooms of Ine that we must go.

It is in these Dooms that the meaning of the words twelve-hynde and twy-hynde is most clearly connected with the system of compurgation and the oaths of the oath-helpers. It is moreover in these Dooms that at first sight the mystery is made still more mysterious by the statement of the value of the oaths in so many hides.

The fact of this connection between the value of the oaths and hides was first brought to our notice in the Dialogue of Archbishop Egbert apparently as a matter already well known and established. And it was his claim that the oaths of his priests should be reckoned as oaths of 120 hides which confirmed what, from the Laws of Ine, was hardly more than doubtful inference that this was the value of the oath of the gesithcund or twelve-hynde class.

The Archbishop’s mention of it confirmed it, but left its meaning and origin as obscure as ever. And yet the whole question of the structure of Saxon society is so mixed up with the right understanding of the twelve-hynde and twy-hynde division of classes that unless further light can be let into it a good deal of what we should like to see clearly must remain unhappily enveloped in fog.

Archbishop Egbert’s substitution of the phrase so many tributarii or manentes for the ‘so many hides’ of the Laws of Ine obliges us to regard the hide of Ine’s Dooms in this connection as equivalent to the ‘familia’ of Bede. The Saxon translator of the Latin text of Bede translated the word familia sometimes by ‘hide’ and sometimes by hiwisc or family. In this connection it is also worth noting that, although writing a century later than Egbert and two centuries after the date of Ine’s Laws, the translator of Bede had not cast off all traces of tribal tradition, for he consistently used the word mægthe as the equivalent of Bede’s ‘provincia.’ He still thought of tribes and peoples rather than of districts and provinces. His ideas in these things ran on tribal rather than on territorial lines. So to him the hide was still the family unit, and the greater kindred or tribe, as in Beowulf, was the mægthe. In Beowulf we saw that some of them conquered others and made them pay tribute. So they did in Bede’s time.

While, then, we are obliged to connect the value of oaths reckoned as of so many hides with hides which were family holdings, or, as Egbert calls them, manentes and tributarii, the original meaning of the connection must be sought for in tribal conceptions.

It seems to be quite clear that in saying that the twelve-hyndeman’s oath was an oath of 120 hides, and the ceorl’s presumably of 20 hides, we have not yet necessarily struck the real train of thought underlying the connection between oaths and hides. For it is absurd to think that the twelve-hyndeman could pretend to the occupation or possession of 120 hides or family holdings, or the ceorl to 20 hides. They could do no such thing. The ceorl, in later times at all events, who had the twy-hynde wergeld was ‘the ceorl who sits on gafol land’—a gafol-gelda on some one else’s land. And to the great-grandson of the ceorl who had risen to five hides, the continued possession of five hides was sufficient to qualify him for a sithcund status worth a wergeld of 1200 shillings or 2000 thrymsas.

The question, therefore, needs closer examination if we would rightly understand the meaning underlying the distinction between the twy-hynde and twelve-hynde social status.

Let us then in the first place try to understand the meaning of the word hynde which gives to the distinction between twy-hynde and twelve-hynde its important significance.

The word separated from its prefix apparently occurs in only two places in the Laws. It occurs for the first time in an important clause of the Laws of Ine. And once more it occurs in the Laws of Athelstan, in the ‘Judicia Civitatis Londoniæ.’ A word which occurs again in Anglo-Saxon laws after an interval of more than two centuries may and perhaps must have had a well-known original significance as a legal term though found nowhere else in Anglo-Saxon literature.

In Ine s. 54 the word is used twice. The first part of the clause, which has already been quoted, is as follows:—

In this first mention of the hynden the word must mean the set of oath-helpers supporting their kinsman with their oaths, and the clause lays down the rule that in every such set of oath-helpers in the case of ‘slaying’ there must be a ‘King’s oath of thirty hides.’ But what is this King’s oath of thirty hides which is to be in the hynden of oath-helpers of both the twy-hynde and twelve-hynde man in case of man-slaying?

In the Compact between Alfred and Guthrum is a clause, already quoted, immediately following the statement of the wergelds of Dane and English, and the declaration that they were to be ‘equally dear,’ which seems to be almost a repetition of the clause in Ine’s Laws, but without using the word hynden.

We have seen that the King’s thane is mentioned in the Laws of Ine (s. 45), and that his social position was much higher than that of the ordinary gesithcundman. The bot for his burg-bryce was sixty scillings—i.e. halfway between that of the ealdorman at eighty scillings and that of the gesithcundman having land at thirty-five scillings.

The King’s thane’s oath seems, then, to be what is meant by the King’s oath of thirty hides in the Laws of Ine. But the King’s thane’s oath of thirty hides being the oath of a class higher than that of the gesithcundman, how is it that the oath of the latter could be a 120 hide oath?—i.e. worth four times as much as that of his superior, the King’s thane.

At first the two statements seem to clash, but on reflection a spark of light seems to come from the collision. The King’s thane’s oath in this case is only one oath in the hynden of twelve oath-helpers supporting the twelve-hynde or twy-hynde man. When a King’s thane was himself charged with man-slaying the later law declares that he must clear himself with twelve King’s thane’s oaths. The full oath of the whole hynden, himself and his co-swearers, would therefore be equivalent to an oath of 360 hides—i.e. worth three times the 120 hide oath of—may we not now say?—the twelve oath-helpers forming the hynden of the gesithcundman.

The King’s thane’s official position was sufficient to justify the threefold value of his oath and that of the several oaths of his hynden. And if the 120 hide oath of the twelve-hyndeman be the full oath of himself and his hynden of oath-helpers, then his single oath would be a ten hide oath, which is much more within reason. The analogy would be complete were it not for the necessity of including in the hynden of the gesithcundman a King’s thane’s oath of thirty hides; but this may have been an afterthought. The mention of it in the law of Ine is in itself presumptive evidence that it was a new and an additional requirement beyond what Wessex custom had originally required.[258]

So far, then, it seems to be pretty clear that the 120 hide oath of the twelve-hyndeman was the twelvefold oath of himself and his hynden of oath-helpers, each of whose single oaths was, like his own, a ten hide oath.

Adhering, then, to the meaning of hynden as the set of oath-helpers, we have next to keep in mind that the oath-helpers were naturally kinsmen representing the slayer’s kindred and their responsibility for the wergeld of the person slain if their kinsman was the slayer, and by this consideration we are once more thrown back upon tribal custom.

And when in the Compact between Alfred and Guthrum we see the ‘ceorl who sits on gafol-land’ put in the same position as the Norse ‘leysing’ or newly made freeman whose kindred was imperfect, howbeit in course of being widened by each generation, we seem again to be put upon the scent that the twy-hynde condition of the Saxon ceorl may also originally have had something to do with his imperfect kindred.

When further, in the remarkable fragment already quoted, we see the Saxon ceorl himself rising in the social scale, getting land ‘to the King’s utware,’ having a ‘coat of mail, helmet, and over-gilded sword’ and doing direct service to the King, until at last, his son’s son having had that land in succession, the great-grandchildren become of sithcund kin with twelve-hynde wergelds, the scent seems to lie all the more strongly in the direction of the tribal rules of kindred. For it is as though we had watched the process of the growth of kindred in this case till the sithcund condition was reached, and the full hynden had been produced, thus raising the twy-hynde into a twelve-hynde man.

The leysing, we learned from the Norse laws, being a newly made freedman, had at first no freeborn kin from whom he could inherit or who could inherit from him. He had no one of his kin to swear for him or to fight for him till he had sons and grandsons. For three generations the descendants were leysings still. And though during that time kinsmen enough may have grown up around them to swear for them yet still their oaths may well have been reckoned of lower value than those of the hauld, each of whose oath-helpers had a full kindred behind him to support him. It took another three generations to put the leysing in this position.

There may, then, perhaps be involved in this matter of imperfect and perfect kindred a principle of tribal custom originally underlying the terms twelve-hynde and twy-hynde. The oath of full value under tribal usage would be the oath of a man with a full kindred, i.e. with twelve hyndens, each of full kindred, behind him. Only with a full kindred to support him was his protection complete, because without it he could not secure a full oath of twelve sufficiently influential and powerful oath-helpers. If he could claim from his kindred such an oath, then he may well have been considered properly a twelve-hyndeman, because such an oath meant practically that he had the support and protection of twelve hyndens of kinsmen in case of need.

This might at first sight seem an unnecessarily large requirement if the oath were regarded only as clearing a man from the charge of man-slaying. But going back to tribal usage it seems no longer too large when the alternative is considered. The alternative was the ordeal and, on failure of the test of innocence, the feud or the payment of a wergeld of, as we have seen, normally one hundred head of cattle. In either case the slayer was powerless if alone. He was powerful only in having a full kindred behind him bound by ties of kinship and tribal usage first to swear for him instead of his being put to the ordeal, and secondly to fight for him or to assist him in finding the hundred head of cattle required to buy off the feud, according to the proverb ‘Buy off the spear or bear it.’ In either case the completeness of his kindred was the measure of the power of protection behind him.