In the period which followed the Norman Conquest “the laws of good King Edward” was a phrase often on the lips of Englishmen; yet it was but a phrase, for Edward the Confessor, on the threshold of whose reign we are now standing, added, as far as can be ascertained, no laws to the Anglo-Saxon collection. Danish Canute, on the other hand, holds an honourable place in our legal history; for his Dooms, which fill one hundred pages in Liebermann’s volume, show somewhat of the instinct of a codifier as well as a genuine desire to deal equal justice to the Danish and the English inhabitants of the land.

From the death of Alfred—the last king whose laws have been specially dealt with—till the death of Canute, an interval elapsed of more than 130 years or about four generations, and in almost every reign some fresh Dooms received the sanction of the reigning king and his witan. It will be well for us briefly to survey the course of this legislation and to see what light it throws on the social condition of the country, and what changes it reveals in political institutions. When we consider the laws of this period from a social and economic point of view, one fact stands out at once in strong relief. The immense majority of these laws relate to one crime, theft, and to one form of that crime, the theft of cattle. We have before us a population of herdsmen and sheep-masters whose chief concern it is to guard their live stock from the sly, roving cattle-lifter, and to recover them when thus purloined. Herein these tenth-century laws bear a striking resemblance to the border laws,213 the code according to which, in the fourteenth, fifteenth, and sixteenth centuries, rough justice was administered between cattle owners and cattle raiders on both sides of the Scottish border.214 Sometimes, too, the grievances which we hear of in these laws and the rough redress of those grievances which they contemplate, seem to carry us into the same world of which we have read in stories of the Wild West of America only one generation ago. It seems probable that the immense importance thus assigned to the possession and the theft of cattle is partly due to the fact that, owing to the settlement of Danes on the north-east of the Watling Street, a large part of England had now become like Northumberland and Roxburgh, a “border country,” and was subject to all the insecurity of that position.

In order to give greater assistance to the owner of cattle, Edward the Elder ordained that every landowner should have men in readiness on his land to guide those who were seeking to recover their lost property; and these men were straitly warned not for any bribe to divert the owner from his quest, nor give shelter to any convicted thief. Athelstan directed that if any one claimed a beast as his rightful property, he should get one out of five persons nominated by the judge to swear “that it is by folk-right his”; and the defendant must get two out of ten persons similarly nominated, to swear the contrary. But, perhaps, the most interesting of all this class of ordinances is that contained in the Judicia Civitatis Lundoniæ, framed by the chief officers of Church and State, the bishops and reeves (or representatives of the king), not without the consent of all the citizens. We have in these ordinances, under the sanction of Anglo-Saxon royalty, some wonderfully modern devices for the interposition of the community, to lessen the loss inflicted by robbery on the individual.

The document begins: “This is the decision which the bishops and the reeves who belong to London, have made and secured with pledges in our peace-guild, whether of nobles or of commonalty” (eorlisce or ceorlisce), “to supplement the enactments made at various meetings of the witan”. The first chapter ordains that the punishment of death shall be inexorably inflicted on any thief over twelve years of age stealing goods to the value of more than twelve pennies, and that any one endeavouring by force of arms to rescue a thief shall pay a fine of 120 shillings to the king.

The second chapter introduces us to a curious arrangement between the citizens, in the nature partly of a Trade Protection Society and partly of a Society for Mutual Insurance against Theft. “Each one of us shall pay four pennies to a common stock within twelve months, in order to indemnify the owner for any animal which may have been stolen after that time, and we will all join in the quest after the stolen animal. Every one who has a beast worth thirty pennies shall pay his shilling, except poor widows who have no patron or land.” It may be said, Why is the prescribed payment four pennies at the beginning of the law and a shilling at the end? The answer no doubt is that London still adhered to the currency of Mercia, in which only fourpence went to the shilling. The contributors were to be arranged in ten groups of ten each, the oldest of whom was to serve notices and keep the accounts; and these ten seniors with “an eleventh man” whom they were to choose, were to form a sort of governing board, keeping the money and deciding as to contributions into, and payments out of, the common fund. Every man who heard the summons must join in the quest after the stolen animal so long as the trace remained. The quest was to be continued either on the northern or southern march till every member of the guild who had a horse was riding it. He who had no horse of his own must go and work for a lord who should ride in the quest instead of him. Then comes the question at what rate were the stolen beasts to be valued. The ordinary tariff of compensation is as follows:—

Apparently if the thief was captured and compelled by a court of law to refund a higher price than any of the above, if, for instance, he was made to pay for a valuable ox ten shillings instead of seven shillings and a half, the surplus was divided among the members of the guild, the owner receiving only the sum to which he was entitled under the tariff.

The ordinance continues: “Whosoever takes up that which is the common cause of all of us shall be our friend. We will all be one, in friendship and in enmity. The first man to strike down a thief shall receive twelve pennies from the common purse for having made so good a beginning. The owner of a stolen animal is not to relax his diligence” (because of the insurance), “but must pursue it to the end, and he shall be reimbursed for the expenses of his journey out of the common fund.... We will meet once a month if we have leisure ... with filling of casks and everything else that is suitable, and we must then see which of our decisions have been complied with, and the twelve men shall have their food together, and eat as much as seems good to themselves and dispose of the food that is left [to the poor] according to the will of God.”

The state of society here presented to us is one of peculiar interest. We seem to see these cattle-owning citizens of London, whose flocks and herds were grazing outside the walls of the city in Smithfield or Moorfields. They follow the track of their stolen beasts across the wilds of Middlesex or Surrey (“the Northern and the Southern March”). When the cattle are caught, fierce vengeance is taken on the depredator. If the pursuit fails, the luckless owner can, after all, console himself with the tariff price which he receives from the guild treasury. And then once a month they meet to settle the affairs of their guild, “with filling of casks and everything else that is suitable,” and so a vista is opened, at the end of which after the lapse of centuries, we behold the stately banquets of the Guild-hall of London.

It is possible that to this need of grappling with agrarian crime we owe the institution of the Hundred which was a prominent feature in the organisation of medieval England, after as well as before the Conquest, and exists, though now little more than a survival, even in our own day. It is at least worthy of notice that the first clear mention of the Hundred-court, which is in the reign of Edgar, occurs in close connexion with the theft of cattle, and we might almost be justified in saying that this is the main business which in those beginnings of its existence was thought likely to come before it.

There has been much discussion as to the kind of unit, five-score of which made up the Anglo-Saxon Hundred, but on the whole the prevailing opinion seems to be that it was composed, in theory at least if not invariably in practice, of a hundred hides or households.215 The charter, if we may so call it, of the Hundred-court is furnished us by a document which is believed to date from the reign of Edgar and which begins: “This is the arrangement, how men shall hold the Hundred. First, that they always gather themselves together once in four weeks: and that each man shall do right to the rest. Second, that they set forth to ride after thieves. If occasion arise, let a man [whose beast has been stolen] give notice to the Hundreds-man, and he then to the Tithing-men, and let them all fare forth as God shall point the way, that they may arrive there [at the place where the beast is hidden]. Let them do justice on the thief as was before ordained by [King] Edmund, and hand over the price to him who owns the animal and divide the rest [of the fine] half to the Hundred and half to the lord.”

We observe that we have here a regular local court, armed with very summary powers and able to inflict fines, probably heavy fines, after it has restored the value of the stolen property to the rightful owner. Of these fines, however, the Hundred-court may retain for itself only half, the other half going to “the lord”. The assumption that there will be in every case a lord, who will thus share in the profits of the criminal jurisdiction exercised by his neighbours of the Hundred, seems to mark a step towards the manorial jurisdiction of later centuries and strikes a somewhat different note from that sounded in the laws of Ine. It would seem that there was a tendency among powerful and lawless men to treat the Hundred-court with contempt and ignore its jurisdiction. “If any one shall put difficulties in the way and refuse to obey the decision of the Hundred and this is afterwards proved against him, he shall pay 30 pennies to the Hundred: and for a second offence 60 pennies, half to the Hundred and half to the lord. If he do it the third time he shall pay half a pound (120 pennies), and for the fourth offence he shall forfeit all that he has and be outlawed, unless the king allow him to remain in the land.” By the time that Canute took the matter in hand216 sharper remedies had been found to be necessary. He who refused the judgment of the Hundred was fined—apparently for the first offence—30 shillings, not pennies. For a similar contempt of the Earl’s court he had to pay a fine of 60 shillings, and twice that amount for despising the judgment of the king.

Before passing from the subject of the Hundred, it should be observed that the corresponding institution in most of the Danish counties of England was called the wapentake, a name which is said to be derived from that clashing together of their weapons whereby the Scandinavians, like their Teutonic predecessors in the days of Tacitus, were wont to signify their assent to the propositions laid before them by the masters of their assemblies. The counties in which the Wapentake generally took the place of the Hundred were York, Lincoln, Nottingham, Derby, Leicester and Rutland.217

“And let men seek the Hundred-gemôt in such manner as was arranged aforetime, and three times in the year let them hold the Burh-gemôt and twice the Shire-gemôt, and there let the bishop of the shire and the ealdorman be present, and there let both of them expound God’s law and the world’s law.” By these words of King Edgar218 we are brought into contact not only with the Hundred, but also with two other organisations still very prominent in the political life of England, the Borough and the Shire.

The Burh or Burg, in the sense of a fortified town, first comes into notice about the beginning of the tenth century and is evidently the offspring of the Danish invasions. Not that the word was not before that time in familiar use among the Anglo-Saxons,219 but that it seems rather to have denoted the walled enclosure round the dwelling of a great landowner, than the close-packed streets of a medieval borough. The breaking of such a burh (burh-bryce), the forcible entry into the precincts of a dwelling, was punished by the laws of Ine and Alfred with fines carefully graduated according to the rank of the owner. “A king’s burh-bryce is 120 shillings; an archbishop’s, 90; another bishop’s or an ealdorman’s, 60; a twelf-hynd man’s, 30; a six-hynd man’s, 15 shillings. The breaking down of a ceorl’s hedge (edor-bryce) is 5 shillings.”220 The meaning of the law evidently is, that “the man whose wer is 600 shillings will probably have some stockade, some rude rampart round his house; he will have a burh, whereas the ceorl whose wer is 200 shillings will not have a burh, but will only have a hedge round his house”.221

It was into a country full of unwalled tuns or villages, and scattered country houses calling themselves burhs, but poorly protected by moat and stockade, that the Danes came pouring in the reigns of Egbert, Ethelwulf and Alfred. Winchester itself, as we have seen, was “broken down” by them. York and London were taken, and apparently in this, the first stage of their invasion, no town which they seriously attacked was able to resist their onslaught. But then the invaders gave their victims a lesson in self-defence. As soon as they had taken up a position in town or country they fortified themselves by erecting a strong “work” (the word is of constant occurrence in these pages of the Chronicle), and the hardest part of Alfred’s task was often the capturing of these hastily reared Danish fortifications. In the years of peace between the invasions of Guthrum and of Hasting, Alfred, imitating his opponents, reared many burhs which he filled with armed men. The establishment of these forts which stood up as islands out of the hostile sea, had evidently much to do with the deliverance of the land from the flood of Danish invasion in the terrible years between 892 and 896. The entry of the Chronicle for the year 894 tells us how a portion of the invading army was attacked “by bands of Englishmen, almost every day and night, both from the fyrd and also from the burhs; for the king had divided his fyrd into two parts so that they were always half at home and half out, except the men whose duty it was to hold the burhs”. And a little farther on we hear of the valorous deeds of the burh-ware of Chester and of London, which had an important influence on the successful issue of the war.

We have seen, in a previous chapter, how the stalwart brother and sister, Edward and Ethelfled, reconquered central England for the English, and how they secured their conquests by the great line of forts which they planted everywhere along and sometimes far within the frontier which had divided the two nations. Chester, Shrewsbury, Bridgnorth, Stafford, Warwick, Bedford, Huntingdon, Manchester and many more, were burhs which owed their foundation or renewal to the stout-hearted Lady of the Mercians and her brother. It must not be forgotten, however, that the bulk of the population around, and even in some of these burhs, must have remained Danish. Leicester, Stamford and Nottingham are included in the list of forts founded by Edward and his sister, yet they with Lincoln and Derby made up that Danish confederation of the Five Boroughs with which Edmund had to fight in 942 and which went over so readily to Sweyn in 1013.

In the main, however, we may no doubt consider these new, strongly fortified burhs or, as we may now venture to call them, “boroughs” as the homes of loyal Englishmen, keen for resistance to an invading foe, but also keen for commercial enterprise. Very early the kings perceived the importance of insisting on internal peace and orderly life within the limits of the borough. Thus Edmund claims for it the same right of inviolate sanctuary as for the church itself. “If any man seek refuge in a church or in my burh and any one thereafter assault him or treat him ill, he who does this shall be liable to the same punishment as is aforesaid.” Where security was thus provided for, against external enemies by thick walls and deep ditches, against internal strife and anarchy by the proclamation of the king’s peace, wealth was sure to accumulate. Markets were fixed in boroughs, and in order to guard against the ever-dreaded theft of cattle it was ordained with increasing stringency that purchases and sales should take place within their limits. By a law of Edgar222 it was directed that in every [large] borough thirty-three men should be chosen as “witnesses”; in the smaller boroughs and the hundreds twelve would suffice; and from these we must suppose a smaller number were chosen to attest the validity of every sale by which cattle changed hands. Judging from the example of Londonburh, the greatest of all the boroughs, we may conclude that in these trading, fighting, debating communities much of the most vigorous life of England was to be found in the tenth and eleventh centuries.

We have to note in passing that the obligation to assist in the maintenance and repair of these national defences was one of those which pressed upon all free Englishmen. Fyrd-fare, burh-bote and bridge-bote, the duty of serving in the national army, the duty of building or repairing fortresses, and the like duty in respect of bridges, constituted the triple obligation, the often-mentioned trinoda necessitas, from which no estate of thegn or of ceorl, with whatever other immunities it might be favoured, was ever, except in very rare cases, allowed to be exempt.

Returning to the consideration of King Edgar’s law about local government we observe that it ordains that the shire-gemôt shall be held twice a year under the presidency of the bishop of the shire and the ealdorman. The question of the origin of the existing forty counties into which England is divided is an extremely interesting one, but it can hardly yet be said to have received its final solution. We can see at a glance that some of our counties such as Kent, Essex, Middlesex, Sussex, Surrey, represent old kingdoms or sub-kingdoms of the early “Heptarchic” period. Norfolk and Suffolk are but the two divisions of East Anglia. Yorkshire and Northumberland may stand fairly well for Deira and Bernicia, the generous endowment of St. Cuthbert’s tomb being interposed between them in the shape of the county of Durham. The formation of the three counties of Cumberland, Westmorland and Lancashire out of Celtic Strathclyde and its adjoining territory is a late and somewhat obscure piece of history; while on the other hand the emergence of Cornwall, Devon, and perhaps we may add Somerset, out of the former kingdom of West Wales, is pretty easily understood by what the Chronicle tells us of the successive victories of West Saxon kings. Wessex itself, as we see from the Chronicle, must have been at an early period, at any rate in the course of the eighth century, divided into its four often-mentioned shires, Hampshire, Berkshire, Wiltshire and Dorset. When, however, all these older counties have been dealt with, there yet remains before us an interesting question as to the formation of the counties which are still known colloquially as “the shires,” the score of counties which lie between the Thames and the Humber, between Wales and East Anglia, and which evidently represent pretty fairly the old kingdom of Mercia. These, as a rule, cluster each one round some borough which has given its name to the county. One half of these are called after strong places which, as we are distinctly told, owed their foundation or their renewal to Edward and Ethelfled; these ten being Cheshire, Shropshire,223 Staffordshire, Nottinghamshire, Leicestershire, Huntingdonshire, Bedfordshire, Hertfordshire, Warwickshire and Herefordshire, and we may reasonably conjecture that the remaining shires were carved out nearly at the same time and on a similar plan. There is a great and obvious distinction between all these midland shires named after one central burh, and counties which recall the name of a tribe such as the Sumorsaetan or the South Saxons. The reason for that distinction is evidently that the Mercian shires were made as part of a definite political organisation, after the repulse of the Danish invaders by whom many of the old landmarks had been overthrown.224 It is probable that many territorial divisions which would have become counties, had Mercia kept the peaceful tenor of her way through the ninth and tenth centuries, districts such as those of the Pecsaetan in the county of the Peak and the Gyrwas in the county of the Fens, may have disappeared from the map of central England owing to the ravages of the Danes. That map is in fact, as remarked by Maitland, a palimpsest, under whose broad black county-names many erased characters lie hidden.225

We have seen that a law of King Edgar’s ordains that the ealdorman shall sit by the side of the bishop at the meeting of the shire, and shall expound worldly law while the bishop gives utterance to the divine. In the early period of the West Saxon monarchy, when there was an ealdorman to every shire, this enactment causes no difficulty; but it is clear that during the course of the ninth century there was a constant tendency to lessen the number of ealdormen and increase the size of their dominions, and we can then no longer say that every shire had its own ealdorman. Some men like Ethelred, brother-in-law of Edward the Elder, ealdorman of Mercia; like Athelstan the half-king of East Anglia; and like all the later Northumbrian earls, ruled over territories as large as the old Anglo-Saxon kingdoms. In the reign of Canute we have seen that three earls—as the ealdormen were now called—ruled over three-fourths of England. If the law of Edgar still continued in force, we must imagine these great officials travelling from shire to shire, and holding the gemôt in each. It is a probable suggestion, however, that when the power of the ealdorman was thus widely extended, new officers, the shire-reeves, from whom our modern sheriffs derive their title, were called into being, in order to administer the counties under the ealdorman. This suggestion can hardly, however, be yet spoken of as more than a conjecture.226

The ealdorman, as was just now remarked, changed his title in the eleventh century for that of earl. There can be no doubt that this change was due to Danish influence and was an imitation of the word jarl, by which the chiefs of the Danish host were often designated. Eorl was, however, also a word known to the Anglo-Saxons, and by its use in the laws of Ine and elsewhere it seems to have been very nearly equivalent to thegn. In the laws of Ethelred of Kent, of Alfred and of Athelstan, it is frequently used as the antithesis to ceorl, “no man whether eorl or ceorl” being used in the same way that “gentle or simple” was used in the middle ages. Between this generic use of the word, however, and the title of powerful rulers like Leofric and Godwine there was a wide and important difference; and to avoid confusion it seems better to use the word earl only in its later signification, in which it replaces the term ealdorman and is equivalent to the Danish jarl and the Latin comes. One important point to notice is that never before the Norman Conquest does the title of earl become absolutely hereditary, though there are certain great families which seem to have had practically an overwhelming claim to share the earldoms among them. No earl, however, even in the latest days of the Anglo-Saxon kingdom, seems to have had a recognised right of transmitting his earldom to his son.227

We have several incidental evidences of the social changes wrought by the two unquiet centuries between Egbert and Canute. The tendency of all those marches and counter-marches, those harryings and hardly held “places of slaughter,” to depress the peaceful cultivator and raise the mere fighting man, is shown by a curious document called “The Northern People’s Laws” (North-leoda laga) and supposed to date from the tenth century. In this document we have the most complete table of wergilds that is anywhere to be found in Anglo-Saxon law.228 In the following table they are, for convenience of comparison, converted into West Saxon shillings of five penings each:—

Here we see that the ceorl, the free agriculturist, has sunk in the social scale. He was a two hundred, he is now only a hundred and sixty man. The wergilds in the upper ranks of society are, perhaps, unaltered, but, as before remarked, we have very imperfect information about these till we come to this very document. The important thing to observe is the position of the hold. This is a Danish word and signifies properly a fighting man. Here, however, this simple Danish warrior, possibly without any large landed possessions, has only by his sword carved his way up into a position in which he boasts a wergild fifteen times as great as that of the honest Saxon ceorl. He is half as big a man as a bishop or ealdorman, and twice as big as an ordinary thegn.229

Another interesting document which dates probably from the reign of Canute is that which is called the Rectitudines singularum personarum,230 and is a compendium of the whole duty of man, or at least of the services which he is bound to render to those above him in the social order. The thegn has his obligations—in the language of a much later age, “property has its duties as well as its rights”—he must be “worthy of his book-right,” that is, observe the conditions of his charter and do three things on account of his land, serving with the fyrd, burh-building and bridge-work. Also on many estates other obligations accrue at the king’s behest: such as making the fence for the game on the king’s demesne; the equipment of a war-ship; keeping watch on the coast, at the royal headquarters or in the fyrd; alms-giving; Church-scot, and many other payments of various kinds.

The Geneat seems to have belonged to a class dependent on a lord, but in a certain sense superior. He had “to pay rent (land-gafol) in money or in kind, to ride and guide, lead loads, reap and mow, cut the deer-hedge and keep it in repair, build and fence round the fortress, make new roads to the tun, keep ward and go errands far and near just as one may order him about”. It is evidently supposed, however, that he has a horse, probably several horses of his own, although he has to be thus submissive to the bidding of a lord. We may, perhaps, see in these geneats the descendants of ceorls who, under the pressure of the times, have lost their absolutely independent position and have been fain to “commend” themselves to the protection of some great thegn or religious house.231

The cottager (cotsetla) is personally free and does not pay rent, but he has to render a certain amount of service to his lord in return for his holding, the normal size of which is five acres. The amount of service varies according to the custom of different estates; but a very usual arrangement is that he shall work every Monday throughout the year for his lord and three days every week in harvest time.

“The Gebur’s duties,” says the document, “are various; in some places they are heavy, in others they are quite moderate.” He seems, however, to have somewhat less of personal freedom than the men belonging to either of the two previous classes. His minimum of work is for two days in the week; he has to put in three days, not only in harvest time, but from the beginning of February to Easter; and all the time from Martinmas (Nov. 11) till Easter he may be called upon, in rotation with his fellows, to lie out at night beside his lord’s fold keeping watch over the sheep. On some lands the gebur pays gafol of honey, on some of meat and on some of ale. The lord provides him with implements for his work and utensils for his house, but then, per contra, when his time has come to take the journey (of death) his lord takes all that he leaves behind. Evidently the gebur is, if not yet actually a serf, in a condition much nearer serfdom than either the geneat or the cotsetla.

After this follow descriptions of the duties of the bee-keeper, the pork-butcher, the swine-herd, the sower, the shepherd, the wood-ward and many other agricultural labourers; the whole forming a most interesting picture of a large and well-managed English estate in the eleventh century.

In studying the laws of Alfred’s successors throughout the tenth century, we are struck by the evident desire of the royal legislators to draw tighter the reins of government and to combat the tendencies towards disintegration and anarchy which they found in the body politic. Under Edward the Elder the great pact between Alfred and Guthrum was the corner-stone of the social fabric and to deal out equal justice between Englishman and Dane was the chief aim of a righteous ruler, but, unfortunately, the king found that he had much cause to complain of timid, corrupt and inefficient servants. The offence of oferhyrnesse, contempt of the royal word and commandment, is one which is now first mentioned, and of which we often hear afterwards from Edward and his descendants. Of this offence, punishable by a fine of 120 shillings, any gerefa (“reeve” or magistrate) was guilty who failed to administer justice according to the testimony of the sworn witnesses, or to hold his gemot once in every four weeks for the administration of justice. Oferhyrnesse was also the offence of any person who presumed “to cheapen except in a port,” that is, to conduct any process of bargain and sale except within the limits of a market town and in the presence of a port reeve, to whose testimony he could afterwards appeal to prove that he was not dealing in stolen goods.

Strong and vigorous ruler as Athelstan was, he needed to put forth all his powers in order to repress the growing tendency to anarchy and injustice. “If any of my gerefan,” says he, “disobey this edict or be more slack concerning this matter than I have ordained, he shall pay the penalty of his oferhyrnesse, and I will find some one else who will attend to what I say.... I have learned that our peace is worse held than I like, and my witan say that I have borne it too long. I have therefore ordered that all such peace-breakers shall get out of my kingdom with wives and children, and all that they have, and shall go whither I direct. If they return to this realm they shall be treated like thieves caught in the act.” King Athelstan’s influence, however, was not always exerted on the side of increased severity. The citizens of London record that he conveyed to the archbishop his opinion, that it was a lamentable thing that so young a man as one between the ages of twelve and fifteen should be put to death for any offence, or any man for stealing a chattel of less value than twelve pennies, and that he altered the law accordingly, raising the limit of age and of value in both cases.

In order to make the punishment of crime, especially of the one most common crime, cattle-stealing, more certain, it was ordered by Edward the Elder232 that every man should have his geteama, a person doubtless of known character and position, who would act as his advocate or guarantor in any transactions of purchase and sale. It was probably a development of the same idea when Edgar ordained as follows: “This then is what I will, that every man shall be under a borh whether he be within boroughs or without them and that witnesses be appointed in every borough and in every hundred”.233 The law was repeated and strengthened by Canute who thus announced his decision: “And we will that every free man if he be over the age of twelve years shall be included in a hundred and a tithing, that he may have right to clear himself from accusation and right to receive wer if any one assail him. Otherwise he shall have none of the rights of a free man be he householder (heorth-faeste) or follower. Let every one then be brought into the hundred and have a borh, and let the borh hold him and bring him at all times to judgment. Many a powerful man wishes by hook or crook to protect his man and thinks that he can easily do it, whether he be free or theow. But we will not tolerate this injustice.”234

Of this institution of the tithing, whereby the poorer class of free men were grouped together in clusters of ten, we heard among the citizens of London in the reign of Athelstan. That grouping was for purposes of mutual protection; this seems rather to be in order to enforce mutual responsibility. It is not to be wondered that organisms, so low down in the social system, have not made much mark in the Anglo-Saxon law-book; but it seems to be generally agreed that from them was derived that institution of frank-pledge which, under the Norman kings, was so efficient a machine for the repression of disorder.

In the laws of the later Anglo-Saxon kings we seem to hear less about oath-helping and much more about ordeals than we heard in the laws of their predecessors. Does this change betoken the growth of superstition or a decay of honesty and public spirit and a diminished confidence in the veracity of the oath-helpers? The chief modes of ordeal among the Anglo-Saxons were three, and an accused person seems to have had his right of choosing between them. In all there was a direct appeal to the Almighty to show by the ordeal the innocence or guilt of the accused; and the Church by solemn services, prayers and fastings gave her sanction to the appeal. (1) If the ordeal was by cold water, the accused person was hurled into a vessel of water, after a prayer had been uttered that “the creature, water” might reject this person if he were guilty or receive him if innocent, according to the course of nature, into her bosom. In this ordeal to float was fatal, to sink was salvation. (2) In the ordeal of fire the accused must carry a mass of red-hot iron weighing one pound a distance of nine feet, or must plunge his hand up to the wrist into a vessel of boiling water to pick out of it a stone. After either of these trials the hand was bandaged and sealed up. If, after the lapse of three days, when the bandages were removed, there was raw flesh visible, the man was guilty, if the hand showed clean skin he was innocent. If the crime laid to his charge were that of conspiring against the king’s life, then the ordeal must be of threefold severity; the mass of hot iron must weigh three pounds, or the arm of the accused must be plunged in up to the elbow. (3) The ordeal of the test-morsel (corsnaed) was chiefly practised upon ecclesiastics and consisted in the obligation to swallow a piece of bread or cheese upon which a solemn anathema had been pronounced for any but an innocent partaker. As Ethelred said in one of his laws:235 “If an accusation is laid against a servant of the altar who has no friends and who cannot call upon any oath-helper, let him go to the corsnaed and there fare as God shall will”.

The judicial processes even in the ordinary courts of the realm certainly seem to us sufficiently blundering and barbarous; but at the end of the period which we are now considering, other courts of private jurisdiction were coming into being, and whether they administered better or worse justice who shall say? In the reign of Canute we first find a clear case of a grant of sake and soke to the Archbishop of Canterbury, a kind of grant which was given with lavish hand by the king whose reign lies next before us, Edward the Confessor.236 Without entering upon the question whether the Danish king was really the first to bestow this special privilege upon his courtiers, lay or ecclesiastical, we may safely assert that, at any rate in the eleventh century, our kings were freely attaching judicial functions to the ownership of lands. For this is, undoubtedly, what is meant by these words sake and soke, or sac and soc. The first probably means a “matter” or “cause”;237 the second, “a seeking out” or “inquiry”. The meaning in any case is clear. The abbot or wealthy thegn who “had sake and soke” had, merely in right of the king’s grant, and generally as appurtenant to the land which the king had given him, the right to try causes of dispute arising in his district. Apparently that right included both what we should call civil and criminal causes; and, of course, the right must have carried with it power to enforce his decisions, and also—no unimportant matter—the right to receive the fines and other profits arising from the administration of justice.

What may have been the limits of this jurisdiction—for there must surely have been some causes too grave for any mere holder of sake and soke to meddle with—and how it may have impinged upon the sphere in which shire-mot and burh-mot exercised their powers, are questions the answer to which is not yet before us. It is evident, however, that we have here judicial tribunals which might very easily grow into the manorial courts which flourished under the Norman and Plantagenet kings and the survivals of which exist among us to this day. And altogether the whole effect produced on our minds by a comparison of the laws of these later kings with the laws of the heptarchic kings is, that during the three centuries which elapsed from Ine to Canute the distinction between classes had been growing broader, that the eorl was mightier and the ceorl much weaker than in that older stratum of society; that, though certainly feudalism was not yet materialised in England, the spirit which prompted it was in the air; and that, possibly, even without any Norman Conquest, something like the Feudal System might have come, by spontaneous generation, in our land.