The Normans and Their World

by Jack Lindsay

  Law too was seen as the expression of immemorial custom which bound everyone including the king. It was long before men could feel that to change the law was not to break it. (The earlier laws consist of kingly dooms distinguished from customary law by being judgments on doubtful points or edicts for a better administrative enforcement.)[252] In fact new problems and solutions kept arising as society grew more complex, but generally these could be dealt with in a way that did not appear to harm the rule of custom. The collections of dooms that have come down, beginning about 600, are the earliest body of law in any Germanic tongue and have no continental parallel.

  An important part was played by wergild, the price at which a man’s life was assessed according to his social status. But the dooms became much more than a reassertion of the wergild principle as the kindreds weakened; they also contained the assertion of the overriding power of the state, of the king’s pervasive legal presence. Elsewhere kings were losing the power to issue laws as judicial power was fragmented; in England that power was never lost. Not that the fragmenting process was absent; if it had been, the key tensions through which feudalism operated and developed would have been lacking. At least from the seventh century the magnates had policing powers and the obligation to present men in their own courts, first their retainers, then their tenants. Thus forces were set into movement that kept on sapping the strength of the kin groups, which found their most obvious expression in bloodfeuds. A strong king in the tenth century could to some extent treat the lords as if they were officials carrying on the day to day work of administration; but at the same time the counter-movement was present, with kings granting away jurisdiction rights and their profits. Many hundred courts thus ceased to be directly under the crown. But the presiding lord took the profits, not by inherent right, but through a royal grant. The danger was that where there was little or no profit, there tended also to be a slackening of royal interest. A basic medieval adage was that ‘Justice is a Great Profit’. Justice without profit was liable to lose its whole basis of existence; and the king had ceaselessly to watch its workings. Asser stresses how Alfred was constantly struggling to control his bishops, earldormen, thegns and reeves, ‘who next to the king had all the power in the kingdom’. He continually praised or censured them, watching out for obstinacy, slackness or corruption; if need be, he threw them out of their offices.[253]

  By the middle of the eleventh century a wealthy thegn held land ‘with sake and with soke, with toll and with team, and with infangenetheof’. The first phrase, arising from a lord’s jurisdictional rights, had now become a vague general expression; its jingle form shows its distant folk roots. The second phrase referred to the lord’s right to demand a sum out of the sale of goods or livestock on his estate and to hold a court for dealing with disputes over ownership. The third showed a more direct intrusion on the king’s preserves; it expressed the right to carry out summary justice on a thief caught in the act. As in Normandy, graver crimes were reserved for the ruler except where an express concession was made. By 1066 such grants had been made to several magnates, bishops and monasteries. But the exceptions did not affect the principle that all justice was royal justice: a principle alive in England more than anywhere else in Europe. A free man looked to the folk courts to enforce his rights under the law.

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  The shire had several origins. Some shires began as administrative units set up by the kings round the towns, e.g. Wilton administered Wiltshire; Dorchester, Dorset. But other shires represented tribal kingdoms absorbed into larger groupings: Kent, Essex, Sussex. Others were sub-divisions of such kingdoms: East Anglia was cut into Norfolk and Suffolk. Mercia copied the Wessex system; and Alfred’s heirs created more shires in the east as they took over the Danelaw. Apart from Rutland (created out of the dowerlands of Edward’s queen) all the shires had been established by the middle of the eleventh century, reaching from south England to the Tees. The earlier shires thus had a more organic element than some of the later ones, though the Danelaw shires may have borne some relation to the various Danish groupings there. Shires existed long before we hear of their courts, but the latter no doubt descended from the folk moot, a tribal assembly. The ultimate origin must have been the tribal gathering of all free men in a particular grouping, however the social relationships changed. In Alfred’s Wessex each shire had its head, the ealdorman, whom the king named; but the tendency was for the ealdorman to deal with more and more shires till he evolved into Cnut’s earl or viceroy, with the shire-reeve or sheriff taking over his earlier role in the court — though earl or bishop might preside there in special circumstances. The court, where decisions were final, met twice a year to deal with all sorts of disputes between free men. By Edward’s day the function of declaring the law of the shire and of giving judgment had passed to the king’s thegns.[254]

  Here is the record of a Herefordshire case under Cnut:

  This writing is to declare that a shire-moot sat at Aegelmoth’s Stone in the days of king Cnut. There sat bishop Aethelstan and Ranig the ealdorman and Eadwine the ealdorman’s son and Leofwine Wulfstig’s son and Thurkil the White, and Tofig Pruda came there on the king’s errand, and there was Bryning the sheriff and Aegelweard of Frome and Leofwine of Frome and Godric of Stoke and all the thegns of Herefordshire.

  Then came Eadwine son of Eanwene to the moot and made claim against his mother for a piece of land...And they appointed three thegns from the moot to ride to the place where she was...and when they came to her she was vehemently angry with her son...and said...’Here sits Leofled my kinswoman, wife of Thurkil the White, to whom after my death I grant my land and my gold...and all I possess.’ And she said to the thegns, ‘Act like thegns and duly announce my errand to the moot before all the good men and make known to them to whom I have granted my land, and ask them to be witness to this.’

  And they did so. They rode to the moot and made known to all the good men what she laid on them. Then Thurkil the White stood up in the moot and asked all the thegns to give his wife clear the lands her kinswoman granted her, and they did so. And Thurkil rode to St Aethelbert’s minister, by leave and witness of the whole people, and caused this to be recorded in a gospel book.

  But the peasant was not likely to have affairs that needed to go beyond the hundred court. The hundred may once have been made up of a hundred hides, the land required to support a hundred ceorls with their families; as a military term it is known to Tacitus. It appears as an administrative unit under Edgar, when it may have been a recent creation. It was probably a division of the old regio, introduced into other areas as the Wessex kings expanded. (The regio was a governmental unit or district centring on a royal tun and administered by a royal reeve: perhaps rated at a hundred hides and legally described as manung, jurisdiction.)[255] The courts met in the open every four weeks under the king’s reeve or his bailiff, and transacted everyday business. In this interlocking system, the king’s officials or delegates could deal with disputes or crimes at the differing levels of shire and hundred, while petty matters were disposed of at yet a lower level. Thus the kings could build up a fiscal organization without parallel elsewhere.[256] And they were able in emergency to send an order to sheriffs for a sum of money, which was divided up among the hundreds and there assessed on groups of hides. Such tax demands were gelds, raised for example by Aethelred II several times. That king probably brought in Danegeld, levied to buy off the Danes. No attempt was made to impose a new and uniform rating everywhere; the local forms of assessment were taken over.[257] By Edward’s time the system had grown unequal and complicated because of exemptions or reductions for the estates of favoured persons. The Domesday commissioners, baffled, merely recorded the geld assessment of an estate. Yet with all the imperfections, the application of such a tax at this time was a remarkable achievement.

  The growth of the king’s function of regulating the system, keeping order and centring it on himself, may be seen in the extensions of the notion of what constitut
ed his peace, grith or mund. In a sense he became the embodiment of the kin groups he displaced, and so exacted payments or wires from the offender. His mund was the most generalized form of order of which the society at its various stages were capable; it was reflected in the mund of every free man’s house. In the hierarchical system, in the scale of wergilds, the violation of mund grew more villainous the higher the status of the man concerned. With the king’s increasing scope, his enlarged household and group of officials, his mund could more easily be violated. (By the time of Henry I it embraced the whole of the country where he happened to be.)[258] It thus became like a shield reaching out all over his subjects and finding expression through shire and hundred courts. Under Edward the king’s sheriff could proclaim the king’s peace as well as the king himself. His peace tended to take over areas where it was uncertain what individual or group was responsible for order: highways, big rivers, churches, monasteries; and in periods of special sanctity, when God’s mund should be reigning: Christmas, Lent, Easter and Whitsun. (We see here a point of contact with the continental Truce of God, which was however never so closely linked with secular justice.) The king’s mund was then not as yet omnipresent, but it tended to pervade social life and law. His grith could be given to a favoured person, who was then always under his protection and who could invoke it in the courts. (Again the logical conclusion was reached under Henry I when the king could claim jurisdiction over certain crimes wherever or against whomsoever they were committed.) Appeals could be made to the king. Throughout the medieval period unjust or over-rigid applications of law could only be dealt with through his mercy: a personal act rather than a decision derived from the legal system itself.[259]

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  As always in feudal society the contrary principle was at work. All authority had its mund, but an earl’s was less than a king’s, a thegn’s less than that of an earl’s, a ceorl’s less than a thegn’s. The mund was fragmented as well as made ever more cohesive. But the king’s reserved rights to try major crimes and derelictions of duty that affected him had again the effect of spreading his peace over the whole country. Asser in his account of Alfred shows how hard a king had to struggle with what he calls the judges, judices. There were constant quarrels in the moots, among the thegns and free men, because of discontent and questioning of decisions by ealdormen and reeves, and constant appeals to the king. We get a picture of a suitor asking for justice. ‘And the king stood and washed his hands in the chamber at Wardour.’ Then he investigated the case and decided that the accused, a biggish landowner and king’s man, though thievish, must ‘take the oath if he could’, on an appointed day in the folk moot. Alfred, ‘inquired in a wise way into the judgments given in his absence throughout almost the whole kingdom’, probed the motives of those who had been unjust, and gave advice on studying Saxon books to those who erred through ignorance.

  But if the idea of the king’s peace and the systems for spreading it had to contest centrifugal forces, they also had to overcome yet deeper tribal resistances, those based on the kindred. We have glanced at this, but need to look closer. On the continent efforts had been made early to control the feuds of the kindreds; England too with its dooms tried to bring order into the system and gradually subordinate it to the king’s law. In England there was a more protracted struggle, for the whole process had to go on in a more organic way, feudal and tribal aspects interacting with one another in a series of shifting and extending tensions which did not exist so continuously elsewhere. In such a world a man had three points of dependence, three bonds of scurity: his relations to kindred, lord, and king. No one of the three was satisfactory by itself, so that a man had to try to make the best fusion of the three that was possible at his point in time and space.[260]

  Under Alfred and as late as Aethelred and Cnut issues of kinship were still very important. Under Alfred a man without paternal kin was supported by the king and his associates: they were the ones to collect wergild if he were killed. Aethelstan took strong measures against men who were so rich, or who belonged to such a cohesive kindred, that they could not be punished. If necessary, they were moved, noble or commoner, with their goods, wives and children, to another part of the country. (We have seen that a certain territorial concentration was necessary for a kindred to exert much power.) If the moved men came back, they were to be treated like thieves caught in the act. The harbouring of thieves by powerful kindreds was specially condemned; reeves were to ride against such groups and to kill the thief and all who fought at his side. Edmund, who was himself murdered, tried to break the kindreds by enacting that a killer must bear the feud alone unless the kindred arranged composition. Anyone taking vengeance on a kinsman of the offender was to incur the hostility of the king and his men, and to forfeit all his property. Aethelred’s code of 1014 stated that a kinless man was to clear himself of a bloodfeud with his associates or to undergo ordeal; Cnut’s law ten years later was on the same lines. We find too that a monk must renounce the claims of kinship and his misdeeds must be atoned for by religious means.

  There are three main texts dealing with wergild: that called Wer, the second code of Edmund, and the Laws of Henry I (a twelfth century compilation which used material from a source other than the Wer). Wer, in the tenth or early eleventh century, bases its calculations on the sum appropriate for a noble, the man with a wergild of 200 shillings; like other sources it distinguishes between the close kinsmen and the more remote kin. The former were entitled to a preliminary compensation, called the grasp-of-the neck (healsfang), to halt those most directly affected from starting off the vendetta. Wer and the Laws disagree as to who shared the healsfang. Wer says the children, brothers, and paternal uncles, the other source says the father, sons, and brothers. Only if these are lacking is ‘he that is nearer from the father’ (the paternal uncle) to get it. The second group is the limited family; the group in Wer is wider. The notion of the limited family is supported by the Leis Willelme (c. 1190-1135), which assigns the healsfang to the widow and children of the killed man. The differences here may be in part explained by a law of Aethelred which forbids marriage within a certain degree of kinship; Wer says that those who get healsfang are those ‘within the knee’. Thus: ‘Let it not happen that a Christian man should marry his own kin in the degree of six men: that is, within the fourth knee’ — what is forbidden is marriage with a fourth cousin.[261]

  We see here again how the wide scope of marriage taboos was linked with the wide scope of kindred systems. Cnut’s laws say that the penalty for incest is paid according to the degree of kinship, and that, if a man dies intestate, his property is to be divided among his wife, children, and close kinsmen, ‘each in the proportion which belongs to him’. It is possible that this latter law merely meant that the kinsmen shared the moveable goods; but in any event we see two divergent rules in late Anglo-Saxon times: one restricting inheritance to the limited family of which the dead man was father, and one not thus restricting it. This divergence corresponds to that between Wer and the Laws on wergild.

  The process of payment is set out in Edmund’s code. Wise men start off the reconciliation; the killer uses an advocate to approach the dead man’s kinsmen; only then does he himself approach them under safe conduct, and promises to pay wergild. He then finds a surety for the sum. The king’s peace is thus established over the persons concerned; any violence that may follow involves a heavy fine to the king. Twenty-one days after healsfang is paid; twenty-one days after that the dead man’s lord gets his compensation; twenty-one days later again comes the first instalment of wergild — the whole to be paid within a year of the death. We see here a distinction between the close kin and the more distant; but there is no precise delimitation or explanation. There must have been a well known rule, or there would have been endless quarrels on both sides. But apparently the rule was so well known that it was never spelt out.

  In later times associates or friends tended to take over some of the functions of the kindred; but a
s these men would normally belong to the same lord as the kinless man, this is only an aspect of the dependency on that lord. The matter is complicated by the fact that freond or frynd may also mean kinsman, but we also see associates gaining importance as oath-helpers.[262] The kin were still claiming wergild in the early eleventh century; and though bishop Wulfstan complained that ‘now too often a kinsman does not protect a kinsman any more than a stranger’, he himself gives us an example of feud-obstinacy. Preaching at Gloucester on his usual text of peace, he found one of the listeners complaining that though he had killed a man by accident he could not buy pardon and peace at any price from the five brothers of the dead man. Wulfstan had to work a miracle before the brothers called off their feud. The concept of wergild was so familiar that the term came to be used for a fine, the aspect of blood-compensation forgotten. In the Laws of Henry I even a slave has a small wergild allotted.[263]