Tribal Custom in Anglo-Saxon Law / Being an Essay Supplemental to (1) 'The English Village Community', (2) 'The Tribal System in Wales'

by Frederic Seebohm

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

The earlier Danish or Viking invasions.

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

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

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

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

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

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

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

Compact between Alfred and Guthrum.

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

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

English and Danes equally dear.

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

And hi cwædon, gyf mon ofslægen wurðe, eal we letað efen dyrne, Engliscne ⁊ Denisce. ꝥ is to .viii. healf-marcum asodenes goldes. buton þam ceorle þe on gafol-lande sit ⁊ heora lysingon: þa syndon eac efen dyre. ægðer twa hund scyll::

And they ordained, if a man should be slain we estimate all equally dear, English and Danish, i.e. at viii half-marks of pure gold except the ceorl who sits on gafol land and their [the Danish] lysings, they also are equally dear, either at 200 scillings.

And gyf man cynges þegen beteo man-slihtas. ⁊ he hine ladian durre. do he ꝥ mid xii cynges þegnas ⁊ gyf mon þone man betyhð þe bið læssa maga. ladie hine xi his gelicena ⁊ anum cyninges þegene.

And if a man accuse a king’s thane of manslaying and he dare to clear himself, let him do that with 12 king’s thanes, and if any one accuse that man who is of less degree let him clear himself with 11 of his equals and with one king’s thane.

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

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

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

Englishman put on a level with the Norse hauld, at the normal wergeld of 200 gold solidi or 1200 scillings.

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

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

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

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

English ceorl on gafol land put on a level with the Norse leysing.

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

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

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

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