III. THE DOOMS OF INE, A.D. 688-725.
The Dooms of King Ine occupy so important a position as the earliest direct information upon Anglo-Saxon custom apart from Kent that they demand careful separate study.
We ought to be able to learn something from them of the aim and spirit of legislation in Wessex two centuries before King Alfred added them to his laws.
Ine’s Dooms apart from Alfred’s.
There is no reason, I think, to suspect that the text of the Dooms of Ine was altered by Alfred. The words already quoted in which he says that in his Dooms he collected together what he thought ‘rightest’ of those things which he met with of the days of Ine and Offa and Ethelbert without adding much of his own are quite consistent with his preservation of King Ine’s laws as a whole, though in some points differing from his own.[248]
King Ine came to the throne in A.D. 688, and he states in his preamble that he issued his ‘Dooms’ with the counsel of Cenred his father and of the Bishops of Winchester and London (who had already had twelve or thirteen years’ experience in their sees) and also with the counsel of all his ealdormen and his Witan:—
ꝥ te ryht æw ⁊ ryhte cyne-domas þurh ure folc gefæstnode ⁊ getrymede wæron, ꝥ te nænig ealdormonna ne us under-geþeodedra æfter þam wære awendende þas ure domas.
So that just law and just kingly dooms might be settled and established throughout our folk; so that none of the ealdormen nor of our subjects should hereafter pervert these our dooms.
The ealdorman a shire-man in judicial position.
We mark, then, at once that at this period the most prominent public official was the ealdorman. From clause 8 and clause 9 we learn that private revenge for a wrong was forbidden before justice had been demanded from a ‘“scir-man” or other judge.’ And that the ealdorman was a shire-man we learn from another clause (clause 36).
Seþe þeof gefehð oþþe him mon gefongenne agifð ⁊ he hine þonne alæte oþþe þa þiefðe gedierne forgielde þone þeof [be] his were.
(36) Let him who takes a thief or to whom one taken is given, and then lets him go, or conceals the theft, pay for the thief according to his wer.
Gif he ealdormon sie þolie his scire buton him kyning arian wille.
If he be an ealdorman let him forfeit his ‘shire’ unless the King be merciful to him.
Here, as in Alfred’s Laws, the ealdorman is an official with judicial jurisdiction. And we learn more about his social status as compared with that of other classes from s. 45.
Burg-bryce of various classes.
Burg-bryce mon sceal betan c. xx scill. kyniges ⁊ biscepes þær his rice bið. Ealdormonnes lxxx scill. Kyniges þegnes lx scill. Gesiðcundes monnes land-hæbbendes xxxv scill. ⁊ be þon ansacan.
(45) Bot shall be made for the King’s burg-bryce, and a bishop’s where his jurisdiction is, with cxx shillings; for an ealdorman’s with lxxx shillings; for a King’s thane’s with lx shillings; for that of a gesithcund-man having land with xxxv shillings: and according to this let them make legal denial.
The burg-bryce is the same thing as the burh-bryce—the breaking into the burh. And if we compare the ‘bots’ of this clause with the burh-bryce of King Alfred’s s. 40 (supra, p. 372) we see that he was not merely copying King Ine’s clause. Nearly as they may resemble one another, there are marked differences between the two clauses.
The king’s burh-bryce in King Ine’s Laws is the same as King Alfred’s. The ealdorman’s is eighty scillings instead of sixty. The king’s thane takes the ealdorman’s place with sixty, and the gesithcund-man’s burh-bryce in King Ine’s Laws is practically the same as the twelve-hyndeman’s in King Alfred’s laws.
The gesithcund-man’s judicial position.
The gesithcund-man we have met before in one of the fragments of early English law, but so far as relates to Wessex he appears in the Dooms of Ine for the first and last time, and we shall have to consider by-and-by how far he is the same person as the twelve-hyndeman. But for the present it is sufficient to note that he is mentioned along with the king’s thane and the ealdorman apparently in order to state the extent to which his oath was to be taken as valid in judicial evidence, or whatever is meant by the words ‘and according to this make legal denial.’
Laws as to theft.
The chief obstacle to the maintenance of the peace seems to have been the frequency of thefts and homicide of all kinds. The connection between homicide and theft is the subject of several clauses in the Laws of Ine. And as they bring into notice the liability of the kindred it may be well to consider them in order.
These are some of the clauses in the Laws of King Ine with reference to the slaying of a thief:—
Gif þeof sie gefongen swelte he deaðe oþþe his lif be his were man aliese.
(12) If a thief be seized let him perish by death or let his life be redeemed according to his wer.
Cierlisc mon gif he oft betygen wære gif he æt siþestan sie gefongen slea mon hond [of] oþþe fot.
(18) A ceorlisc man, if he have often been accused, if he at last be seized, let his hand or foot be cut off.
Gif feorcund mon oþþe fremde butan wege geond wudu gonge & ne hrieme ne horn blawe, for þeof he bið to profianne oþþe to sleanne oþþe to aliesanne.
(20) If a far-coming man or a stranger journey through a wood out of the highway and neither shout nor blow his horn he is to be held for a thief either to be slain or redeemed.
The ge-geldas and kindred of the thief.
Then comes the question what happens if a man should seize a thief and slay him as a thief. The next clause goes on to state that in the case of the thief slain in the wood the slayer must declare that he slew the man for a thief, and then neither the lord nor the ge-gildas of the slain could demand a wergeld. But if he should conceal the slaying and it became known after a time, the way was open for the kindred of the supposed thief to exculpate him by oath and so claim his wergeld, from the slayer.
Where there is no concealment, the kindred of the thief must swear that there shall be no vengeance on him for delivering up the thief.
Se [þe] þeof gefehð [he] ah x. scill. ⁊ se cyning þone þeof ⁊ þa mægas him swerian aðas unfæhða.
(28) He who seizes a thief shall have ten scillings and the king the thief; and let the kindred [of the thief] swear to him oaths of ‘unfæhthe.’
If the man who had seized the thief let him go he was liable to pay ‘wite’—and if, as we have seen, an ‘ealdorman’ did so it was at the risk of losing his ‘shire.’
Theft seems to have been an increasing crime, for further on in Ine’s Laws there are repetitions of some of these clauses, with slight additions, showing that the Dooms of Ine were added to from time to time (s. 35 and s. 27).
The ceorlisc and the gesithcund classes.
We have seen how severe a penalty was attached to the crime against the king’s peace of letting a thief once seized escape. The following clause is still more severe upon any one harbouring a fugitive thief or other outlaw, and it introduces again the division of classes as regards wergelds into gesithcund and ceorlisc, but without mentioning the wergelds of each class.
Gif mon cierliscne monnan flieman-feorme teo be his agnum were geladige he hine. Gif he ne mæge gielde hine [be] his agenum were ⁊ se gesiðmon [eac] swa be his were.
(30) If a man accuse a ceorlisc-man of harbouring a fugitive [thief?] let him clear himself according to his own wer. If he cannot, let him pay for him according to his own wer, and the gesith-man in like manner according to his wer.
This ‘clearing himself according to his own wer’ alludes evidently to the oath of himself and his oath-helpers and shows that the oath required to clear the gesithcund-man from the charge was a greater one than that required to clear a ceorlisc-man. This was doubtless the case throughout, but apparently it had become needful to strengthen the oath of both classes. The following clause required that in the oath of both the gesithcund and ceorlisc-man in denial of homicide there should be among the oath-helpers ‘a King’s oath of 30 hides.’
The oaths to be in their hyndens of co-swearers.
Seþe bið wer-fæhðe betogen ⁊ he onsacan wille þæs sleges mid aðe þonne sceal bion on þære hyndenne an kyning [æðe] be xxx hida swa be gesiðcundum men swa be cierliscum swa hwæðer swa hit sie. Gif hine mon gilt þonne mot he gesellan on þara hyndenna gehwelcere monnan [and, but not in H] byrnan ⁊ sweord on ꝥ wer-gild gif he þyrfe.
(54) He who is charged with wer-fæhthe and he is willing to deny the slaying on oath; then shall there be in the ‘hynden’ one king’s oath of 30 hides as well for a gesithcund-man as for a ceorlisc-man whichever it may be. If he has to pay him, then may he give the man of any one of those ‘hyndens’ a coat of mail and a sword in the wergeld if he need.
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.
Both classes must follow to the fyrd.
The following is important as showing that both the gesithcund and ceorlisc classes were under the military obligation to follow to the fyrd.
Gif gesiðcund mon landagende forsitte fyrde geselle cxx scill. ⁊ þolie his landes, unlandagende lx scill. cierlisc xxx scill. to fierdwite.
(51) If a gesithcund-man owning land neglect the fyrd, let him pay 120s. and forfeit his land, one not owning land 60s.; a ceorlisc-man 30s. as fyrd-wite.
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.
Mention of twelve-, six-, and twy-hynde classes.
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:—
Aet twy-hyndum were mon sceal sellan to mon-bot xxx scill. æt vi-hyndum lxxx scill. æt twelf-hyndum c.xx.
(70) With a twy-hyndeman’s wer shall be given as man-bot xxx scillings with a six-hynde’s lxxx scillings, [? lx s.], with a twelve-hynde’s cxx scillings.[249]
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 six-hynde class.
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.
The gafol-gelda and the gebur.
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.
Gif hwa gefeohte on cyninges huse sie he scyldig ealles his ierfes ⁊ sie on cyninges dome hwæðer he lif age þe nage. Gif hwa on mynstre gefeohte hund twelftig scill. gebete. Gif hwa on ealdormonnes huse gefeohte oþþe on oðrer geþungenes witan lx scill. gebete he ⁊ oðer lx geselle to wite.
(6) If any one fight in the king’s house, let him be liable in all his property and be it in the king’s dooms whether he shall or shall not have life. If any one fight in a minster, let him make bot with cxx scillings. If any one fight in an ealdorman’s house or in any other distinguished wita’s, let him make bot with lx scillings and pay a second lx scillings as wite.
Gif he þonne on gafol-geldan huse oþþe on gebures gefeohte c.xx scill. to wite geselle ⁊ þæm gebure vi scill.
But if he fight in a gafol-gelda’s house or in a gebur’s, let him pay cxx scillings as wite, and to the gebur vi scillings.
And þeah hit sie on middum felda gefohten hund twelftig scill. to wite sie agifen.
And though it be fought on midfield let cxx scillings be given as wite.
The gafol-gelda and gebur have only a six scilling fightwite.
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.
The gafol-gelda and gebur of Ine’s laws put in the place of the ceorlisc man of King Alfred.
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.’
King Alfred’s Laws, s. 39.
If any one fight in a ceorlisc man’s flet, with six scillings let him make bot to the ceorl.
King Ine’s Laws, s. 6.
But if he fight in a gafol-gelda’s house or in a gebur’s, let him pay … to the gebur six scillings.
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.