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

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

The meaning of twelve-hynde and twy-hynde.

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.

Connected with the system of oath-helpers.

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.

Value of oaths in 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.

Hides were family holdings. The familia of Bede.

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.

Manentes and tributarii of Egbert.

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 meaning of ‘hynden.’

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.

The set of oath-helpers.

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

(54) He who is charged with werfæhthe [man-slaying] and is willing to deny the slaying on oath, then shall there be in the hynden one King’s oath of xxx hides as well for a gesithcund man as for a ceorlisc man whichsoever it may be.

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?

The 30 hides oath of the King’s thane.

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.

(3) If a King’s thane be charged with man-slaying, if he means to clear himself by oath, let him do it with twelve King’s thanes, and if a lesser man than a King’s thane be charged, let him clear himself with eleven of his like and with one King’s thane.

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 single oath of the twelve-hyndeman was of 10 hides.

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]

The oath of himself and oath-helpers was of 120 hides.

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.

The oath-helpers were kinsmen.

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.

The twy-hyndeman and leysing’s want of kindred.

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.

The full oath of a man with 12 oath-helpers of full kindred twelve-hynde.

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.

The oath of the ceorl worth only one sixth of that of the twelve-hyndeman and thus only twy-hynde.

The twy-hyndeman considered as the leysing or freedman would not be in this strong position. His social status, resulting from his imperfect kindred, must be a low one. If he slew a twelve-hyndeman, from the point of view of the feud he would be helpless. The kindred of the twelve-hyndeman slain by him could not be satisfied merely by the slaughter of an inferior. Tribal custom of the Continental Saxons allowed vengeance for homicide by a thrall to be taken upon seven thralls. Under Mercian usage, as we have seen, it had been settled that the oath of the ceorl was to be taken as worth one sixth of that of the twelve-hyndeman, because the life of six ceorls was held to be equivalent in the matter of vengeance to that of one twelve-hyndeman. And thus it may be that, in the case of man-slaying, his oath and that of his oath-helpers, all of inferior value, came, under Anglo-Saxon custom, to be reckoned in comparison with that of the man of full kindred as worth only ‘two hyndens’ as against his twelve.

In the other passage in which the word ‘hynden’ occurs it has not so distinctly the meaning of ‘oath-helpers.’ It is not used in relation to homicide or wergelds, but still its use and its meaning are instructive.

The hynden-men of the city frith-gegildas.

The use of the word in the ‘Judicia Civitatis Lundoniæ’[259] is in connection with the organisation of ‘frith-gegildas’ for the prevention and punishment of theft. These ‘frith-gegildas’ were groups or ‘hyndens’ with a common purse. And contributions were to be made for the common benefit. In the eighth clause it was enacted that the hynden-men should be collected every month, each twelve to a common meal. ‘And if it should then happen that any kin be so strong and so great within land or without land whether xii-hynde or twy-hynde that they refuse us our right and stand up in defence of a thief, that we all of us ride thereto with the reeve within whose “manung” it may be.’

These hyndens were not directly groups of kinsmen and oath-helpers, but they were artificial groups formed and bound by a pledge for mutual protection, and the use of the word ‘hynden’ in this sense is significant. There were hyndens of oath-helpers under tribal custom, and now in the city hyndens of frith-gegildas were formed for mutual defence against powerful kindreds outside their city who were in the habit of protecting thieves from justice.

This was the way apparently that a substitute was found in the towns for the absent kindreds. And as time went on these artificial hyndens of gegildas or congildones no doubt in some measure took the place of the hyndens of kinsmen in cases of homicide as well as in cases of theft.

Wealth and fullness of kindred often concurrent.

Naturally in the course of time the possession of property and social status would gradually take the place of the completeness of kindred, and the two elements in status would easily be associated together in common estimation. The value of a man’s oath would depend more and more on the number of hides of land he was reckoned to possess, or for which he was responsible to the ‘King’s utware.’

If we may follow Schmid’s translation of ‘utware’ as ‘Heerbann’ and picture to ourselves the ceorl who had risen to the social position of a man with a kindred and having five hides to the King’s gafol, with his coat of mail and helmet and over-gilded sword coming up at the call of the King to the fyrd with so many followers, whether kinsmen or tenants, from the five hides under his charge and so becoming ‘gesithcund’ in regard to the King’s service, then there would be force in the further clause which declares that, although he had acquired a kindred and a coat of mail and helmet and over-gilded sword, yet if he have not that land, he is still but a ceorl.

The power and strength and status of a person would still depend upon the combination of the two elements, and both would have to be reckoned with. A passage has already been quoted in which the possibility is admitted of a kindred becoming so powerful—magna et fortis—as to defy the King’s law and defend the thief.[260] There is another passage relating to breaches of the peace in Kent in which the two sources of this power of defiance are mentioned together. The dangerous person may either be so rich or be of so great a kindred that he could not be punished—‘adeo dives vel tantæ parentelæ ut castigari non possit.’[261]