The early Norse laws were settled long after the date of this compact, upon the conversion of South Norway, and, as in other cases, they were framed with the express purpose of making room in the legal system for the Christian Church and so in some sense with its sanction. And yet so deep was the gulf between classes even then that a certain portion of the churchyard was set apart for leysings, and in no case were they to be buried in the portion reserved for classes above them. And if after giving his freedom-ale and so attaining the first step in freedom and independence the leysing should die leaving destitute children whose support ought not to be thrown back upon his lord, we have seen that the way out of the difficulty was to dig a grave in the churchyard into which the leysing’s children were to be placed and left to starve to death, the last survivor being the only one which the lord thenceforth had to maintain.[320] This was the position of the leysing at the bottom of the ladder of freedom.
But he rose by steps as a kindred grew around him.
But we found the leysing of the Norse laws rising by steps into greater freedom and better social position. And the process throughout was founded upon the gradual growth of kindred. It was the lack of kindred to swear for them and defend them which placed them low in the social scale, and it was the gradual growth of kindred generation after generation which marked the steps of their rise into better social position with higher wergelds.
In England it was so once, but the rungs of the ladder drop out.
When we turn to the Anglo-Saxon laws we seem to detect similar tribal principles originally at work but with differences which may very probably be referred to the circumstances attendant upon conquest and settlement in Britain.
The law of tribal gravitation here as elsewhere, aided, no doubt, by other potent forces, had been at work placing the man with an imperfect kindred in a dependent position at the bottom of the social ladder.
And it is important to note that at first the middle rungs of the ladder by which a man could climb out of the dependent position seem to have been present here as in Norway. The evidence is scanty, but sufficiently important.
From the Kentish laws the presence of stepping-stones into greater freedom may be inferred in the case of the three classes of læts with their rising wergelds. And in a precious fragment of ancient custom happily rescued from oblivion we found evidence that, originally at all events, there had been a way out of the ceorl’s twy-hynde condition at the fourth generation of landholding connected with payment of gafol to the king’s utware and direct service to the king. But we recognised that the collector of the fragment looked longingly back to ancient custom, speaking of it in the past tense, as if it was no longer in force.[321]
It would obviously not be wise to trust solely to the negative evidence of the silence of the laws, but in this case the silence seems to confirm the evidence of the fragment. For the pathetic tone of the fragment finds an echo in the fact that all traces of the middle rungs in the ladder seem to have vanished from the later laws. There is no mention in Ine’s laws or in Alfred’s of there being or having been several grades of freedmen or læts. Even the half wergeld of the six-hynde stranger who has risen to the possession of five hides silently disappears after King Alfred’s time. From whatever cause, so far as the evidence goes, the twy-hynde class seems to have become a homogeneous class in which, in spite of different origins, distinctions were merged in a common economic condition. Differences of origin were perhaps forgotten as the result of comradeship in the long struggle against the Danish foe.
And this kept open the gulf between twy-hynde and twelve-hynde classes.