“Another peace, the greatest of all, there is, whereby all are maintained in firmer state, to wit in the establishment of a guarantee, which the English call Friðborgas, with the exception of the men of York, who call it Tenmannetale, that is, the number of ten men. And it consists in this, that in all the vills throughout the kingdom, all men are bound to be in a guarantee by tens, so that if one of the ten men offend, the other nine may hold him to right. But if he should flee, and they allege that they could not have him to right, then should be given them by the king’s justice a space of at least thirty days and one: and if they could find him they might bring him to justice. But for himself, let him out of his own restore the damage he had done, or if the offence be so grave let justice be done upon his body. But if within the aforesaid term he could not be found, since in every friðborh there was one headman whom they called friðborg-heved, then this headman should take two of the best men of his friðborh, and the headman of each of the three friðborgs most nearly neighbouring to his own, and likewise two of the best in each, if he can have them; and so with the eleven others he shall, if he can, clear both himself and his friðborh both of the offence and flight of the aforesaid malefactor. Which if he cannot do, he shall restore the damage done out of the property of the doer, so long as this shall last, and out of his own and that of his friðborh: and they shall make amends to the justice according as it shall be by law adjudged them. And moreover the oath which they could not complete with the venue, the nine themselves shall make, viz. that they had no part in the offence. And if at any time they can recover him, they shall bring him to the justice, if they can, or tell the justice where he is[[464]].”
Thus the object of the gylds or tithings was, that each man should be in pledge or surety (borh) as well to his fellow-man as to the state for the maintenance of the public peace: that he should enjoy protection for life, honour and property himself, and be compelled to respect the life, honour and property of others: that he should have a fixed and settled dwelling where he could be found when required, where the public dues could be levied, and the public services demanded of him: lastly that, if guilty of actions that compromised the public weal or trenched upon the rights and well-being of others, there might be persons especially appointed to bring him to justice; and if injured by others, supporters to pursue his claim and exact compensation for his wrong. All these points seem to have been very well secured by the establishment of the Tithings, to whom the community looked as responsible for the conduct of every individual comprised within them; and coupled with the family obligations which still remained in force in particular cases, they amply answered the purpose of a mutual guarantee between all classes of men. The system possessed the advantage of being necessarily regulated by neighbourhood, and it was free from some disadvantages which might have attended an exclusive reliance upon kinsmanship: the frðiborgas not having the bond of blood between them, which might have induced an improper partiality in favour of one of their members; and as they stood under responsibility for every act of a gyldsman, being interested in preventing an undue interference on the part of his family. We thus see that the gyldsmen were not only bound to present their fellows before the court of the freemen when specially summoned thereto, but that they found their own advantage in exercising a kind of police-surveillance over them all: if a crime were committed, the gyld were to hold the criminal to his answer; to clear him, if they could conscientiously do so, by making oath in his favour; to aid in paying his fine if found guilty; and if by flying from justice he admitted his crime, they were to purge themselves on oath from all guilty knowledge of the act, and all participation in his flight; failing which, they were themselves to suffer mulct in proportion to his offence. On the other hand they were to receive at least a portion of the compensation for his death, or of such other sums as passed from hand to hand during the progress of an Anglosaxon suit. Being his neighbours, the visnetum, vicinage or venue, they were his natural compurgators or witnesses, and consequently, being examined on oath, in some sense the jurati or jurors upon whose verdict his weal or woe depended. And thus the importance of character, so frequently appealed to even in our modern jurisprudence, was carried to the highest extent.
We may reasonably conclude that the close intercourse thus created, was improved to private and social purposes, and that these gylds, like the much larger associations of the same name in after times, knew how to combine pleasure with business. The citizens of London hint at a monthly symposium or treat, with butt-filling, when the tithingmen met together to settle the affairs of their respective hundreds,—a trait not yet extinct in the civic, or indeed the national, character. There can also be little doubt that the gylds even formed small courts of arbitration, as well as police, for the settlement of such trifling disputes between members of the same gyld, as were not worthy of being reserved for the interference of a superior tribunal[[465]]; and it is also probable that the members considered themselves bound to aid in the festivities or do honour to the obsequies of any individual gyld-brother: the London gyldsmen were to distribute alms, and cause religious services to be performed at the decease of a fellow; and it is obvious that this sharing in a religious obligation, the benefits of which were to extend even into another life, must have impressed somewhat of a solemn and sacred character upon the whole institution[[466]].
Much of what has been observed respecting the tithing, applies also to the hundred. This, it has been seen, was originally a collection of ten tithings, and was presided over by a hundredes ealdor[[467]], or hundred-man, who exercised a jurisdiction over his circuit and its inhabitants. From the concurrent practice of later periods we may conclude that his court was holden monthly for the hearing of such civil and lighter criminal causes as could not be settled in the tithing, or interested more tithings than one[[468]]. It is not probable that the higher criminal causes could at any period be pursued in the hundred[[469]], but that they were necessarily reserved for the consideration of the folcmót or shire-court, which met three times in the year. In the later legislation, trial of capital offences was reserved for the scyremót, and the words of Tacitus[[470]] seem to imply that this was the case in his time also: perhaps even such causes as involved the penalties of outlawry may have been beyond the jurisdiction of the hundred. It is however less as a court of justice than as part of a system for the maintenance of peace, that we are to contemplate the hundred. It may be securely affirmed that where the tithing alone could not be made responsible, or more tithings than one were involved in a similar difficulty as to crimes committed by their members, resort was had to the responsibility of the collective hundred,—a principle which, it is well-known, subsists even to this day.
At a comparatively late period, we occasionally find a consolidation of hundreds into one body, for judicial purposes, presided over by the ealdorman of the shire, or his geréfa, and forming a subsidiary court to the shiremoot: and after immunities, or private jurisdictions, had become rapidly extended, it is certain that such consolidations were not unusual, in the hands of great civil or ecclesiastical authorities, and that they, by means of their officers or geréfan, held plea in several hundreds at once; they thus substituted their own power for that of the ealdorman or the sheriff, in the last instance, throughout the district comprehended by their immunity; either replacing the old hundred-men by geréfan or bailiffs, or suffering the hundreds to be still governed and administered in the way common to all such divisions, by the elective officer[[471]].
It stands to reason that the system above described applied only to the really free. It was the form of the original compact between the independent members of an independent community. But as by the side of the free landholders, there dwelt also unfree men of various ranks, so also there existed modifications of the original compact, suited to their condition. Those who in a more or less stringent degree were dependent, could not be members of the tithing, the hundred or the folcmót. They stood to right among themselves, in their lord’s court, not in the people’s, and in the latter they could not appear for themselves. The institution therefore which provided that the lord might maintain a Comitatus or following, provided also that its members should all be in his mund (protection) and borh (surety), and that he should make answer for them in the courts from which they were themselves excluded[[472]].
It is difficult to decide whether the lords or nobles were at first comprised within the popular corporations: it appears most probable that they were not; that they were sufficient to their own defence, and, even from the earliest historical periods, in possession of that immunity which released their lands from the jurisdiction of the popular tribunals. In respect therefore to the gylds, they may be supposed to have held an independent, though not necessarily hostile, position, regulated indeed by the public law: and if they stood to right with their men, in the folcmót, it was the collective power and dignity of the state with which they had to deal, and not the smaller associations, founded upon necessities of which they were not conscious. Their dependents were under their guarantee and surety, as the members of every man’s household, his wife, children and serfs, were under his: for them he was responsible to the community at large, but he owed no suit or service to others, and if he persisted in upholding wrong, I fear the only corrective was to be found in the inalienable ius belli, which resumes its power instantly upon the violation of that tacit understanding among men, that the well-being of society depends upon a regulated mutual forbearance. Those were not ages in which acts of self-defence or righteous retribution could be misnamed revolutions. But all these remarks are intended to apply only to a state of society in which the nobles were few and independent, the people strong and united; where the people were in truth the aristocracy[[473]], and the nobles only their chiefs. The holder of an immunity (having sacn and sócn) in later times, under a consolidated royalty representing the national will, and in a state from which the element of the people had nearly vanished, through the almost total vanishing of small independent freeholds, was necessarily placed in a very different position.
It now remains only to bestow a few words upon the manner in which the original obligations of the family bond were gradually brought to bear upon the artificial organization.
Upon a careful consideration of the latter it appears that its principal object was gained when either offences were prevented, or the offender presented to justice: the consequences of crime, in all but a few excepted cases, fell not upon the gegyldan (if they could clear themselves of participation) but upon the mǽgas or relatives[[474]].
The laws of Æðelberht, Wihtræd and Hloðhere know nothing of gegyldan: with them the mǽgas are still wholly responsible, and even their intervention is noticed in three cases only: Æðelberht provided that in the event of a manslayer flying the country, the family should pay half the wergyld of the slain[[475]]. Again he enacts, that if a married woman die without bearing children, the property she brought her husband, and that which he settled upon her after consummation, shall return to her paternal relatives[[476]]. According to the legislation of Hloðhere, if a man died, leaving a wife and child, the mother was to have the custody of the child till his tenth year, but the paternal kinsmen were to administer his property, under satisfactory pledge for due discharge of their duty[[477]]. The regulations of Ini allow us to enter still further into the nature of the family engagement. He enacted that if a stranger came through the wood out of the highway, and attempted to slink through in secret, without shouting or blowing his horn, he should be taken to be a thief, and might be slain or forced to pay according to his presumed crime: and if the slayer were then pursued for his wergyld, he might make oath that he slew him for a thief, and the lord and the gegyldan of the dead man should not be allowed to make oath to the contrary: but if the slayer had at the time concealed the deed, and it was only afterwards discovered, a presumption of unfair dealing was raised against him, and the kindred of the dead man were entitled to make oath of his innocence[[478]]. Again if a stranger were slain, the king was to have two parts of his wergyld, the son or relatives of the dead man might claim the third; but if there were no relatives, the king claimed half, the count half[[479]]. Besides a provision for a surviving child, similar to that of Hloðhere[[480]], the law of Ini contains no further regulation with regard to the mǽgas of the freeman. Four several chapters referring to serfs who are guilty of theft, rest upon the principle that his kin have renounced the mǽgburh by suffering him to remain in serfage, and together with the obligations of kinsman have relinquished their own right of avenging his injuries or making pursuit for his wrongs[[481]].