The duties of the mǽgsceaft or kinship are developed with considerable detail in the law of Ælfred: the most general regulation is that which acknowledges the right of a man to have the aid of his kindred in all those excepted cases where the custom and the law still permitted the waging of fǽhðe or private war: “After the same fashion, may a man fight on behalf of his born kinsman, if any wrongfully attack him; except indeed against his lord: that we permit not[[482]].” Other clauses provide that where a wrongdoer is taken into custody, and agrees peaceably to abide the decision of the law, his relatives shall have due notice[[483]]: “If he pledge himself to a lawful act, and belie himself therein, let him humbly surrender his arms and his goods to his friends, to hold for him, and let him remain for forty days in prison in a king’s tún; let him there suffer as the bishop may direct him; and let his kinsmen feed him, if he have himself no food; but if he have no kinsmen, or no food, let the king’s reeve feed him.” Again if a man is accidentally slain while hewing wood with others, his kinsmen are to have the tree, and remove it from the land within thirty days, otherwise it shall go to the owner of the wood[[484]]. The most important case of all, however, is that of a divided responsibility between the kinsmen and the gegyldan, which Ælfred thus regulates: “If one that hath no paternal kindred fight and slay a man, if then he have maternal relatives, let them pay a third part of the wer, his gyldbrethren a third part, and for a third part let him flee. If he have no maternal relatives, let his gyldbrethren pay half, and for half let him flee. And if any one slay such a man, having no relatives, let half be paid to the king, half to the gyldbrethren[[485]].” It was also the principle of Ælfred’s law, recognized but not introduced by him, that no man should have the power of alienating from his mǽgsceaft, booklands whose first acquirer had entailed them upon the family,—a principle which tends, as far as human means seem capable of ensuring it, to ensure its permanent maintenance[[486]].
The reciprocal rights and duties of the mǽgburh were similarly understood by Eádweard: he enacted that if a malefactor were deserted by his relatives, and they refused to make compensation for him, he should be reduced to serfage; but in this case his wergyld was to abate from the kindred[[487]]. And Æðelstan distinctly holds the mǽgð responsible for their kinsman. He says, “If a thief be put into prison, let him remain there forty days, and then let him be ransomed for 120 shillings, and let the kindred go surety for him that he shall cease from theft for the future. And if after that he steal, let them pay for him with his wergyld, or replace him in prison[[488]].” But he goes further than this, and imposes upon them the duty of finding a lord for him, or exposing him to the penalty of outlawry: “And we have ordained respecting those lordless men of whom no law can be got, that the kindred be commanded to domicile him to folkright, and find him a lord in the folkmote; and if then they will not or cannot produce him at the term, let him thenceforth be an outlaw, and let whoso cometh at him slay him[[489]]:” a provision which obviously cannot apply to free landowners, who would have been included in a tithing, and could not have been thus compulsorily commended to a lord. Where a man is slain as a thief, the relatives are to clear him, if they can[[490]], inasmuch as they would have a right to pursue the slayer and claim the compensation for their kinsman’s death. Again it is provided that if a lord has so many dependents that he cannot personally exercise a due supervision over them, he shall appoint efficient reeves or bailiffs in his several manors, to be answerable to him. And if need be, the bailiff shall cause twelve relatives of any man whom he cannot trust, to enter into sureties for him[[491]].
Eádmund permitted the mǽgð to avoid the consequences of their kinsman’s act, by refusing to abet him in his feud[[492]]. I imagine that this law must be taken in connection with that of Eádweard[[493]], and that it implies a total desertion of the criminal by his kindred, with all its consequences, viz. loss of liberty to him, and of his wergyld to them. The troubled time of Æðelred, “the ill-advised,” supplies another attempt to secure peace by holding the relatives strictly and personally responsible: in his law we find it enacted, “If breach of the peace be committed within a town, let the inhabitants of the town go in person, and take the murderers, alive or dead, or their nearest of kin, head for head. If they will not, let the ealdorman go; if he will not, let the king go; if he will not, let the whole district be in a state of war[[494]].” Though this perhaps is less a settled rule of law than the convulsive effort of an authority striving in vain to maintain itself amid civil discords and the horrors of foreign invasion, it still consecrates the old principle, and returns to the true basis on which Anglosaxon society was founded, namely treaties of peace and mutual guarantee between the several parties that made up the State.
Such were the means by which the internal peace of the land was attempted to be secured, and it is evident that better could hardly have been devised in a state of society where population was not very widely dispersed, and where property hardly existed, save in land, and almost equally unmanageable cattle. The summary jurisdiction of our police magistrates, our recognizances and bail and binding over to keep the peace, are developments rendered necessary by our altered circumstances; but these are nevertheless institutions of the same nature as those on which our forefathers relied. The establishment of our County-courts, in which justice goes forth from man to man, and without original writ from the Crown, is another step toward the ancient principle of our jurisprudence, in the old Hundred.
A further inquiry now arises, as to the basis upon which all calculations as to satisfaction between man and man were founded; in other words to the system of Wergylds and its various corollaries: this will form the subject of a separate chapter.
[433]. For the Frankish custom see the Capitulary of the year 807. Pertz, iii. 149, and Dönniges, Deut. Staatsr. pp. 92, 93.
[434]. See above, p. 39, note 1.
[435]. “Quodque praecipuum fortitudinis incitamentum est, non casus nec fortuita conglobatio turmam aut cuneum facit, sed familiae et propinquitates.” Germ. vii.
[436]. “Suscipere tam inimicitias seu patris seu propinqui quam amicitias necesse est.” Germ. xxi.