From the consideration of the middle and lower classes of Anglo-Saxon society we ascend to consider the rather difficult questions connected with the higher ranks of that society, the thegns, the eorls, the ealdormen, about whom the Laws and the Chronicles inform us. In this examination we should be left in almost hopeless darkness were it not for two institutions both well known in all the collections of primitive Teutonic law, and both very repugnant to our modern ideas of justice, wergild and (so-called) compurgation.
The essential principle of the wergild was compensation in money to the kindred of a murdered man, in order to induce them to abstain from righting or avenging themselves by force. Far back in the dimmest ages of the Teutonic foreworld the historical student discerns a period when all wrongs were avenged by the stroke of the broad-sword. The right, and more than the right, the sacred duty, of vengeance was handed on from father to son, and the circle widened from kinsman to kinsman, till the terrible blood-feud was like to destroy a tribe or even a nation. Then at some period far back in the ages, the idea was conceived of exorcising the spirit of revenge by the wand of pecuniary compensation. Let the relatives of a murdered man receive a wer, a payment in money, proportioned to his rank and position in the tribe, and, the family honour being thus satisfied, let them forego the right to revenge. If the injury were something less than death—if it were maiming, mutilation, the abduction of a wife, unprovoked words of insult—a proportionate payment in the nature of wer was made to the sufferer himself. The wer was purposely fixed high according to the value of money in those days, and if the offender were unable to pay it, he and sometimes his family with him became the bondslaves of the injured party. There was thus an element of prevention as well as of compensation in the punishment inflicted. But in all this we do not find any thought of punishment inflicted by the state to avenge the injured majesty of the law; nothing of that feeling which now makes the murder of the most degraded outcast a matter which must be inquired into with the utmost diligence by the police and punished by the hands of the executioner. This thought was indeed in some degree expressed by the wite or fine for murder, breach of the peace and so on, which was paid to the king or to one of his officers, but this fine was generally less in amount and always less in importance than the venerable wergild payable to the kindred.
The amount of wergild was elaborately proportioned to the station in society of the injured party—twice as high for the nobleman as for the squire, three times as high for the squire as for the yeoman (if one may be permitted to use as a very rough approximation the terms current in modern society); but it is important to remember that obligation in this system of law went hand in hand with privilege. If the wer for an injured thegn was high, it was on the level of that wer that he would have to atone to the king for offences committed by him against the law of the land.[104] The wergild tariff, however, though frequently referred to, is not regularly set forth in the laws either of Ethelbert or of Ine, an omission common to it with many of the other Teutonic codes, especially that of the Lombards. Probably the amount of wer payable in each case was so well known through long usage that the legislator deemed it needless to set it forth anew, but it is possible also that there was a variable element left, in some cases, to be the subject of bargaining between the two kins of the injurer and the injured. Some broad lines of demarcation, however, may be clearly traced. We know that the ceorl was called a twy-hynd man, because the ordinary compensation for his violent death was 200 shillings. A Welshman, however, who owned that single hide of land which seems to have been the normal property of the well-to-do ceorl, was entitled to a wergild of only 120 shillings, but if he so prospered as to become the owner of five hides of English soil then his wergild rose to the proportionate amount of 600 shillings.
The class next above the ceorl, the class corresponding with the gentry of modern times, the large land-holders who do not happen to hold any official position at the king’s court, were in the ninth century spoken of as thegns; and that word may, for convenience, be used here, though it is perhaps doubtful whether it was yet used as the simple designation of a class. In the word thegn the thought of soldiership and of service to the king seem almost inseparably blended. In the poem of Beowulf thegns seems to be equivalent to warriors.; while in the charters of Anglo-Saxon kings the Latin equivalent of thegn is almost invariably minister. In the laws of Ine these men seem to be generally spoken of as gesithcund, men who by birth were entitled to be comrades and attendants of the king; and it is almost certain that they are identical with the twelf-hyndemen, their wergild being fixed at 1,200 shillings. Higher than this these laws do not enable us to go, but the tenor of later legislation supports the conjecture that the wergild for an ealdorman or for a bishop was 4,800 shillings, for an archbishop or etheling (member of the royal house), 9,000 shillings, and for the king himself, 18,000 shillings.[105]
It will be seen that the Ealdorman is here put on a level with the Bishop. At the point of West Saxon history which we have now reached, there seems to have been one ealdorman to every shire. He commanded the fyrd of his shire in battle, he presided along with the bishop and the reeve in the shire-gemot, of which later laws than Ine’s inform us: and altogether his position may perhaps be best imagined by comparing it with that of a modern lord-lieutenant of a county.
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Some further light on the ranks and orders in the Anglo-Saxon kingdoms is shown by the rather copious ordinances on the subject of that judicial process which is generally called compurgation. This name is not technically correct, as it is of ecclesiastical origin and belongs to later times than those with which we are now dealing; but we have not yet naturalised “oath-helping” as the Germans have naturalised eid-hilfe, and the word ath-fultum, occasionally used in the Anglo-Saxon laws, has not yet attained the same degree of currency as wergild. With the word “compurgation,” therefore, we must for the present rest satisfied.
We first meet with this custom in the fourteenth law of King Ine, who says, “If any one be accused of brigandage he shall clear himself by 120 hides or pay accordingly”. We naturally inquire what is meant by “clearing oneself by 14,400 acres,” and we receive further light on the question when we come to law 19 which tells us that “a king’s retainer (geneat) if his wer is 1,200 shillings may swear for 60 hides if he be a communicant,” on which the later Latin translator adds the gloss, “for 60 hides, that is for six men”.
We now see more plainly the meaning of “swearing by 120 hides”. A man accused of such a grave crime against society as brigandage must, in order to prove his innocence, procure the attestation of at least two king’s tenants (each presumably holding sixty hides of land) or twelve land-owners (each owner of ten hides), and they must swear that they believe him innocent. This is “oath-helping” or “compurgation”. This swearing process is, as has been often pointed out, not in the least like our modern examination of sworn witnesses to fact, nor does it contain the promise of our modern trial by jury. It is much more akin to the privilege allowed to the defendant of “calling witnesses to character,” a privilege which, where the evidence is only circumstantial, often has an important influence on the verdict. It must be admitted that even with us the force of such evidence frequently depends in some measure on the social status of the witness-bearers, but we should shrink from making the bald statement that a man accused of murder must produce two persons paying income-tax on £10,000 a year, or twenty persons at £1,000 a year, to declare their belief in his innocence.
The amount of “swearing power,” if it may be so called, belonging to each class of men is not very clearly stated. From the passage quoted above, with its Latin gloss, one is inclined to suppose that the ordinary ceorl swore for ten hides. It has been recently argued[106] that he swore only for five or perhaps six hides. There is, however, evidently something factitious in the ownership of land thus theoretically assigned to him. We may say, certainly, that the ordinary ceorl did not possess five, much less ten hides of land; nor were all thegns, who had probably the same swearing power as the king’s geneat, possessed of sixty hides, say 7,200 acres. We may therefore rather look upon the number of hides for which ceorl, thegn and king’s thegn were entitled to swear as a conventional mode of stating for the guidance of the judge, the weight that was to be attached to their testimony when they gave it on behalf of a man accused of crime. Perhaps also there was in this curious tariff of credibility an attempt to ascertain the extent to which the belief of the vicinage could be relied on in the prisoner’s behalf. The ordinary ceorl, cultivating perhaps only one hide, but mingling with a certain number of his fellow ceorls in the exercise of his daily toil, might vouch for the opinion of the owners of ten hides; while the king’s retainer, from his wider field of observation, could vouch for the belief of a district six times as large.