Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




"If a man seize hold of the breast of a ceorlish woman, let him
make bot to her with 5 shillings. If he throw her down and do not
lie with her, let him make bot with 10 shillings. If he lie with
her, let him make bot with 60 shillings. If another man had before
lain with her, then let the bot be half that. ... If this befall a
woman more nobly born, let the bot increase according to the wer."

"If any one, with libidinous intent, seize a nun either by her
raiment or by her breast without her leave, let the bot be
twofold, as we have before ordained concerning a laywoman."

"If a man commit a rape upon a ceorl's female slave, he must pay
bot to the ceorl of 5 shillings and a wite [fine to the King] of
60 shillings. If a male theow rape a female theow, let him make
bot with his testicles."

For the first dog bite, the owner pays 6 shillings, for the
second, 12 shillings, for the third, 30 shillings.

An ox which gores someone to death shall be stoned.

If one steals or slays another's ox, he must give two oxen for it.

The man who has land left to him by his kindred must not give it
away from his kindred, if there is a writing or witness that
such was forbidden by those men who at first acquired it, and by
those who gave it to him; and then let that be declared in the
presence of the king and of the bishop, before his kinsmen.



- Judicial Procedure -

Cases were held at monthly meetings of the hundred court. The king
or one of his reeves, conducted the trial by compurgation.

In compurgation, the one complaining, called the "plaintiff", and
the one defending, called the "defendant", each told their story
and put his hand on the Bible and swore "By God this oath is clean
and true". A slip or a stammer would mean he lost the case.
Otherwise, community members would stand up to swear on behalf of
the plaintiff or the defendant as to their reputation for
veracity. The value of a man's oath was commensurate with his
value or wergeld. A man's brothers were usually his compurgators.
If these "compurgators" were too few, usually twelve in number, or
recited poorly, their party lost. If this process was
inconclusive, the parties could bring witnesses to declare such
knowledge as they had as neighbors. These witnesses, male and
female, swore to particular points determined by the court.

If the witnesses failed, the defendant was told to go to church
and to take the sacrament only if he or she were innocent. If he
or she took the sacrament, he or she was tried by the process of
"ordeal", which was administered by the church. In the ordeal by
cold water, he was given a drink of holy water and then bound hand
and foot and thrown into water. If he floated, he was guilty. If
he sank, he was innocent. It was not necessary to drown to be
deemed innocent. In the ordeal by hot water, he had to pick up a
stone from inside a boiling cauldron. If his hand was healing in
three days, he was innocent. If it was festering, he was guilty. A
similar ordeal was that of hot iron, in which one had to carry in
his hands a hot iron for a certain distance. The results of the
ordeal were taken to indicate the will of God. Presumably a person
convicted of murder, i.e. killing by stealth, or robbery [taking
from a person's robe, that is, his person or breaking into his
home to steal] would be hung and his possessions confiscated. A
bishop's oath was incontrovertible. Accused archbishops and
bishops could clear themselves with an oath that they were
guiltless. Lesser ranks could clear themselves with the oaths of
three compurgators of their rank or, for more serious offenses,
undergo the ordeal of the consecrated morsel. For this, one would
swallow a morsel; if he choked on it, he was guilty.

Any inanimate or animate object or personal chattel which was
found by a court to be the immediate cause of death was forfeited
as "deodand", for instance, a tree from which a man fell to his
death, a beast which killed a man, a sword of a third party not
the slayer that was used to kill a man. The deodand was to go to
the dead man's kin so they could wreak their vengeance on it,
which in turn would cause the dead man to lie in peace.

This is a lawsuit regarding rights to feed pigs in a certain
woodland:

"In the year 825 which had passed since the birth of Christ, and
in the course of the second Indiction, and during the reign of
Beornwulf, King of Mercia, a council meeting was held in the
famous place called Clofesho, and there the said King Beornwulf
and his bishops and his earls and all the councilors of this
nation were assembled. Then there was a very noteworthy suit about
wood pasture at Sinton, towards the west in Scirhylte. The reeves
in charge of the pigherds wished to extend the pasture farther,
and take in more of the wood than the ancient rights permitted.
Then the bishop and the advisors of the community said that they
would not admit liability for more than had been appointed in
AEthelbald's day, namely mast for 300 swine, and that the bishop
and the community should have two thirds of the wood and of the
mast. The Archbishop Wulfred and all the councilors determined
that the bishop and the community might declare on oath that it
was so appointed in AEthelbald's time and that they were not
trying to obtain more, and the bishop immediately gave security to
Earl Eadwulf to furnish the oath before all the councilors, and it
was produced in 30 days at the bishop's see at Worcester. At that
time Hama was the reeve in charge of the pigherds at Sinton, and
he rode until he reached Worcester, and watched and observed the
oath, as Earl Eadwulf bade him, but did not challenge it.
Here are the names and designations of those who were assembled at
the council meeting ..."





- - - Chapter 3 - - -



- The Times: 900-1066 -

There were many large landholders such as the King, earls, and
bishops. Earls were noblemen by birth, and often relatives of the
King. They were his army commanders and the highest civil
officials, each responsible for a shire. A breach of the public
peace of an earl would occasion a fine. Lower in social status
were freemen: sokemen, and then, in decreasing order, villani
[villeins], bordarii, and cottarii. The servi were the slaves.
Probably all who were not slaves were freemen.

Kings typically granted land in exchange for services of military
duties, maintaining fortresses, and repairing bridges. Less common
services required by landlords include equipping a guard ship and
guarding the coast, guarding the lord, military watch, maintaining
the deer fence at the King's residence, alms giving, and church
dues. Since this land was granted in return for service, there
were limitations on its heritability and often an heir had to pay
a heriot to the landlord to obtain the land. A heriot was
originally the armor of a man killed, which went to the King. The
heriot of a thegn who had soken came to be about 80s.; of a kings'
thegn about four lances, two coats of mail, two swords, and 125s.;
of an earl about eight horses, four saddled and four unsaddled,
eight lances, four coats of mail, four swords, and 500s.

There were several thousand thegns, rich and poor, who held land
directly of the King. Some thegns had soken or jurisdiction over
their own lands and others did not. Free farmers who had sought
protection from thegns in time of war now took them as their
lords. A freeman could chose his lord, following him in war and
working his land in peace. All able-bodied freemen were liable to
military service in the fyrd [national militia], but not in a
lord's private wars. In return, the lord would protect him against
encroaching neighbors, back him in the courts of law, and feed him
in times of famine. But often, lords raided each other's farmers,
who fled into the hills or woods for safety. Often a lord's
fighting men stayed with him at his large house, but later were
given land with inhabitants on it, who became his tenants. The
lords were the ruling class and the greatest of them sat in the
King's council along with bishops, abbots, and officers of the
King's household. The lesser lords were local magnates, who
officiated at the shire and hundred courts.

Stag-hunting, fox-hunting, and hawking were reserved for lords who
did not work with their hands. Every free born person had the
right to hunt other game.

There was a great expansion of arable land. Some land had been
specifically allocated to certain individuals. Some was common
land, held by communities. If a family came to pay the dues and
fines on certain common land, it could become personal to that
family and was then known as heir-land. Most land came to be
privately held from community-witnessed allotments or inheritance.
Book-land was those holdings written down in books. This land was
usually land that had been given to the church or monasteries
because church clerics could write. So many thegns gave land to
the church, usually a hide, that the church held 1/3 of the land
of the realm. Folk-land was that land that was left over after
allotments had been made to the freemen and which was not common
land. It was public land and a national asset and could be
converted to heir-land or book-land only by action of the king and
witan. It could also be rented by services to the state via
charter. A holder of folk-land might express a wish, e.g. by
testamentary action, for a certain disposition of it, such as an
estate for life or lives for a certain individual. But a distinct
act by the king and witan was necessary for this wish to take
effect. Small private transactions of land could be done by
"livery of seisin" in the presence of neighbors. All estates in
land could be let, lent, or leased by its holders, and was then
known as "loenland".

Ploughs and wagons could be drawn by four or more oxen or horses
in sets of two behind each other. Oxenshoes and horseshoes
prevented lameness due to cracked hooves. Horse collars especially
fitted for horses, replaced oxen yoke that had been used on
horses.

A free holder's house was wood, perhaps with a stone foundation,
and roofed with thatch or tiles. There was a main room or hall,
with bed chambers around it. Beyond was the kitchen, perhaps
outside under a lean-to. These buildings were surrounded by a bank
or stiff hedge.

Simple people lived in huts made from wood and mud, with one door
and no windows. They slept around a wood-burning fire in the
middle of the earthen floor. They wore shapeless clothes of goat
hair and unprocessed wool from their sheep. They ate rough brown
bread, vegetable and grain broth, ale from barley, bacon, beans,
milk, cabbage, onion, apples, plums, cherries, and honey for
sweetening or mead. Vegetables grown in the country included
onions, leeks, celery, lettuce, radish, carrots, garlic, shallots,
parsnip, dill, chevil, marigold, coriander, and poppy. In the
summer, they ate boiled or raw veal and wild fowl such as ducks,
geese, or pigeons, and game snared in the forest. Poultry was a
luxury food, but recognized as therapeutic for invalids,
especially in broth form [chicken soup]. Venison was highly
prized. There were still some wild boar, which were hunted with
long spears, a greyhound dog, and hunting horns. They sometimes
mated with the domestic pigs which roamed the woodlands. In
September, the old and infirm pigs were slaughtered and their
sides of bacon smoked in the rafters for about a month. Their
intestines provided skin for sausages. In the fall, cattle were
slaughtered and salted for food during the winter because there
was no more pasture for them. However, some cows and breed animals
were kept through the winter.

For their meals, people used wooden platters, sometimes
earthenware plates, drinking horns, drinking cups from ash or
alderwood turned on a foot-peddled pole lathe, and bottles made of
leather. Their bowls, pans, and pitchers were made by the potter's
wheel. Water could be boiled in pots made of iron, brass, lead, or
clay. Water could be carried in leather bags because leather
working preservative techniques improved so that tanning prevented
stretching or decaying. At the back of each hut was a hole in the
ground used as a latrine, which flies frequented. Moss was used
for toilet-paper. Parasitical worms in the stool were ubiquitous.

Most of the simple people lived in villages of about 20 homes
circling a village green or lining a single winding lane. There
were only first names, and these were usually passed down family
lines. To grind their grain, the villagers used hand mills with
crank and gear, or a communal mill, usually built of oak, driven
by power transmitted through a solid oak shaft, banded with iron
as reinforcement, to internal gear wheels of elm. Almost every
village had a watermill. It might be run by water shooting over or
flowing under the wheel.

Clothing for men and women was made from coarse wool, silk, and
linen and was usually brown in color. Only the wealthy could
afford to wear linen or silk. Men also wore leather clothing, such
as neckpieces, breeches, ankle leathers, shoes, and boots. Boots
were worn when fighting. They carried knives or axes under metal
belts. They could carry items by tying leather pouches onto their
belts with their drawstrings. They wore leather gloves for warmth
and for heavy working with their hands.

People were as tall, strong and healthy as in the late 1900s, not
having yet endured the later malnourishment and overcrowding that
was its worst in the 1700s and 1800s. Their teeth were very
healthy. Most adults died in their 40s, after becoming arthritic
from hard labor. People in their 50s were deemed venerable. Boys
of twelve were considered old enough to swear an oath of
allegiance to the king. Girls married in their early teens, often
to men significantly older.

The lands of the large landholding lords were administered by
freemen. They had wheat, barley, oats, and rye fields, orchards,
vineyards for wine, and bee-keeping areas for honey. On this land
lived not only farm laborers, cattle herders, shepherds,
goatherds, and pigherds, but craftsmen such as goldsmiths,
hawkkeepers, dogkeepers, horsekeepers, huntsmen, foresters,
builders, weaponsmiths, embroiders, bronze smiths, blacksmiths,
watermill wrights, wheelwrights, wagon wrights, iron nail makers,
potters, soap makers, tailors, shoemakers, salters (made salt at
the "wyches", which later became towns ending with '-wich'),
bakers, cooks, and gardeners. Most men did carpentry work. Master
carpenters worked with ax, hammer, and saw to make houses, doors,
bridges, milk buckets, washtubs, and trunks. Blacksmiths made
gates, huge door hinges, locks, latches, bolts, and horseshoes.
The lord loaned these people land on which to live for their life,
called a "life estate", in return for their services. The loan
could continue to their widows or children who took up the craft.
Mills were usually powered by water. Candles were made from
beeswax, which exuded a bright and steady light and pleasant
smell, or from mutton fat, which had an unpleasant odor. The
wheeled plough and iron-bladed plough made the furrows. One man
hald the plough and another walked with the oxen, coaxing them
forward with a stick and shouts. Seeds were held in an apron for
seeding. Farm implements included spades, shovels, rakes, hoes,
buckets, barrels, flails, and sieves. Plants were pruned to direct
their growth and to increase their yield. Everyone got together
for feasts at key stages of the farming, such as the harvest.
Easter was the biggest feast. When the lord was in the field, his
lady held their estate. There were common lands of these estates
as well as of communities. Any proposed new settler had to be
admitted at the court of this estate.

The land of some lords included fishing villages along the coasts.
From the sea were caught herrings, salmon, porpoises, sturgeon,
oysters, crabs, mussels, cockels, winkeles, plaice, flounder, and
lobsters. Sometimes whales were driven into an inlet by many
boats. River fish included eels, pike, minnows, burbo, trout, and
lampreys. They were caught by brushwood weirs, net, bait, hooks,
and baskets. Oysters were so numerous that they were eaten by the
poor. The king's peace extended over the waterways. If mills,
fisheries, weirs, or other structures were set up to block them,
they were to be destroyed and a penalty paid to the king.

Other lords had land with iron-mining industries. Ore was dug from
the ground and combined with wood charcoal in a shaft furnace to
be smelted into liquid form. Wood charcoal was derived from
controlled charring of the wood at high temperatures without using
oxygen. This burned impurities from it and left a purer carbon,
which burned better than wood. The pure iron was extracted from
this liquid and formed into bars. To keep the fire hot, the
furnaces were frequently placed at windswept crossings of valleys
or on the tops of hills.

Some lords had markets on their land, for which they charged a
toll [like a sales tax] for participation. There were about
fifty markets in the nation. Cattle and slaves (from the word
"slav") were the usual medium of exchange. An ox still was worth
about 30d. Shaking hands was symbolic of an agreement for a
sale, which had to be carried out in front of witnesses at the
market for any property worth over 20d. The higher the value of
the property, the more witnesses were required. Witnesses were
also required for the exchange of property and to vouch for
cattle having being born on the property of a person claiming
them. People traveled to markets on deep, sunken roads and
narrow bridges kept in repair by certain men who did this work
as their service to the King. The king's peace extended to a
couple of high roads, i.e. highways, running the length of the
country and a couple running its width.

Salt was used throughout the nation to preserve meat over the
winter. Inland saltworks had an elaborate and specialized
organization. The chief one used saltpans and furnaces to extract
salt from natural brine springs. They formed little manufacturing
enclaves in the midst of agricultural land, and they were
considered to be neither large private estates headed by a lord
nor appurtenant to such. They belonged jointly to the king and the
local earl, who shared, at a proportion of two to one, the
proceeds of the tolls upon the sale of salt and methods of
carriage on the ancient salt ways according to cartload, horse
load, or man load. Sometimes there were investors in a portion of
the works who lived quite at distance away. The sales of salt were
mostly retail, but some bought to resell. Peddlers carried salt to
sell from village to village.

Some smiths traveled for their work, for instance, stonewrights
building arches and windows in churches, and lead workers putting
lead roofs on churches.

An example of a grant of hides of land is: "[God has endowed King
Edred with England], wherefore he enriches and honors men, both
ecclesiastic and lay, who can justly deserve it. The truth of this
can be acknowledged by the thegn AElfsige Hunlafing through his
acquisition of the estate of 5 hides at Alwalton for himself and
his heirs, free from every burden except the repair of
fortifications, the building of bridges and military service; a
prudent landowner church dues, burial fees and tithes. [This land]
is to be held for all time and granted along with the things both
great and small belonging to it."

A Bishop gave land to a faithful attendant for his life and two
other lives as follows: "In 904 A.D., I, Bishop Werfrith, with the
permission and leave of my honorable community in Worcester, grant
to Wulfsige, my reeve, for his loyal efficiency and humble
obedience, one hide of land at Aston as Herred held it, that is,
surrounded by a dyke, for three lives and then after three lives
the estate shall be given back without any controversy to
Worcester."

At seaports on the coast, goods were loaded onto vessels owned by
English merchants to be transported to other English seaports.
London was a market town on the north side of the Thames River and
the primary port and trading center for foreign merchants. Streets
that probably date from this time include Milk, Bread, and Wood
Streets, and Honey Lane. There were open-air markets such as
Billingsgate. There were wooden quays over much of the riverfront.
Houses were made of wood, with one sunken floor, or a ground floor
with a cellar beneath. Some had central stone hearths and earth
latrines. There were crude pottery cooking pots, beakers and
lamps, wool cloth, a little silk, simple leather shoes, pewter
jewelry, looms, and quernstones (for grinding flour). Wool, skins,
hides, wheat, meal, beer, lead, cheese, salt, and honey were
exported. Wine (mostly for the church), fish, timber, pitch,
pepper, garlic, spices, copper, gems, gold, silk, dyes, oil,
brass, sulphur, glass, slaves, and elephant and walrus ivory were
imported. Goods from the continent were sold at open stalls in
certain streets. Furs and slaves were traded. There was a royal
levy on exports by foreigners merchants. Southwark was reachable
by a bridge. It contained sleazy docks, prisons, gaming houses,
and brothels.

Guilds in London were first associations of neighbors for the
purposes of mutual assistance. They were fraternities of persons
by voluntary compact to assist each other in poverty, including
their widows or orphans and the portioning of poor maids, and to
protect each other from injury. Their essential features are and
continue to be in the future: 1) oath of initiation, 2) entrance
fee in money or in kind and a common fund, 3) annual feast and
mass, 4) meetings at least three times yearly for guild business,
5), obligation to attend all funerals of members, to bear the body
if need be from a distance, and to provide masses for the dead, 6)
the duty of friendly help in cases of sickness, imprisonment,
house burning, shipwreck, or robbery, 7) rules for decent behavior
at meetings, and 8) provisions for settling disputes without
recourse to the law. Both the masses and the feast were attended
by the women. Frequently the guilds also had a religious
ceremonial to affirm their bonds of fidelity. They readily became
connected with the exercise of trades and with the training of
apprentices. They promoted and took on public purposes such as the
repairing of roads and bridges, the relief of pilgrims, the
maintenance of schools and almshouses, and the periodic
performance of pageants and miracle plays telling scriptural
history, which could last for several days. The devil often was
prominent in miracle plays.

Many of these London guilds were known by the name of their
founding member. There were also Frith Guilds (peace guilds) and a
Knights' Guild. The Frith Guild's main object was to enforce the
King's laws, especially the prevalent problem of theft. They were
especially established by bishops and reeves. Members met monthly
and contributed about 4d. to a common fund, which paid a
compensation for items stolen. They each paid 1s. towards the
pursuit of the thief. The members were grouped in tens. Members
with horses were to track the thief. Members without horses worked
in the place of the absent horseowners until their return. When
caught, the thief was tried and executed. Overwhelming force was
used if his kindred tried to protect him. His property was used to
compensate the victim for his loss and then divided between the
thief's wife, if she was innocent, the King, and the guild. Owners
of slaves paid into a fund to give one half compensation to those
who lost slaves by theft or escape, and recaptured slaves were to
be stoned to death or hanged. The members of the peace guild also
feasted and drank together. When one died, the others each sang a
song or paid for the singing of fifty psalms for his soul and gave
a loaf.

The Knights' Guild was composed of thirteen military persons to
whom King Edgar granted certain waste land in the east of London,
toward Aldgate, and also Portsoken, which ran outside the eastern
wall of the city to the Thames, for prescribed services performed,
probably defense of the vulnerable east side of the city. This
concession was confirmed by King Edward the Confessor in a charter
at the suit of certain citizens of London, the successors of these
knights. Edward granted them sac and soke [cause and suit]
jurisdiction over their men.

Edward the Confessor made these rules for London:

1. Be it known that within the space of three miles from
all parts outside of the city a man ought not to hold or
hinder another, and also should not do business with him if
he wish to come to the city under its peace. But when he
arrives in the city, then let the market be the same to the
rich man as to the poor.

2. Be it also known that a man who is from the court of the
king or the barons ought not to lodge in the house of any
citizen of London for three nights, either by privilege or
by custom, except by consent of the host. For if he force
the host to lodge him in his house and there be killed by
the host, let the host choose six from his relatives and let
him as the seventh swear that he killed him for the said
cause. And thus he will remain quit of the murder of the
deceased towards the king and relatives and lords of the
deceased.

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