Book: Our Legal Heritage, 4th Ed.

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




3. And after he has entered the city, let a foreign
merchant be lodged wherever it please him. But if he bring
dyed cloth, let him see to it that he does not sell his
merchandise at retail, but that he sell not less than a
dozen pieces at a time. And if he bring pepper, or cumin, or
ginger, or alum, or brasil wood, or resin, or incense, let
him sell not less than fifteen pounds at a time. But if he
bring belts, let him sell not less than a thousand at a
time. And if he bring cloths of silk, or wool or linen, let
him see that he cut them not, but sell them whole. But if he
bring wax, let him sell not less than one quartanum. Also a
foreign merchant may not buy dyed cloth, nor make the dye in
the city, nor do any work which belongs by right to the
citizens.

4. Also no foreign merchant with his partner may set up any
market within the city for reselling goods in the city, nor
may he approach a citizen for making a bargain, nor may he
stop longer in the City.

Every week in London there was a folkmote at St. Paul's
churchyard, where majority decision was a tradition. By 1032, it
had lost much of its power to the husting [household assembly in
Danish] court. The folkmoot then had responsibility for order and
was the sole authority for proclaiming outlaws. It met three times
a year at St. Paul's churchyard and there acclaimed the sheriff
and justiciar, or if the king had chosen his officer, heard who
was chosen and listened to his charge. It also yearly arranged the
watch and dealt with risks of fire. It was divided into wards,
each governed by an alderman who presided over the ward-mote, and
represented his ward at the folk-mote. Each guild became a ward.
The chief alderman was the portreeve. London paid one-eighth of
all the taxes of England.

Later in the towns, merchant guilds grew out of charity
associations whose members were bound by oath to each other and
got together for a guild feast every month. Some traders of these
merchant guilds became so prosperous that they became landholders.
Many market places were dominated by a merchant guild, which had a
monopoly of the local trade. In the great mercantile towns all the
land and houses would be held by merchants and their dependents,
all freeholders were connected with a trade, and everyone who had
a claim on public office or magistry would be a member of the
guild. The merchant guild could admit into their guild country
villeins, who became freemen if unclaimed by their lords for a
year and a day. Every merchant who had made three long voyages on
his own behalf and at his own cost ranked as a thegn. There were
also some craft guilds composed of handicraftsmen or artisans.
Escaped bonded agricultural workers, poor people, and traders
without land migrated to towns to live, but were not citizens.

Towns were largely self-sufficient, but salt and iron came from a
distance. The King's established in every shire at least one town
with a market place where purchases would be witnessed and a mint
where reliable money was coined by a moneyer. There were eight
moneyers in London. Coins were issued to be of value for only a
couple of years. Then one had to exchange them for newly issued
ones at a rate of about 10 old for 8 or 9 new. The difference
constituted a tax. Roughly 10% of the people lived in towns. Some
took surnames such as Tanner, Weaver, or Carpenter. Some had
affectionate or derisive nicknames such as clear-hand, fresh
friend, soft bread, foul beard, money taker, or penny purse.
Craftsmen in the 1000s included goldsmiths, embroiderers,
illuminators of manuscripts, and armorers.

Edward the Confessor, named such for his piety, was a king of 24
years who was widely respected for his intelligence,
resourcefulness, good judgment, and wisdom. His educated Queen
Edith, whom he relied on for advice and cheerful courage, was a
stabilizing influence on him. They were served by a number of
thegns, who had duties in the household, which was composed of the
hall, the courtyard, and the bedchamber. They were important men -
thegns by rank. They were landholders, often in several areas, and
held leading positions in the shires. They were also priests and
clerics, who maintained the religious services and performed tasks
for which literacy was necessary. Edward was the first king to
have a "Chancellor". He kept a royal seal and was the chief royal
chaplain. He did all the secretarial work of the household and
court, drew up and sealed the royal writs, conducted the king's
correspondence, and kept all the royal accounts. The word
"chancellor" signified a screen behind which the secretarial work
of the household was done. He had the special duty of securing and
administering the royal revenue from vacant benefices. The most
important royal officers were the chamberlains, who took care of
the royal bedchamber and adjoining wardrobe used for dressing and
storage of valuables, and the priests. These royal officers had at
first been responsible only for domestic duties, but gradually
came to assume public administrative tasks.

Edward wanted to avoid the pressures and dangers of living in the
rich and powerful City of London. So he rebuilt a monastic church,
an abbey, and a palace at Westminster about two miles upstream. He
started the growth of Westminster as a center of royal and
political power; kings' councils met there. Royal coronations took
place at the abbey. Since Edward traveled a lot, he established a
storehouse-treasury at Winchester to supplement his traveling
wardrobe. At this time, Spanish stallions were imported to improve
English horses. London came to have the largest and best-trained
army in England.

The court invited many of the greatest magnates and prelates
[highest ecclesiastical officials, such as bishops] of the land to
the great ecclesiastical festivals, when the king held more solemn
courts and feasted with his vassals for several days. These
included all the great earls, the majority of bishops, some
abbots, and a number of thegns and clerics. Edward had a witan of
wise men to advise him, but sometimes the King would speak in the
hall after dinner and listen to what comments were made from the
mead-benches. As the court moved about the country, many men came
to pay their respects and attend to local business. Edward started
the practice of King's touching people to cure them of scrofula, a
disease which affected the glands, especially in the head and
neck. It was done in the context of a religious ceremony.

The main governmental activities were: war, collection of revenue,
religious education, and administration of justice. For war, the
shires had to provide a certain number of men and the ports quotas
of ships with crews. The king was the patron of the English
church. He gave the church peace and protection. He presided over
church councils and appointed bishops. As for the administration
of justice, the public courts were almost all under members of
Edward's court, bishops, earls, and reeves. Edward's mind was
often troubled and disturbed by the threat that law and justice
would be overthrown, by the pervasiveness of disputes and discord,
by the raging of wicked presumption, by money interfering with
right and justice, and by avarice kindling all of these. He saw it
as his duty to courageously oppose the wicked by taking good men
as models, by enriching the churches of God, by relieving those
oppressed by wicked judges, and by judging equitably between the
powerful and the humble. He was so greatly revered that a comet
was thought to accompany his death.

The king established the office of the Chancery to draft documents
and keep records. It created the writ, which was a small piece of
parchment addressed to a royal official or dependent commanding
him to perform some task for the King. By the 1000s A.D., the writ
contained a seal: a lump of wax with the impress of the Great Seal
of England which hung from the bottom of the document. Writing was
done with a sharpened goose-wing quill. Ink was obtained from
mixing fluid from the galls made by wasps for their eggs on oak
trees, rainwater or vinegar, gum arabic, and iron salts for color.

A King's grant of land entailed two documents: a charter giving
boundaries and conditions and a writ, usually addressed to the
shire court, listing the judicial and financial privileges
conveyed with the land. These were usually sac and soke
[possession of jurisdiction of a private court of a noble or
institution to execute the laws and administer justice over
inhabitants and tenants of the estate], toll [right to have a
market and to collect a payment on the sale of cattle and other
property on the estate] and team [probably the right to hold a
court to determine the honesty of a man accused of illegal
possession of cattle or of buying stolen cattle by inquiring of
the alleged seller or a warrantor, even if an outsider], and
infangenetheof [the authority to hang and take the chattels of a
thief caught on the estate].

The town of Coventry consisted of a large monastery estate and a
large private estate headed by a lord. The monastery was granted
by Edward the Confessor full freedom and these jurisdictions: sac
and soke, toll and team, hamsocne [the authority to fine a person
for breaking into and making entry by force into the dwelling of
another], forestall [the authority to fine a person for robbing
others on the road], bloodwite [the authority to impose a
forfeiture for assault involving bloodshed], fightwite [the
authority to fine for fighting], weordwite [the authority to fine
for manslaughter, but not for willful murder], and mundbryce [the
authority to fine for any breach of the peace, such as trespass on
lands].

Every man was expected to have a lord to whom he gave fealty. He
swore by this fealty oath: "By the Lord, before whom this relic is
holy, I will be to ------ faithful and true, and love all that he
loves, and shun all that he shuns, according to God's law, and
according to the world's principle, and never, by will nor by
force, by word nor by work, do ought of what is loathful to him;
on condition that he keep me as I am willing to deserve, and all
that fulfill that our agreement was, when I to him submitted and
chose his will." If a man was homeless or lordless, his brothers
were expected to find him such, e.g. in the folkmote. Otherwise,
he as to be treated as a fugitive, and could be slain as for a
thief, and anyone who had harbored him would pay a penalty.
Brothers were also expected to protect their minor kinsmen.

Marriages were determined by men asking women to marry them. If a
woman said yes, he paid a sum to her kin for her "mund"
[jurisdiction or protection over her] and gave his oath to them to
maintain and support the woman and any children born. As security
for this oath, he gave a valuable object or "wed". The couple were
then betrothed. Marriage ceremonies were performed by priests in
churches. The groom had to bring friends to his wedding as
sureties to guarantee his oath to maintain and support his wife
and children. Those who swore to take care of the children were
called their "godfathers". The marriage was written into church
records. After witnessing the wedding, friends ate the great loaf,
or first bread made by the bride. This was the forerunner of the
wedding cake. They drank special ale, the "bride ale" (from hence
the work "bridal"), to the health of the couple.

Women could own land, houses, and furniture and other property.
They could even make wills that disinherited their sons. This
marriage agreement with an Archbishop's sister provides her with
land, money, and horsemen:

"Here in this document is stated the agreement which Wulfric and
the archbishop made when he obtained the archbishop's sister as
his wife, namely he promised her the estates at Orleton and
Ribbesford for her lifetime, and promised her that he would obtain
the estate at Knightwick for her for three lives from the
community at Winchcombe, and gave her the estate at Alton to grant
and bestow upon whomsoever she pleased during her lifetime or at
her death, as she preferred, and promised her 50 mancuses of gold
and 30 men and 30 horses.

The witnesses that this agreement was made as stated were
Archbishop Wulfstan and Earl Leofwine and Bishop AEthelstan and
Abbot AElfweard and the monk Brihtheah and many good men in
addition to them, both ecclesiastics and laymen. There are two
copies of this agreement, one in the possession of the archbishop
at Worcester and the other in the possession of Bishop AEthelstan
at Hereford."

This marriage agreement provided the wife with money, land, farm
animals and farm laborers; it also names sureties, the survivor of
whom would receive all this property:

"Here is declared in this document the agreement which Godwine
made with Brihtric when he wooed his daughter. In the first place
he gave her a pound's weight of gold, to induce her to accept his
suit, and he granted her the estate at Street with all that
belongs to it, and 150 acres at Burmarsh and in addition 30 oxen
and 20 cows and 10 horses and 10 slaves.

This agreement was made at Kingston before King Cnut, with the
cognizance of Archbishop Lyfing and the community at Christchurch,
and Abbot AElfmaer and the community at St. Augustine's, and the
sheriff AEthelwine and Sired the old and Godwine, Wulfheah's son,
and AElfsige cild and Eadmaer of Burham and Godwine, Wulfstan's
son, and Carl, the King's cniht. And when the maiden was brought
from Brightling AElfgar, Sired's son, and Frerth, the priest of
Forlstone, and the priests Leofwine and Wulfsige from Dover, and
Edred, Eadhelm's son, and Leofwine, Waerhelm's son, and Cenwold
rust and Leofwine, son of Godwine of Horton, and Leofwine the Red
and Godwine, Eadgifu's son, and Leofsunu his brother acted as
security for all this. And whichever of them lives the longer
shall succeed to all the property both in land and everything else
which I have given them. Every trustworthy man in Kent and Sussex,
whether thegn or commoner, is cognizant of these terms.

There are three of these documents; one is at Christchurch,
another at St. Augustine's, and Brihtric himself has the third."

Nuns and monks lived in segregated nunneries and monasteries on
church land and grew their own food. The local bishop usually was
also an abbot of a monastery. The priests and nuns wore long robes
with loose belts and did not carry weapons. Their life was ordered
by the ringing of the bell to start certain activities, such as
prayer; meals; meetings; work in the fields, gardens, or
workshops; and copying and illuminating books. They chanted to pay
homage and to communicate with God or his saints. They taught
justice, piety, chastity, peace, and charity; and cared for the
sick. Caring for the sick entailed mostly praying to God as it was
thought that only God could cure. They bathed a few times a year.
They got their drinking water from upstream of where they had
located their latrines over running water. The large monasteries
had libraries, dormitories, guesthouses, kitchens, butteries to
store wine, bakehouses, breweries, dairies, granaries, barns,
fishponds, orchards, vineyards, gardens, workshops, laundries,
lavatories with long stone or marble washing troughs, and towels.
Slavery was diminished by the church by excommunication for the
sale of a child over seven. The clergy taught that manumission of
slaves was good for the soul of the dead, so it became frequent in
wills. The clergy were to abstain from red meat and wine and were
to be celibate. But there were periods of laxity. Punishment was
by the cane or scourge.

The Archbishop of Canterbury began anointing new kings at the time
of coronation to emphasize that the king was ruler by the grace of
God. As God's minister, the king could only do right. From 973,
the new king swore to protect the Christian church, to prevent
inequities to all subjects, and to render good justice, which
became a standard oath.

There was a celestial hierarchy, with heavenly hosts in specific
places. God intervened in daily life, especially if worshipped.
Saints such as Bede and Hilda performed miracles, especially ones
of curing. Their spirits could be contacted through their relics,
which rested at the altars of churches. When someone was said to
have the devil in him, people took it quite literally. A real Jack
Frost nipped noses and fingers and made the ground too hard to
work. Little people, elves, trolls, and fairies inhabited the
fears and imaginings of people. The forest was the mysterious home
of spirits. People prayed to God to help them in their troubles
and from the work of the devil. Since natural causes of events
were unknown, people attributed events to wills like their own.
Illness was thought to be caused by demons. People hung charms
around their neck for cure and treatments of magic and herbs were
given. Some had hallucinogenic effects, which were probably useful
for pain. For instance, the remedy for "mental vacancy and folly"
was a drink of "fennel, agrimony, cockle, and marche". Blood-
letting by leeches and cautery were used for most maladies, which
were thought to be caused by imbalance of the four bodily humors:
sanguine, phlegmatic, choleric, and melancholic. These four humors
reflected the four basic elements of the world articulated by
Aristotle: air, water, fire, and earth. Blood was hot and moist
like air; phlegm was cold and moist like water; choler or yellow
bile was hot and dry like fire; and melancholy or black bile was
cold and dry like earth. Bede had explained that when blood
predominates, it makes people joyful and glad, sociable, laughing,
and talking a great deal. Phlegm renders them slow, sleepy, and
forgetful. Red cholic makes them thin, though eating much, swift,
bold, wrathful, and agile. Black cholic makes them serious of
settled disposition, even sad. To relieve brain pressure and/or
maybe to exorcise evil spirits, holes were drilled into skulls by
a drill with a metal tip that was caused to turn back and forth by
a strap wrapped around a wooden handle. A king's daughter Edith
inspired a cult of holy wells, whose waters were thought to
alleviate eye conditions. Warmth and rest were also used for
illness. Agrimony boiled in milk was thought to relieve impotence
in men.

It was known that the liver casted out impurities in the blood.
The stages of fetal growth were known. The soul was not thought to
enter a fetus until after the third month, so presumably abortions
within three months were allowable.

The days of the week were Sun day, Moon day, Tiw's day (Viking god
of war), Woden's day (Viking god of victory, master magician,
calmer of storms, and raiser of the dead), Thor's day (Viking god
of thunder), Frig's day (Viking goddess of fertility and growing
things), and Saturn's day (Roman god). Special days of the year
were celebrated: Christmas, the birthday of Jesus Christ; the
twelve days of Yuletide (a Viking tradition) when candles were lit
and houses decorated with evergreen and there were festivities
around the burning of the biggest log available; Plough Monday for
resumption of work after Yuletide; February 14th with a feast
celebrating Saint Valentinus, a Roman bishop martyr who had
married young lovers in secret when marriage was forbidden to
encourage men to fight in war; New Year's Day on March 25th when
seed was sown and people banged on drums and blew horns to banish
spirits who destroy crops with disease; Easter, the day of the
resurrection of Jesus Christ; Whitsunday, celebrating the descent
of the Holy Spirit on the apostles of Jesus and named for the
white worn by baptismal candidates; May Day when flowers and
greenery was gathered from the woods to decorate houses and
churches, Morris dancers leapt through their villages with bells,
hobby horses, and waving scarves, and people danced around a May
pole holding colorful ribbons tied at the top so they became
entwined around the pole; Lammas on August 1st, when the first
bread baked from the wheat harvest was consecrated; Harvest Home
when the last harvest load was brought home while an effigy of a
goddess was carried with reapers singing and piping behind, and
October 31st, the eve of the Christian designated All Hallow Day,
which then became known as All Hallow Even, or Halloween. People
dressed as demons, hobgoblins, and witches to keep spirits away
from possessing them. Trick or treating began with Christian
beggars asking for "soul cake" biscuits in return for praying for
dead relatives. Ticktacktoe and backgammon were played. There were
riddles such as:

I am a strange creature, for I satisfy women ...
I grow very tall, erect in a bed.
I'm hairy underneath. From time to time
A beautiful girl, the brave daughter
Of some fellow dares to hold me
Grips my reddish skin, robs me of my head
And puts me in the pantry. At once that girl
With plaited hair who has confined me
Remembers our meeting. Her eye moistens.
What am I?
An onion.

A man came walking where he knew
She stood in a corner, stepped forwards;
The bold fellow plucked up his own
Skirt by hand, stuck something stiff
Beneath her belt as she stood,
Worked his will. They both wiggled.
The man hurried; his trusty helper
Plied a handy task, but tired
At length, less strong than she,
Weary of the work. Thick beneath
Her belt swelled the thing good men
Praise with their hearts and purses.
What am I?
A milk churn.

The languages of invaders had produced a hybrid language that was
roughly understood throughout the country. The existence of
Europe, Africa, Asia, and India were known. Jerusalem was thought
to be at the center of the world. There was an annual tax of a
penny on every hearth, Peter's pence, to be collected and sent to
the pope in Rome. Ecclesiastical benefices were to pay church-
scot, a payment in lieu of first fruits of the land, to the pope.



- The Law -

The king and witan deliberated on the making of new laws, both
secular and spiritual, at the regularly held witanagemot. There
was a standard legal requirement of holding every man accountable,
though expressed in different ways, such as the following three:

Every freeman who does not hold land must find a lord to answer
for him. The act of homage was symbolized by holding his hands
together between those of his lord. Every lord shall be personally
responsible as surety for the men of his household. [This included
female lords.] (King Athelstan)

"And every man shall see that he has a surety, and this surety
shall bring and keep him to [the performance of] every lawful
duty.

1. And if anyone does wrong and escapes, his surety shall incur
what the other should have incurred.

2. If the case be that of a thief and his surety can lay hold of
him within twelve months, he shall deliver him up to justice,
and what he has paid shall be returned to him." (King Edgar)

Every freeman who holds land, except lords with considerable
landed property, must be in a local tithing, usually ten to twelve
men, in which they serve as personal sureties for each other's
peaceful behavior. If one of the ten landholders in a tithing is
accused of an offense, the others have to produce him in court or
pay a fine plus pay the injured party for the offense, unless they
could prove that they had no complicity in it. If the man is found
guilty but can not pay, his tithing must pay his fine. The chief
officer is the "tithing man" or "capital pledge". There were
probably ten tithings in a hundred. (King Edward the Confessor).

Everyone was to take an oath not to steal, which one's surety
would compel one to keep.

No one may receive another lord's man without the permission of
this lord and only if the man is blameless towards every hand. The
penalty is the bot for disobedience. No lord was to dismiss any of
his men who had been accused, until he had made compensation and
done right.

"No woman or maiden shall be forced to marry a man she dislikes or
given for money."

"Violence to a widow or maiden is punishable by payment of one's
wergeld."

No man may have more wives than one.

No man may marry among his own kin within six degrees of
relationship or with the widow of a man as nearly related to him
as that, or with a near relative of his first wife's, or his god-
mother, or a divorced woman. Incest is punishable by payment of
one's wergeld or a fine or forfeiture of all his possessions.

Grounds for divorce were mutual consent or adultery or desertion.
Adultery was prohibited for men as well as for women. The penalty
was payment of a bot or denial of burial in consecrated ground. A
law of Canute provided that if a wife was guilty of adultery, she
forfeited all her property to her husband and her nose and ears,
but this law did not survive him.

Laymen may marry a second time, and a young widow may again take a
husband, but they will not receive a blessing and must do penance
for their incontinence.

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