5

Law and (Dis)order

In a macabre sense, the Saint Brice’s Day Massacre is a reminder of the precocity of English royal government in the late tenth century. Æthelred was the only king in Western Christendom in 1002 who could reasonably expect that his decrees would be conveyed throughout his kingdom and perhaps even obeyed. Æthelred was the heir to a West Saxon dynasty that over the course of the tenth century had used diplomacy and conquest to fuse Wessex, Mercia, Northumbria and the Danelaw into the ‘kingdom of the English’. This was a gradual process, and it would be misleading to see Æthelred’s England as a unified state. England during his reign was still a composite kingdom of four ‘nations’, each with its own sense of identity, customs and laws. The acceptance by all four regions of Æthelred as king was the cement that united the kingdom. What enabled him to be king in more than name was a system of government that his predecessors had created to consolidate their conquests, and royal control of the Church. The reign of Æthelred’s father, King Edgar, marked a watershed in the development of both. By the late tenth century, royal government in England had developed to the point that the king and his agents could intrude themselves into the lives of ordinary people probably to a greater degree than anywhere else in Western Christendom.1 None the less, the power of a king was dependent upon the willing co-operation of the secular and ecclesiastical elites, all of whom, in one manner or another, served as agents of the crown. This dependency was particularly true of the king’s rule in Northumbria and the Danelaw, regions that he rarely visited and where his presence was largely restricted to his stylized portrait and name on coins.

Coinage provides the best evidence of the effectiveness of Æthelred’s government.² Since King Edgar’s reign, English coinage had been royal and standardized and Æthelred jealously guarded his monopoly on this. No one but he was permitted to have a moneyer. The activities of moneyers and the quality of the currency were tightly regulated. A moneyer who struck false coins risked the loss of a hand, which was to be nailed above his mint as a warning to others.³ The penalty for using forged dies or striking coins outside a designated mint town was death or, if the king was merciful, the payment of one’s wergild – that is, the monetary value of the malefactor’s life as set by law. The same was true for merchants who knowingly used coins deficient in weight or quality and port-reeves who abetted them.⁴ Whether such draconian penalties were actually imposed is questionable, but the threat seems to have been effective in light of how few forged coins have been found.⁵

The highly monetarized nature of England’s vigorous commercial economy in the late tenth and early eleventh centuries required millions of pennies.⁶ These were produced through a network of about ninety mint places, most of which were located in southern England. The importance of protecting the money supply led to removal of mints from vulnerable towns to more secure ‘emergency’ boroughs built on top of reoccupied Iron Age hill forts. Thus the mint of Chichester was transferred to Cissbury Ring; Wilton to Old Sarum; and Ilchester to South Cadbury. Tribute payments to viking fleets also spurred the production of coins. If the figures given by the Chronicler are trustworthy, the English paid nearly £190,000 to various viking fleets during Æthelred’s reign; more if one adds local peacemaking efforts.7 Much of this tribute was paid in the form of hack silver (fragments of silver items used either as currency or subsequently melted down for reuse) and gold church plate, but if just half was in coins, this would mean that over twenty million silver pennies were given to vikings.⁸ That the English people could pay so great a sum is an indication of the country’s surplus wealth. (Ironically, the cost to the economy may have been offset to a degree by vikings spending their ill-gotten gains on English goods.) That Æthelred’s government could both produce that many coins and extract that much money from its subjects is testimony to its capabilities.

Perhaps most remarkable was the ability of Æthelred’s government periodically to recall and remint most, if not all, the silver pennies in circulation. This was made possible by tight royal control over the production and distribution of standardized dies. Numismatists have identified twelve separate coin types issued during Æthelred’s reign, some of which were short-lived and circulated perhaps only locally.⁹ It is difficult to know what prompted the decision to change coin types, although in some cases the designs chosen by the king in consultation with his advisers were clearly intended to convey timely ideological messages.10 The ‘Helmet’ issue, which represented Æthelred as a martial Roman emperor, is dated to c.1003–6 when the viking raids began to intensify. The short-lived Agnus Dei type was issued in conjunction with the programme of national penance ordered by the king at Bath in 1009 after the failure of an ambitious naval build-up the previous year.¹¹ More generally, the iconography of Æthelred’s coinage conveyed the message that he was a true Christian king. On the obverse of the coin would be a stylized portrait of him modelled on Roman coins, which would be encircled by the inscription, Æthelred rex Anglorum. The reverse would bear Christian symbols, such as the Hand of God and/or a cross, along with the names of the moneyer and the mint at which the coin was struck.

At the centre of government was the king and his council, the witan, made up of ecclesiastical and secular magnates. Assemblies were summoned by the king as the need arose, and were held at or near royal estates and urban palaces, almost all of which were in southern England. There Æthelred and his counsellors discussed all manner of royal and ecclesiastical business, including the appointment or removal of ealdormen, the ‘election’ of bishops and abbots, revisions to the coinage, the promulgation of laws, adjudication of charges brought against those too powerful to be dealt with by local officials and the granting of estates by the king to laymen and churches.¹² Meetings of the council were also ceremonial events. Held on feast days of the Christian calendar, royal assemblies enabled Æthelred to display his majesty and personally interact with local landowners, reinforcing their pledges of loyalty and love to him.13

The king ruled through a network of royal officials consisting of ealdormen and bishops (who were possessed of secular as well as spiritual authority), royal reeves and king’s thegns. In the early tenth century, port- or town-reeves represented royal interests in towns and rural reeves managed the king’s estates. The expansion of the ealdormen’s sphere of jurisdiction led to the introduction of the offices of high-reeve and shire-reeve (or sheriff), who, like ealdormen, had military as well as administrative and legal duties. King’s thegns were wealthy landowners who were personally commended to the king and under his protection (mund). Their high social status was reflected in a wergild and oath valued at six times that of a commoner (ceorl). Tenth-century rulers regarded them as royal agents. They served as suitors in the courts of shire and hundred, and as ‘land-lords’ (landrican) were responsible for ensuring the lawful behaviour of their tenants and the performance of public services owed from their land holdings, the most important of which were the three military ‘common burdens’ of ‘fyrd-service’, repair of fortifications and maintenance of bridges.¹⁴ Royal and church dues, as well as military service, were rated on the basis of fiscal units known as ‘hides’ in Wessex and English Mercia, and ‘carucates’ throughout most of the Danelaw. A hide was a notional 120 acres of land, but the number of real acres comprised by the hide could vary greatly according to the quality of the arable land or the degree of favour in which the king held the landowner.

Most if not all the kingdom during the reign of Æthelred was divided into shires, which were further subdivided into administrative units known as hundreds in Wessex, Mercia and East Anglia, and wapentakes in the northern Danelaw. The shiring of Mercia and the east Midlands probably began in the early decades of the tenth century with the military conquests of King Edward the Elder, the Lady Æthelflæd and King Æthelstan, but may not have been completed until well into Æthelred’s reign. As the original function of shires was military, the shires of Mercia were organized around fortified towns, from which they took their names. Presided over by royal officials, the courts of the shire, hundred and borough (that is, a town with fortifications) followed legal procedures prescribed by royal law codes. By the reign of Edgar, hundred courts met every four weeks to witness commercial exchanges, especially the sale of livestock, and to adjudicate disputes.15 Borough courts were required to meet three times a year, and shire courts twice a year.¹⁶ In each, juries of reputable local men gave testimony in disputes brought by their neighbours. In the hundreds and wapentakes of the Danelaw, twelve thegns were chosen to bring accusations against suspected criminals.

Although the law recognized the value of written evidence, and property disputes often turned on the ability of one of the parties to produce a royal charter proving title, the outcome of most suits depended upon the reputation, social standing and social connections of the accuser and accused. This was especially true when a man was required to produce ‘oath helpers’ to substantiate his claims. Even cases decided by ordeal were as much appeals to local sentiment as to divine judgement. The ordeal of hot iron and water is a case in point. After taking communion and swearing on relics to his innocence, the accused plunged his hand up to his wrist into boiling water blessed by a priest and lifted from the cauldron an iron bar weighing one pound, which he would then carry nine feet, twelve of his supporters standing on one side and twelve of his accusers on the other. Three days later the hand would be unwrapped to ascertain whether ‘it has become discoloured or remained clean’. Men took seriously oaths on holy relics, and the witnesses to an ordeal were blessed with holy water and supposed to have fasted and abstained from sex the night before to impress upon them that the judgement was God’s. But ultimately it was up to the attending clergy and onlookers to determine whether the accused had passed or failed the ordeal.17

Law and order rested on the dual foundation of community and lordship. In the absence of a police force, the prevention and punishment of crime was an obligation borne by both a man’s neighbours and his lord. Homicide was seen as the concern of kinsmen, and the obligation to avenge a death was uncontested, although tenth-century kings and churchmen did their best to limit violence by setting rules for feuds, establishing sanctuaries and brokering settlements. Dealing with theft was a communal responsibility.¹⁸ At the age of twelve, a free male was required to take an oath in the presence of the men of his hundred that he would neither conceal acts of theft nor aid thieves. Lords were expected to exercise discipline over their commended men and those whose land fell within their jurisdiction; in return they received either a share or all of the fines incurred by their men. But oaths could be ignored, and lords could not always be trusted to choose justice over their duty to protect their men, especially those belonging to their households. What truly ensured law and order was the institution of surety.19 By Cnut’s reign and probably before, every free man was required to belong to a ‘tithing’, a group of ten men who stood surety for the lawful behaviour of each other. If one committed a crime, the other nine were obliged either to bring him to justice or pay compensation for their failure to do so.²⁰ The pursuit of thieves was a communal responsibility that went beyond the tithing. It was the duty of the chief official of the hundred or a king’s village reeve to raise a posse to pursue cattle thieves. If the thief made it to a neighbouring hundred, the chief man of that hundred was obliged to take up the pursuit. This was, at least, what the law prescribed. To encourage individuals to undertake the dangerous and arduous task of pursuing thieves and bringing defiant wrongdoers to justice, tenth-century kings both threatened fines for non-compliance and dangled the prospect of a share of the criminal’s confiscated property.²¹

Æthelred was a prolific legislator. He issued at least six law codes over the course of his reign, seven if one counts the Treaty of Andover and its appendix on vouching to warranty.²² Lawgiving was both a symbolic and practical expression of good kingship. The purpose of royal lawgiving was to ‘further Christianity and enhance kingship, profit the people and command respect, bring about peace and settlements, terminate disputes and improve all public behaviour’.23 The words may have been Wulfstan’s, but the authority behind them was Æthelred’s. Æthelred’s three earliest codes, probably all issued in the 990s, deal with secular matters. I Æthelred and III Æthelred, issued respectively at Woodstock and Wantage, seem to form a pair, the first addressed to areas under ‘English law’ and the latter to those under ‘Danish law’, presumably the ‘Five Boroughs’ of Leicester, Stamford, Derby, Nottingham and Lincoln. Both are secular codes issued ‘to promote peace’ and are concerned with ensuring the need for each man to have a surety from his neighbourhood to ‘hold him to the performance of every legal duty’ and that lords serve as sureties for the men of their households.²⁴ Although II Æthelred is the text of a treaty, it also includes clauses dealing with the theft of cattle and has an appendix concerned with establishing ownership by vouching to warranty.²⁵ IV Æthelred is a composite text that addresses the legal concerns of the burgesses of London. The ‘code’ (which lacks an introduction) begins with commercial regulations, follows that with laws dealing with tolls and breaches of the peace, and concludes with legislation on coinage.²⁶ By legislating, Æthelred was fulfilling the oaths he had taken as a child at his coronation to protect the Christian faith, to promote justice by forbidding ‘robbery and all unrighteous things to all orders’ and ‘to command justice and mercy in all judgements’.²⁷

Fulfilment of his pledge to provide true peace to the Church and the people of his realm may have been beyond the ability of any tenth-century king, let alone one whose realm was ravaged year in and year out by vikings. Æthelred did not possess the coercive mechanisms needed to ensure an orderly society. The effectiveness of the late Anglo-Saxon state depended on the partnership between the king and the landowning aristocracy. Tenth-century English kings had difficulty imposing their will on recalcitrant subjects, especially if they were members of powerful families. Æthelred could do little to prevent abuses committed by royal agents entrusted with administering justice beyond pious admonitions and threats.28 Æthelred, as one law code admits, ‘frequently and often commanded’ a stop to ‘unjust practices’ such as falsely ‘attaching’ livestock, refusing to allow trustworthy witnesses to testify, and allowing claims against heirs that were never raised against the previous owner.²⁹ Archbishop Wulfstan in his Institutes of Polity bemoaned that since King Edgar’s death there had been more thieves than righteous people serving as royal reeves.³⁰

There is no better evidence for both the aspirations and limitations of Æthelred’s governance than an Old English memorandum attached to a Latin charter, Sawyer 877, dated 993.³¹ The story it tells – of a king’s thegn named Wulfbald who repeatedly defied the judgements of royal courts, including a meeting of the witan – serves as a much-needed corrective to the sometimes exaggerated claims made for the judicial power of the late Anglo-Saxon state.³² A distinctive feature of the charters issued by King Æthelred is that they often include explanations of how the king obtained the land that he was granting. In a number of instances, the narratives refer to crimes committed by the former owners that led to forfeiture of the land.33 Sawyer 877 records a grant by King Æthelred II to his mother Ælfthryth of an estate at Brabourne and five other properties in Kent that had been forfeited to the crown by Wulfbald because of the misdeeds that he had committed during the first decade of Æthelred’s reign. Wulfbald, we are told, ignored two royal commands to return property that he had looted from his stepmother, and two others to restore an estate that he had seized from a kinsman. According to a law, the penalty for disregarding the judgement of a court four times was the forfeiture of all possessions and outlawry, and a witan that met at London formally assigned all of Wulfbald’s property to the king and placed him ‘in the king’s mercy’.³⁴

Despite all of this, Wulfbald died in possession of these lands without ever having made amends. Wulfbald’s death set off a bloody battle over the estate of Brabourne, pitting his widow and their son against Wulfbald’s uncle’s son that resulted in the deaths of a king’s thegn and his fifteen companions. That was sufficiently serious to demand that action be taken, and it was then that Wulfbald’s possessions finally passed into the hands of the king. On the face of it, the failure to enforce repeated judgements against Wulfbald reflects poorly on Æthelred’s legal regime. But, despite historians’ recent emphasis upon the effectiveness of the late Anglo-Saxon state, the case of Wulfbald was probably not uncommon. Bringing powerful men to justice was a persistent problem for kings throughout the tenth century, as is evidenced by repeated legislation on this subject.³⁵ Enforcement of legal judgements was left to the community, and Wulfbald’s neighbours probably hesitated to involve themselves in what was an intra-familial dispute. Enforcement was a royal concern in those cases that directly involved the interests of the crown.36

Nor did Æthelred always act in accordance with his own laws, as evidenced by his approval of the violation of church sanctuary by the burgesses of Oxford in their eagerness to rid their town of Danes. Less dramatic but more typical is the decision Æthelred rendered in a dispute that arose in 995 between Ealdorman Leofsige of Essex and the port-reeves of Oxford and Buckingham.³⁷ The ealdorman accused the reeves of Buckingham and Oxford of having defied the law by allowing Christian burial for two brothers who had died defending a thief. Æthelred dismissed the complaint of the ealdorman, explaining that he ‘did not wish to distress his dear and precious reeve of Oxford, Æthelwig’. The lands of the two deceased brothers and their surviving sibling, however, were forfeited to the crown.³⁸ This was an act of royal mercy; it was also testimony to the importance of enjoying royal favour.

As the social and political bonds upon which law and order depended frayed under the strain of viking attacks, the ecclesiastical and lay elite of the realm grew increasingly discontented with Æthelred’s governance. By the end of his reign, they had come to question not only Æthelred’s competence but his ability to provide justice.