CHAPTER X

.

_THE LAWS OF ETHELRED II._

The following nine laws appear in Thorpe’s “Ancient Laws,” etc.[175]

I. _Council of Woodstock._ Thorpe takes his text from Cott. Titus, A. 27. The MS. is of the thirteenth century, and contains perhaps the best text extant of the old Latin version of the Saxon laws. Wilkins has it among his “Saxon Laws,” but omits it in his “Concilia.” Bromton also has it.

II. _The Treaty with the Norwegian Kings_, viz., Anlaf, Justin, and Guthmund. Thorpe prints his text from the above MS. Bromton has it Wilkins has it in his “Laws,” but not in his “Concilia.”

III. _The Council at Wantage_ (A.D. 997). Thorpe prints it from the above. Bromton has it. Wilkins has it in his “Laws.”

IV. _De Institutis Londoniæ_ (prob. A.D. 997). Thorpe prints it from the above, and remarks that it was a most important law as regards the commercial and monetary history of England.

V. _Liber Constitutionum_ (A.D. 1008). Thorpe prints it from Cott. Nero, A. 1. Wilkins has it in his “Laws,” but not in his “Concilia.” Lord Selborne confounds this with the Ordinances passed at Habam.

VI. _Council of Enham_ (probably “Ensham in Oxfordshire”). Thorpe prints it from a MS. in Corpus Christi College, Cambridge, 201, which was written apparently in the middle of the eleventh century, and which he collated with Cott. Claud., A. 3. Wilkins has it in his “Laws” and also in his “Concilia.” Spelman dates the council A.D. 1009.

VII. _Grith and Mund._ Thorpe prints it from Cott. Nero, A. 1, collated with MS. C.C. 201 (Nasmith). “These manuscripts,” says Mr. Thorpe, “closely agree together.” Wilkins has it in his “Laws,” but not in his “Concilia.”

VIII. _The Ordinances of Habam_ (A.D. 1012). Bromton alone gives the text, from which Thorpe copied his text and collated it with the Macro and Holkham manuscripts. Wilkins has printed it in his “Concilia” (i. 295), but not in his “Laws”; Spelman has it (“Concilia,” i. 530).

IX. _Church Grith_ (A.D. 1014). Thorpe prints it from Cott. Nero, A. 1. collated with C.C. 201. He does not state that these manuscripts closely agree together, as he does the two collated in VII. Wilkins has it in his “Laws,” but not in his “Concilia.”

N.B.—VI. VIII. and IX. only are in the volume Nero, A. 1.

Bromton has only I. II. III. VIII.

IX. _Church Grith._

Mr. Thorpe takes his text from the so-called Worcester volume of the Cottonian manuscript, Nero, A. 1, fol. 96 _b_. It begins thus:—

“This is one of the Ordinances which the king of the English composed with the counsel of his Witan, etc.”

Art. 6. “And respecting tithe, the king and his Witan have chosen and decreed, as is just, that one-third part of the tithe which belongs to the Church, go to the reparation of the Church, and a second part to the servants of God, the third to God’s poor and to needy ones in thraldom.”

Art. 7. “And be it known to every Christian man, that he pay to his Lord his tithe justly, always as the plough traverses the tenth field, on peril of God’s mercy, and of the full ‘wite,’ which King Edgar decreed, that is”:—

Art. 8. “If any one will not justly pay the tithe, then let the king’s reeve go, and the mass-priest of the minster, or of the ‘landrica’ (the proprietor of the land, lord of the soil) and the bishop’s reeve and take forcibly the tenth part for the minster to which it is due, and assign to him the ninth part; and let the eight parts be divided into two, and let the landlord take possession of half, half the bishop; be it a king’s man, be it a thane’s.”

Art. 9. “And let every tithe of young be paid by Pentecost, on pain of the ‘wite’; and of earth’s fruit by the equinox or at all events by Allhallow’s Mass.”

“On comparing these articles,” says Lord Selborne, “with King Edgar’s laws, it will be seen that, if enacted, they would have omitted the clause in those laws which authorized the payment of one-third of the local tithes to a manorial church having a burial ground.”[176]

Dr. Lingard says, “But its (Edgar’s) subsequent re-enactment in the reign of Ethelred, and again in the reign of Canute, will justify a suspicion, that in many places its provisions were set at defiance, and in many but very imperfectly enforced.”[177]

Bishop Stubbs’s references to articles 2 and 44, and to the latter part of the sixth of this law prove (1) that he read the whole law of Church Grith in Thorpe’s translation by referring to three articles of this law; (2) that he referred to the third part in this law for the poor and needy in thraldom in support of a certain statement which he made about the poor; (3) that if he thought the law was not genuine or authentic, he would not have quoted from it; (4) and that the very fact of his having quoted from it, proves that he admitted its genuineness. Here are the Bishop’s words: “The case of the really helpless poor was regarded both as a _legal_ and as a religious duty from the very first ages of English Christianity. St. Gregory, in his instructions to Augustine, had reminded him of the duty of a bishop to set apart for the poor, a fourth part of the incomes of his church. In 1342 Archbishop Stratford ordered that in all cases of impropriation a portion of the tithe should be set apart for the relief of the poor. The _legislation of the Witenagemóts of Ethelred bore the same mark; a third portion of the tithe that belonged to the church was to go to God’s poor, and to the needy ones in thraldom_.”[178]

Dr. Stubbs cannot go behind what he states above in his published history.

Let us now compare this statement with what he has written since he became a bishop. “The tripartite division, never was adopted in England, and that the passages in support of it are either altogether unauthorized, or merely statements of an ideal state of law conformable to the uses of some foreign churches.”[179]

Lord Selborne gives the following extract from a printed letter of Bishop Stubbs to a rural dean of the diocese of Chester, 12th December, 1885: “The claim of the poor on the tithe was a part of the claim of the Church; and, although this claim _was never made the subject of an apportionment, tripartite or_ quadripartite, except in unauthoritative or tentative recommendations, it has never been ignored or disregarded by the Church or Clergy.”[180]

How can Dr. Stubbs reconcile these statements with an actual quotation which he had taken from Ethelred’s law, where the threefold division is stated? It cannot be. Bishop Stubbs and Professor Freeman must be kept strictly to what they have published in their well-known histories until they publicly repudiate what they have written. Private letters which contradict historical statements must be ignored.

SIR ROBERT COTTON’S LIBRARY.

It is essentially necessary, before going further into the discussion of the manuscript of the Church Grith law, to give a sketch of the origin of the Cottonian Library.

Sir Robert Cotton, about A.D. 1588, commenced and continued for about 40 years to collect old charters, laws, seals, coins, etc., etc., which after the dissolution of the monasteries were dispersed through the country from their invaluable libraries. Many of them were secured by the nobility and gentry, but a considerable number fell into the hands of peasants, mechanics, and other persons who were ignorant of their important value and totally careless of their preservation. Valuable books of parchments were sold to grocers, soap-sellers, etc., who used them as they do old newspapers now. Others were sent out of the country in shiploads to foreign booksellers; the servants used them for scouring candlesticks and rubbing boots. Two noble libraries were sold for forty shillings. Sir Robert found no difficulty in purchasing these valuable documents wherever he could find them. Many of them were loose skins, small tracts or thin volumes. Sir Robert had several of them bound up in one cover. He also obtained by legacy and purchase some of the most valuable manuscripts collected out of the scattered remains of monastic libraries by Josseline, Noel, Allen, Lambarde, Bowyer, Camden and others.

It was a timely and excellent opportunity for Cotton, Bodley, and Archbishop Parker. Sir Robert formed his library in one of the best rooms of his London residence called “Cotton House,” near the House of Parliament. He permitted persons to consult and copy the manuscripts. It was in that library John Selden obtained his wonderful stock of ancient lore, which made his name immortal. Sir Henry Spelman drank deeply from the same fountain. Other antiquarians were equally indebted to Sir Robert Cotton. As I have already stated, he had many manuscripts bound up in separate volumes, and others he arranged in small parcels. Each volume and parcel contained several parts which were written at different times. He had a list on the first page of the headings of the manuscripts bound up in each volume. It is very important to note that fact, because in the present volume Nero, A. 1, there is the original list made in Sir Robert’s time, in which ten headings of Anglo-Saxon manuscripts appear, but _none of Church Mund and Church Grith laws_, because they were not bound up in that volume, and I shall presently prove that these manuscripts were not in the library during the lives of Sir Robert and his son, but were put there towards the end of his grandson’s life. Therefore Selden and Spelman, and other antiquarians who consulted Sir Robert’s library, did not and _could not_ see the Church Mund and Church Grith laws of King Ethelred II. in the Worcester volume, as it is called, and where they are now bound up. Were they in any other parcel or volume in the library? They were not. Here is the proof. In 1629 the Privy Council ordered the library to be locked up, and a catalogue to be taken of the whole contents of the library in order to find out whether any of the King’s books were in it. In 1631 Sir Robert died; and in 1632 an engrossed official catalogue was made out by order of the Privy Council. That catalogue is now in the Cottonian Library, in the British Museum, marked “Add. MSS. 8926.” I have carefully examined the roll; it has three seals attached to it; the titles of the manuscripts and books are arranged under thirty-five headings, beginning with “Libri Historici.” But there are no press marks such as Nero, A. 1, Claudius, B. 3. Another heading is, “Libri Saxonici,” under which every Anglo Saxon manuscript in the library in 1632 was placed; but the Church Mund and Church Grith manuscripts do not appear under this heading. Then when were they placed in the library and in this volume Nero, A. 1? Sir Robert’s son and grandson added considerably to the library. Sir John, the grandson, had given permission to Dr. Thomas Smith to make a catalogue of the contents of the fourteen presses. In 1696 Dr. Smith published the first printed catalogue in which the Worcester volume, Nero, A. 1, contains only the same ten Anglo-Saxon headings which appear in the list of 1632. I conclude that the Church Mund and Church Grith laws were not in the Worcester volume in 1695, when Dr. Smith penned his Preface.

An Act of Parliament was passed in 1700 vesting the Library, after the death of Sir John, in trustees, who were Matthew Hutton, John Anstis, and Humphrey Wanley. Sir John died in 1702. The library then passed at once into the custody of the three trustees. The first thing done was to make out a catalogue of the contents of the library on the death of Sir John, when the trustees took possession. In 1705, Wanley, one of the trustees, published his “Antiquæ Literaturæ Septentrionalis Liber, etc.” His preface is dated 28th August, 1704. For the first time the Church Mund and Church Grith laws appear in Wanley’s Catalogue. He was the first who named the volume Nero A. 1 as the “Worcester” volume, and Platna copied Wanley. From these facts I conclude that the above laws were purchased or otherwise obtained by Sir John Cotton, and were put into the “Worcester” volume between 1695 and 1702. I am aware that Dr. Smith’s catalogue was very imperfect, and these laws might have been in the library when he issued his imperfect catalogue. But this is a pure conjecture on my part. My conclusions are based on facts, and not on conjectures. There is not the slightest doubt about the correctness and completeness of the official catalogue of 1632. They were not then in the library.

I have considered these details as vitally essential in the important discussion which is here to follow.

LORD SELBORNE’S “ANCIENT FACTS AND FICTIONS.”

He has published a book on “Ancient Facts and Fictions concerning Churches and Tithes,” in which he has devoted a large portion to prove that the Church Grith law of A.D. 1014 “was either a draft or project of laws which the framer, evidently an ecclesiastic of Ælfric’s school, wished to have enacted.... There is indeed now written in the margin of that manuscript,[181] in a small modern hand, the date ‘Aᵒ. Dom. 1014.’”[182] I have often examined the manuscript, and found the reading to be “Aⁿᵒ. dni. 1014.” Lord Selborne gives the reading as it is printed in the Catalogue, but decidedly it is not the reading in the manuscript. It is supposed to have been written by Josseline, secretary to Archbishop Parker. There is internal evidence in article 43 to support this date (1014), viz. “But let us do as is needful to us; let us take to us for an example that which former secular Witan deliberately instituted. Athelstan and Edmund, and _Edgar who was last_,” etc.

Ethelred had returned from exile in the spring of 1014, after which this law was passed.

In reference to the above words in italics, Lord Selborne says that Edward (975-979) reigned between Edgar and Ethelred, and therefore Edgar could not have been the last;[183] but it must be remarked also that Edred and Edwy who reigned between Edmund and Edgar, are also omitted in this 43rd article. Then why had the framers of the whole law

## particularized the names of Athelstan, Edmund, and Edgar, and leave out

Edred, Edwy, and Edward? If we look at the arrangement of the Anglo-Saxon laws, we find the order as above, viz., the laws of Athelstan, next those of Edmund, and next the laws of Edgar, none by Edward, then come the laws of Ethelred. The 43rd Article referred to these laws, and therefore Edgar’s were the last. So there is no force in Lord Selborne’s remarks.

King Ethelred’s law on the threefold division of tithes has been found so important in the discussion on the tripartite division that Lord Selborne has devoted all his eminent legal powers, though unsuccessfully, to upset this Anglo-Saxon law. (1) His first witnesses are Selden, Spelman, Lambarde, Wheelock, and John Johnson.

“Selden and Spelman,” says Lord Selborne, “_were well acquainted_ with the Worcester (Cottonian) manuscript; and as neither of them made mention of this Church Grith document, it may be inferred that they did not regard it as having the character or the authority of a law.”[184]

“If Lambarde, Wheelock, and John Johnson,” continues Lord Selborne, “were acquainted with either manuscript—Church and Mund, and Church Grith—(_the contrary supposition is improbable_), the inference as to them also, from their silence about it (_i.e._ the Church Grith) must be the same,” _i.e._ that “they did not regard it as having the character or the authority of a law.”[185]

I shall examine these five writers _seriatim_.

(1) John Selden published his “History of Tithes” in 1618. I have already proved that the Church Grith law was not in Sir Robert Cotton’s library in 1632. It was therefore impossible for Selden to have seen it in the “Worcester manuscript.” The “Worcester (Cottonian) manuscript” is a very vague and loose way to express the Worcester (Cottonian) volume Nero, A. 1. The fact is that Selden had never seen or heard of the Church Grith law, otherwise he would unquestionably have referred to such a law in his “History of Tithes.” In dealing with Egbert’s Excerptions, Selden has quoted largely in his “History of Tithes” from this very volume, which contained the Excerptions, and which volume in his time had no

## particular name. In his marginal quotation he merely informs his readers

that they were taken from a “MS. in the Biblioth. Cottoniana.” We have lost the advantage of his valuable opinion on the Church Grith law, by its absence from the volume from which he had made large quotations on other subjects. I agree with Lord Selborne that Mr. Selden was well acquainted with the contents of the volume; but I totally disagree with his lordship’s inference as regards Selden’s silence on the Grith Law, because that law was not in the volume for him to see or read; nor was it in the library.

(2) Sir Henry Spelman published his first volume of the “Concilia” in 1639. In this volume he gives only two of King Ethelred’s laws out of the nine given by Thorpe. As a matter of fact, he, like Selden, had never seen or heard of the Church Grith law. Spelman was one of Sir Robert’s most intimate friends, and had access to every manuscript and book in his library. Lord Selborne assumes without any authority that the so-called Worcester volume in Cotton’s Library, open to the inspection of Selden and Spelman, contained _all_ the manuscripts which it now contains. If Lord Selborne had only taken the trouble of reading the original list of manuscripts on the first page of the volume, he would see at once that the Church Mund and Church Grith are not in the list of manuscripts contained then in that volume. Therefore Selden and Spelman could not have seen them. The original list, and no more, is in the catalogue of 1632.

(3) William Lambarde, the Kent antiquarian, published his collection of Anglo-Saxon Laws in 1568, in which the Church Grith law does not appear, from which Lord Selborne again _infers_ that Lambarde did not regard it as having the character or the authority of a law. Let us apply his Lordship’s canon of criticism to other omissions made by Lambarde in his collection of Anglo-Saxon laws, and then see to what conclusions such inferences lead.

He omitted the Laws of the Kentish Kings, the Laws of William the Conqueror and of Henry I. Then are we to infer that Lambarde saw these “documents,” but would not notice them in his collection because “he did not regard them as having the character or authority of laws”?

This is really the logical sequence of Lord Selborne’s _inferential_ canon of criticism, as regards Lambarde’s omission of the Church Grith law. The fact is that he, like Selden and Spelman, had never seen the law.

(4) Wheelock published a second edition of Lambarde’s “Laws” in 1644, in which he added the laws of the Conqueror and of Henry I., but omitted the laws of the Kentish kings. Why? Must the answer be according to Lord Selborne’s canon of criticism, viz., that “he regarded them as not having the character or the authority of laws”? No. He, like Lambarde, had not seen the Kentish laws or the Church Grith law.

(5) John Johnson published a “Collection of the Laws and Canons of the Church of England,” in 1720, mainly founded upon Spelman’s “Concilia.”

Mr. John Baron, in his new edition of Johnson’s collection, published in 1850, says, “Mr. Thorpe publishes some ecclesiastical laws of King Ethelred at pp. 129, 141, 145, which _were altogether unknown_ to Johnson”[186] There is at p. 129 “Liber Constitutionum”; at p. 141 “Grith and Mund”; at p. 145 “Church Grith.”

Mr. Baron’s edition is quoted probably one hundred times by Lord Selborne in his “Facts and Fictions” and “Church Defence,” and he must unquestionably have read Baron’s Prefatory statement that “Grith and Mund” and “Church Grith laws” _were unknown_ to Johnson. Yet in the face of that statement, Lord Selborne says, “If Lambarde, Wheelock, and John Johnson were acquainted with either manuscript (_the contrary supposition is improbable_), the inference is that they did not regard it (Grith law) as having the character or the authority of a law.” I have taken these five authors _seriatim_, and the general conclusion is that the Grith law was unknown to each and all of them.

II. His sixth witness is Wilkins. Lord Selborne says:—

“David Wilkins was the first to publish the Church Grith in his ‘Leges Anglo-Saxonica,’ where he combined it in a manner, for which the manuscripts afforded no warrant, with the Ordinances of ‘Habam,’ etc. If he had regarded it as an authentic ecclesiastical law when he afterwards (in A.D. 1737) published his great collection of ‘Acts of Councils’ and other English ecclesiastical documents, it must have found a place there, which it does not.”[187]

Dr. Wilkins was also the first to publish the laws of the Kentish kings.

Mr. Thorpe says of Wilkins’s “Concilia,” “As a monument of industry this edition is very creditable to Dr. Wilkins; at the same time it must, though reluctantly, be acknowledged by every one competent to judge, that as a translator of Anglo-Saxon he not unfrequently betrays an ignorance even of its first principles, that though not unparalleled, is perfectly astounding.”[188]

I shall now examine the above statement of Lord Selborne.

I have failed to find that Wilkins combined the Grith with the Ordinances of Habam. These Ordinances do not appear at all in his “Saxon Laws.” The four laws of Ethelred which he has are (1) Liber Constitutionum, (2) Mund, (3) Church Grith, (4) Wantage.

Now the “Liber Constitutionum” has 35 articles, of which 19 are ecclesiastical. But Wilkins did not insert it in his “Concilia.” And yet Lord Selborne makes no remark on its omission, but he is careful to note the omission of the Church Grith.

III. His seventh witness is Mr. Price,[189] who commenced to edit, under the instructions of the Record Commissioners, an edition of the “Anglo-Saxon Laws.” Archdeacon Hale, of London, like Lord Selborne, was a great stickler for the non-admission of any tripartite division of tithes in England. He was mainly guided by Wilkins’s edition of 1737, and had not even seen his “Anglo-Saxon Laws,” which were published in 1721. But after having written strongly against the tripartite division, a friend referred him to Ethelred’s law of 1014, in Wilkins’s “Anglo-Saxon Laws.” He became anxious on reading it, and stopped a new edition of his work until he could have the point clearly settled. He consulted Mr. Price, who, on the 26th July, 1832, addressed the following letter to him:—

“It is an unauthorized assemblage of points of canon law, gathered indifferently from foreign and home sources, and he did not think it genuine, because Wilkins had omitted it from his new edition.”[190]

The Archdeacon seemed not to be satisfied with this formal opinion, and so after Price’s death, which occurred soon after he had written the above letter, he consulted another gentleman, “Whose reputation,” says the Archdeacon, “for extensive knowledge of Anglo-Saxon literature is not confined to his own university, or to this country, but whose name I do not consider myself at liberty to mention. He gave me in writing an opinion at variance with that of Mr. Price, and _was in favour of the genuineness of the law of Ethelred_, and his opinion was founded upon the fact of Schmid having published it in his edition of the Anglo-Saxon Laws, and _upon the persuasion that no weight whatever was due to what Wilkins had said or thought upon the subject_.”[191] I have always admired the straightforward manner in which the Archdeacon placed the whole matter before the public. A prejudiced person would have kept back the damaging opinion of the unnamed writer. He is therefore much fairer on this matter than Lord Selborne, Mr. Fuller, and Mr. Chancellor Dibdin, who, while quoting Price’s opinion, _carefully avoided any reference whatever_ to the second or favourable opinion, although it is printed in a footnote at the page where Price’s letter appears.[192]

Reinhold Schmid, to whom the Archdeacon’s second referee referred, was Professor of Laws at Jena, and published at Leipzig in 1832 an edition of the “Anglo-Saxon Laws.” “This edition,” says Mr. Thorpe, “is a very creditable publication, decidedly superior to the preceding ones (_i.e._ Lambarde’s and Wilkins’s). The version is free from the gross errors of Wilkins and generally correct.”[193]

This statement corroborates the independent testimony of the Archdeacon’s unnamed writer.

IV. Lord Selborne’s eighth witness is Professor Freeman, of Oxford.

“Mr. Freeman,” says Lord Selborne, “who seems to have accepted the date A.D. 1014 as evidence that the document represents some public act of that year, was also led to the conclusion that these were ‘hardly laws at all,’ but mere ‘advice,’ and an expression of pious and patriotic feeling, a promise of national amendment rather than legislation strictly so called.”[194]

I shall give some extracts from Mr. Freeman’s letter written in 1885, directly referring to the Church Grith law, and then I shall contrast such opinions with those expressed on the same subject in the last edition of his “Norman Conquest,” published in 1877. The reader can then form his own conclusion with regard to the letter and the historical statement.

“The only case” he says in his letter, “of the action of the State in the ancient laws is that to which I have referred in the laws of Ethelred.[195] Here the sixth enactment of 1014, under the head of Church Grith, clearly ordains the threefold division, and that with solemnity.

“Here then at last we come to the threefold division of the tithe enjoined by secular as well as by ecclesiastical authority. _But something is wanting to make legislation perfect._ If we look on a little further to the next clause but one, we shall find a strict enactment about the payment of tithes, and not only an enactment, but _a means prescribed for carrying the enactment into force_. But this is simply copied from an earlier law of Edgar.[196] And in the law of 1014 it stands almost alone as a real piece of legislation with a sanction. In truth these laws, of which I have found something to say elsewhere,[197] _are hardly laws at all_. As was not wonderful, under the peculiar circumstances of the time, _they are rather an expression of pious and patriotic feeling_ (see the last clause), a kind of promise of national amendment than legislation, strictly so called. They go along with the discourses of Archbishop Elfric, _good advice rather than legislation_, rather than with those codes which not only make decrees, but provide means for executing them. In such a collection of recommendations rather than of real statutes we are not at all surprised to find the threefold division of tithe. But it is nowhere found in any of those codes which are real acts of legislation, providing the means for carrying out what is ordained, etc.”

Mr. Freeman, in his long private letter, has produced no proof whatever to upset the Church Grith as a proper legal enactment. He has not stated what the _something_ was to make the legislation perfect. If he means that no provision was made to carry out what was ordained, he contradicts himself, because he distinctly states above what is true, that as regards the sixth law for the payment of tithes, “means were prescribed, copied from Edgar’s laws, for carrying the enactment into force.”

It was quite common for an Anglo-Saxon king and his Witenagemót to re-enact some of the laws of his predecessors. So Ethelred re-enacted Edgar’s law as to the punishment which would follow the non-payment of tithes. And Cnute re-enacted wholesale the laws of his predecessors.

The most remarkable, inconsistent, and contradictory part of this letter is the abrupt jump which the writer takes from statements he was making _in support_ of the Grith laws, to the statement, “In truth these laws are hardly laws at all.”

I now turn to Mr. Freeman’s “Norman Conquest” to find what he has written in it about this law. In it we get the mature thoughts of the historian, before Lord Selborne’s books appeared.

“It was most likely,” says Mr. Freeman, “in a Gemót held on his return, that the King and his Witan passed the laws which bear the date of this year.[198] They relate mainly to ecclesiastical matters, but they contain the same pious and patriotic resolutions as the codes of former years, and they also contain some clauses of a special and remarkable kind. He expressly approves the conduct of certain earlier assemblies held under Athelstan, Edmund, and Edgar, which dealt with ecclesiastical and temporal affairs conjointly, and they seem to deplore a separation between the two branches of legislation which had taken place in some later assemblies.” He then refers to sections 36, 37, and 38 of the Church Grith, and adds, “cf. sec. 43, where the three kings are named.”

“The laws of this year (1014) again proclaim that one God and one King is to be loved and obeyed.”

“_Such is the general summary of the last recorded legislation of Ethelred, conceived in exactly the same tone as the laws of earlier assemblies._”[199]

Here there is no reference whatever that in this last recorded legislation of Ethelred, “they were hardly laws at all, but rather an expression of pious and patriotic feeling, a kind of promise of national amendment, than legislation strictly so called.”

The two statements—one in the History, and the other in a private letter—are contradictory. Contradictory statements coupled with an immense display of pedantry and egotism, characterize the recent writings of this author.[200]

Historians must be kept to the opinions expressed in their published histories until they publicly repudiate them. This Mr. Freeman has not yet done. Private letters which contradict them, are not only worthless, but are injurious. Historians who adopt this plan place themselves in a false position before the public. They cannot run with the hare and hunt with the hounds. They cannot _consistently_ address private letters to clerical tithe-owners expressing opinions against the threefold division of tithes, and Church Grith law, which contradict their historical opinions and statements.

V. The next witnesses produced by Lord Selborne are the Old Latin Translators of the Anglo-Saxon laws. “An earlier collection,” he says, “of the Anglo-Saxon laws, translated into Latin in the twelfth century, of which Bromton may be presumed to have made use (though by giving the Habam Ordinances he has shown that he had also access to other materials) contains, with that exception, the same laws which are in Bromton.”

“The Latin translators, therefore, if they were acquainted, as is possible, with the documents omitted in both collections (_i.e._ in their Anglo-Saxon laws, and in Bromton’s), but classed by more modern compilers among the public acts of King Ethelred’s reign, did not regard them as possessing that character in any such sense as to make it fit that they should find a place in a code of Anglo-Saxon laws; and it may be inferred that they found no such place in any records of a public nature to which those translators had access.”[201]

Here, again, his lordship resorts to his stereotyped formula, when laws are omitted by writers that “They did not regard them as possessing the character of laws.” I have already shown the several omissions made by various writers in their collections of Anglo-Saxon laws, _because they were unknown to them_. If we adopt Lord Selborne’s canon of criticism, we must not only sweep away the Church Grith law, but actually _five_ of King Ethelred’s laws, because they do not appear in the old Latin version!

I have carefully compared Thorpe’s collection with the old Latin version, and the following is the result. There are fifteen Anglo-Saxon laws in Thorpe’s collection which are omitted in the old Latin version; viz., the Laws of the Kentish kings—Ethelbert, Lothere, Edric, and Withred. King Alfred’s Scriptural Laws, King Athelstan’s Decretum Cantianum and Decretum Sapientum Angliæ, King Edmund’s Concilium Culintonense, King Edgar’s Supplemental Laws, King Ethelred’s Liber Constitutionum, Council of Enham, Church and Mund, Church Grith, and Council at Habam; King Cnute’s Forest Laws.

Applying Lord Selborne’s canon of criticism, we are bound to repudiate every one of these fifteen laws, because they are not in the old Latin version. He cannot draw the line at the Church Grith law, and not include the others.

In the face of these facts, Lord Selborne adds: “The Ancient Latin Version of the Anglo-Saxon laws _was evidently meant to be complete_, and which does contain all the legislature properly so called of Ethelred’s predecessors from Alfred downwards (why not also before Alfred?), and also of Canute.”[202] Lord Selborne does not tell us who the Latin translators were, and what opportunities they had, or what materials were at their command to make their code complete. What official position did they occupy? But we know, as an unquestionable fact, that the Latin version was _not complete_, and that up to 1840 we have not had a complete code of Anglo-Saxon laws from extant manuscripts until Mr. Thorpe’s was published under the direction and authority of the Commission of Public Records.

“The undoubted legislation Acts,” he further adds, “of King Ethelred’s reign (viz., the Ordinances of Woodstock and Wantage), and also that to which the Latin date A.D. 1008 is prefixed, have general titles in the Anglo-Saxon text, signifying that they were passed by the king in the national Witenagemót. But the title of the document numbered IX.[203] by Mr. Thorpe, is very different.”[204] This is not correct, for the law numbered IX. in Thorpe’s, has this title, “This is one of the Ordinances which the King of the English composed with the counsel of his Witan.”[205] Now, let us compare this title with those of (1) Woodstock, (2) Wantage, and (3) the Law of A.D. 1008, which Lord Selborne admits to be genuine. (1) “This is the Ordinance which King Ethelred and his Witan ordained.”[206] (2) “These are the laws which King Ethelred and his Witan have decreed at Wantage.”[207] (3) “This is the Ordinance that the King of the English and both the ecclesiastical and lay Witan have chosen and advised.”[208] These facts completely refute Lord Selborne’s statements. The general title to the Church Grith law, with the name of the King and Witan, is as strong as that of any of the admitted legal Acts stated by Lord Selborne. Again, if we compare the title of the Church Grith with that of Athelstan’s law, it is even stronger and in much better legal form. Here it is: “I, Athelstan, King, with the counsel of Wulfhelm, archbishop, and of my other bishops, make known to the reeves,” etc.[209] Selden, Kemble, and Bishop Stubbs admit, but Lord Selborne denies, the above to be a genuine law of King Athelstan. Lord Selborne criticises the titles of Anglo-Saxon laws made nearly 1,000 years ago in the same critical and technical manner as he would one passed at the present time. Here is an example. The Church Grith law begins thus: “This is _one_ of the ordinances which the King of the English composed with the counsel of his Witan.” Here is Lord Selborne’s note: “This form of expression is singular. I do not think that anything exactly like it is to be found elsewhere.”[210] The usual style is, “This is the ordinance,” etc., or, “These are the ordinances,” etc. But there is really no practical difference.

VI. The next witness is John Bromton, abbot of Jervaulx in Yorkshire, who lived towards the end of the fourteenth century. His history comprises the period from A.D. 588 to A.D. 1198. Brompton copied his collection of Anglo-Saxon laws[211] from the Latin version. But he alone has the text of the Ordinances passed at Habam. He has four of the nine laws of Ethelred.

Lord Selborne says: “Bromton knew no laws of the reign of King Ethelred, except those of Woodstock and Wantage, the Treaty with the Norwegian kings—Anlaf, Justin, and Guthmund (all purely secular), and the Ordinances of Habam, which he only preserved.”[212]

The Ordinances of Habam are found only in Bromton’s history, and they contain one important provision as to tithes and other Church dues. Art. 4: “And we charge that every man, for the love of God and all His saints, give church-scot, and his rightful tithe as it stood in the days of our ancestors, when it stood best; that is, as the plough shall pass through the tenth acre, and let every customary due be paid for the love of God to our mother-church to which it is near. And let no one take away from God what belongs to God, and our ancestors have granted.”[213]

This Ordinance would indicate a spirit of revolt against the payment of tithes, and that the provisions made by previous kings for their payment were set at defiance. I do not agree with Lord Selborne that this Ordinance grants _all the tithes_ and _dues_ to the _nearest mother-church_, and thereby cancels or disregards Edgar’s law as to the payment of one-third of the tithes to the manorial church with burial ground.[214] The revolt about paying the customary dues or tithes was against payment to the mother-churches and not to the manorial churches. This is a vital distinction as indicating an early revolt against the spiritual parochial endowments having been given to churches which did no spiritual duties in the manorial parishes for them.

Owing to the same spirit of setting the tithe-law at defiance, we find a re-enactment of Edgar’s stern law to enforce the payment of tithes in the 6th article of the Church Grith, and a second re-enactment by Cnute. It would be most unreasonable, and indeed absurd, to assume that the Habam Ordinances ignored the claims of the manorial churches to a third of the parochial tithes. The manorial churches in the beginning of the 11th century were too numerous to be deprived of their portions of the tithes, especially in 1014, when Ethelred, after returning from exile, tried to conciliate the clergy.

Dr. Lingard’s opinion is valuable upon this point. “It was probably thought,” he says, “that a law so precise (as Edgar’s), and so severe—a forfeiture of eight-tenths of the crop—would insure for the future the exact payment of the tithe; but its subsequent re-enactment in the reign of Ethelred,[215] and again in the reign of Canute, will justify a suspicion that in many places its provisions were set at defiance, and in many but imperfectly enforced.”[216]

Mr. Fuller, in “Our Title-Deeds,” regards Dr. Lingard’s silence about the Church Grith law as “inexplicable in every way.” The above quotation, as regards this law, clearly proves the charge to be groundless.

As Bromton had copied his Anglo-Saxon laws from the old Latin version, he has not fourteen of the fifteen laws which were omitted in that version.[217]

“It may be asserted,” says Lord Selborne, “without risk of error, that _no part_ of the Worcester volume, Nero, A. 1 of the Cottonian collection was written before the end of Cnute’s reign, who died in 1035, for the volume begins with Cnute’s laws, which are followed by those of Edgar, Alfred, Athelstan, Edmund, Ethelred; and after them Grith and Mund, and Church Grith:—all in Anglo-Saxon, _without break_, and in that order.”[218]

Every reader of “Facts and Fictions” cannot consult the Worcester volume to judge for himself whether this statement is correct or not. Readers generally accept as true what men of position and education publish, without investigating—for they have not time—the truth of the subject-matter. Mr. Fuller makes the following candid admission: “In Thorpe’s ‘Anglo-Saxon Laws,’ i. 342, the tripartite division _seems expressly sanctioned by law_; it will be therefore necessary for us to investigate this important fact, and see _if it is not possible to shake its authority and bearing on the case_.”[219] This is exactly the spirit with which certain writers attack the law. Let us test the above quotation from “Facts and Fictions.” The volume contains 184 folios quarto. Folios 1 to 39 form the first tract in the volume; 42 to 56 the second; 57 to 68_b_ the third; 71 to 97_b_ the fourth, etc.

There was a good deal of guess work in arranging the tracts in this order. They were not written by the same hand; some were written early in the eleventh century, and others in the third quarter of the same century. The laws of Canute, Edgar, and part of Alfred’s, were written in the Conqueror’s reign. A large portion of Alfred’s laws is written in Josseline’s hand, in the 16th century, then a common practice to complete imperfect manuscripts, and the manuscript of Alfred’s laws in the Worcester volume is very imperfect. Then the laws of Athelstan and Edmund may be seen at once to be a much earlier hand, of the first quarter of the 11th century—the period assigned by Thorpe. There is a fragment of Edgar’s laws at folio 89, placed between Edmund’s and Ethelred’s, and in the same handwriting, and fully sixty years earlier than Edgar’s laws, which are at folios 15 to 41. These facts as to dates of handwriting can easily be verified by comparing them with charters of certain dates. I have compared the handwriting in the several tracts with the charters written towards the end of the 10th century, and beginning, middle, and end, of the 11th. The Church Grith law was certainly written before Canute’s death in 1035. There are several breaks in the volume between the laws of the five kings, although Lord Selborne says, “All in Anglo-Saxon, _without break_.” The first break is of six folios between the first and second parts of Alfred’s laws. Then a second break of no less than twenty-eight folios between the last part of Alfred’s and the beginning of Athelstan’s. Here, then, are two breaks of thirty-four folios, and there are seven heads of other manuscripts on different subjects which are bound up in these breaks of thirty-four folios.

It is quite evident that in the Worcester volume, Nero, A. 1, we have _two incomplete sets_ of Anglo-Saxon laws, picked up by Sir Robert Cotton and thus preserved from destruction, which Lord Selborne would lead one to think were _one complete, continuous set of laws_ of these five kings. The other parts are lost. I have already given a brief sketch how our antiquarians collected, as best they could, the tons of manuscripts which belonged to the libraries of the dissolved monasteries scattered throughout the country.

Here is one specimen out of many from “Our Title-Deeds,” p. 119, by which Mr. Fuller attempts “to shake the authority” of the Church Grith Law. “A document,” he says, “which Selden casts a slur upon, is surely not one upon which to rest a fact of English history.” Then in a footnote Mr. Fuller adds, “Selden calls it only a sort of document, and passed in a Council in a kind of Parliament, and tells us it remains only a manuscript of or about the time of the _Roman_ Conquest. The preface of it shall be here first noted, that the authority of it may be better understood, _i.e._ appraised at its real value.”

Mr. Fuller’s book is dedicated to Lord Selborne, who truly states that Mr. Selden, in his “History of Tithes,” _made no mention of the Church Grith document_.[220] Of course, Mr. Fuller is romancing as usual. Miserable efforts “to shake the authority” of a law. There is not one word of truth in the whole of the above quotations. “Roman Conquest!” Utter nonsense.

MR. J. S. BREWER.

Mr. J. S. Brewer in “The Endowment and Establishment of the Church of England,” supported the tripartite division of tithes. But after his demise, Mr. L. T. Dibdin[221] has edited a new edition in which he opposes Brewer’s views. He adopts the views of Archdeacon Hale and Lord Selborne. He states that the supporters of the tripartite division can bring forward only spurious canons and laws to prove their case, and then instances (1) a _spurious passage_ in the “Penitential” of Archbishop Theodore, for proof of which he refers to “Haddan and Stubbs, ‘Councils,’ iii. 173, note 203”; (2) An alleged law of Ethelred (1013), and adds in reference to Ethelred’s law, “But the better opinion [he actually blends together the opinions of Price, Stubbs and Selborne] appears to be that the code, of which it is a part, is a private compilation or collection of points of Canon Law gathered indifferently from foreign and home sources, published tentatively, and not recognised as possessing any legislative force. With this exception (if it be one), no English law as distinguished from Ecclesiastical ordinance or opinion, directs the division of tithe into thirds or fourths, or refers to the supposed right of the poor to a share.”[222]

As regards the quotation from the well-known writings of Haddan and Stubbs, they actually held the opposite opinion to that attributed to them by Dibdin. They state that Theodore’s “Penitential” is genuine. Here are their words, which may be contrasted with Dibdin’s: “In 1851, at Halle, Dr. F. W. Wasserschleben, Professor of Law in the University of Halle, published from a comparison of several continental manuscripts, the work of the ‘Discipulus Umbrensium,’ which is to be found in our text.” They then enumerate nine editions of works published under Theodore’s name. They reject all as spurious except the “Discipulus Umbrensium,” which they printed from the Corpus Christi College Cambridge MS. 320. The three eminent scholars, Mr. Haddan, Bishop Stubbs and Professor Wasserschleben, pronounce distinctly and emphatically in favour of the genuineness of the treatise of the “Discipulus Umbrensium” as being the genuine “Penitential” of Theodore. The Cambridge manuscript, they assert, was written not later than the eighth century, although the reference to another copy found in lib. ii. c. xii. s. 5 seems to preclude the idea that it is the original.[223]

Bishop Stubbs, in his history, remarks that in this very “Penitential,” viz., lib. ii. c. xiv. s. 10, commencing, “Decimas non est legitimum dare,” _the clergy had not the sole use of the tithes_.[224]

I refer the reader to pp. 20-23 in this book for a full discussion on this point.

In the second place, as regards Mr. Price’s opinion, I must also refer the reader to p. 107.

CNUTE’S LAWS.

These laws are divided into three branches, (1) Ecclesiastical, (2) Secular, (3) Constitutiones de Foresta.

The text from which Mr. Thorpe prints (1) and (2), is Cott. Nero., A. 1, which was written in the middle of the eleventh century. The text of (3) is from Spelman’s “Glossarium Archæologicum.” There are twenty-six laws in (1); eighty-five in (2); thirty-four in (3).[225]

In A.D. 1018 at a Witenagemót at Oxford, Cnute confirmed the laws of Edgar. “The laws of Edgar,” says Lappenberg,[226] “had shown particular regard to the Danes dwelling in England, while in those of Ethelred, as far as we are acquainted with them, similar provisions do not appear.” This was the true reason for Edgar’s laws having been adopted as a model by Cnute. He also made use, however, of Ethelred’s laws, especially those on Ecclesiastical subjects. It is remarkable to find very many of the articles of “Grith and Mund” and of “Church Grith” embodied in Cnute’s laws, although much pains have been taken to prove that these laws were spurious and unauthentic. And yet we find that no less than thirty-six of the forty-four articles in the Church Grith law are incorporated in Cnute’s laws! It is interesting to notice how Lord Selborne disposes of the remaining eight. Five (articles 36 to 39 and 43), he says, are of that historical, rhetorical, expostulatory and didactic character as are not proper for laws which could in that or any similar form be enacted by any legislature. One was omitted apparently as superfluous (_i.e._ 41: “If a monk or mass-priest become altogether an apostate, let him be for ever excommunicated, unless he the more readily submit to his duty.”) Two remain which were evidently, on consideration, disallowed. One is for the tripartite division of tithes, of which there is no trace in any later collection of Anglo-Saxon laws, and one is rejected (art. 32) which gave extraordinary aid and protection to abbots and their stewards.[227] Now by rejecting article 32, are we to suppose that the abbots and their stewards were not to be protected by the king’s reeves? for the article states, “And the King commands all his reeves in every place that ye protect the abbots on all secular occasions as ye best may; as ye desire to have God’s or my friendship, that ye aid their stewards everywhere to right, that they themselves may the more uninterruptedly dwell closely in their minsters, and live according to rule.”[228]

It has escaped Lord Selborne’s notice that Cnute’s confirmation of Edgar’s law, which grants one-third of the tithes to the manorial priests, comes to the same thing as the threefold division of tithes in the Church Grith law. The principle is the same in both, namely, that the manorial priest, or the priest of the mother church, was legally entitled to no more than one-third part of the tithes, and that the modern use of taking _all the tithes_ was contrary to all rules, laws, and customs. They were never originally given, and would never be given to the priests on any such condition, namely, to convert them all to their own personal use—in fact, to be their own private property or income, as is the case now.

Now the great and important question is, “When and in what way did the manorial priest acquire the other two parts?” How did the third, asks Lord Selborne, pass into the whole? His answer is, “There is not, as far as I know, so much even as a canon of any council, or a decree of any Pope in the nature of a legislative act, enlarging the right, or appropriating tithes generally, to parish churches in England or elsewhere.”[229]

His conclusion is, that as the laity were at liberty to give their tithes to whatever church they wished, “they might with equal right and reason endow parish churches on their own estates with the predial tithes of their lands within the parishes; and the probability was that they would do so. No more likely explanation of the general prevalence of such parochial endowments, where churches were not appropriated to monasteries, has yet been suggested.”[230]

Lord Selborne’s statement is very plausible, but will not stand investigation. The incumbents were only trustees, and as such received all the tithes. They had a common law right to a usufructuary part only, so had the poor and strangers and the church fabric. But in the various changes which took place in the thirteenth and fourteenth centuries the trustees gave what they liked of the tithes to the poor, and also placed the expenses of repairing the church fabric upon the parishioners. It is too much to assume that the poor and strangers were in a pecuniary position to appeal, as Lord Selborne and others assert, to the superior courts and claim their share of the tithes. A body representing the poor with funds at their disposal might have done so, but it is really too much to expect that the individual poor person had his or her “legal remedy,” as they assert, against the parson for his or her part of the tithes. The fact is, that the incumbents began in the thirteenth century to consider themselves not as trustees but actual owners of all the tithes of their parishes, and doled out to the poor some alms, and therefore kept up a semblance of assisting the poor. It is remarkable that lay and clerical rectors in receipt of the rectorial tithes are bound, up to the present time, to keep the chancel of the church in proper repair, and if blown down, to rebuild it. This is a remnant of the original claim on the tithes to repair the fabric of the church. The monastic rectors set the example of totally neglecting to repair the churches appropriated to them, and the parishioners, for their own comfort and convenience, collected funds among themselves to keep the churches in repair, although it is a fact that the owner of the rectorial tithes was bound by common and canon law to keep in repair the whole church fabric, including not only the chancel but also the body of the church.[231] The secular rectors were not slow in following the example of the religious rectors, and in course of time they saddled the parishioners with the expenses of repairing the body of the church. The present trustees have therefore misappropriated all the tithes to their own use. Again, it is stated by Lord Selborne and others that when the poor laws were enacted, Parliament would have made the tithe-owners contribute to the support of the poor, if it thought they were bound to set apart a portion of the tithes for this purpose. But who were then the law-makers? The majority of them were then in possession of the extensive monastic tithes, and landed properties. It is well known that the properties were handed over to them subject to the same burdens which had been attached to the same properties when they were in possession of the monastic bodies; but the new owners ignored these burdens.

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