the association of tithing and an oath related to theft
There is some evidence that suggests tithing (and by extension frankpledge) and theft oath were closely associated in the early twelfth century. It is possible that tithing and oath went together much earlier, but we may be able to demonstrate such an association with more confidence. We can do this by examining the different ways certain clauses were presented in various post-Conquest copies of Cnut’s Winchester code. Basically, some manuscripts group together the clauses on tithing and oath into, effectively, one clause, perhaps suggesting that they were seen as the same institution. This is a stronger implication than one made based only on the proximity of the clauses.
There are three manuscripts containing Old English versions of Cnut’s code, one from the mid-eleventh century, a second from the turn of the eleventh and twelfth centuries, and a third from the mid-twelfth. The code also survives in the form of various twelfth- century Latin translations in texts known as Quadripartitus, Instituta de legibus regum anglorum (popularly known as Instituta Cnuti), and Consiliatio Cnuti. There are numerous surviving manuscripts of these works; in total, there are fourteen manuscripts that contain a form of Cnut’s Winchester code.1 At the turn of the nineteenth into the twentieth century, Felix Liebermann edited the corpus of Anglo-Saxon laws in his Gesetze der Angelsachsen, breaking up each code into numerous clauses. Thus, we refer to the passage in Cnut’s Winchester code that refers to the theft oath as clause 21. Although this is editorially necessary and based on some manuscript evidence, all the manuscripts actually differ in the way in which they lay out the code. Most of the scribes that wrote out Cnut’s code, whether in Latin or Old English, rubricated certain letters that effectively mark out the beginning of a new clause. Some manuscripts also have what is, in essence, a contents list. We can therefore see what contemporaries viewed as a single block of material, in our parlance, a clause.
1 As one of these manuscripts (T) contains both Quadr and InCn, there are fifteen different forms that survive.
In this instance we are concerned with how medieval writers treated the following clauses: 20 (every freeman ought to be in hundred and tithing); 20a (everyone ought to be in hundred and pledge); 20.1 (a forbidding of powerful men protecting their men in certain ways); 21 (that all over the age of twelve should take an oath not to be a thief or a thief’s accomplice); 22 (that trustworthy men are entitled to use the simple oath of exculpation to clear themselves in the hundred); 22.1 (that untrustworthy men shall have their oath-helpers chosen); 22.1a (that simple oath and triple oath should be sworn at the beginning); and 22.2 (a thegn can have a trustworthy man represent him).
Certain things are common across all post-1100 manuscripts. Clause 20 is always treated as a new clause. Clause 22 is usually treated as a new clause. Clause 20.1 is also frequently treated as a new clause, and 20a sometimes is. However, clause 21 is mostly not treated as new. Instead it is usually grouped together with clause 20.1. In Colbertine Cnut, an amalgamation of Instituta Cnuti and Consiliatio Cnuti, the manuscript of which dates from the end of the twelfth century, clauses 22, 22.1, and 22.1a are also grouped together with 20.1 and 21, seemingly as a clause on various forms of oath-taking. Indeed, this group is given the heading ‘de sacramentis ab omnibus faciendis’, that is, ‘concerning the oaths that will be done by everyone’.
More important for the present discussion is that in three Latin manuscripts, clauses 20, 20a, 20.1, and 21 are treated as one clause. In the earliest Quadripartitus exemplar, of the early twelfth century, these clauses are treated as one in the contents: ‘ut omnis homo liber sit in hundredo et decima, et ut discrete sciatur de singulis quis sit liber quis servus, et de iuramento legalitatis’. This is significant despite the text giving clauses 20, 20a, and 20.1 as one clause separate from 21. We see something similar in an early thirteenth-century copy of the Quadripartitus text in the Leges Anglorum Londoniis collectae, where the contents treats 20–21 as one clause, but the text has two blocks of 20–20a and 20.1–21. In one Quadripartitus manuscript, from the turn of the twelfth and thirteenth centuries, the text gives 20–21 as one clause. That the sections concerned with tithing and with the oath could be treated as a single block in this way might suggest that tithing and oath were closely related by the early twelfth century.
It must be noted that the manuscript evidence is of no use for the pre-Conquest period. Not only does the earliest relevant Old English manuscript not have rubrications for any of the relevant clauses, it also may have been written after the Conquest.
Below, the relevant manuscripts are divided into the following categories: Old English manuscripts; Quadripartitus manuscripts; Instituta de legibus regum anglorum (InCn) manuscripts; Consilatio Cnuti manuscript; Cobertine Cnut manuscript; and Leges Anglorum Londoniis collectae manuscript. Within each section the manuscripts are arranged in chronological order. Every manuscript was consulted on the Early English Laws website: http://www.earlyenglishlaws.ac.uk. The dating and description of each manuscript is taken from the information provided there. This will be provided in the first paragraph of each section. The rest is the current author’s work. At the end of this Appendix is a table that shows where the rubrics fall in each relevant manuscript, arranged chronologically.
Old English manuscripts
G: London, British Library, MS Cotton Nero A.I, fols. 21v–22v
The first part of this manuscript contains Cnut’s Winchester code and Alfred’s code with Ine’s. This part of the manuscript is about 50 years later than the second part, which is early eleventh century. The manuscript is pocket sized and clearly intended to be carried around.
Perhaps based on this it might be conjectured to be a volume prepared soon after the Conquest. It is the oldest manuscript containing the legislation from Cnut’s Winchester code
Throughout the manuscript new clauses are rubricated in various colours in the margin. However, there is only one letter rubricated (and prepared for rubrication) on the folios relevant for this discussion. The beginning of clause 19 (concerned with distraint of property) is rubricated. The next rubric is the beginning of clause 22.1. Thus clauses 19, 19.1, 19.2, 20, 20a, 20.1, 21, and 22 are treated as one body of text. It is not immediately clear why this is the case.
B: Cambridge, Corpus Christi College, MS 383, fols. 42vr–43v
This manuscript has been variously dated from the late eleventh century to the second quarter of the twelfth century, and was probably produced at St Paul’s in London. See http://www.le.ac.uk/english/em1060to1220/mss/EM.CCCC.383.htm.
This manuscript has both rubrications at the beginning of clauses and headings for each clause within the margin. Clause 20 begins with a rubric and has a heading that reads: ‘Þæt ælc mon beo on teoðunge’. The next rubric is that beginning clause 21, which also has a heading: ‘Be ðeofan’. The next rubric is not until clause 22.1a.
Based upon B and G, the earliest Old English exemplars, it would seem that clauses 20 and 21 were at some point in the eleventh century considered separate. It does not prove that they were separate when composed.
A: London, British Library, MS Harley 55, fol. 9r
The parts of this manuscript that contain Cnut’s Winchester code date to c. 1150.
Each clause begins with a red rubric. Clause 20 has a slightly more elaborate rubric than any other for the start of a clause through the manuscript, but this does not appear to be significant. Clause 20a and 20.1 have rubrics. However, clause 21 is effectively treated as part of clause 20.1, as the next rubric is clause 22.
Quadripartitus manuscripts
The Quadripartitus manuscripts have what could be termed contents pages.
Dm: London, British Library, MS Cotton Domitian VIII, fols. 99r and 103r
This is the oldest of the Quadripartitus manuscripts, dating from the first quarter of the twelfth century.
The contents treat clauses 20 and 21 as one clause: ‘ut omnis homo liber sit in hundredo et decima et ut discrete sciatur de singulis quis sit liber quis servus et de iuramento legalitatis’. However, in the text, clause 20 begins with a rubric and so does clause 21.
M: Manchester, John Rylands University Library, MS Lat. 420, fos. 46r-84v
This is the second oldest Quadripartitus manuscript. It is from the second quarter of the twelfth century. The first twenty folios, which would have included the Cnut code, are missing.
Hk: London, British Library, MS Additional 49366, fols. 18r and 26v
This dates to the third quarter of the twelfth century.
The contents treat clauses 20.1 and 21 as the same, but 20 as separate. The text matches this, with 20 and 20.1 having a rubric, but 21 not having one. Clause 21 is thus treated as part of 20.1
R: London, British Library, MS Royal 11 B.II, fol. 110r
This dates to the third quarter of the twelfth century and was produced at Worcester. There are no contents in this manuscript. Clause 20 has a heading that reads ‘Ut omnis homo liber sit in hundredo et decima’. The first letter of the clause is rubricated. Clause 20.1 has a heading reading ‘Divisio liberorum et servorum’. The first letter is rubricated. Clause 21 is treated as part of 20.1.
T: London, British Library, MS Cotton Titus A.XXVII, fols. 92r and 99r
This manuscript is from the late twelfth or early thirteenth century. The contents page treats clauses 20 and 21 as the same, as does the text. Instituta de legibus regum anglorum (InCn) manuscripts
H: Strood, Medway Archive and Local Studies Centre, MS DRc/R1 (Textus Roffensis), fols. 65v–66r
This manuscript was probably compiled during the time of Bishop Ernulf of Rochester (1115–24).
Clauses 20, 20a, and 20.1 are all rubricated. Clause 21 is not and is treated as part of clause 20.1.
Di: Oxford, Bodleian Library, MS Digby 13, fol. 44v
This is a mid-twelfth-century manuscript, and the original quires holding the Instituta circulated as a separate booklet.
Manuscript is not rubricated.
La: London, Lambeth Palace Library, MS 118, fols. 98r–98v
This dates from the second half of the twelfth century. Manuscript is not rubricated.
Rl: Oxford, Bodleian Library, MS Rawlinson C. 641, fols. 34r–34v
The Instituta in this late twelfth-century manuscript were copied from MS H. The compiler or scribe may have been connected to the treasuries at London or Winchester or to the Exchequer.
Clauses 20 and 20.1 are rubricated. Clause 21 is not and is treated as part of clause 20.1
T: London, British Library, MS Cotton Titus A.XXVII, fol. 165r
A late twelfth- or early-thirteenth-century manuscript, already discussed as it contains a copy of Quadripartitus.
Manuscript is not rubricated. Consiliatio Cnuti manuscript
Hr: London, British Library, MS Harley 1704, fol. 3v
This is an early fourteenth-century manuscript containing a twelfth-century translation. Clauses 20, 20a, and 21 are rubricated. Clause 20.1 is treated as part of 20a. Clauses 22, 22.1, and 22.1a are treated as part of clause 21.
Colbertine Cnut manuscript
This is an amalgam of InCn and ConsCn. The relevant clauses here are taken from InCn.
Cb: Paris, Bibliothèque Nationale, MS lat. 4771, pp. 13–14
Clause 20 is rubricated and has a heading: ‘Quod unusquisque in plegio sit’. Clause 20a also begins with a rubric and is headed: ‘Item si etiam terra et domo careat’. Clause 20.1 also has a rubric and a heading: ‘De sacramentis ab omnibus faciendis’. The clause includes clauses 21, 22, 22.1, and 22.1a.
Leges Anglorum Londoniis collectae manuscript
Rs: Manchester, John Rylands University Library, MS Lat. 155, fols. 35v and 43r–43v
This is an early thirteenth-century manuscript and the text of the relevant clauses is that of Quadripartitus.
The contents are not rubricted but it appears to treat clauses 20 and 21 as one under the heading: ‘Ut omnis homo liber sit in hundredo et in decima, ut discrete sciatur de singulis an sit liber an servus, et de iuramento legalitatis’. In the text, clauses 20 and 20.1 have their own rubric. Clause 21 is treated as part of clause 20.1.
12 Which of Liebermann’s clauses are treated as a new clause
MS/Language Rough date 19 20 20a 20.1 21 22 22.1 22.1a
G (OE) s.ximed X X
B (OE) s.xi/xii X X X X
Dm (L) (Quadr) s.xiiin X X X X
Dm (L) (Quadr) contents s.xiiin X X X
H (L) (InCn) s.xiiin–med X X X X X X
A (OE) s.xiimed X X X X X
Hk (L) (Quadr) s.xiimed–ex X X X X
R (L) (Quadr) s.xiiex X X X X Rl (L) (InCn) s.xiiex X X X X X Cb (L) (CnCb) s.xiiex X X X X T (L) (Quadr) s.xii/xiii X X Rs (L) s.xiiiin X X X X Rs (L) contents s.xiiiin X X X Hr (L) (ConsCn) s.xivin X X X X
1 Contents included when they differ from the text.