200
THE SAXONS IN ENGLAND.
[book ɪ.
later Confessionale of Ecgberht, archbishop of York,
we find: “Pater potest filium suum, magna neces-
sitate compulsas, in servitutem tradere, usque ad
septimum annum ; deinde, sine Voluntate filii, eum
tradere non potest V’ It is however very remark-
able that in the Poenitential of the same Ecgberht
the sale of a child or near relative is put down as
an offence punishable by excommunication2. These
are the servi alterius datione of Henry the First.
The next head includes the serfs by reason of
crime. The distinction between these and the class
of criminals who became slaves through compact
or redemption, is that in their case servitude was
the direct punishment of their offence, and not
merely an indirect and mediate consequence. It
seems to me at least that this sense strictly lies at
the foundation of two laws of Eadweard, Ælfred’s
son ; of these the former says3, “If any one through
conviction of theft forfeit his freedom, and deliver
himself up, and his kindred forsake him, and he
1 Confessionale Ecgberhti Arch. Ebor. xxvii. Thorpe, ii. 163.
"i The only way of getting rid of this strange contradiction is, either
to assume the passage to be a later interpolation, which there is no
ground for, save the contradiction itself ; or to take the passage in con-
nection with Theodor. Poen. xlii. § 3, 4, 6, which refer to sale of a
Christian among Jews or Heathens, and generally to fraudulent or il-
legal sale. But then, one cannot understand why the words “infantem
suum proprium, vel proximum suum cognatum ” should have been in-
troduced by Ecgberht, though omitted by Theodore. Perhaps we may
reconcile the passages, by assuming Ecgberht to refer to an illegal sale,
viz. when the child was above seven years old, but still in the same
category as those for whose safety Theodore provides by the same ec-
clesiastical penalty. The child or very near relation were precisely
those who were most liable to be in “alteram regionem seducti,
furati,” etc.
3 Leg. Eadw. § 9.
сн. Vin.]
THE UNFREE. THE SERF.
201
know not who shall make hot for him ; let him then
be worthy of the Jjeowwork which thereunto ap-
pertained; and let the wer abate from the kin-
dred.” Again, “ If a freeman work upon a festival
day, let him lose his freedom, or pay the wite or
Iahsliteɪ." This alternative is an alleviation of the
strict law : but as forfeiture undoubtedly followed
upon theft and other offences, the thief could not
expect to make bot for himself, and was always
exposed to the danger of incurring slavery, should
another make it for him. It is however possible
that his relations may have interfered to save him,
without the reducing him to a serυus dedititius ; or
even if he were so reduced, he became the serf of
him that engaged (Jjingode) for him; whereas, if
not rescued at all, he must have been a fiscal serf,
in the hands of the crown or the geréfa, its officer.
There exists therefore a perceptible difference be-
tween the WiteJjeow whom the law made so, (even
though it permitted a merciful alternative,) and
the witej>eow whose punishment would have been a
mulct which exceeded his means. The law of other
German tribes numbers slavery among its punish-
ments without any reservation at all : thus among
the Visigoths, he that assisted in the escape of a
serf, and neither restored him nor his worth to the
owner, was to become a slave in his place2. By
the Bavarian law, he that could not pay a wergyld
due from him, was to be enslaved together with his
wife and children3. Grimm4 cites the following case :
‘ Ead. aud GuS. § 7. 2 Leg. Visig. ix. § 1, 2.
3 Leg. Bajuv. i. § 11. ‘ D. Rechtealt. p. 329.