Perfil Municipio Tipo Observatorio del Deporte Municipal en Euskadi

This situation is borne out by the next extant Kentish code, the law of Hloþhere and Eadric, dated to the end of the seventh century.425 _{Here, the phrase mannes esne is used twice: ‘gif mannes esne}

eorlcundne mannan ofslæhð, þane ðe sio þreom hundum scill gylde, se agend þone banan agefe & do þær þrio manwyrð to’ [if a person’s esne kills a person of noble birth, who should be paid for with three hundred shillings, the owner should give up the killer and add three man-worths], and ‘gif mannes esne frigne mannan ofslæhð, þane þe sie hund scillinga gelde, se agend þone banan agefe & oþer manwyrð þær to’ [if a person’s esne kills a freeman, who should be paid for with a hundred shillings, the owner should give up the killer and add a second man-worth thereto].426

The possessive relationship which is implied by the use of the genitive ‘mannes’ in the laws of Æthelberht is here made explicit by the use of agend: the esne is someone who has not merely a master, potentially ambiguous, but an ‘owner’.427 _{Moreover, as Oliver notes, this owner, not the}

esne himself, is responsible for the payment of these fines, indicating a lack of separate identity

under the law.428 _{These two occurrences are the only appearances of esne in this law code, a code}

which does not otherwise deal with murder, either by slaves or by freemen. It is not possible, therefore, to confirm whether the penalties for murder by an esne are more like those for murder

424 _{Oliver, Law, p. 1⒖}

425 _{‘Hlothere and Eadric’s Code (Hl)’, in Early English Laws <http://www.earlyenglishlaws.ac.uk> [accessed} 15th April 2014]. Although Pelteret believes that the esne was a freeman in these laws, he, too, argues that the situation in the laws of Hloþhere and Eadric was similar to that in the laws of Æthelberht (Pelteret, Slavery, p. 272).

426 _{§§ 1, 3, ‘Hlothære und Eadric’, in Die Gesetze der Angelsachsen, ed. by Liebermann, I, 9-11 (p. 9). All} references are to this edition and are given parenthetically in the body of the text.

427 _{Oliver, Law, p. 1⒖} 428 _{Oliver, Law, p. 1⒖}

by slaves or freemen. We can only say that esnas appear in this code simply as slaves, as shown by the use of agend in both these clauses. Moreover, § 3 distinguishes between the esne and his putative victim, the ‘frigne mannan’. The adjective ‘frigne’ marks the critical difference between the two individuals, a legal distinction which has bearing on the crime in question. In the laws of Hloþhere and Eadric, therefore, the esne is a chattel slave, the property of an agend, and not responsible for himself before the law.

4.3.3 Wihtræd

Esne also appears in the final early Kentish law, that of Wihtræd, dated to 69⒌429 _{The initial clauses}

which mention esnas use this term in a manner very similar to that found in the previous legal codes. The first mention reads ‘gif esne ofer dryhtnes hæse þeowweorc wyrce on sunnan æfen efter hire setlgange oþ monan æfenes setlgang, LXXX scll se dryhten gebete […] Gif esne deþ his rade þæs dæges, VI se wið dryhten gebete oþþe sine hyd’ [if an esne does slave-work on his lord’s command after sunset on the eve of Sunday until sunset on the eve of Monday, his lord shall pay eighty shillings (…) If the esne works according to his own counsel on that day, he should pay six towards his lord, or his hide].430 _{These clauses establish that the esne could own property and thus}

pay a fine. Such an ability is usually seen as beyond the purview of slaves, but this was not the case in Anglo-Saxon England.431 _{Thus, the ability to pay a fine, while unusual, does not preclude servile}

status. Pelteret’s belief that the ability to pay both with a fine and a flogging indicates ambiguity and the use of esne for more than one social group depends solely on this inaccurate measure of servility.432 _{More importantly, the esne has a master, ‘dryhten’, who can compel him into work for}

429 _{‘Wihtræd’s Code (Wi)’, in Early English Laws <http://www.earlyenglishlaws.ac.uk> [accessed 15th April} 2014].

430 _{§§ 9-10, ‘Wihtræd’, in Die Gesetze der Angelsachen, ed. by Liebermann, I, 12-14 (p. 13). All references are} to this edition and are given parenthetically in the body of the text.

431 _{Bush uses the ownership of property to distinguish slaves from serfs (Bush, ‘Introduction’, p. 2); Oliver} notes, however, that Anglo-Saxon slaves could own property (Oliver, Law, p. 172).

which the esne is not held morally or legally culpable.433 _{This work is specifically called}

‘þeowweorc’, a compound which makes it clear that such labour was servile. The lack of a comparable compound **esneweorc tallies neatly with esne’s lack of productivity in Old English, and the conservative nature of the compounds which do occur.434 _{While the personnel are called esnas,}

their work contains the element þeow-, confirming the interchangeability of esne and þeow here. The esne in the laws of Wihtræd is not contrasted here with the þeow but with the freeman. There is no separate clause for the penalties which the þeow must pay for these deeds, but § 11 reads, ‘gif friman þonne an ðane forbodenan timan, sio he healsfange scyldig, & se man se þæt arasie, he age healf þæt wite & ðæt weorc’ [however, if a freeman works in that forbidden time, he should pay the healsfang, and the person who discovers that shall have half the fine and the work] (p. 13). The freeman is not offered the option of paying with a flogging, but instead must pay the ‘healsfang’, a ‘fine in lieu of imprisonment’.435 _{Punishment by flogging for slaves is commonplace,}

to the extent that the Roman author Quintilian argued that free children should not be beaten because ‘flogging […] is a disgraceful form of punishment and fit only for slaves’.436 _{§ 22 of the laws}

of Wihtræd states that ‘gif man bisceopes esne tihte oþþe cyninges, cænne hine on gerefan hand oþþe hine gerefa clensie, oþþe selle to swinganne’ [if a person charges the esne of the bishop or the king with an offence, he may clear himself in the presence of the reeve: either let the reeve clear him, or give him to be flogged] (p. 14), confirming that the esne is one who can be subject to corporal punishment while the friman is not. Those clauses of this code which do use þeow, as § 13 does, do not have a corresponding clause for esne, but instead for the ceorl or friman, as in § 12 (p. 13). This division of society is complete, structurally and in terms of content, and there is no evidence for a third category.

433 _{Similarly, §§ 14-15 prescribe different penalties for a þeow eating meat during a fast, dependent on} whether the þeow does so according to his own wishes or not (p. 13).

434 _{See the analysis of compounds of esne elsewhere in this chapter. Aldred’s compounds are semantically, and} probably etymologically, distinct.

435 _{Oliver, Law, p. 15⒍}

Interpretation of § 23 is rather more difficult. This clause reads ‘gif mon gedes þeuwne esne in heora gemange tihte, his dryhten hine his ane aþe geclænsie, gif he huslgenga sie, gif he huslgenga nis, hæbbe him in aþe oðirne æwdan godne, oþþe gelde, oþþe selle to swinganne’ [if a person charges the þeow esne of a fellowship with a crime in their midst, his lord may clear him by his oath alone, if he is a communicant. If he is not a communicant, he should have for him in the oath another good witness, or he should pay, or he should give him to be flogged] (p. 14). At first glance, the phrase ‘þeuwne esne’ suggests that the esne could be free.437 _{However, as we have}

already seen, nomenclature is not always as stable or consistent in these codes as we might expect in modern legal texts. If we take this phrase at face value, we are still confronted with the problem of finding these ‘unþeuwe esnas’, evidence for whom is otherwise lacking. On the other hand, we can read this as a fossilised, stock phrase, recalling an earlier stage during which esnas genuinely could be either free or unfree. Equally, the adjective ‘þeuwne’ could be included here as a literary formulation to emphasise, rather than clarify, the position of this individual.438 _{Indeed, the}

contextual material here suggests an individual who was a chattel slave. Once again, the esne is liable to suffer punishment by flogging, suggesting servile status. While it is not entirely clear what ‘gedes’ and ‘huslgenga’ denote,439 _{and therefore what the precise position of the esne is, this}

individual is cleared not on his own recognizance but on the oath of his master, or the oath of the master’s ‘æwdan godne’. This suggests an individual who himself has no standing under the law and must rely on others to mediate its effects for him. The provisions of § 24 are very similar: ‘gif folcesmannes esne tihte ciricanmannes esne, oþþe ciricanmannes esne tihte folcesmannes esne, his dryhten hine ane his aþe geclensige’ [if a layman’s esne lays a charge against a clergyman’s esne, or a clergyman’s esne against a layman’s esne, his lord may clear him by his oath alone] (p. 14). This again makes the esne reliant upon the dryhten in matters of law. Thus, as in the earlier Kentish codes, the laws of Wihtræd use esne to denote a slave who was fully reliant upon his master in legal

437 _{Pelteret, Slavery, p. 27⒉}

438 _{This may have something in common with literary doublets which are stylistic rather than meaningful.} See below, ⒋⒌⒊

matters and subject to corporal punishment, clear markers of slave status. Once again, if the esne and þeow were distinct, the lack of the latter in this code would be surprising, given the prominent evidence for slaves elsewhere. If, however, the esne is a slave, then this term is used here to denote the same person who is elsewhere described as a þeow. Taken together with the evidence from the other early Kentish law codes, this indicates that, far from being the universally dominant term in early Old English, þeow gradually displaced other terms with which it competed, especially in non- West Saxon texts.