Explaining away Difference

Detailed academic discussion of heriots in England is relatively sparse.Footnote ¹⁰ Given that heriots have been taken as indicative of the hierarchy of early medieval England, there are many references to them in an extensive body of literature. The tendency to treat the regulations of II Cnut as indicative of everyday practice is a wide-ranging problem that seeps into many otherwise excellent studies of the period. For example, Ann Williams’s superb study of the nobility of tenth- and eleventh-century England takes II Cnut to be broadly accurate and focuses on what heriots can tell us about material culture.Footnote ¹¹ Where heriots have been given substantial treatment in the works of Nicholas Brooks, Richard Abels or Ryan Lavelle, such analyses have predominantly centred upon what heriots can tell us about military matters.Footnote ¹² Most recently, the author of this article has examined elsewhere the social factors that prompted the adoption of the heriot among ealdormen and bishops in the 940s, though examination of the role of the heriot among a wider social spectrum was beyond the remit of the paper in question.Footnote ¹³ Overall, the issues surrounding the heriots listed in II Cnut have not received sustained scrutiny.

The leading proponent of the straightforward utility of the values listed in II Cnut is the historian Nicholas Brooks. Brooks argues that Cnut’s codification of the heriot followed a long series of successive increases that began in King Edmund’s reign (r. 939–946) and ranged across the tenth century. He proposes three distinct phases: i) King Edmund, ii) Kings Eadred (r. 946–955), Eadwig (r. 955–959) and Edgar (r. 959–975), and iii) King Æthelred (r. 978–1013 & 1014–1016) onwards. This is based upon the heriots of ealdormen across these phases, which saw an increase from four horses to six and, finally, to eight, respectively. Escalations in the quantity of war-gear extracted were, he argues, exacerbated by the increasing military threat posed by the Scandinavian kingdoms during the reign of King Ӕthelred.Footnote ¹⁴ Thus, Brooks identifies the year 1008 as a pivotal moment of transformation, after which – he theorises – the precise nature of the war-gear requested via the heriot changed.Footnote ¹⁵ This would, according to Brooks’s line of argumentation, partly explain the disparity between some heriots and the stipulations of Cnut. According to Brooks, some of those that do not align with II Cnut simply lay earlier in the chronology of the incremental increases. While Brooks’s argument has merit, and it may be that there was a degree of inflation in the size of the heriot levied across the tenth century, the data is by no means as consistent as portrayed. The heriot of Ælfgar – whose will is one of the three comprising the small group which survive from phase ii – only provides half of what the other two testators in the phase rendered to their lord.Footnote ¹⁶ Given that the other two wills were issued by an ealdorman and member of the royal family, Brooks concludes that this represents the value of war-gear provided by someone at the level of a king’s thegn. However, Ælfgar was almost certainly ealdorman of Essex by the time the will was issued, something that Brooks himself notes.Footnote ¹⁷ His reasoning for thinking that Ælfgar’s will represents the value of a king’s thegn stems solely from backdating the practices of II Cnut: ‘In Cnut’s reign the heriot for the king’s thegn was approximately half that of the earl, so it would seem that Ælfgar’s heriot should be considered that of a king’s thegn.’Footnote ¹⁸ The pattern of increases identified by Brooks lies on uneasy foundations, and, importantly, throughout the tenth century and beyond, not everyone of the same rank paid the same heriot. Brooks’s approach, therefore, does not provide a convincing explanation for the differences between recorded heriots and the values in II Cnut.

Another approach to explaining the discrepancies between the values recorded in wills is to assert that they do more or less tally. Accordingly, Brooks depicts heriots which loosely align as fitting the specifications of II Cnut – the additional money and items were merely there either to supplement the shortfalls or augment the heriot for an undisclosed reason.Footnote ¹⁹ However, no such distinction is made between the heriot and the supplementary or augmenting gifts in the wills. Richard Abels remarks that the ‘growth of royal power in the tenth century helped regularise the payment of heriots, though regional differences persisted.’Footnote ²⁰ ‘Regularise’ is a strong word to describe a corpus in which the overwhelming majority of heriots simply do not match those stipulated in II Cnut, even when regional differences are taken into account, which I discuss further below. At best, the surviving heriots very loosely fit the categories of II Cnut, though this generous reading relies on presupposing that the ranks of the testators – which remain undocumented – corresponded in some way to those specified in II Cnut.

Ryan Lavelle follows this latter path in his treatment of the heriot. In assessing the social standing of testators, Lavelle assigns the individuals a value ‘from 1 (minor thegn) through to 5 (archbishop or ætheling), with ealdorman ranked in the middle’.Footnote ²¹ These values were derived both from the contents of their heriot and ‘by connections to royal figures and significant religious houses as well as land in more than one shire’.Footnote ²² Lavelle prudently acknowledges that ‘there is room for debate in addressing the social standing of such figures’, and the ‘landed wealth measurements [measured here in terms of the number of estates bequeathed]’ used alongside these rankings are ‘somewhat less arbitrary’.Footnote ²³ After comparing the land holdings of each testator with the heriots that were paid, Lavelle concludes that there is ‘no direct correlation’ and, therefore, the ‘link between heriot and status was evidently not a matter of wealth but of rank’.Footnote ²⁴ However, there can be no clarity about the rank of the majority of testators, for most do not declare their titles. The data presented by Lavelle shows neither a strong correlation between the size of the heriots and landed assets nor between heriots and the rank assigned to them in the study.Footnote ²⁵ Accordingly, the heriots which survive cannot be easily categorised by either rank or wealth. Heriots which survive are, I suggest, the product of changing pressures upon the relationship between lord and retainer and the will-making process more generally.

As will be shown below, very few surviving heriots fit the gradations of II Cnut. Further confusing the picture, numerous wills make no mention of the heriot, and rarely can we be sure of testators’ ranks. The discrepancies cannot be laid solely at the foot of a) inflation, b) regional discrepancies, or c) supplementary or augmenting gifts. Writing the nuances of how the heriot was levied back into the history of the period is, I argue, necessary and need not be a frustrating enterprise. Certainly, it disrupts the neat social demarcations that scholars (and medieval ideologues) tend to favour, but a social landscape dominated by a spectrum of heriot payments better reflects the growing complexity of society in tenth- and eleventh-century England. Moreover, the attempt to regulate social boundaries in II Cnut fits well within the broader political ambitions of the drafter of the law code: Archbishop Wulfstan II of York.

The Hand of Wulfstan

Before exploring the corpus in further detail and drawing out the pressures which affected the gifting and levying of heriots, we must confront the role of Wulfstan in the composition of II Cnut. Though his involvement was disputed for some time, the general consensus currently remains that Wulfstan was intimately involved in the crafting of I–II Cnut and, therefore, in the regulation of heriots.Footnote ²⁶

I–II Cnut drew heavily upon Cnut’s 1018 code, issued somewhat hastily in Oxford. As A. G. Kennedy has shown, the 1018 code combines elements from the laws of King Æthelred – the composition of which saw Wulfstan’s involvement – with many of the ideas explored in Wulfstan’s homilies and political tracts (such as On Justice, Virtue and the Law and The Institutes of Polity), all the while seeking to stress a return to the supposed stability and just rule of King Edgar.Footnote ²⁷ Some two thirds of the 1018 code made its way into I Cnut, though it was reworked to give it a strong homiletic flavour.Footnote ²⁸ The only sources to have made their way into I Cnut which were not heavily processed by Wulfstan are ‘four quotations/references from II Edgar and one from Alfred’s code’.Footnote ²⁹ In short, I Cnut can comfortably be understood as the distillation of the political thought and ecclesiastical pronouncements espoused throughout Wulfstan’s career.Footnote ³⁰

While still undoubtedly shaped by Wulfstan, II Cnut is less easy to categorise. Both Patrick Wormald and Pauline Stafford treat I–II Cnut as a single composition and stress that both display the same guiding principles.Footnote ³¹ Mary Richards, in contrast, argues that II Cnut is characterised by its ‘piecemeal organization’ and ‘abrupt transitions between certain sections’, suggesting that it was ‘a work in progress rather than a finished compendium’.Footnote ³² Richards’s position is well summarised in her observation that in II Cnut, Wulfstan ‘struggles to control a mass of material, a third of which is not his own’.Footnote ³³ Whatever the case may be for the law code as a whole, the section focusing upon heriots is easier to approach.

M. K. Lawson suggests that the clauses which concern the heriot ‘can be regarded as [the] codification’ of earlier practices.Footnote ³⁴ In particular, he notes that the heriots listed are ‘not from any known legislation, but possibly operative in Æthelred’s time’.Footnote ³⁵ Here Lawson draws on the work of Brooks, which, as we have seen, is not reliable on this matter. Nonetheless, the section (II Cnut 69–82) in which the regulation of heriots is found (II Cnut 70–71.5 & 73.4) – with its focus on the direction of agents of the crown and payments/fines – cannot be linked with Wulfstan’s other writings. Richards points out that this group of clauses actually contains ‘a law from Cnut’s 1018 code (16.1) requiring widows to wait one year before making a decision to remarry, a position that Wulfstan himself had not taken’.Footnote ³⁶ Though Richards is quite correct – Wulfstan forcefully argued that widows should not remarry in his Institutes of Polity – it would be erroneous to infer that Wulfstan was not integral to the shaping of these laws. Stephanie Hollis notes that while ‘II Cnut’s legislation on widows incorporates modifications imposed on Wulfstan’s pursuit of moral imperatives by Cnut’s other advisors, particularly by his secular advisors, but possibly also by some of his ecclesiastical advisors […] Wulfstan’s success in enshrining his own particular preoccupations in the legislation he drafted for Cnut is unquestionable’.Footnote ³⁷ This aligns well with Wormald’s observation:

All in all, the origin for these laws may lie in committee meetings, and, in a sense, Wulfstan was not the author per se, but he was the drafter of the law code. Thus, this ecclesiast bearing a ‘dominant personality with an overriding vision’ was able to pull elements of II Cnut in a direction he favoured.Footnote ³⁹

A significant body of literature now addresses the fiery ecclesiast’s strong vision of how to remake early medieval England into a ‘holy society’.Footnote ⁴⁰ Legislative practices which combined ecclesiastical and secular elements were seen by Wulfstan as ‘integral to the realization of his holy society’.Footnote ⁴¹ Under his oversight, laws ‘designed to repress sin and crime became increasingly fused with a pastoral tradition striving for moral and spiritual rearmament.’Footnote ⁴² One important aspect for the realisation of this vision was that each discrete rank abided by the obligations laid upon them, that individuals sought to move through society in prescribed ways and that lords treated their subordinates fairly.Footnote ⁴³ Through the medium of the royal proclamation, Wulfstan exhorted sheriffs and reeves not to collect money via unjust taxes.Footnote ⁴⁴ It is well documented that Wulfstan sought to reset society according to a more just and ordered imagined past and was not afraid to alter various facts as needed.Footnote ⁴⁵ The heriot boundaries of II Cnut align well with such desires.

The heriot was a ceremonial obligation which reinforced vertical bonds of lordship and might be turned to the purpose of demarcating social boundaries. Furthermore, it was an ideal tool for regularising a complex society that had been highly destabilised during Æthelred’s reign.Footnote ⁴⁶ As Lawson notes, II Cnut likely saw the codification of previous social practices, but the degree to which Wulfstan reshaped this transaction between superordinate and subordinate in the drafting process should not be minimised.Footnote ⁴⁷ Indeed, the use of riht in specific clauses of the heriot regulations chimes well with what Hollis describes as the ‘relentless binary oppositions’ of ‘riht versus unriht’, which are found throughout Wulfstan’s work.Footnote ⁴⁸ This, too, is compelling evidence of his hand in shaping the heriot regulations.

That the levying of the heriot was codified under Cnut and not before is therefore entirely fitting with the political atmosphere of the early eleventh century. II Cnut and the heriot regulations sit at the nexus of a series of social and political pressures. This does not, of course, mean that Wulfstan invented figures with no relationship whatsoever to social practice. However, the effort to tie certain values to corresponding ranks and to regularise social relations fits well with Wulfstan’s other efforts to regulate the social hierarchy and ensure proper relations between lord and subject. The laws of II Cnut must be approached bearing all of this in mind, and it would be highly incautious to assume that the heriots in the law code are representative of everyday practice.

Corpus

Eighty-two early English wills survive in dispositive documents, namely charters in which the belongings of an individual and to whom they are to be bestowed are discretely laid out.Footnote ⁴⁹ Two survive from the eighth century, twelve from the ninth, twenty-five from the tenth, and forty-three from the eleventh. Of these, twenty-five charters dating from the 940s to the 1060s can be confidently identified as recording a heriot in some form or another. In addition to the eighty-two wills surviving in charter form, ninety-two survive only in narrative form in the Liber Eliensis and the Chronicon Abbatiæ Rameseiensis, both composed in the twelfth century though likely drawing upon earlier material.Footnote ⁵⁰ Of the ninety-two wills reported in narrative accounts, only two mention a heriot. Wills surviving in both charter and narrative forms contribute to this analysis. Numbered among the testators of early English wills were athelings, ealdormen and bishops. Testatrixes were present in twenty-four wills: nine alongside their husbands and fifteen in their own right. Only in the wills surviving in charter form is it possible to find a full description of the contents of these heriot payments.

A good example of the form these heriots take can be found in the will of Thurstan, son of Wine (composed 1043 × 1045):

Helpfully, this charter makes evident that these items are intended to fulfil the obligation of the heriot. Both money and war-gear are bequeathed to his royal lord, with additional landed assets being liquidated to boost the overall value. A will produced by a certain Eadwine of Caddington around 1050 also made explicit the purpose of a gift to his lord: ‘7 seððan his hlaforde him to heregeaton .iiii. hors, .ii. gesadelode 7 .ii. <u>ngesadelode, et .ii. sweord’.Footnote ⁵² Other examples include the wills of Bishop Theodred of London (942 × 951), Ealdorman Æthelmær (971 × 982), Æthelwold (post-987), Archbishop Ælfric (1002 × 1005), and Ketel (1052 × 1066).Footnote ⁵³ However, this declaration that the purpose of these grants was to render a heriot to the testator’s lord is not ubiquitous in the sources which survive. The majority simply include a clause which lists items – often war-related paraphernalia – that are bequeathed to a lord. Thus, there is a bit of room for interpretation. For example, Ælfheah, Ealdorman of Wessex, granted to his royal lord

One could argue that only the war gear – ‘7 seax swurð and seax hors. mid geredan. and swa fæla spæra and scylda’ – destined for the king should be counted as Ælfheah’s heriot. However, the land, money and other expensive items seem to form part of the same body of material. If one were to be even more cautious, it is not unreasonable to query if the gifts to the queen and their sons should also be considered as part of the heriot.

Some of these heriots – such as those of Ӕlfhelm (‘Polga’ or ‘of Wratting’) and Ealdorman Ӕthelmær – are relatively close to the stipulations of II Cnut, though only one – that of Ketel – matches the stipulations exactly.Footnote ⁵⁵ In the former, Ælfhelm gave to ‘his hlaforde. an hund mancosa goldes. 7 twa swurd. 7 feorwer scyldas. 7 feower speru. 7 feower hors. twa gerædode. twa ungerædode.’Footnote ⁵⁶ Given that the will in which this heriot is found has been dated to between 975 and 1016, it seems reasonable to draw a comparison with these items and those listed in II Cnut. This heriot appears to lie somewhere between the king’s thegn’s – Ælfhelm’s heriot omits a helmet and a coat of mail but includes 50 extra mancuses of gold – and the individual who has a ‘more intimate’ relationship with the king (exceeding this category by fifty mancuses of gold, two horses, one sword, two spears and two shields). Æthelmær bequeathed ‘IIII beagus on ðrym hund mancesum goldes and IIII sweord and VIII hors feower gerædode and IIII ungerædode and IIII helmas and IIII byrnan and VIII speru and VIII scyldas’.Footnote ⁵⁷ Dated to the beginning of the third quarter of the tenth century, this heriot is roughly contemporary to that of Ælfhelm. Possessing the stature of ealdorman, Æthelmær has a heriot similar to that prescribed for an earl in II Cnut, falling short of what was expected only by one hundred mancuses. Just before the Norman Conquest, Ketel bequeathed a ‘helm and a brenie . and hors . and gereade . and sverd and spere’.Footnote ⁵⁸ Out of all the surviving heriots, this seems to align the most with royal regulations, plausibly fulfilling the requirements of a medemra þegn (ordinary thegn). Given these three examples, it is fair to say that there is some correlation between the laws of Cnut and the practice of the heriot. II Cnut was not some flight of fantasy by Wulfstan or the witan. However, these examples provide the high-water mark of this correlative pattern. Further comparison between recorded heriots and the stipulations of II Cnut reveals a much weaker relationship than one might be led to believe based upon these examples.

There are numerous examples of heriots which do not bear a strong relationship with the laws of Cnut. Around the year 1000, a certain Wulfgeat – who claimed land from Herefordshire to Staffordshire – declared a heriot of ‘II hors 7 II sweord 7 III scyldas 7 IIII spera 7 x mæran mid x coltan’.Footnote ⁵⁹ He supplied the weapons of a king’s thegn, but instead of providing four horses, he gave only two and supplied ten mares and ten colts. This heriot does not align with any of the ranks specified in II Cnut unless we assume that the twenty mares and colts equalled the value of two (presumably adult, male) horses. In the second quarter of the eleventh century – well after II Cnut was issued at Winchester – the will of Wulfsige indicates that he rendered ‘II hors and Helm and brinie . 7 an Swerd and a goldwreken spere’.Footnote ⁶⁰ This exceeds what was expected of a thegn by quite some way, yet it also falls short of the goods required of a king’s thegn. If we look to Norfolk around the year 1040, it is recorded that Ӕlfric Modercope paid a heriot of only one mark. He paid the equivalent of just under half a pound, which was less than half of what II Cnut stipulated he was due to pay as a median thegn.Footnote ⁶¹ In contrast to the examples provided above, these cases indicate that the relationship between the laws of II Cnut and the values which survive in heriots is far from linear. These are not the only cases of such discrepancy, for – as noted above – arguably only one recorded heriot aligns exactly with II Cnut. Even a more generous approach, which allows for the kinds of small differences discussed above, still finds that four fifths of the corpus of heriots simply do not align with the stipulations of II Cnut.

Brooks seeks to explain away such discrepancies through reference to incremental inflation or a testator’s location within or affiliation with the Danelaw. Both were, in his estimation, to blame for the existence of non-standardised heriots. This line of reasoning is, however, simply not sustainable across the entire corpus. As discussed above, the argument for inflation is underpinned by some faulty assumptions.Footnote ⁶² Similarly, the testator’s locations do not account for the discrepancies identified. Returning to the will of Eadwine of Caddington, it lists estates at Caddington, Streatley, Watford, Sundon, Putnoe, Barley, Weston and Knebworth. Given that these manors lay on the cusp of the border between Mercia and the Danelaw, it is possible that his lord – and thus the determination of his due heriot – resided in either region. Yet, it hardly matters, for Eadwine’s heriot of ‘four horses, two saddled and two unsaddled, and two swords’ does not match any of the heriots specified in II Cnut.Footnote ⁶³ If Eadwine and his lord were subject to the jurisdiction of Mercian law – a likely possibility given that the majority of his estates favoured the Mercian side of the divide – then his heriot lay somewhere between a king’s thegn and a lesser thegn. If he was subject to the practices of the Danelaw – a region stretching from London to the north of England – then his heriot did not conform to that of a king’s thegn, a thegn with an ‘intimate’ relationship with the king, or someone of lesser position. These examples are not exceptions but instead represent the norm. Brooks frames heriots such as these as fitting the conditions of II Cnut, arguing that all further money and items were only included to either make up for the shortfalls or enhance the payment for an unknowable reason.Footnote ⁶⁴ However, as shown above, no such distinction is made between the heriot and the additional gifts in the wills. While other scholars acknowledge the variety, they have also routinely minimised the matter. There is no circumventing that only one recorded heriot definitively matches the exact specifications laid out in II Cnut.

The Role of the Heriot In Lord–Subject Relations

To invert an observation made by Abels (quoted above), the growth of royal power catalysed attempts to regularise the payment of heriots in the tenth century precisely because differences in practice persisted.Footnote ⁶⁵ II Cnut informs us not so much about normative expectations concerning the heriot, but rather the manner by which the legislative body wished to regulate it. This could be seen as the splitting of scholarly hairs, as II Cnut must have had some relationship to normative practice or else it likely would not have been accepted by the wider politically active community. However, the body of recorded heriots is equally, if not more, informative about the actual implementation of the heriot. In short, using II Cnut as the definitive statement as to how heriots worked in the period is to judge this matter a priori and diminishes the value of the actual data which records such transactions.

On balance, it is reasonable to conclude that either II Cnut was largely ignored or, at best, served as a very loose set of guidelines regardless of the ambitions of Wulfstan and the witan. The corpus of extant heriots can, therefore, be productively approached without the presence of II Cnut exerting an overbearing effect upon our interpretations. This line of thought is valuable because it opens other possibilities when examining the social dimensions of the heriot in the tenth and eleventh centuries. There were likely many factors that determined the value of a heriot payment. As centred in scholarly discussion, one of these was probably rank. Another factor that has not been discussed in detail is the role of negotiation. Lavelle notes that ‘the variations in what was provided suggest that these heriots also reflected the give and take of relations between lords and their commended men’.Footnote ⁶⁶ The following will build upon Lavelle’s observation, suggesting a variety of ways this can inform our understanding of the micro-politics between (and beyond) lords and subjects.

Practices comparable to male engagement with the heriot can be found across late-antique and early medieval Europe. Such counterparts can be located from seventh-century Lombardic law, which stated that gasindii – a service aristocracy who acted as bodyguards or retainers attached to a king or duke – were to return any arms they had been gifted back to their donor following their death. Similarly, the twelfth-century practices of the liget and the relevium in Normandy consisted of a payment of military equipment or a payment to a lord in order to inherit land.Footnote ⁶⁷ In each case, military paraphernalia and/or money was rendered to a lord as part of the relationship between superordinate and subordinate. In some cases, it not only affected lord–subject relations, but it served to secure the inheritance of property. Regarding England, Brooks is adamant that it remained a ceremonial act focused on military relations and that ‘there is no hint in pre-Conquest sources that the Anglo-Saxon heriot was ever a payment by an heir to secure a lease of land from a lord.’Footnote ⁶⁸ On this matter, Brooks has slowly become an outlier. Abels notes that ‘by the end of the Anglo-Saxon period heriots had become associated with tenurial succession [… and a] lord’s reception of a heriot payment obliged him, in general, to support the deceased’s testamentary bequests.’Footnote ⁶⁹ Lavelle, while not explicitly addressing this issue of inheritance, echoes this latter sentiment, remarking that ‘if a man wished to ensure his lord’s favour in making a will, it was better to err on the side of post-mortem generosity’.Footnote ⁷⁰ More recently, I have examined this phenomenon of quid pro quo in relation to the adoption of heriots among the upper echelons of society (i.e., ealdormen and bishops), noting that ‘in the tenth and eleventh centuries, the heriot – made under compulsion or not – served to fortify such vertical relations’ and that ‘the need to seek and secure permission to make a will through the use of military paraphernalia appears to have trickled down into the thegnhood’.Footnote ⁷¹ As scholars have moved away from Brooks’s earlier views, there is increasingly visible empirical evidence that land was withheld from those who would inherit an estate until the heriot was rendered in full.

In II Cnut 73.4, it is stated that ‘every widow shall pay the heriots within twelve months without incurring a fine, if it has not been convenient for her to pay earlier’.Footnote ⁷² After this period of grace had expired and a widow had still yet to pay her husband’s heriot, we may presume a fine was to be paid. Likewise, we may also deduce that it was standard practice to take castigatory measures until a testator’s heriot was paid by his kin. Thanks to the survival of a detailed series of charters, it is possible to see this process play out, and the punitive measure could involve withholding land from an inheritor. Towards the close of the tenth century, Æthelric of Bocking declared the following:

It is worth noting the unusual inclusion of the adverb sona (italicised above), which emphasises that this heriot should be paid as soon as possible. The reason for Æthelric’s anxiety is made clear in a charter which followed his death:

The delivery of Æthelric’s heriot did not wholly settle the dispute, for Æthelred raised the matter of treachery before the witan, seeking to seize the entire contents of the will, and it was only with the help of several advocates that Ӕthelric’s widow was able to set things right and the land was disbursed to the beneficiaries. Still, the payment of the heriot was envisaged by Æthelric and his wife as a way to make amends and, perhaps, to remind Æthelred of his lordly obligations to honour the testament of the deceased.

Though the above is, arguably, a rather extreme example involving possible treason, more mundane examples are found elsewhere. The will of Leofgifu, issued in the second quarter of the eleventh century, granted to the king ‘to marc goldes for min eruenmen to 7 gealeaste þat gold’.Footnote ⁷⁵ While the will does not expressly say that the payment is a heriot, it fits the broader pattern, as the two marks of gold are to be paid to her royal lord so that her heirs could inherit what was bequeathed.

In the Liber Eliensis, we find two examples of testators who failed to leave adequate arrangements to pay their heriots. Eadric Longus (probably meaning ‘the Tall’), apparently wishing to alienate his estates at Hauxton and Newton from his kin, bequeathed them to King Edgar. Eadric confirmed this by sending a chirograph of his will to the king. These estates were then purchased from the king for two hundred mancuses by Bishop Ӕthelwold. However, the bishop failed to secure the charters and pay the ‘relevationes […] de illis terris’ before King Edgar died, providing an opportunity for Eadric’s dispossessed family to undo the testament.Footnote ⁷⁶ They seized the charters and all three hides at Newton. With the charters for both properties in the hands of Eadric’s kinsmen, the bishop appears to have been quite apprehensive, fearing that his purchase would face further contestation. Finally, Ealdorman Byrhtnoth – the second ealdorman to become involved in the case – settled the affair by mediating a compromise in which the charters were restored to the bishop.Footnote ⁷⁷ The importance of written documentation is made stark, as is the role of the heriot.Footnote ⁷⁸ Heriots were, therefore, inheritable by whoever took hold of the land after an individual’s death if the original testator failed to make arrangements on their own behalf. In the case above, King Edgar appears to have withheld the charters until Ӕthelwold had accounted for the missing heriot. If he had been able to arrange for the payment sooner, he might have avoided the entire fiasco.

The second account is that of Leofsige, from whom Bishop Ӕthelwold bought two hides at Kensworth for £4. Ӕthelwold paid Leofsige – one of his leading men – the first instalment of sixty shillings in the witness of Ӕlfweard of Stodham. However, before the second payment of twenty shillings could be paid, Leofsige died. As his lord, Ӕthelwold never made the second payment and inherited the rest of the land in lieu of Leofsige’s failure to supply his heriot.Footnote ⁷⁹ In the volatile and competitive landscape of early English local politics, even a bishop could fall foul of the predations of others, and Ӕthelwold eventually lost the land through the pillage and violence of others. The fact remains that lords were enthusiastic to lay claim to what they were owed or, at least, what they felt they were owed, even if a testator was hard pressed to honour such demands.

The seriousness of failing to deliver one’s heriot prompted will-makers to adopt suitable precautions in the eleventh century. Ӕlfric Modercope bequeathed one mark of gold for his heriot and stipulated ‘þat schal Godric mine brother lesten’.Footnote ⁸⁰ Ælfric’s cautiousness concerning this matter may simply be down to the fact that he was planning to go abroad and wished to be certain his heriot would be paid if he did not return. In the bequest of a certain Godric (unrelated to Ӕlfric), the estate of Thorington was given to his brother Eadnoth, the Abbot of Ramsey. He asked that his brother ‘adquietet eam de seruitio quod heregeat Anglice Latine releuatio haereditatis, dicitur, quae ab haeredibus liberis post mortem patrum dominis solet impendi’.Footnote ⁸¹ The association between the Anglo-Norman relief and the heriot is not important here; that explanation was likely added when it was copied into its fourteenth-century form. The underlying purpose – to transfer both the estate and its heriot to Godric’s brother – is presumed original to the early eleventh-century document from which it is taken. As we have seen before, this passage suggests that an outstanding heriot was transferable along with a testator’s estates. Around the year 1000, Ӕlfhelm Polga granted the manor of Stockton to his agnate Leofsige with the following proviso: ‘ic gean him 7 his wiue þæs lands æt Stoctune . wið an hund mancosa goldes . 7 ic wylle þ[æt] man selle minum hlaforde þ[æt] gold . to minum heregeatum’.Footnote ⁸² Confusingly, Ӕlfhelm had already specified in his will that ‘a hundred mancuses of gold and two swords and four shields and four spear and four horses, two of them saddled and two unsaddled’ would be given to his lord to settle his heriot.Footnote ⁸³ It could be that, in giving Leofsige the land, responsibility for part of the heriot was transferred to him. Hence, the hundred mancuses were to be paid straight to the lord rather than to Ælfhelm’s wife. Alternatively, Ælfhelm may have sold the land to Leofsige to generate the funds to pay for his agreed heriot. This latter need to liquidate assets in order to pay a heriot was definitely the case in Thurstan’s decision in the 1040s to sell an estate post-obitum, with two marks of gold being taken to pay his heriot to the king.Footnote ⁸⁴ We might even speculate that Wulfsige’s early- to mid-eleventh-century gift of land, two horses, one coat of mail and one cloak to his nephews was an attempt to prepare them against such future demands.Footnote ⁸⁵ In short, the heriot was not a duty one lightly shirked, even if it was particularly onerous, and a sensible testator made allowances for its extraction in their wills.

Given that the majority of extant wills render a heriot to the king rather than a lord of a lower stature, concerns regarding this obligation extended beyond one’s duty to intermediary lords all the way to one’s duty to the king.Footnote ⁸⁶ Some of the king’s direct subordinates struggled to pay the heriot, selling land to generate enough income to pay what was expected and falling short of the ‘normative’ values espoused in II Cnut – a stark contrast to those who carefully paid in excess. This significant degree of variability in the amounts of war-gear transferred suggests that heriots were not paid at said ‘normative’ values even between king and subject. We could, perhaps, conceptualise some of the recorded heriots found in wills as instances of overpayment and, importantly, some as underpayments. It is certainly not controversial to suggest that some testators unilaterally increased their heriot, seeking to either ensure beyond doubt that their will was supported or to gain additional influence for themselves or their family. After all, it is worth remembering most wills were declared in public well in advance of a testator’s death. If these were, in some sense, overpayments or underpayments in relation to II Cnut, the law code was perhaps something closer to an initial reference point by which testators could orient their gift-giving practices, seemingly serving only as the very beginning of a longer process of negotiation.Footnote ⁸⁷ After all, even the king himself does not appear to have ensured conformity of practice with his own law code, and took as much or as little as was dictated by the circumstances. If one is minded to understand that II Cnut potentially operated as an initial starting point for guiding the size of heriots bequeathed, it cannot be overlooked that the overwhelming majority of the final payments do not align with its guidance, presumably having moved in relation to the power balance between the parties, and other contextual factors. Thus it remains impractical to directly link heriots in extant wills to the ranks stipulated in II Cnut. The heriots which survive were a product of a whole array of social and economic influences.

Bearing all of this in mind, we can go beyond Lavelle’s statement that some wished to ‘err on the side of post-mortem generosity’ and theorise that some heriots were extracted from unwilling testators and potentially at higher rates than they would have liked.Footnote ⁸⁸ Moreover, some testators may have sought to withhold their heriot. The mention of a fine in II Cnut strongly suggests that the failure, avoidance or outright refusal to pay the heriot was common enough to warrant the implementation of regulation. Unless we imagine that the king and his agents were chasing and punishing every person who paid anything less than the values of II Cnut, it seems likely that even kings were willing to indulge in a little give-and-take in the settlement of heriots.Footnote ⁸⁹ Receiving any heriot was probably better than receiving nothing at all.

There was, of course, a limit to how much a lord of any standing could seek to withdraw from their subordinates without risking destabilising the entire system. Still, clause 70 of II Cnut notes that ‘if one depart from this life without a will […] then the lord shall take no more from his property that his lawful heriot’.Footnote ⁹⁰ So, while only one testament survives that definitively concerned the payment of a heriot to a lord other than a king – in that case an archbishop – this legislation indicates that some lords sought to claim as much as they could.Footnote ⁹¹ Though a highly speculative example, the will of the wealthy and influential Wulfric Spott records his decision to bequeath heregeatland to Burton Abbey, which may point to the lordly exaction of the heriot. This heriot-land was not part of Wulfric’s own heriot, which was recorded much earlier in the document, but might instead refer to land that he had acquired via a subordinate’s attempt to pay the heriot due to him or even the subordinate’s forfeiture of this parcel of land to cover what they owed to Wulfric.Footnote ⁹²

Such concerns about lordly exactions may even have related to the king and, specifically, Cnut’s predecessor Æthelred. The case of Æthelric of Bocking may indicate an overzealous and punitive king – something which aligns with the youthful indiscretions and land grabs of Æthelred’s early reign.Footnote ⁹³ Bearing this and the prophylactic nature of wills in mind, it is worth entertaining the possibility that heriots specified in wills sought to prove either a) that the subordinate had paid in excess of the ‘lawful heriot’ as determined in the laws or b) that the subordinate had reached an agreement with their lord to pay less and wanted to ensure that, upon the testator’s death, the superordinate did not renege on the deal.Footnote ⁹⁴ Thus, the two eleventh-century wills which concisely declare that they would supply to their lord their rihte heregete/riyte heriet – or ‘due heriot’ – might either serve as statements that they were not concerned about a greedy lord and expected them to follow due process or the exact opposite, with the phrase acting as an exhortation to take only what was due.Footnote ⁹⁵ In this way, these wills may have deliberately echoed the rhetoric, if not the amounts, of II Cnut 70, and implored their lords to behave appropriately, hoping that the wider community and local custom would form a check on extortive actions. The problem of corrupt agents of the Crown taking too much money still plagued the kingdom more than five years after II Cnut, for Cnut’s Proclamation of 1027 notes that sheriffs and reeves should not collect money via ‘iniqua exactione’.Footnote ⁹⁶ Despite such apparent concern for his subjects, Cnut proclaims in the same document that if various dues were not paid, then they were to be exacted ‘secundum leges, in quem culpa cadit, districte absque uenia comparabit’.Footnote ⁹⁷ Those who followed the rules had nothing to fear, as long as they could afford it.

The potential for the heriot to be demanded in an extortive manner increased in the eleventh century, especially as the number of minor thegns proliferated.Footnote ⁹⁸ Heriots began – at least as far as can be discerned from the written record – among the highest of elites, ealdormen and bishops at the beginning of the tenth century.Footnote ⁹⁹ Slowly but surely this practice was adopted among the thegnhood more widely some fifty or so years later. Will makers knew that their testaments were not binding, and the heriot was one way that less powerful individuals could ensure that an influential advocate might enforce the documents they left behind. In this way, the creation of a will concerned the reinforcing of inter vivos relationships just as much as the disposition of post obitum gifts. The declaration of a heriot in front of a crowd acted as a nexus of explicit social stratification and revealed both one’s social and fiscal aspirations and capabilities to the local community. As a statement of status, a large list of bequests of – at times undefined – estates would be less compelling than a singular payment of war-gear to a lord. If someone had to default on their proclaimed heriot due to unforeseen circumstances, an amended heriot could act as an open admission of failure. Not only did it indicate that they could not manage their interests successfully but also that they could not be trusted reliably to honour their promises. In the competitive world of thegns – as depicted in the studies of Robin Fleming and Christine Senecal – conspicuous consumption amongst the lower thegnly ranks increased dramatically in the late tenth and early eleventh century.Footnote ¹⁰⁰ A broad swathe of similarly influential thegns sought desperately to signal their status to their peers. We may presume, in such a setting, that the public airing of the failure or unwillingness to yield a heriot could initiate a form of ‘social death’ and loss of a lord’s largesse. While heriots might offer a potential opportunity to curry favour with a lord and to demonstrate one’s growing power, they could equally create a moment of vulnerability. (Though, as discussed above, some testators seem to have taken the risk of withholding a heriot). Legal expectations, combined with the powerful negotiating position held by those who could advocate on behalf of the less powerful, created the potential for heriots to develop as a tool of extraction.

In the context of this social change, the heriot began to be increasingly commuted into money payments. Domesday Book furnishes us with numerous examples of the commutation of the heriot.Footnote ¹⁰¹ Abels maintains that ‘the nobility often continued to pay this impost in kind’ demonstrating the ‘resistance of the heriot to commutation’ and ‘the persistence of the military ethos among the Anglo-Saxon aristocracy’.Footnote ¹⁰² If, as Abels argues, the military ethos persisted among the nobility, then it must also have been present among elite ceorls too, for – after 1066 – burgesses in Herefordshire, Norfolk and Lincolnshire were participating in the heriot system. Depending on their circumstances, some paid in arms and some in cash.Footnote ¹⁰³ This may, of course, only evidence a sudden and dramatic change in the way the heriot was levied at the end of this period. However, the data from the Domesday survey reveals that wealthy thegns and earls routinely enjoyed leasing their urban properties to burgesses in the time of King Edward the Confessor.Footnote ¹⁰⁴ So too had lords paid increasing attention to towns and the inhabitants therein, as urban environments became increasingly influential across the course of the eleventh century.Footnote ¹⁰⁵ As burgesses began to hoard wealth and accrue the trappings of status,Footnote ¹⁰⁶ it makes sense that lords extended the heriot to these emerging groups even if they did not fit the traditional profile of heriot-paying nobility – especially as ‘thegn-burgesses’ grew as a social group who blurred such boundaries even more.Footnote ¹⁰⁷ Given the examples discussed above, which show both legislative and practical concerns about lordly predation and/or the need to protect one’s testament from interference, it is entirely possible that lower ranking individuals – such as lordly ceorls and wealthy merchants – had been paying the heriot for quite some time before the Norman Conquest. After all, II Cnut 70 suggests that people with any degree of significant wealth made a bequest of sorts, and lords felt entitled to a payment for upholding such testaments.Footnote ¹⁰⁸ Thus, the attempts of II Cnut to regulate heriot-making and heriot-taking spoke to a great deal of intersecting social pressures, and its neat demarcations belie a complicated and unclear social landscape. For Wulfstan, whose hand shaped this law code, such a disordered hierarchy – riddled with unjust mechanisms of lordship and reluctant subordinates – went against his vision for an ordered, holy society. The heriot served as one of the many tools of the legislative body to whip an undisciplined realm into shape after the failures of the preceding regime.