Anglo-Saxon law

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Anglo-Saxon law (Old English ǣ, later lagu "law"; dōm "decree, judgment") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Medieval Scandinavian law and Germanic law, descended from a family of ancient Germanic custom and legal thought. However, Anglo-Saxon law codes are distinct from other early Germanic legal statements—known as the leges barbarorum, in part because they were written in Old English instead of in Latin. The laws of the Anglo-Saxons were the second in medieval Western Europe after those of the Irish to be expressed in a language other than Latin.

History

The native inhabitants of England were Celtic Britons. The unwritten Celtic law was learned and preserved by the Druids, who in addition to their religious role also acted as judges. After the Roman conquest of Britain in the first century, Roman law was operative at least concerning Roman citizens. But the Roman legal system disappeared after the Romans left the island in the 5th century.^[1]

In the 5th and 6th century, the Anglo-Saxons migrated from Germany and established several Anglo-Saxon kingdoms. These had their own legal traditions based in Germanic law that "owed little if anything" to Celtic or Roman influences. Following the Christianisation of the Anglo-Saxons, written law codes or "dooms" were produced.^[2] The Christian clergy brought with them the art of letters, writing, and literacy.^[3]

The first written Anglo-Saxon laws were issued around 600 by Æthelberht of Kent. Writing in the eighth century, the Venerable Bede comments that Æthelberht created his law code "after the examples of the Romans" (Latin: iuxta exempla Romanorum).^[4] This likely refers to Romanised peoples such as the Franks, whose Salic law was codified under Clovis I. As a newly Christian king, Æthelberht's creation of his own law code symbolised his belonging to the Roman and Christian traditions. The actual legislation, however, was not influenced by Roman law. Rather, it converted older customs into written legislation, and, reflecting the role of the bishops in drafting it, protected the church. The first seven clauses deal solely with compensation for the church.^[5]

In the 9th century, the Danelaw was conquered by Danes and governed under Scandinavian law. The word law itself derives from the Old Norse word laga. Starting with Alfred the Great (r. 871–899), the kings of Wessex united the other Anglo-Saxon peoples against their common Danish enemy. In the process, they created a single Kingdom of England. This unification process was completed under Æthelstan (r. 924–939).^[6] The Norman Conquest of 1066 ended the Anglo-Saxon monarchy. But Anglo-Saxon law and institutions survived and formed the foundation for the common law.^[2]

Sources

There were two main sources of Anglo-Saxon law: folk-right (customary law) and royal legislation.^[7]

Folk-right

Most laws in Anglo-Saxon England derived from folk-right (Old English: folcright) or unwritten custom. The chief centres for the formulation and application of folk-right were the shire court and hundred courts. As there were no judges in this period, folk-right was administered by the suitors of the court (those required to attend). The reeves employed by the king were responsible for ensuring that folk-right was followed.^[8]

The older law of real property, of succession, of contracts, the customary tariffs of fines, were mainly regulated by folk-right. Customary law differed between local cultures. There were different folk-rights of West and East Saxons, of East Angles, of Kentish men, Mercians, Northumbrians, Danes, Welshmen, and these main folk-right divisions remained even when tribal kingdoms disappeared and the people were concentrated in one kingdom.^[9]

Folk-right could be broken or modified by special law or special grant, and the fountain of such privileges was the royal power. Alterations and exceptions were, as a matter of fact, suggested by the interested parties themselves, and chiefly by the Church. Thus a privileged land-tenure was created—bookland; the rules as to the succession of kinsmen were set at nought by concession of testamentary power and confirmations of grants and wills; special exemptions from the jurisdiction of the hundreds and special privileges as to levying fines were conferred. In process of time the rights originating in royal grants of privilege overbalanced, as it were, folk-right in many respects, and became themselves the starting-point of a new legal system—the feudal one.^[9]

Royal law codes

In addition to folk-right, kings could decree new law in order to clarify the older laws.^[10] Royal law codes were written to address specific situations and were intended to be read by people who were already familiar with the law.^[3] Anglo-Saxon kings issued regulations about the sale of cattle in the presence of witnesses, enactments about the pursuit of thieves, and the calling in of warrantors to justify sales of chattels. Personal surety groups appear as a complement of and substitute for more collective responsibility. The hlaford and his hiredmen are an institution not only of private patronage, but also of supervision for the sake of laying hands on malefactors and suspected persons.^[9]

The first law code was the Law of Æthelberht (c. 602), which put into writing the unwritten legal customs of Kent. This was followed by two later Kentish law codes, the Law of Hlothhere and Eadric (c. 673 – c. 685) and the Law of Wihtred (695). Outside of Kent, Ine of Wessex issued a law code between 688 and 694. Offa of Mercia (r. 757–796) produced a law code that has not survived. Alfred the Great, king of Wessex, produced a law code c. 890 known as the Doom Book.^[11] The prologue of Alfred's code states that the Bible and penitentials were studied as part of creating his code. In addition, older law codes were studied, including the laws of Æthelberht, Ine, and Offa. This may have been the first attempt to create a limited set of uniform laws across England, and it set a precedent for future English kings.^[6]

The House of Wessex became rulers of all England in the 10th century, and their laws were applied throughout the kingdom. Significant 10th-century law codes were promulgated by Edward the Elder, Æthelstan, Edmund I, Edgar, and Æthelred the Unready.^[12] But regional variations in laws and customs survived as well. The Domesday Book of 1086 noted that distinct laws existed for Wessex, Mercia, and the Danelaw.^[13]

The law codes of Cnut (r. 1016–1035) were the last to be promulgated in the Anglo-Saxon period and are primarily a collection of earlier laws.^[12] They became the main source for old English law after the Norman Conquest. For political reasons, these laws were attributed to Edward the Confessor (r. 1042–1066), and "under the guise of the Leges Edwardi Confessoris they achieved an almost mystical authority which inspired Magna Carta in 1215 and were for centuries embedded in the coronation oath."^[14] The Leges Edwardi Confessoris is the best known of the custumals, compilations of Anglo-Saxon customs written after the Conquest to explain Anglo-Saxon laws to the new Norman rulers.^[12]

Courts

The Anglo-Saxons developed a sophisticated system of assemblies or moots (the Old English words mot and gemot mean "meeting").^[15]

Witan

The witan (or witanagemot) was the king's court. With the advice of his ealdormen, the king gave final judgment in person. He heard cases involving royal property or treason as well as appeals from lower courts.^[16]

Shire and hundred

By the tenth century, England was divided into shires. Twice a year, the shire court met to address important community business. It was overseen by the ealdorman (later earl) and the bishop. The "shire reeve" or sheriff was an office that first appeared in written records during the 11th century, but it probably developed earlier. The royal sheriff was one of the most powerful officeholders in Anglo-Saxon England.^[18]

Each shire was divided into smaller units called hundreds. They had their own courts that met monthly. All free men over the age of twelve were expected to attend. The hundred court's officer was the reeve, a royal official appointed by the king. His job included collecting royal revenue and conducting judicial business. His and the ealdorman's jurisdiction appear to have overlapped.^[19]

Hundreds were further divided into tithings, which were the responsibilities of tithingmen.^[20] Tithings were the basis of a system of self-policing called frankpledge. Every man belonged to a tithing and was sworn to report crimes committed by those in his tithing on pain of amercement.^[21] Most administrative and judicial business was handled by the hundred court.^[22]

Boroughs were separate from the hundreds and had their own assemblies (variously termed burghmoot, portmanmoot, or husting). These met three times a year. London's Court of Husting had the authority of a shire court and that city was subdivided into wards.^[23][22]

Private courts

In the Anglo-Saxon period, the king created private courts in two ways.:

1. The king could grant the church (either the bishop of a diocese or the abbot of a religious house) the right to administer a hundred. The hundred's reeve would then answer to the bishop or abbot. The same cases would be tried as before, but the profits of justice would now go to the church.^[24]
2. The king granted by writ or charter special rights to a landowner termed sake and soke. This was the right to hold a court with jurisdiction over his own lands, including infangthief (the power to punish thieves).^[24]

The king had the power to revoke these special rights if they were abused.^[25]

Trial

There were two methods used to start court proceedings. In one, the alleged victim made an accusation (criminal appeal) that was formally denied by the accused. The second method was the presentment of crimes as part of the system of frankpledge (see above). As there were no juries, cases were judged by the suitors (those required to attend the court): for the hundred that was all free men and for the shire that was the thegns.^[26]

Cases involving land disputes were often decided on the basis of charters and knowledge of local people. For other kinds of cases, evidence and witnesses (where these existed) played less of a role. Communities turned to trial by oath and trial by ordeal to determine guilt. In trial by oath (also known as compurgation or wager of law), the defendant swore on the Bible to his innocence without cross-examination. The defendant was also expected to bring oath-helpers (Latin: juratores), neighbors willing to swear to his good character or "oathworthiness". In the Christian society of Anglo-Saxon England, a false oath was a grave offense against God and could endanger one's immortal soul. If the accused swore his innocence and gathered the required number of oath-helpers (generally 12), then he was acquitted.^[27][28]

When a defendant failed to establish his innocence by oath in criminal cases (such as murder, arson, forgery, theft and witchcraft), he might still redeem himself through trial by ordeal. Trial by ordeal was an appeal to God to reveal perjury, and it's divine nature meant it was regulated by the church. The ordeal had to be overseen by a priest at a place designated by the bishop. The most common forms in England were ordeal by hot iron and ordeal by water.^[29] Before a defendant was put through the ordeal, the plaintiff had to establish a prima facie case under oath. The plaintiff was assisted by his own supporters or "suit", who might act as witnesses for the plaintiff.^[28]

Features

Peace and protection

Every house had a peace (Old English: mund). Intruders and other violators of the peace had to pay a fine called a mundbyrd. A man's status determined the amount of the mundbyrd. The laws of Æthelberht set the mundbyrd for the king at 50 shillings, the eorl (noble) at 12s., and the ceorl (freeman) at 6s. In Alfred the Great's time, the king's mundbyrd was £5.^[30] Individuals received protection through kinship ties or by entering the service of a lord.^[31]

Mund is the origin of the king's peace.^[32] Initially, the king's mund was limited to the royal residence. As royal power and responsibilities grew, the king's peace was applied to other areas: shire courts, hundred courts, highways, rivers, bridges, churches, monasteries, markets, and towns. Theoretically, the king was present at these places. King's imposed fines called wites as punishments for breaches of the king's peace.^[33]

The king could grant individuals a personal peace (or grith). For example, the king's peace protected his counselors when traveling to and from meetings of the witan.^[34] Foreign traders and others not protected by lordship or kinship ties were under the king's protection.^[35]

Compensation and punishment

Early law codes sought to prevent violent blood feuds by mandating criminals make financial compensation (Old English: bote) to victims or the victim's family for injuries or death. In the case of death, the victim's family was owed the wergild ("man price"). Anglo-Saxon society was hierarchical and one's wergild was greater or lesser depending on social status:^[36]

1. King
2. Ætheling (prince)
3. Ealdorman (greater nobleman)
4. Thegn (lesser nobleman)
5. Ceorl (low-ranking freeman)
6. Slave

As royal power increased, the earlier compensation culture was replaced by more severe penalties, including mutilation (blinding or castration) and capital punishment. According to the laws of Æthelstan, thieves over 15 years of age who stole more than 12 pence were to be executed (men by stoning, women by burning, and free women could be pushed off a cliff or drowned). Under Cnut's code, a first offence usually merited compensation to victims and fines paid to the king. Later offenses saw progressively severe forms of bodily mutilation. Cnut also introduced outlawry, a punishment only the king could remove.^[37]

Anglo-Saxon England had no professional police. To apprehend a criminal, the victims or witnesses could raise the hue and cry "obliging every able-bodied man to do all in his power (pro toto posse suo) to chase and catch the suspect."^[38]

Land law

Many parts of England (including Kent, East Anglia, and Dorset) practiced forms of partible inheritance in which land was equally divided among heirs. In Kent, this took the form of gavelkind.^[39]

Slavery

Slavery was widespread in Anglo-Saxon England. A slave (Old English: þēow) or thrall (Old Norse: þræll) could have sold themselves into slavery, incurred slavery as a penalty (such as for theft), or been enslaved due to captivity. While owners had extensive power over their slaves, their power was not absolute.^[40][32]

There is evidence that slavery was in decline by the late Anglo-Saxon period. One reason was the church's disapproval of the practice, and Christians were encouraged to free their slaves before dying. Another reason was that converting slaves into serfs was more practical from an economic standpoint.^[41]

Religion and the church

The creation of written law codes coincided with Christianisation, and the Anglo-Saxon church received special privileges and protections in the earliest codes. The Law of Æthelberht demanded compensation for offenses against church property:^[42]

• 12-fold compensation for church property
• 11-fold for a bishop's property
• 9-fold for a priest's property
• 6-fold for a deacon's property
• 3-fold for a cleric's property

In the late 7th century, the laws of Kent and Wessex supported the church in various ways. Failure to receive baptism was punished with a financial penalty, and the oath of a communicant was worth more than a non-communicant in legal proceedings. Laws supported Sabbath observance and payment of church-scot (church dues). Laws also established rights to church sanctuary (see Right of asylum in Medieval England).^[43]

Influences

The oldest Anglo-Saxon law codes, especially from Kent and Wessex, reveal a close affinity to Germanic law.^[44] For example, one finds a division of social ranks reminiscent of the threefold gradation of Lower Germany (edelings, frilings, lazzen—eorls, ceorls, laets).^[9]

In subsequent history, there is a good deal of resemblance between the capitularies' legislation of Charlemagne and his successors on one hand, the acts of Alfred, Edward the Elder, Æthelstan and Edgar on the other, a resemblance called forth less by direct borrowing of Frankish institutions than by the similarity of political problems and condition. Frankish law becomes a powerful modifying element in English legal history after the Conquest, when it was introduced wholesale in royal and in feudal courts.^[9]

The Scandinavian invasions brought in many northern legal customs, especially in the area known as the Danelaw.^[44] The Domesday survey of Lincolnshire, Nottinghamshire, Yorkshire, Norfolk, etc., shows remarkable deviations in local organization and justice (lagmen, sokes), and great peculiarities as to status (socmen, freemen), while from laws and a few charters we can perceive some influence on criminal law (nidings-vaerk), special usages as to fines (lahslit), the keeping of peace, attestation and sureties of acts (faestermen), etc. But, on the whole, the introduction of Danish and Norse elements, apart from local cases, was more important owing to the conflicts and compromises it called forth and its social results than on account of any distinct trail of Scandinavian views in English law. The Scandinavian newcomers coalesced easily and quickly with the native population.^[9]

The direct influence of Roman law was not great during the Saxon period: there is neither the transmission of important legal doctrines, chiefly through the medium of Visigothic codes, nor the continuous stream of Roman tradition in local usage. But indirectly Roman law did exert a by no means insignificant influence through the medium of the Church, which, for all its apparent insular character, was still permeated with Roman ideas and forms of culture. The Old English "books" are derived in a roundabout way from Roman models, and the tribal law of real property was deeply modified by the introduction of individualistic notions as to ownership, donations, wills, rights of women, etc. Yet in this respect also the Norman Conquest increased the store of Roman conceptions by breaking the national isolation of the English Church and opening the way for closer intercourse with France and Italy.^[9]

Language and dialect

The English dialect in which the Anglo-Saxon laws have been handed down is in most cases a common speech derived from the West Saxon dialect. Wessex formed the core of the unified Kingdom of England, and the royal court at Winchester became the main literary centre. Traces of the Kentish dialect can be detected the Textus Roffensis, a manuscript containing the earliest Kentish laws. Northumbrian dialectical peculiarities are also noticeable in some codes, while Danish words occur as technical terms in some documents. With the Norman Conquest, Latin took the place of English as the language of legislation,^[45] though many technical terms from English for which Latin did not have an equivalent expression were retained.

See also

• History of English law
• Toll and team
• Walkington Wold burials are evidence for the practice of beheading criminals and the public display of their severed heads

Comparative customary law systems

• Cyfraith Hywel (Wales)
• Early Irish law
• Leges inter Brettos et Scottos (Scotland)

References

Sources cited

• Baker, John (2019). An Introduction to English Legal History (5th ed.). Oxford University Press. ISBN 978-0-19-254074-4.
• Green, Judith A. (2017). Forging the Kingdom: Power in English Society, 973–1189. Cambridge University Press. ISBN 9780521193597.
• Jolliffe, J. E. A. (1961). The Constitutional History of Medieval England from the English Settlement to 1485 (4th ed.). Adams and Charles Black.
• Loyn, H. R. (1984). The Governance of Anglo-Saxon England, 500–1087. Governance of England. Vol. 1. Stanford University Press. ISBN 9780804712170.
• Lyon, Bryce (1980). A Constitutional and Legal History of Medieval England (2nd ed.). W. W. Norton & Company. ISBN 0-393-95132-4. 1st edition available to read online here.
• Potter, Harry (2015). Law, Liberty and the Constitution: A Brief History of the Common Law. Boydell Press. ISBN 9781783270118.
• Vinogradoff, Paul (1911). "Anglo-Saxon Law" . Encyclopædia Britannica. Vol. 2 (11th ed.). pp. 35–38.
• Yorke, Barbara (1990). Kings and Kingdoms of Early Anglo-Saxon England. B. A. Seaby. ISBN 0-415-16639-X.

Further reading

Editions

• Felix Liebermann, Die Gesetze der Angelsachsen (Halle, 1903–1916), 3 vols. with translations, notes and commentary is indispensable. PDFs available online
  • vol. 1 (edition and translation)
  • vol. 2. Or separately, first half (dictionary) and second half (glossary)
  • vol. 3 (commentary)
• Lisi Oliver, The Beginnings of English Law (Toronto, 2002), text, translation, and commentary for the laws of Aethelbert, Hlohere, Eadric, and Wihtred.
• Reinhold Schmid, Gesetze der Angelsachsen (2nd ed., Leipzig, 1858), full glossary.
• Benjamin Thorpe, Ancient Laws and Institutes of England (1840), not very trustworthy.
• Domesday Book, i. ii. (Rec. Comm.);
• Codex Diplomaticus Aevi Saxonici, i.-vi. ed. J. M. Kemble (1839–1848);
• Cartularium Saxonicum (up to 940), ed. Walter de Gray Birch (1885–1893);
• John Earle, A Hand-book to the Land Charters, and other Saxonic Documents. (Oxford, 1888);
• Benjamin Thorpe, Diplomatarium Anglicum aevi Saxonici: a collection of English charters ... with a translation of the Anglo-Saxon (London, 1865)
• Facsimiles of Ancient Charters, edited by the Ordnance Survey and by the British Museum;
• Arthur West Haddan and William Stubbs, Councils of Great Britain, i.-iii. (Oxford, 1869–1878).
• Agnes J. Robertson, The Laws of the Kings of England from Edmund to Henry I (Cambridge, 1925)

Modern works

• Konrad Maurer, Über Angelsachsische Rechtsverhaltnisse, Kritische Ueberschau (Munich, 1853 ff.), account of the history of Anglo-Saxon law;
• Essays on Anglo-Saxon Law, by H. Adams, H. C. Lodge, J. L. Laughlin and E. Young (1876);
• J. M. Kemble, Saxons in England;
• F. Palgrave, History of the English Commonwealth;
• William Stubbs, Constitutional History of England, i.;
• Sir Frederick Pollock and Frederic William Maitland, History of English Law Before the Time of Edward I, (1895)
• H. Brunner, Zur Rechtsgeschichte der römisch-germanischen Urkunde (1880);
• Sir Frederick Pollock, The King's Peace (Oxford Lectures);
• Frederic Seebohm, The English Village Community;
• Frederic Seebohm, Tribal Custom in Anglo-Saxon Law;
• Heinrich Marquardsen, Haft und Burgschaft im Angelsachsischen Recht;
• Hermann Jastrow, Über die Strafrechtliche Stellung der Sklaven, Otto von Gierke's Untersuchungen, i.;
• J. C. H. R. Steenstrup, Normannerne, iv.;
• F. W. Maitland, Domesday and Beyond (Cambridge, 1897);
• H. M. Chadwick, Studies on Anglo-Saxon Institutions (1905);
• Charles E. Tucker, Jr., "Anglo-Saxon Law: Its Development and Impact on the English Legal System" (USAFA Journal of Legal Studies, 1991)
• P. Vinogradoff, "Folcland" in the English Historical Review, 1893;
• P. Vinogradoff, "Romanistische Einflusse im Angelsächsischen Recht: Das Buchland" in the Mélanges Fitting, 1907;
• P. Vinogradoff, "The Transfer of Land in Old English Law" in the Harvard Law Review, 1907.
• Patrick Wormald, The Making of English Law: King Alfred to the Twelfth Century, Vol I, (Blackwell, 1999)
• Jay Paul Gates and Nicole Marafioti, eds. 2014. Capital and Corporal Punishment in Anglo-Saxon England. Woodbridge: Boydell & Brewer. ISBN 9781843839187.
• Simon Keynes and Michael Lapidge, Alfred the Great: Asser's life of King Alfred and other Contemporary sources (Penguin Classics, 1983)

External links

• Medieval Sourcebook: The Anglo-Saxon Dooms, 560-975
• Medieval Sourcebook: Medieval legal history
• Laws of Alfred and Ine (georgetown.edu)
• Anglo-Saxon Law: Its Development and Impact on the English Legal System (Charles Tucker, USAFA Journal of Legal Studies)
• Early English Laws research project

This page was last edited on 15 September 2023, at 16:45