(PDF) Anglo-Saxon Law: Its Development and Impact on the English Legal System (1991)
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Anglo-Saxon Law: Its Development and Impact on the English Legal System (1991)
Charles Tucker
1991, US Air Force Academy Journal of Legal Studies
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Abstract
The conquest of England by the Normans in the year 1066 has been described by the renowned English historian, Frederic William Maitland, as being a catastrophe which determined the entire future of English law. This traditional view of legal history has regarded the primary source of modem English law as being of Anglo-Norman origin and has often overlooked the valuable contributions made to it by the antecedent Anglo-Saxon customary law. The purpose of this article is to rectify this deficiency and to examine, in some detail, the operation of the Anglo-Saxon legal system.
Key takeaways
AI
The article argues for the significant influence of Anglo-Saxon law on the English legal system post-Norman conquest.
Aethelbert's doom serves as a foundational document, representing the first written Anglo-Saxon laws around 597 AD.
William the Conqueror's legal reforms largely preserved existing Anglo-Saxon laws, with minimal changes to substantive law.
Key changes included the introduction of wergilds based on social status, affecting liability and compensation.
The evolution of law throughout the Anglo-Saxon period laid groundwork for modern English common law.
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ANGLO-SAXON LAW:
ITS DEVELOPMENT AND IMPACT
ON THE ENGLISH LEGAL SYSTEM
CHARius E. TuCKE JR.*
The conquest of England by the Normans in the year 1066 has been described
by the renowned English historian, Frederic William Maitland, as being a
catastrophe which determined the entire future of English law.1 This traditional
view of legal history has regarded the primary source of modem English law as being
of Anglo-Norman origin and has often overlooked the valuable contributions made
to it by the antecedent Anglo-Saxon customary law. 2 The purpose of this article is
to rectify this deficiency and to examine, in some detail, the operation of the
Anglo-Saxon legal system.
I. IMPACT OF ANGLO-SAXON LAW
ON ENGLISH LEGAL HISTORY
Scholars have long debated whether the medieval government of England owed
most to the Anglo-Saxons or to the ideas brought to Britain by the victorious
Norman invaders. However, despite the seemingly endless nature of this debate,
current historical evidence suggests that early medieval English governmental
institutions owed little to the jurisprudential innovations of the invading Normans.
This group of avaricious marauders was a largely uneducated, unimaginative lot,
wholly without learning, literature, or written law.3 Motivated solely by profit and
greed, the Normans conquered England but found they had no readily transplantable
system of legal administration with which to govern the indigenous Anglo-Saxon
populace. Thus, with few alternatives, the Normans were forced to adopt the
existing governmental structures already in place and to govern in accordance with
the broad underpinnings of Anglo-Saxon legal principles. 4 This is not to say that
the Normans did not later add to what they found, but rather to point out that the
Norman conquest did not fundamentally
alter the nature of Anglo-Saxon legal
institutions already in place.
While William, Duke of Normandy's, reign has often been seen as one of forced
occupation, the reality of post-conquest England was far more complicated. For
example, when examining early post-conquest England, one is immediately
confronted by the degree of cooperation engaged in by the indigenous
Anglo-Saxons, at least by 1070. Thus, while it is true that there continued to be
pockets of resistance to Norman rule after the Battle of Hastings in 1066,6 it is also
* Major, United States Air Force. Assistant Professor of Law, United States Air Force Academy.
BA, University of Notre Dame; JD, DePaul University.
USAFA JOURNAL OF LEGAL STUDIES [V/ol. 2
true that the Anglo-Saxon populace was largely willing to submit to the reign of
Duke William so long as he was able to ensure continued firm governance. 7 Perhaps
this was due, at least partially, to the fact that the majority of Anglo-Saxon
aristocracy had been destroyed in the various battles occurring between the years
1066 and 1070 and that the majority of the remaining Anglo-Saxon estates were
expropritated in succeeding years by William. Conversely, it is also possible that
this symbiotic relationship derived from William's predisposition to maintain the
status quo, thereby creating an environment in which most Anglo-Saxons found it
in their own best interest to succumb peacefully to Norman rule.
For his part, William was convinced he was the natural and legitimate heir to the
English throne. 9 This perception would appear to have been vindicated, at least
partially, when the Anglo-Saxon Witan Gemote (or Witan), the group of learned
noblemen who advised Anglo-Saxon kings, recognized Williams's claim to the
English title and crowned him in accordance with Anglo-Saxon ceremonial
tradition.' 0 Furthermore, acceptance of William's sovereignty would also seem to
be evidenced by the fact that the citizens of London and Canterbury voluntarily and
peacefully surrendered their cities to William, and the bishops and lay magnates
of those cities "begged" the "conqueror" to assume the English crown.1 1 William
reciprocated this fealty soon thereafter by granting the city of London a charter
(written in Anglo-Saxon) confirming its traditional privileges. Thus, as William
began to guarantee the rights of the Anglo-Saxon populace, they came to have a
vested interest in the maintenance of the new monarchy. 12
A mere two years after the invasion, William called upon the Anglo-Saxon
militia, the iyrd, to quell an uprising in the English city of Exter. 13 Relying on the
fealty of "his" militia, William's Anglo-Saxon army successfully quieted the
disturbance and returned order to the countryside. Additionally, the remarkable
degree of confidence he had in the fyrd was again demonstrated when William had
14
them accompany him to France to put down a revolt of rebellious Norman vassals.
Thus, from the evidence available to us today, it would seem that William had as
much claim of legitimacy to the English throne as he did to the Norman and that,
he had no more difficulty (nor any greater ease) controlling his Anglo-Saxon
subjects than he did controlling their French counterparts.
In spite of (or because of) the relative political stability he encountered in
England, King William I found he still needed to maintain the uneasy peace with
his Anglo-Saxon vassals; he also needed to maintain order among these same
vassals. In addition, William's invasion force had included over 5000 Norman
soldiers, and this unruly band needed to be kept happy and in order. 15 Therefore,
armed with but a relative paucity of inherent administrative experience, William's
nascent government was'forced to rely upon the broad structural foundations of
pre-existing Anglo-Saxon institutions.16
Regardless of one's interpretation of the unique aspects of legal administration
brought to England by the Normans in the late eleventh and early twelfth centuries,
it is clear that the early Anglo-Norman kings were no prodigious legislators.' 7 Aside
from various specific diplomas, charters and writs, William himself is credited with
only three pieces of what may broadly be characterized as "legislation."' ' 8 The first
19911 ANGLO-SAXON LAW
piece of legislation is actually a writ, written in Anglo-Saxon and addressed to the
Norman bishop and port reeve of the city of London. This document, discussed
briefly above, assured both the ecclesiastical and secular authorities of London that 19
their rights, possessions and customs would be respected by the Norman crown.
Additionally, this writ confirmed that the citizens of London would continue to
live under the same laws as established by King Edward (i.e., "be worthy of all the
laws they were worthy of in King Edward's day") and that no landowner would 20
be disinherfited (i.e., "every child be his father's heir after his father's day").
The second of William's acts of "legislation" also appeared in the form of a
writ. 2 1 Probably issued between the years 1072 and 1076,2 William, with the
concurrence of the Witan, overruled the earlier Anglo-Saxon practice of c6mbining
temporal (lay) and ecclesiastical cases being heard at both ecclesiastical councils
and governmental assemblies. Thus, in establishing a new policy, William brought
the English system of justice in conformity with continental practice.2 Episcopal
laws then in existence were declared invalid and bishops were, thereafter, forbidden
from bringing cases involving canon law, or questions involving the "rule of souls,"
before the ancient Anglo-Saxon Hundred and Shire courts. Conversely, bishops
were granted exclusive jurisdiction in ecclesiastical matters and were directed to
24
reexamine and amend pre-existing episcopal. laws.
The third and final piece of legislation enacted by William I was actually a
compilation of several separate writs issued at various times. Entitled "The Laws
of William the Conqueror," the provisions contained therein were probably issued
between the years 1070 and 1087.2 The primary thrust of these laws was the
regulation of relations between the native Anglo-Saxon population and the Norman
invaders, but they seem to have added only a little to the substantive and procedural
body of law then in existence. 26 However, for the purposes of this dicussion, at
least one important clause was enacted when William proclaimed, "[tlhis also I
command and will, that all shall have and hold the law of King Edward in respect
of their lands and all their possessions, with the addition of those decrees I have
27
ordained for the welfare of the English people."
When adopting the laws in existence during the reign of King Edward the
Confessor as the laws of Anglo-Saxon England, William created only two areas of
substantive change to the existing body of Anglo-Saxon law.3 First, clauses three
and ten of William's laws reshaped the penalty for murder by prohibiting the
execution of any of William's subjects and by mandating that murderers were to
be held monetarily liable to the king for the killings of any of William's Norman
subjects. Furthermore, if an Anglo-Saxon killed a Norman and was unable to pay
any or all of the fine, the community (i.e., the Hundred) in which the killing took
place was held jointly and severally liable for the unpaid portion. Thus, by including
these clauses, William apparently gave the indigenous Anglo-Saxon population a
substantial interest in the preservation of Norman life. The second area of
substantive change made by William to the existing body of Anglo-Saxon law
occurred in clause six of his laws. According to this provision, if a Norman accused
an Anglo-Saxon of committing certain crimes, the Anglo-Saxon .could defend
himself only through ordeal of hot iron or by wager of battle. If, on the other hand,
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
a Norman was accused of a crime by an Anglo-Saxon and the Anglo-Saxon was
unwilling to prove his accusation by either ordeal or wager of battle, then the
Norman could acquit himself by a valid bath (i.e. compurgation).2 Therefore, we
see that not only did the Anglo-Saxons have an interest in preserving Norman life,
they also had an interest in preserving the Norman peace.
By examining the above-referenced laws of King William, we see that the
Normans made little fundamental or radical change in existing Anglo-Saxon legal
institutions or rules. Each of William's three legislative acts relied heavily upon the
law in operation during the reign of Anglo-Saxon King Edward and nothing in
William's writs can be said to have fundamentally altered the Anglo-Saxon system
of justice. Furthermore, while it may be asserted that William was merely
parsimonious in his legal activism, it should be noted that his successors also
demonstrated little inclination to put their mark on the English legal system.
William's immediate successor, King William Rufus, enacted no new legislation
whatsoever. 30 His successor, Henry I, provided some substantive legislation, but
also mandated that "the law of King Edward together with emendations to it as
my father made" would be "restored" to the people of England. 31 Likewise, his
successors, Kings Stephen 32 and Henry I133 relied heavily on the Anglo-Saxon law
of King Edward's time. Thus, for more than a century after the "catastrophic"
invasion of England by the Normans, little fundamental change in the substance
34
of Anglo-Saxon law occurred.
While it is arguable that the law on the books and the law in practice did not
always agree, a case arising around 107635 illustrates that in post-conquest England,
the use of Anglo-Saxon law was prevalent and binding, even when applied against
well-placed Normans. According to the trial report for the case which was heard
on Pinnenden Heath iear Maidstone, England, 36 William's half-brother, Odo, was
the Bishop of Bayeux, France; he was also the Earl of Kent, England. As the Earl
of Kent, Bishop Odo wrongfully seized certain possessions and rights of the
Archbishopric of Canterbury. Not long after Bishop Odo seized the church's
possessions, Lanfranc became the Archbishop of Canterbury and the Primate of
England. 37 Upon discovering what had transpired, Lanfranc asserted a claim to
King William seeking redress for the wrong and, as a result of Lanfrane's petition,
William issued a writ directing the whole shire court to "sit upon the case under
38
him as justice."
Upon issuing this writ, William mandated that the ancient shire court (an
Anglo-Saxon institution) be assembled on Pinnenden Heath and he also ordered the
matter to be heard in ancient English form. Furthermore, William mandated that
Anglo-Saxons "known to be well versed in the laws of England should be specially
summoned," not just from Kent, but "from other parts of the kingdom" as well.
This, apparently, was necessitated by the possible conflicts of interest arising from 39
the various degrees of loyalty different areas of England owed the conqueror.
Since both Bishop Odo and Archbishop Lanfrane were the litigants in the case and
since they would have been the natural presidents of the assembly, William directed
40
Bishop Geoffrey of Countances to act as the president of the shire court.
1991] ANGLO-SAXON LAW
Once assembled, the shire court was composed of both Normans and
Anglo-Saxons who acted in dual roles as both witnesses and judges. 4 1 Evidence
was heard over a three-day period and during the trial it became clear that additional
Anglo-Saxon legal expertise was needed. Thus, by special order of the king, the
deposed bishop of the South-Saxons, an aged and sickly individual named Aethelric
of SelseF, was brought to the trial by wagon so he could testify (i.e.,42 "declare and
expound") on the ancient practice and customs of Anglo-Saxon law.
At the trial, the combined assembly of Normans and Anglo-Saxons heard the
pleas of the parties and reached a decision on grounds "so strong and clear that
from that day no man ever dared to call in question one jot or one tittle of its
decision." 43 What is, perhaps, most remarkable about this decision is that the shire
court found for Lanfranc and recommended the removal of Bishop Odo and his
followers from the lands in dispute. Furthermore, Bishop Lanfranc was successful
in persuading the court to narrowly define the rights the king had over church
properties. In fact, the shire court held that the king had no rights over these lands
whatsoever except for the safe maintenance of the king's highways. Thus, based
upon the overwhelming logic and justice of the Anglo-Saxon court, the king
"confirmed the judgment with the assent of all his magnates, and ordered that it
should be steadfastly and completely upheld.' "44
Based on tfe evidence of this case, as well as from others of a similar nature, 45
and based on the evidence elicited from the extant statutes of early Anglo-Norman
kings, it is clear that there was no great break with Anglo-Saxon law with the
coming of the Norman invasion. While there were, over succeeding years, a number
of innovations made by Anglo-Norman kings, none was radically revolutionary
(with the possible exception of the advanced system of land tenures) and all the
innovations which were made adjusted easily to the older Anglo-Saxon institutions
of justice already in place. 46 Thus, as demonstrated above, the institutions of
Anglo-Norman government and law were largely inherited from the Anglo-Saxon
kingdom and the major achievement of the Anglo-Normans in succeeding years
was to find new uses for the tools they had been given. Therefore, by adopting
these Anglo-Saxon tools, the Normans insured a continuity of law dating back to
the dawn of English civilization; a continuity which can still be seen in today's
English legal system.
II. EARLY PRE-NORMAN JURISPRUDENCE
In the beginning of their epic work on the history of English law, Sir Frederick
Pollock and Frederic Maitland noted:
Such is the unity of all history that anyone who endeavours to tell a piece of it must feel his
first sentence tears a seamless web. The oldest utterance of English law that has come down
to us has Greek words in it: words such as bishop,priestand deacon. If we would search out
the origins of Roman law, we must study Babylon .... A statute of limitations must be set;
but it must be arbitrary. The web must be rent; but as we rend it, we may watch the whence
and whether of a few of the several and ravelling threads which have been making a pattern
too large for any man's eye. 47
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
Since these words were first written in 1895 little has changed. To pick a time
when English legal history, or for that matter, Anglo-Saxon legal history "began"
is an impossible task, for some degree of uncertainty and ambiguity must,
necessarily, be present in any selection of "a beginning." Thus, as demonstrated
in Section I of this paper, Anglo-Norman law did not begin with the Normans;
rather we know that it was significantly influenced by its Anglo-Saxon predecessor.
Likewise if we attempt to "begin" with the Anglo-Saxons, why not start with the
Romans or the Celts? After all, Saxon law cannot be said to have "begun" merely
with the first written code of Aethelbert. Yet, a beginning must be found and a
plunge into the stream of the law must be taken. For the purposes of this paper
then, we will begin with the invasion of Britain by the Legions of the Roman
Empire.
A. Roman Influences In English Legal History
Any attempt to give an account of the social and political organization of the
early Teutonic kingdoms in England must include at least a passing reference to the
state of the Roman Empire in the early centuries of this millenium and the influence
of the Roman Empire on the development of the Germanic tribes which populated
Britain.
The strengths of the Roman empire lay in its military power and its ability to
project that power to the outermost limits of the known world. 48 Thus, the isle of
Britain, which lay at the westernmost boundary of that world, constituted an
enticing plum to be picked by an adventurous Roman. Yet, as successive Roman
invaders discovered, the isle would not fall easily. Twice invaded by Julius Caesar,
it took more than 130 years for the majority of Britain to be brought under control
by the Roman emperors. 49 When it did fall, during the first century A.D., that
portion of the island50 which came under control of the empire became thoroughly
51
Romanized.
In his excellent treatise on the history of British civilization, Professor
Wingfield-Stratford noted, "[t]o the Roman citizen of the first or second centuries,
52
the boundaries of civilization were those of Roman law and Roman peace." To
this could be added Virgil's exhortations to the Romans of the time, "Roman,
remember by your strength to rule Earth's peoples-for your arts are these: to
pacify, to improve the rule of law, to spare the conquered, [to] battle down the
proud."15 3 Both quotes describe the state of the empire at the beginning of the first
millennium A.D. and both exemplify the role Rome played in "pacifying" Britain.
To the Romans, once Britain was conquered, it became just another province of
the empire; and the problem for the expanding empire was how to impose and
maintain Roman justice and peace upon it.
If the strength of the Roman Empire was its ability to extend its power to the
farthest reaches of the known world, this was also its greatest weakness. Exercising
sovereignty over such a large geographical area, particularly during an era of limited
transportation and communications abilities, proved extremely difficult. Rome
"solved" these problems by imposing a uniform system of law and peace over each
of its provinces. To do this, the empire "struck an average" among the peoples
19911 ANGLO-SAXON LAW
and nations it conquered and centrally imposed the law from a vast bureaucracy in
Rome. Thus, given the constraints under which it operated, ideals of individual
liberty were subordinated to the needs of the state and a "logical uniformity" in
the ordering of relations between diverse people was imposed. Yet, this proved to
be the undoing of Roman law, for with each conquest the Romans had to absorb
the customs and manners of the conquered people. Furthermore, in doing so they
"necessarily sacrificed [their] own soul and that of the peoples on whom [their]
54
rule fell."
The island of Britain, once conquered, was the last of Rome's conquests in the
west. As with each of its earlier conquests, Britain was thoroughly organized along
Roman lines and "civilized" in accordance with Roman custom. If Rome absorbed
any of the customs or laws of the British population, however, none have been
recorded. Yet it is clear from the evidence available that the Romanized population
of Britain, once succumbing to Roman rule, applied the Roman law. What is also
clear, however, is that being at the outermost edge of the empire and being so close
to the "active forces of kindred barbarism," it is doubtful whether the British
province ever became as thoroughly and as efficiently Romanized as either Gaul
or Spain. 55
The conquest of Britain proved to be Rome's last great campaign and with its
annexation, the expansion of the Empire came to an end. In the decades that
followed, Rome's influence waned and the Roman Empire commenced its
inexorable decline. Thus, we see that by the year 200 A.D. Roman jurisprudence
had reached its zenith and would soon cease to grow or develop. 56 No longer
expansionist in its development nor forward looking in its outlook, the Roman
infrastructure began to crumble under its own weight. By the year 407, Rome had
abandoned Britain to the "barbarians at the gate," 57 and the Romanized population
again settled with the indigenous Celtic population.58 However, what was most
significant about these events, at least from a legal history point of view, was that
as the Romans withdrew from Britain, they took their legal institutions with them.
Therefore, since the Britons had never been thoroughly "Romanized" and since
they had not adopted Roman institutions as their own, this left them bereft of an
inherent system of legal justice upon which to rely.
Upon finding themselves devoid of legal and administrative infrastructure, the
Britons were forced into the unenviable position of either developing such an
infrastructure for themselves (a nearly impossible task given the state of continual
warfare they were then facing), 59 or trying to imitate the system of government
already developed by the Romans. Unfortunately, the Romans had not prepared the
Britons satisfactorily for self-government. The years leading up to, and immediately
following, Roman withdrawal from Britain had been tumultuous. The Roman
Legions had engaged in nearly constant warfare with numerous tribes of Teutonic
invaders and the subsequent transfer of power from Rome to the indigenous Britons
did not go smoothly. Furthermore, the transfer of Roman jurisprudence to the
British population proceeded little better. Roman legalism was in utter disarray.
The nearly continual state of warfare and social decay had taken its toll and the
legal system of the Roman Empire was undergoing a period of complete stagnation.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
Thus, considering the horrific conditions then in existence, it is not surprising to
find that even the compilation of the Roman Theodisian code proved of little
assistance to the Britons. This backward looking collection of Imperial Roman
statutes might have been of great assistance to the Britons in their quest to maintain
the reigns of government, except for two factors: first, by the time the code was
issued in 438 A.D., the Romans had been out of Britain for over thirty years; and
second, by the time the code was issued, the Roman Empire was in such disarray
(Rome itself had, by that time, already been sacked by the Goths), that the Romans
would never again be in a position to reoccupy the island and infuse Roman concepts
of law onto the indigenous population. In fact, it is probable that the Theodosian
code did not reach Britain until well after it had been compiled; and it is certain
that by the time it did reach the Isle, the last remnants of the Roman empire had
been swept from Britain by invading hordes of Germanic peoples. 60 Thus, in spite
of over 350 years of Roman occupation and administration, British governmental
institutions seemingly internalized almost no Roman law and, even today exhibit
almost no Roman influence.
B. The Tbutonic Invasions
Nearly contemporaneous with the withdrawal of Roman troops from Britain
were the first of what proved to be successive waves of Teutonic invasions. While
it is not totally certain what brought about the first of these invasions, it appears
that the Britons may have invited the first of the invaders, the Jutes, to England
to help them hold off the advances of the Picts (i.e., the non-Romanized indigenous
co-occupants of Britain). At any rate, some time around the year 449, these
Teutonic tribesmen first arrived in England and never left; thus proving to be the
end of whatever was left of Romanized Britain. Once they arrived in Britain they
established control over the sea lanes and they secured a safe beachhead on the
island. Furthermore, once safely entrenched in Britain, it is highly probable that
they conspired with other Germanic tribes to assist in the conquering and inhabiting
of the new land.6 1 However, even though the exact role the Jutes played in the
Teutonic invasion is unclear, one thing is certain; while they may have been the
first to arrive in Britain after the withdrawal of the Romans, they certainly were
not the last for after their arrival came the Angles and then the Saxons. Thus, by
the end of the sixth century A.D., in battle after battle, the Germanic tribes fought
off the last remnants of the Romanized Britons and established a new homeland for
themselves; a homeland in what is now known as southeastern England. 62
The conquest of Britain was not accomplished by tribesmen under traditional
tribal leadership, but rather by a body of Teutonic adventurers who traced their
63
lineage back to some of the more remote parts of the continental mainland.
Furthermore, these individuals were not pirates bent merely on plundering the
British countryside; rather, they were groups of people tied together by family
bonds who-invaded Britain as a means of establishing permanent settlements. As
such, the invaders were not recruited as individuals, but rather the basic recruiting
unit was the family, or the extended family, known in Anglo-Saxon as the Maegth,
or kin. These families included women, children and the elderly, individuals who
1991] ANGLO-SAXON LAW
naturally stood together and lived together in both their
old continental homeland,
as well as in their new English/Anglo-Saxon home.6
What we know of these Teutonic invaders we have learned from mostly Roman
sources, particularly from the Roman historian Tacitus. In a manuscript called
Germania,65 Tacitus described the familial nature of the migrating Germanic people
and noted that they were "a peculiar people ... like no one but themselves." 66 He
also noted that their "kings" ruled by hereditary right, but were not allowed to
rule in an unlimited or arbitrary fashion. Furthermore, with the family forming the
basic unit of the tribe, criminal sanctions for misbehavior had to be meted out by
persons with absolute authority. Thus, punishments such as imprisonment, death,
or even corporal punishment, could only be administered by priests who derived
67
their "inspiration" for the appropriate punishment from the gods.
In addition to these general accounts on the familial nature of the Teutonic tribes,
Tacitus described, in some detail, the workings of tribal legal assemblies, known
as "moots." Regarding these institutions, Tacitus noted:
On small matters the chiefs consult; on larger questions the community; but with this
limitation that even the subjects, the decision of which rests with the people, are best handled
by the chiefs. They meet, unless there be some unforeseen and sudden emergency, on days
set apart ... [W]hen the moot is pleased to begin, they take their seats carrying arms. Silence
is called for by the priests, who thenceforward have powers also to coerce: then a king or
a chief is listened to, in order of age, birth, glory in war, or eloquence, with the prestige
which belongs to their counsel rather than with any prescriptive right to command. If the
advice tendered be displeasing, they reject it with groans; if it pleases them, they clash their
spears: the most complimentary expression of assent is this martial approbation.
At this assembly it is also permissible to lay accusations and to bring capital charges. The
nature of the death penalty differs according to the offense: traitors and deserters are hung
from trees; cowards and poor fighters and notorious evil-livers are plunged in the mud of
marshes with a hurdle on theirheads: the difference ofpunishment has regard to the principle
that crime should be blazoned abroad by its retribution, but abomination hidden. Lighter
offenses have also a measured punishment: those convicted are fined in a number of horses
and cattle: part of the fine goes to the king or the state; part is paid to the person himself
who brings the charge or to his relatives. At the same gatherings are selected chiefs who
administer law through the cantons and villages: each of them has one hundred assessors
from the people to be his responsible advisors.6i
It is clear from the evidence available that these continental Germanic tribesmen
did not have a Roman sensibility of law. Though we have little direct evidence as
to the specific nature of their customary law and procedure, we can speculate that
the laws enacted by these folk or tribal moots must have been very different from
the efficiently sterile legalism established in the Roman empire. We may also
speculate that in such a family-based society, the laws of the folk-moot would
probably have left much unsaid since the majority of legal disputes would have
been settled internally by the Maegths. Additionally, one may imagine that issues
too serious to have been handled internally, such as disputes between Maegths, or
cases involving serious criminal misbehavior, would have been matters for the entire
tribe to discuss in open forum at the folk-moot. Disputes would have been brought
before the moot and evidence would have been presented to the entire assembled
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
community. After hearing all of the evidence, we can imagine the members of the
community considering the matter and providing their advice on an appropriate
outcome. The chiefs would then have consulted among themselves and made their
decision to resolve the dispute based on what they heard and on the advice of the
moot. If punishment was warranted, it would have been left to the priests to be
imposed. Thus, while this scenario is entirely speculative, it is also consistent with
the direct evidence we possess relating to continental Germanic legal practices of
the fifth century A.D., and it is a fair hypothesis based upon that evidence.
The first known written code of Germanic origin was probably enacted sometime
between the years 470 and 475 A.D. It became the legal code of that area which
now comprises all of Spain and a large part of southern France, and was written
by King Euric, a person of Gothic-Germanic origins. Even though only fragments
of the code survive, enough is still extant to show that Euric had cast off any
pretense of ruling in the Roman Emperor's name and was passing laws which were
thoroughly Germanic in content. 69 Furthermore, it is clear that Euric's laws, as
well as other folk-moot laws of succeeding Germanic kings, 70 contained the essence
of their legal customs and consisted largely of tariffs of offenses and atonements
which had been worked out over the generations by the collective tribal
71
experience.
Of all the continental Germanic codes produced in the late fifth and early sixth
centuries, the most significant, at least for the purposes of this paper, is the Lex
Salica. Probably written between the years 486 and 511, the Lex Salica became the
law of all the Frankish people in what had previously been known as Gaul. This
thoroughly Germanic code showed almost no Roman influence and mirrored the
forms of other early Germanic codes written during this same era. What is of
particular significance about this code, however, is that it later became a basic
source of Norman law. 72 As such, two points may be made: first, by having a
common heritage, early Anglo-Saxon and Norman substantive laws bear a striking
resemblance to one another, even as late as the eleventh century; and second, with
the Norman invasion of England in 1066, the Germanic-Norman laws were united
with the Germanic-Anglo-Saxon laws. Thus, it should have surprised no one that
the extant laws of Anglo-Saxon king Edward the Confessor matched the
jurisprudential needs of William the Conqueror. 73.
While a fair amount of direct information is known about the laws and customs
of the continental Germanic tribes, very little is actually known about the legal
customs of Germanic tribes in fifth and sixth century England. The kings of Kent
between Aesc and Aethelberht, and of Sussex after Aelle, are no more than names.
Furthermore, advances of the West-Saxons out of the Hampshire area are not
recorded until 552. 74 Thus, while we can assume that the Anglo-Saxon invaders
continued to apply the customary laws of their continental Germanic ancestors (as
described by Tacitus), we have little direct evidence to support this hypothesis.
Before proceeding with any discussion concerning the jurisprudential nature of
the early pre-literate Anglo-Saxon invaders, it is important to recognize the
limitations inherent in any such analysis. First of all, Tacitus wrote his Germanrfa
more than three hundred years before the first settlement of Anglo-Saxons ever
19911 ANGLO-SAXON LAW
took place on the eastern shores of England. As such, it is fair to assume that in
the intervening centuries the Tutonic tribes and their legal institutions may have
-undergone a great deal of change. 75 Furthermore, of all the continental Germanic
codes noted above, none became a direct predecessor of English law until after the
Norman invasion of 1066 A.D. Thus, while we may speculate as to the probable
similarity of the continental Germanic codes with their Anglo-Saxon customary law
counterparts, there is little to directly link the two systems. Therefore, with little
else to rely upon, what we know of this period in Anglo-Saxon history comes to
us mainly from two sources: the Anglo-Saxon Chronicles and the Ecclesiastical
History of he Venerable Bede.
The first issue one must examine when looking at early Anglo-Saxon systems
of legal administration is the question of who comprised the leadership of the
Anglo-Saxon settlers and what relationship these leaders had to their followers. In
other words, was the conquest of Britain carried out by traditional continental
Teutonic tribal chieftains bringing their entire tribal units with them, or was Britain
conquered by individual warbands composed of individual chieftains and certain
selected followers? The probable answer to this question is that the latter was the
case. We can envision one of these leaders as being a high-born Anglo-Saxon
adventurer, of whom the epic hero Beowulf76 was an idealized type. We can also
envision this character speaking before one of the Teutonic folk-moots described
so eloquently by Tacitus. He would have tried to convince the assembled moot of
the benefits to be achieved by invading Britain and he would have particularly
emphasized the spoils of land, crops, and booty to be gained by the venture.
Furthermore, thanks to the vivid description of such events provided by Tacitus,
we can also envision such a leader receiving the approval of the assembly as they
clapped their spears against their shields. Thus, with the concurrence of the tribal
chieftains, entire Maegth families could have enlisted in such dangerous ventures
and the combined entourage would have taken off for the "new world" to make
77
their fortunes.
Once this group of Tiutonic conquerors subdued their part of Britain, it is
probable that the Anglo-Saxon communities they established must have begun
when the band's warlord (or prince/king) transferred possession of certain of the
conquered lands to individual members of his comitatus (i.e., to his sworn followers
of whom the leader was bound to support in return for their loyal service in battle).
Furthermore, with the possible exception of the Angles, 78 the newcomers probably
left behind on the continent the majority of their extended tribal units and they
formed their new settlements under the authority of their new prince/kings. Cut off
from their homeland, these bands would probably have organized themselves as
military states, more dependent on their new chiefs than on their old tribal leaders.
In such situations, the settlers would have regarded themselves as sworn liegemen
of the conqueror whom had parcelled out among them the lands of the Roman
provincials and not as mere tribesmen owing their allegiance to ancestral
79
monarchs.
Once established in England, these Anglo-Saxon leaders must have had a
tremendously difficult task in organizing their followers. Everyone accompanying
USAFA JOURNAL OF LEGAL STUDIES .[Vol. 2
the invasion force (eventually including women, children and the aged) had to be
fed, clothed and protected in the strange new land. In order to effectuate this,
communities had to be established and loyalty' maintained. In examining this
situation, we find from the archeological evidence available that different Maegths
were settled in more or less self-contained agricultural units, or hamlets, each having
their own group of dwellings, their own fields of arable land portioned in strips,
their own pasturages and their own smithies and mills.80 Furthermore, according
to Professor Wingfield-Stratford, "these units would have been grouped in
'hundreds', either of 'hides' of land, or more probably, of families, at first, one
conjectures, for mutual support against the natives, later for administrative and
81
judicial purposes."
If the "hundred" formed the basic unit of an Anglo-Saxon settlement, it was,
in turn, subsumed into the larger Anglo-Saxon "kingdom." Ruling each of the
hundreds would have been a sub-chieftain, a person who owed his allegiance to his
overlord, the "promoter-in-chief" of the invasion. This overlord, or "king," would
then, in turn, have been responsible for the maintenance of as much sovereignty
and control over the hundreds as he could muster, probably by relying upon his
personal or family prestige for assistance, as well as relying upon the perceived
communal need for military combination and the inherent loyalty of his personal
followers. 8 2 Furthermore, this overlord would have been responsible for interacting
with other Anglo-Saxon overlords and for preserving the peace and security between
the Anglo-Saxon "Kingdoms." In fact, it is clear that there were at least seven
major Anglo-Saxon Kingdoms in England during the early 83
centuries of the first
millennium and each was ruled by its own king/overlord.
The seven major Anglo-Saxon kingdoms of early England, collectively known
as the Heptarchy, dominated the political development of England for over five
hundred years. The kings of each of these kingdoms, while pursuing their individual
interests, maintained a constant rivalry for a position of military and political
suzerainty over the others. Thus, the most powerful ruler in his day would seek the
position of Bretwalda, or ruler of Britain, which would involve the establishment
of his overlordship upon the other kingdoms and by which he could exact tribute.
Naturally, the rise and fall of a Bretwaldainvolved a great deal of warfare between
the kingdoms and the position seemingly passed from kingdom to kingdom. For
example, Kings Aelle of Sussex and Ceawlin of the Thames Valley Saxons held the
title during the early Anglo-Saxon invasion periods. Later, during the Christian
period, the title turned to the kings of Kent, then East Anglia, followed, in turn,
by Northambria, Mercia, and Wessex.8 4 That each of these kingdoms had some
degree of sovereignty is certain. That each had its own system of legal
administration based on Teutonic customary tribal law is probable. What is
uncertain, however, is the exact nature of those administrative legal institutions
and the specifics of their laws; at least before the beginning of the sixth century A.D.
19911 ANGLO-SAXON LAW
i[. ANGLO-SAXON LAW AFTER THE SIXTH CENTURY A.D.
A. The Beginnings of Anglo-Saxon Written Law
While there may be little direct evidence concerning the specifics of Anglo-Saxon
legal administration prior to the end of the sixth century A.D., the clouds begin to
clear with the coming of the reign of King Aethelbert of Kent in 597 A.D. According
to The Venerable Bede in his EcclesiasticalHistoiy of England: 85
[A]mong other benefits which he [Aethelbert] conferred upon the nation, by the advice of
wise persons,8 6 [he] introduced judicial decrees after the Roman model;8 7 which, being
written in English, am still kept and observed by them. Among which, he in the first place set
down what satisfaction should be given by those who should steal anything belonging to the
church, the bishop, or the other clergy, resolving to give protection to those whose doctrine
he had embraced. (emphasis added).88
Thus, according to Bede (as well as to other surviving written documents
concerning early legal administration) King Aethelbert of Kent was the first
Anglo-Saxon king to reduce the customary law of the Anglo-Saxon people to
writing.89
That Aethelbert should have been the first Anglo-Saxon king to reduce the
customary law to writing should constitute little mystery, for the Venerable Bede
has noted that Aethelbert decided to encode his law only after he came into contact
with Roman missionaries. This apparently came about in the year 596 A.D. 90 when
Pope Gregory of the Roman Catholic church sent St. Augustine of Rome to "preach
the word of God to the English nation."'91 Augustine complied with the wishes of
Pope Gregory, arrived in England at the Isle of Thanet, Kent, in 597 A.D., and
immediately sought to obtain permission to preach to the 600, or so, Anglo-Saxon
families of Thanet. 92
At the time of Augustine's mission to England, the Anglo-Saxons controlled the
whole of the British island, from Kent to East Dorset, and from the British east
coast to the Lower Severn, Staffordshire and Derbyshire, most of Yorkshire, and
part of Northumberland and Durham. 93 This area was divided and controlled by the
numerous royal dynasties of the Heptarchy, with Kent comprising but one of the
powerful Anglo-Saxon kingdoms. However, as fate would have it, as Augustine
landed in Kent to preach to the "English people," Aethelbert, King of Kent, was
the Bretwalda, or dominant king, of the Heptarchy. 94 Thus, when St. Augustine
made known his desire to preach to the people of Thanet, Aethelbert, at first,
forbade him from doing so until he could personally evaluate the merits of
Augustine's message. 95 When, in 597, Aethelbert personally traveled to the Isle
of Thanet to hear Augustine preach, he was so impressed with the Roman that he
rescinded his earlier order and allowed Augustine to proselytize to all the people
of the Heptarchy. 96 Furthermore, it would appear that in the ensuing years
Aethelbert had a great deal of contact with Augustine, so much so that the
97
Anglo-Saxon king later converted to Christianity.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
From these facts we can speculate that the impetus for Aethelbert's codification
of Anglo-Saxon customary law stemmed from his contact with Roman missionaries.
We know, for example, he had been exhorted by Augustine and Pope Gregory to
"edify the manners of [his] subjects by much cleanness of life, exhorting, terrifying,
soothing, correcting, and giving examples of good works, [so] that [he might] find
[in] Him [a] rewarder in heaven, whose name and knowledge you shall spread abroad
upon earth." (emphasis added). 98 Furthermore, we know that Aethelbert's reign
as Bretwalda overlapped the reign of Emperor Justinian of Rome. 99 Thus, just at
the time when the Corpus Juris Civilus, the culmination of a thousand years of
Roman law, was being published by Justinian, Aethelbert also caused the
culmination of hundreds of years of Anglo-Saxon legal custom to be set down in
writing. Furthermore, while there is no proof that Aethelbert ever actually read the
"Justinian Code," and while Aethelbert's code bears little resemblance to the
Roman code, it is highly possible that the Roman experience of legal codification
was made known to Aethelbert and the very fact that such a compilation existed
had a profound impact on him. Regardless of one's interpretation of the matter,
however, it is clear that soon after coming into contact with the Roman
missionaries, Aethelbert caused the customary laws of the Anglo-Saxon people to
be codified.
Although it has been well reported that Aethelbert was the first English
Anglo-Saxon king to record his codes in writing, it is by the merest of chances that
any copy of that law has survived until today. It is true that Aethelbert's codes
(probably written between the years 597 to 603 A.D.) would most certainly have
been copied numerous times and promulgated to the entire people of Kent, if not
to the entire Heptarchy, in order for them to know of the decisions which had been
made by their king and their Witan-Gemot. However, not one original copy of
Aethelbert's code is still in existence. In fact, the only copy of the code to survive
until today comes to us by way of a twelfth-century manuscript, entitled the Textus
Roffensis, a document which was compiled and maintained in the cathedral library
at Rochester. 10 This document was probably compiled at the instigation of Bishop
Ermulf between the years 1115-1124 and was doubtlessly derived from a now
missing original copy of the laws which had been kept at Canterbury where Emulf
had previously been a prior. 101 Thus, it is to the activity of ecclesiastical scribes
that we owe the existence of the only surviving extant copy of not only Aethelbert's
10 2
code, but other early Anglo-Saxon codes as well.
B. Problems of Utilizing
Early Anglo-Saxon Legal Sources
It is, perhaps, revealing that the majority of what we know of everyday life in
pre-Norman Anglo-Saxon society comes to us not in the form of literature, music,
art, religion, or contemporary accounts, but rather' in the form of the mundane
workings of written law. The laws of the Anglo-Saxon kings, as few as those laws
may be, speak volumes about the status of ordinary people living in Anglo-Saxon
society and relate directly to the changes that society faced between the years 597
and 1066 A.D.
1991] ANGLO-SAXON LAW
In spite of the miraculous preservation of Aethelbert's code in the Textus
Roffensis, it should be noted that his code, as well as other early Anglo-Saxon
codes, were not generally preserved and re-copied out of some inherent respect for
the past. In fact, the religious scribes preserved these early codes to serve as later
examples for when they were tasked to draft new codes. Thus, an important caveat
comes to the fore when examining early Anglo-Saxon codes: since the documents
containing the codes were preserved to serve as later models, absolute fidelity to
the ancient wording would not necessarily have been considered a necessity.10 3
Therefore, one should always keep in mind that the copies we have available may
not be true to their original and may include later additions, subtractions, and/or
modifications. 1°4 In spite of this, however, given the paucity of information
available we must proceed from the standpoint that the documents in question are
substantially true to their originals and comply generally with the terms of the law
as originally promulgated.
In addition to the aforementioned caveats, and in spite of the great importance
these laws play in our understanding of Anglo-Saxon society, it is important to also
consider any other inherent limitations these laws may have before drawing too
many conclusions from them. First, as noted above, we cannot be sure that the
texts which have come down to us are wholly accurate in their portrayal of the law
as enacted. The Textus Roffensis, compiled early in the twelfth century, was
created over 500 years after the purported enactment of Aethelbert's code and was
copied from documents which we cannot be certain were original in the first place.
Therefore, regardless of the motives and the supposed accuracy of the scribes who
compiled the copies of the codes we now possess, errors in transcription could
possibly have been made.
A second problem also arises when examining the early Anglo-Saxon codes and
that is the fact that we possess the written law of only two kingdoms of the
Heptarchy: Kent and Wessex.10 5 Though we have evidence from a later
Anglo-Saxon code 1°6 that Offa of Mercia also enacted a doom, this doom, or code,
is not extant. Thus, we must be careful when drawing conclusions about
"Anglo-Saxon society" from such a small sample of that society for what may
have been the custom or law in Kent would not necessarily have been the custom
10 7
in Northumbria.
In addition to the purely structural problems involved in extrapolating broad
sociological information from potentially suspect sources, a third problem arises
when examining the documents in question. That is the fact that we are attempting
to elicit information relating to the broad spectrum of Anglo-Saxon legal custom
from a fairly limited source, i.e., the law itself. This is a particularly vexing problem
since other sources of information concerning daily Anglo-Saxon life are not as
abundantly available. Therefore, even assuming we have accurate copies of the
dooms with which to work, we are attempting to extrapolate information about how
ordinary, every day legal affairs were conducted based primarily on the laws
themselves. However, since contemporary experience would seem to indicate that
there is a wide gulf between the realities of "law on the books" and "law as
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
applied," we must be careful not to be overly dogmatic in our understanding of the
Anglo-Saxon legal system.
If there are inherent structural and contextual difficulties in extrapolating
information from these somewhat limited sources, we must also remember that
these problems are exacerbated by the fact that the dooms in question were written
at a time of great social change, change that fundamentally and radically altered
both the content and the application of Anglo-Saxon customary law. The import
of this change is particularly acute when we attempt to interpolate information from
the dooms regarding the decades immediately preceding the seventh century. The
fact is, the first Anglo-Saxon dooms were not written until after Anglo-Saxon
society came into contact with Romao-Christian society. In fact, Bede himself told
us that the codes of Aethelbert, the first Anglo-Saxon dooms ever written in the
vernacular, were written "after the Roman model." In other words, the mere act
of codifying "the law" was inspired by the influence of the Roman missionaries
and was not a naturally occurring Anglo-Saxon act. Therefore, regardless of one's
estimation of the extent of sociological and philosophical "contamination" wrought
by the Roman missionaries to the traditional underpinnings of Anglo-Saxon society,
it is clear that the society described by Tacitus hundreds of years earlier was
undergoing a period of externally induced change.
Given the state of change Kentish society was experiencing in the early seventh
century, to thereby conclude that even the first written expression of Anglo-Saxon
law accurately reflected the realities of traditional Anglo-Saxon society would be
ill advised. Likewise, to conclude that these same dooms accurately reflected the
then contemporary legalisms of the wider Anglo-Saxon population would also seem
to be intellectually disingenuous. The fact remains that because of Aethelbert's
conversion to Christianity, it is clear that he was influenced by Roman/Christian
philosophy and dogma. The very fact that Aethelbert's doom placed the Catholic
church and clergy in such high esteem clearly indicated that his dooms were not
entirely reflective of the status of the customary law of the late sixth and early
seventh centuries. Furthermore, even assuming the dooms, as available to us today,
accurately reflect Aethelbert's code as written (and it is not absolutely clear that
they do), 10 8 it is far from certain whether one king'sfBretwalda's conversion to
Christianity was indicative of a general embrace by the wider Anglo-Saxon
population of the same ideals. Thus, one must wonder with what degree of zeal
these "Anglo-Saxon laws," contaminated as they were by Roman dogma, were
received at the time they were written. One must also wonder whether the other
kingdoms of the Heptarchy had dooms which were consistent with Aethelbert's.
However, since no other contemporaneous written dooms are likely to ever be
discovered, these queries must remain unanswered.
Considering the situation described above, when examining the Codes/Dooms
that follow, we must be ever cognizant of the fact that we are examining evidence
of but a small segment of Anglo-Saxon society; a sample which may have been
contaminated by cultural bias and subsequent alteration. On the other hand, based
solely on the fact of its continued survival, we must also be aware that this evidence
1991] ANGLO-SAXON LAW
must have played a critical role in the development of Anglo-Saxon society. The
fact is, that of all the aspects of Anglo-Saxon society to have been recorded and
preserved, documents relating to the early customary law stand .paramount.
Therefore, from this fact alone one may legitimately conclude that untold
generations of scholars, dating back even before the "dark ages" preceding the
time of the Venerable Bede, rightly considered the early Anglo-Saxon dooms as
having played a pivotal and vital role in the development of Anglo-Saxon society.
If, perchance, the law as written preceded the views of the Anglo-Saxon people and
served as a model rather than as a mirror, then so be it. For regardless of how new
or "avant-garde" the law may have appeared at the time it was written, it would
appear that the mass consciousness of the Anglo-Saxon people caught up with, and
eventually embraced, the jurisprudence of the Kentish kings.
C. Aethelbert's Doom
Although the precision of the Textus Roffensis and the accuracy of Aethelbert's
doom contained within it may be somewhat suspect, for the purposes of this
discussion I will proceed on the assumption that the extant text of the doom has
survived in something closely resembling its original. Therefore, assuming the text
of Aethelbert's doom currently available to us fairly represents the law as
promulgated in the early seventh century, at least two significant observations may
be made regarding it: first, the dooms are the earliest set of written laws ever
drafted by a Germanic people in Europe; and second, they constitute the earliest
example, so far as we know, of any text, on any subject, ever written in the English
language.10 9 As such, Aethelbert's doom provides us with the earliest known written
information we have regarding both early Anglo-Saxon social life and the origins
of the English common-law system.
In ninety brief lines the dooms of Aethelbert, Bretwalda of Kent, reveal a
complex Anglo-Saxon society composed of clergy, noblemen, commoners,
freedmen, and slaves." 0 Furthermore, even though the dooms were the first written
expressions ever attempted by the Anglo-Saxon people, there is nothing about them
which marks them as being "primitive" in any absolute sense of the word.", For
one thing, their purpose was clear: the traditional customary law of the
Anglo-Saxon people was to be set down for posterity and the position of the Roman
newcomers was to be accommodated within the existing social and legal framework
of the time.1 12 Thus, in keeping with both ancient tradition and contemporary
reality, Aethelbert encoded the customary worth of his subjects, noted offenses for
which one might be "prosecuted," established penalties one might suffer if he dared
commit such an offense and inserted the newcomers into the traditional legal fabric.
In fact, the desire to protect the fledgling church was given by the3Venerable Bede
as the very reason Aethelbert created the dooms in the first place."
In spite of the apparent simplicity of purpose the dooms seem to have served, a
careful examination reveals that they were, in fact, a rather complex set of legal
rules. Part of this complexity derives from the fact that they were more than just a
list of do's and don'ts. In fact, before a careful examination of what Aethelbert
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
created can be accomplished, the term "doom" must be fully understood. The
original source for the word "doom" comes from the doom itself. In the Preamble
of Aethelbert's Doom, there appears the following statement: "[these are the
'domas' of King Aethelbert established in the lifetime of Augustine." The
Anglo-Saxon word "domas" has been translated into the contemporary English
word "doom." However, the definition for the word "doom" appears nowhere in
early English literature and has created somewhat of a controversy as to its piecise
meaning. At least two scholars have translated/defined "domas" as meaning
"decrees" 114 (thereby rendering Aethelbert's preamble as, "these are the decrees
of King Aethelbert..."). Other scholars, however, have suggested the word implies
more than this.
Into this affray has stepped Professor A. W. B. Simpson who noted in his treatise,
The Laws of Ethelbert
[T]he word domas, commonly rendered as 'dooms,' is almost untranslatable .... The nearest
equivalent is 'judgments,' and the difficulty we have in finding an equivalent for the contemporary
description is not without its significance. Today, of course, we draw a distinction between
legislation on the one hand and adjudication on the other .... Essentially, however, legislation
involves the idea of laying down abstract general rules to deal with situations that, it is thought,
will arise in the future: adjudication on the other hand involves giving decisions in particular
cases after they have arisen. But this distinction was not part of the intellectual stock of ideas
of the seventh century. So what we think of as the laws, the legislative code, that is, of King
Aethelbert, consisted in the eyes of contemporaries as a set of judgments pronounced by a king
(and his council of elders) who did not think there was any critical difference between pronouncing
abstract decisions of a general character for the future and giving particular decisions in concrete
areas. The king and his counselors proceed to give judgments without waiting for any actual
dispute to come before them. If this or this happens, this is the judgment. Aethelbert then in a
sense legislated without knowing that this was what he was doing, without realizing that he was
employing a new and immensely important social technique. 11s
From this analysis provided by Professor Simpson, we see that Aethelbert and
his Council of Elders (the Witan) "enacted)" in writing, a restatement of the then
existing Anglo-Saxon legal custom and only incorporated "new elements" into the
law as a means of defining the social status of the religious newcomers. Therefore,
by means of "legislation," Aethelbert's dooms defined existing legal custom and
pro-ided a fairly inflexible list of tariffs of compensation to be paid for violent
attacks against people or property. What the dooms did not do was create a sort
of neo-Roman law. Furthermore, Aethelbert's dooms, in spite of being
"semi-legislated," did not announce general principles of law to help in the orderly
resolution of disputes, nor did they create new principles of law or right for the
Anglo-Saxon people. No new crimes were established by the dooms, nor were any
traditional acts of the Anglo-Saxon people newly redefined as being wrongful or
criminal. What is most surprising about this is that such additions might have been
expected from a king and council who had recently converted from "paganism"
to Christianity. Therefore, in spite of the social changes going on around them,
Aethelbert and his council chose to limit their "legislation" to the terse
proclamation of a scale of pecuniary penalties to be paid in the event an
Anglo-Saxon committed a specific offense against a person or property.
19911 ANGLO-SAXON LAW
Additionally, since these offenses were based on traditional legal concepts, there
was no need to provide expansive accounts of their "elements." These elements,
as well as rules concerning legal procedure, would have been thoroughly defined
by the existing customary law and would have been entirely recognizable and
familiar to the Anglo-Saxon people.
As may be seen from this analysis, aside from incorporating the religious
newcomers into the existing social and legal structure of Anglo-Saxon society,
Aethelbert's codes seem to have served as a sort of "jurisprudential restatement,"
mirroring existing custom and focusing on what would have been fairly obvious to
even the most casual practitioner of Anglo-Saxon law. Therefore, based on this,
the codes, in spite of the difficulties of accuracy and cultural contamination, would
seem to provide a window into the 6
every day workings of Anglo-Saxon society in
the early seventh century A.D.1
Given the fact that Aethelbert's dooms were reflective of existing Anglo-Saxon
society, perhaps what is most surprising when examining them is that they do not
seem to evidence a social organization based solely upon a simple military
monarchy.' 17 From these first written laws of an Anglo-Saxon king, we see that the
king's "subjects" were not organized into a social system founded upon passive
submission to authority. Instead, loyalty was given not out of a sense of obligation,
but rather was based upon a freely rationalized sense of reason. 118 Furthermore, in
spite of his conversion to Christianity (and in spite of an earlier claim of descent
from the Germanic god Woden), there is nothing in his dooms which would lead
one to believe that Aethelbert had mystical or divine aspirations, nor that his
subjects saw him in such light. In fact, Aethelbert did not even hold the highest
social position within his own dooms; this honor was reserved for Roman Catholic
bishops, priests, deacons and ecclesiastical clerks. 119 What is revealed in the text
of his doom is that Bretwalda Aethelbert extended royal protection to his subjects
at a time when protection from competing clans was sorely needed. Therefore,
Aethelbert based his laws not upon divine or mystical right, but rather upon the
idea that the king was the ensurer of peace within his kingdom and that if the king
extended his "peace" (or protection) to a particular subject, then it was considered
a more heinous act to infringe upon that peace than it would have been to have acted
against a person not so empowered. Indeed, this concept of "peace" was based
on the traditional Anglo-Saxon belief that, "[jiust as one could injure a man
himself, one could injure his peace, by committing a crime in his house, or his
presence, or against his protected servant; and there was a traditional compensation
for the breach of his peace."' 120 In other words, breaching the king's peace resulted
in a heavy fine, or mulct, being paid to the king with the amount of the mulct being
based upon the degree of the breach; the greater the interest that was breached, the
greater the compensation that was due the king.
Considering the perspective of the day, particularly the idea that the king's
subjects owed their loyalty to the king in return for his protection, as well as the
idea that the king could, under certain circumstances, extend his "peace" to
specific individuals, Aethelbert's dooms possess a logical unity. Those interests the
king held dearest were protected to the greatest degree; those he held less dear
USAFA JOURNAL OF LEGAL STUDIES (Vol. 2
were, consequently, protected to a lesser degree. Thus, it is not surprising to find
that first in priority for protection by the newly converted, pious, Christian king
was the fledgling Catholic church and its leadership. Furthermore, as would be
expected, next in order of protection came the king's direct interests. As such, we
find that those of the kings subjects (i.e., his lieges) who were on their way to his
royal court at his instigation were heavily protected,' 2 ' as were the households in
which the king visited. 122 Property owned by the king, including his residence, and
all those persons within the confines of his residence, also received heavy
protection. 23 Additionally, "man slaying" and robbery committed in the king's
presence received special condemnation, as did the killing of one of the king's
messengers, smiths, or fedsels.1 24 In all, aside from the first clause of the doom
which closely protected the interests of the church, the first eleven articles of
Aethelbert's doom dealt solely with secular subjects relating to the preservation of
the king's majesty. 12
In addition to clearly providing special protection for those interests relating
strictly to royal privilege, we see that the doom also provided Aethelbert with two
rights which marked him as a special guardian of the peace. First, according to
clauses 6 and 8 of the doom, we find that, "[fif a man slays a freeman, he shall pay
50 shillings to the king for infraction of his Seignorialrights.' 2 6 We also find the
statement that, "the king's mundbyrd shall be 50 shillings."' 127 The term
"mwndbyrd" referred to the right of the king to extend his protection to an
individual as well as to the amount of the mulct to be paid for a breach of that
protection or guardianship. 128 Thus, assuming the king's .mundbyrdwas breached,
or assuming a freeman was killed, not only would the injured party's family be
compensated (see discussion below), but additionally, a special fine would have to
be paid to the king. In addition to this, a second special right accrued to the king: if
one of Aethelbert's subjects was "molested" either at the court of the king or one
of his assemblies, not only was the injured party to receive double compensation,
but the king was also to receive a payment of 50 shillings.1 9 Thus, we see that the
concept of the king's peace was protected not only with heavy compensation to the
victim (or his family), but also with a heavy fine payable to the king. We also see
that even at this very early stage in English legal history, the king's court was
already acquiring special authority.13
Aside from these special provisions granting the king a special legal position
when his "peace" had been breached, it is clear that Aethelbert's dooms also
addressed the ancient Anglo-Saxon custom of the "blood feud." As we have seen,
the early Anglo-Saxons were organized on a traditional tribal basis with heavy
reliance paid to kindred affiliation. In fact, it is believed by some historians that
within these tribal units, Anglo-Saxon kindred encompassed all blood relations
within the sixth degree (i.e., to fourth cousins) and served as the primary institution
through which the law functioned.13 1 The mechanism by which blood relationships
created the basic tenets of Anglo-Saxon customary law was the concept that
Anglo-Saxon kindred had the right to protect members of their extended families.
This "protection" was effectuated through the wide-spread use of private warfare,
technically called the faehcle, or feud, and was considered to be the inalienable
19911 ANGLO-SAXON LAW
right/obligation of every Anglo-Saxon freeman. These freemen believed the right
to feud was the threshold privilege an Anglo-Saxon must obtain before he consented
to enter into any political union and it constituted the commonality upon which all
freemen could meet in an equal form of polity. Therefore, from a philosophical
perspective, the feud was seen as an immediate corollary of the "law of nature;"
that is, a person, no matter how situated, could provide for his or her own personal
defense as well as for the quiet possession of life, liberty, and the fruits of one's
labor. 132 Thus, if one's neighbors did not behave in a "neighborly way," then it
was considered the right and obligation of "the many against the few" to coerce
133
the wrongdoers back into peace.
As the basis of Anglo-Saxon customary law, the blood feud admitted as its most
basic tenet that each freeman was at liberty to defend himself, his family and his
friends, and had the right to avenge any and all wrongs done to them. 134 However,
this practice had inherent limitations, for once the kindreds (or Maegths) began
engaging in feuds, an endless cycle of violence could be put into motion. If some
wrong was committed, the Maegth could avenge that wrong through the use of the
blood feud. However, the kindred of the punished party might consider the
punishment/vengeance wreaked upon their family member as being wholly or
partially unjustified. As such, they could seek to punish the people they considered
to be the wrongdoers and the violence could escalate. Murderous vendettas between
Maegths could, and did, last for generations,135thereby rendering the formation of
an orderly society difficult, if not impossible.
It was left to Aethelbert to devise a method of regulating this fundamental right
of the Anglo-Saxon populace. His problem, therefore, simply stated, was finding
a way to reconcile two seemingly contradictory aims. First, he had to develop a
method of limiting (or regulating) private vengeance so as to ensure the maintenance
of the "common good" and the preservation of a general state of peace and security.
within the Anglo-Saxon community. On the other hand, based upon the "social
contract" then existing, Aethelbert had to allow for the continuing existence of a
private right of atonement for wrongs committed against the Maegths.136 The
compromise arrived at in Aethelbert's doom demonstrated a certain brilliance by
providing the expedient remedy of commuting the blood feud to a fixed payment
of cash from the wrongdoer to the injured party (or his Maegth), as well as for a
fixed payment to the "central government.' 1 37 Therefore, by providing for the
payment of cash to help alleviate the need for the blood feud, Aethelbert's codes
helped foster the transition of Anglo-Saxon society from a society based upon
family loyalty (i.e., tribalism), to one based upon governmental authority.
Underlying this concept of cash payments as a way of obviating the need for
more violent methods of private vengeance and atonement was the concept of
"strict liability" on the part of the wrongdoer. Nothing in Aethelbert's doom either
explicitly or implicitly addressed the social status of the wrongdoer; the
wrongdoer's ability to pay a tariff for his transgression, nor the degree of fault
engaged in by the wrongdoer. In fact, the cash to be paid by the wrongdoer (or his
Maegtb) to the victim (or his Maegtb) was set and fixed by the doom and did not
vary in the slightest regardless of the social status of the wrongdoer, nor did it vary
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
13
with the degree of the wrongdoer's culpability. In fact, just the opposite was true. s
Applying the theory that social rank carried with it certain privileges, among which
was absolute protection, the degree of fault engaged in by the wrongdoer was
considered wholly irrelevant. Absolute liability was imposed on the Anglo-Saxon
populace and the fine/compensation to be paid to the victim or his family depended
solely on the social status of that victim. The higher the social status of the victim,
the higher the mulct to be paid. We see, then, that concepts such as "fault" and
"culpability" did not emerge in Anglo-Saxon law until much later. 139
Given the fact that Anglo-Saxon society was just entering the beginnings of
governmental centralization, it should not be surprising that we find little evidence
of a sophisticated legal structure in existence when Aethelbert's doom was written.
Furthermore, given this fact, it should not be surprising to find that the legal
structure in existence in early seventh century England was wholly unable to
consider every injured person's personal merits when assessing an appropriate
amount of money damages to be paid. Thus, since it would have been impractical
for this fledgling legal system to assess every injury on its impact on the victim,
the dooms fixed, by set tariff, the amount to be paid for each injury and based that
amount on the social rank of the injured party. 14 These fixed payments, therefore,
were based on the ancient Anglo-Saxon concept of the wergild.
The customary practice encoded in Aethelbert's doom of assigning a fixed value
to be paid for the death of a particular victim based upon that victim's social status
(i.e., based upon that person's wergild) was known as "composition," and every
member of Anglo-Saxon society had his or her wergildestablished and fixed by the
doom. Therefore, the death of a member of the nobility, for example, would require
the payment of a wergildwhich was three times higher than the wergild to be paid
in the case of a death of a peasant. Additionally, injuries less than death required
a partial payment of the victim's wergild and were also dependent on the victim's
social status.1 41 Thus, whenever an Anglo-Saxon was killed or injured the courts,
or "folk-moots," merely had to determine the victim's social status, look in
Aethelbert's doom to find the victim's wergild and order its payment by the
wrongdoer (or his Maegth, if the wrongdoer had no money). No complicated
concepts of intent or liability had to be considered, nor did the folk-moots have to
determine the "value' of an injury. Everything was listed, by tariff, or mulct, in
the doom.
Thus, we see that Aethelbert's doom eliminated arbitrariness in the Anglo-Saxon
legal system and ensured that the king's peace would be maintained in two very
important ways. First, the king granted his peace to certain subjects when they
were in his presence or his employ; and, second, even if they were not so graced,
they still were protected by the payment of mulcts based upon their wergild.
Therefore, penalties for breaches of the peace were punishable by fine and had to
be paid regardless of whether they were considered direct breaches of the king's
peace142 or indirect breaches resulting from the death or injury of one of the king's
subjects. 143
A careful examination of the mulcts and wergilds listed in Aethelbert's dooms
reveals a highly complex social order made-up of persons afforded varying degrees
19911 ANGLO.SAXON LAW
of deference. First in order of deference came the clergy. This category of persons
was further divided, in descending degrees of importance, into Bishops (Biscopes),
Priests (Pmostes), Deacons (Diacones), and Clerks (Cleroces). Next in order of
precedence came the King (Cyninges), then the noblemen (Eorls), followed by the
commoners (Ceoris), freedmen, of which there were three classes (i.e., Laet
categories one, two, and three), indentured servants (Esne) and slaves (Peow).
It is apparent from an even cursory reading of Aethelbert's doom that the newly
arrived Catholic clergy held a preeminent social and legal status in Kentish
Anglo-Saxon society. In fact, as has been previously discussed, it is probable that
the raison d'etre for the code itself was the incorporation of the new religion into
that society. 144 As such, we find in clause 1 of Aethelbert's doom that the theft of
church property would be compensated with a mulct twelve times the value of the
property stolen. Theft of a Bishop's property would be compensated with an
eleven-fold mulct: a deacon's property six-fold; a clerk's property three-fold.
Furthermore, in keeping with the tenuous position the Catholic church must have
found itself in early Anglo-Saxon England, we see that King Aethelbert ensured
the church'9 right and ability to exist by noting that a "[bIreach of the peace shall
be compensated doubly when it affects a church or a meeting place." 145 Thus, as
might be expected from a recent royal Anglo-Saxon convert to Christianity, the
position of the church stood preeminent in Aethelbert's doom.
Following the clergy, next in order of preeminence in Aethelbert's doom came
the protection of the king's majesty and the imposition of the king's peace upon
his Anglo-Saxon subjects. Clauses two through twelve of the doom, therefore,
related directly to the king's mundbyrd and imposed heavy penalties upon anyone
interfering with the king, his servants, or anyone under his direct protection. 146 In
addition to prohibiting the killing of anyone so situated, these clauses also punished
robbery (clauses 4 and 9) and imposed heavy mulcts for causing certain types of
personal injury, including "molestation" (clauses 2, 3 & 8). Finally, clauses 10
and 11 of the doom prohibited anyone from sleeping "with a maiden belonging to
the king," including his "grinding slave," and imposed heavy fines on anyone who
breached either of these clauses.
Next in order of prominence came two clauses directly related to the elevated
status of Borls in Kentish society. 147 From the evidence provided therein, it is
apparent that even at this very early date in Kentish history there existed a class
of individuals who were considered "noble" by right of their birth. More than
mere free-born Anglo-Saxons, however, these individuals constituted something
of a "royal retainer class;" a class that owed its social position to ancestral.blood
rather than to the vicissitudes of kingly passions. As a group these individuals were
known as the EorIcund and, together with the non-noble, but equally freeborn,
Ceorls, they constituted the entire domain of the king's free subjects. In relation
to the Ceorls, however, the Eorshad a "marked and manifest superiority by reason
king." 148
of their status, quite without reference to their relations to the
It has been suggested that the position of the Eorls in Anglo-Saxon society
derived from the realistic need of early Anglo-Saxon kings to strengthen their
positions and holdings. Speculation as to how this may have come about includes
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
the theory that once these Anglo-Saxon kings and their band of followers (i.e., the
comitatus) gained a toehold on British soil, free Germanic tribesmen from the
continent were invited to strengthen the new community. The "Chief' of the
Anglo-Saxon group (i.e., the king), finding his war band too few to settle what
they had won, may well have offered liberal terms to powerful noblemen (the Eorl
class) of his own tribe, as well as to entire families of common freemen (the Ceorl
class) if they would come to his aid in the new land. They, in turn, would have
stipulated to the king's "sovereignty" on the condition that he guarantee the
perpetuation of their old continental privileges. Thus, as the new state was being
formed, it would have taken on a character much less autocratic in constitution
14 9
than might otherwise have been expected.
Thus, in analyzing Aethelbert's dooms, we find that they provide considerable
evidence concerning the existence of a relatively complex social order composed
of a variety of social classes and protected interests. We also find that early
Anglo-Saxon society did not entirely revolve around the sovereign power of the
king. In fact, just the opposite was true. A careful reading of Aethelbert's doom
reveals that there were numerous spheres of authority in Anglo-Saxon society, of
which the king constituted but one. Furthermore, unlike his continental cousins,
the Anglo-Saxon king could not exercise sole sovereign authority within his own
kingdom. Instead, he appears to have played a role more on the order of a tribal
chieftain than of a continental sovereign king. In spite of this, however, the king
also seems to have enjoyed a certain elevated social stature within Anglo-Saxon
society, a position which probably owed to his continuing ability to provide some
degree of protection to the majority of his "subjects." However, even in this role,
the king was merely exercising his authority as a "first among equals."
As noted above, nowhere in Aethelbert's doom is it suggested that the king was
the sole source of power in the Anglo-Saxon realm, for while it is true that he held
an important place in the social order, his authority was not exclusive. For example,
nothing in Aethelbert's doom suggests that the killing of a king or interference
with his interests was considered a form of treason. Rather, by establishing a
wergild and a mundbyrd for the king, it is clear that the Anglo-Saxons considered
any interference with the king's life or interests to merely be an expensive form of
homicide or wrongdoing. Furthermore, there is clear evidence in the doom to
suggest that the king was not the only person in the social order who could extend
his protection to others. For example, clause 15 of the doom clearly noted that
150
even a Ceorl could extend his "peace/protection" to certain other individuals.
Additionally, clauses 13 and 14 of the doom provided that interference with certain
interests of an Eorl subjected the wrongdoer to a payment of 12 shillings.' 5 1 In
effect, then, this clause established the value of an Eor1's mundbyrd and created
the concept of an "Eor1's peace," a peace which could be breached just as easily
a king's. Therefore, considered in its entirety, we see that the king shared his
authority to preserve the peace and provide for the common good with at least two
other classes: the Eorls and the Ceorls. Each of these classes (King, EorI, Ceor)
had interests which were to b'e protected and each held the privilege (as well as the
1991] ANGLO-SAXON LAW
duty) to maintain the social order within Anglo-Saxon society. Yet the evidence
provided by Aethelbert's doom also suggests that even though each of these three
classes held special positions of authority, their positions were not entirely equal.
Thus, while a king may have held his position somewhat at the sufferance of his
"subjects," it is also clear that his position was considered to be at the apex of the
social order.
If one accepts the idea that there was a shared system of authority in Anglo-Saxon
society, much of Aethelbert's doom falls into a predictable organization. For
example, the exaulted status of the Catholic church in the first clause of the doom
would seem particularly explainable when analyzed in light of the mundbyrdsystem.
Under such an analysis one would expect to find that the fledgling Catholic church
had little inherent ability to protect itself in the rough and tumble of Anglo-Saxon
society. Thus, considering the fact that the church lacked the basic ability to protect
its own interests, let alone the interests of others, one would expect to find that the
church would have fallen prey to any one of the numerous dangers lurking in
Anglo-Saxon society. However, such was not the case. In fact, not only did the
church survive its entry into Anglo-Saxon society, it prospered. The probable reason
for this was that the church found in King Aethelbert a powerful benefactor who
was willing to take it under his wing and extend his protection over it. Thus, being
a pious convert, we can understand how Aethelbert would have believed that it
was his duty to inject the newcomers into the existing order of social protection.
Furthermore, since the church represented an interest inherently important to the
king, one can reasonably understand why he afforded them such an exalted position
in his doom.
Considering the fact that the Catholic church was unable to protect itself in early
seventh century England, it is indeed fortuitous that it was able find as powerful a
benefactor as it did. As we have seen, the ability to protect oneself was considered
a fundamental necessity at this stage in Anglo-Saxon development. Failing that,
one needed the protection of the Maegth. Since the church was both unable to
protect itself and, by definition, did not belong to a Maegth, it is clear that it derived
its sole social position to the historical "accident" of Aethelbert's conversion.
That one can say this with any degree of certainty is based on the fact that while
Aethelbert may have been willing to convert and take the church under his wing,
it is far from clear whether any other segment of Anglo-Saxon society was, at that
time, so accepting. Nothing in the doom suggests that there was widespread
acceptance of the church. In fact, just the opposite was true. From the evidence
available it is as if the Anglo-Saxon social order said to Aethelbert, "You were the
one to convert, so it is your problem to protect your new interests. We, the Eoris
and Ceorls will not overtly interfere with this protection so long as the church's
interests do not interfere with ours." As such, it is not surprising to find that the
church's interests were protected by a heavy royal mundbyrd for interference and
it is not surprising to find that the Catholic church had no social standing apart from
that which was granted it by the king.
Since the first sixteen clauses of Aethelbert's doom broadly defined the concept
of the Anglo-Saxon "social order" and since these same clauses also defined the
USAFA JOURNAL OF LEGAL STUDIES (Vol. 2
role played by the aristocracy in peacefully preserving and maintaining that order,
it should not be surprising to find that the remaining 74 clauses of the doom related
directly to specific offenses which the Anglo-Saxons felt upset the social good.
These 74 clauses provided a fairly comprehensive list of wrongs of which a person
could run afoul in Anglo-Saxon society and they established a specific compendium
of tariffs to be paid if one dared breach any of the specific prohibitions.
First in order of consideration for public approbation were those wrongdoings
committed by persons who "secondarily" participated in breaches of the social
peace. Comprising a class of individuals that, today, we would call "alders and
abettors," clauses 17-20 of Aethelbert's doom established the monetary penalties
152 For
to be paid by persons who assisted in the commission of certain crimes.
example, clauses 18-20 established the penalties to be paid by those persons who
provided weapons to the perpetrators of certain "wrongdoings." In so doing, these
three clauses noted that suppliers of weapons were to be held pecuniarily liable for
the wrongs committed with those weapons, regardless of whether they directly
engaged in any wrongdoing of their own. Additionally, these clauses also provided
that the greater the injury inflicted with the supplied weapon, the greater the
compensation to be paid to the victim. Clause 17 of the doom also dealt with the
concept of "aiding and abetting" and concentrated on the culpability of those
persons who assisted in the perpetration of certain instances of wrongdoing. For
example, helping someone break into an abode, or helping him to unlawfully
"enter" an abode, as well as aiding in the theft of personal property, all resulted
in the imposition of heavy "fines." Thus, we see that early Anglo-Saxon society
protected the social order and the public peace with the imposition of heavy
monetary penalties and that these penalties were used as a deterrent not only for
potential wrongdoers but also for those persons who might assist in the perpetration
of the wrong. In fact, these penalties established a comparatively sophisticated
system of individual responsibility by making an individual liable for the foreseeable
consequences of his actions.
Continuing with the concept of individual liability, clauses 21-26 and clause 30
of Aethelbert's doom dealt with the treatment of homicides in Anglo-Saxon society.
These seven clauses established the penalties to be paid for killing certain
individuals and concentrated on the details under which such penalties were to be
paid. Clause 21, for example, noted that the killing of any freeman (presumably
one not then afforded any additional protection by the king, an Eorl, or a Ceor)
subjected the killer to the payment of an ordinary wergild of 100 shillings. If the
victim was under the protection of either the king, an Eorl, or a Ceorl, at the time
of the killing, the law required. that an appropriate mundbyrd be added to the
ordinary wergild and also noted that the perpetrator was liable not only to the
victim's family, but also to the victim's protector. Additionally, clauses 25 and
26 of the doom extended the classes of individuals to be protected from homicide
by establishing ordinary wergilds for the dependents of Ceorls, as well as for Laets
(i.e., indentured servants) of the first through third classes. Thus, unlawfully killing
any of these persons resulted in the wrongdoer compensating not only the victim's
family but also the victim's protector.
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The compensation to be paid for committing a homicide was established in the
doom and was unyielding in its specificity. Wergilds were based upon the victim's
position in society and murderers were required to pay them (as well as mundbyrds
if they applied) regardless of the degree of fault in which they may have engaged.
However, rather than creating a strictly criminal code based on concepts of social
punishment, 153 clauses 21-26 of Aethelbert's doom established a liability scheme
under which wrongdoers directly compensated their victims, or their victims'
families, for the homicide regardless of the degree of culpability they may have'
exhibited. Additionally, payments for breaches of mundbyrd were also seen as
compensatory, rather than punitive, in nature. Therefore, based on this philosophy,
concepts such as blame and punishment were not considered the primary goals of
the doom. Instead, tort concepts of strict liability and compensatory, damages
prevailed over the criminal aspects, and these "civil law" concepts served to protect
the public good. On the other hand, while evidence elicited in the doom suggests
that the primary purpose of Anglo-Saxon customary law was compensation of
victims rather than punishment of wrongdoers, it is clear that the code also espoused
a general philosophy of personal deterrence. As such, one finds in clause 30 of the
doom, for example, that a killer "had to pay the wergid with his own money and
property (i.e., livestock or other goods) which whatever its nature must [have been]
free from blemish or damage." 154 Thus, in keeping with general tenets of both
contemporary tort and criminal law, victims had to be fully compensated for their
injuries and wrongdoers were held to strict standards of personal liability.
Furthermore, wrongdoers could not escape liability by fleeing the country, for if
they did, according to clause 23 of the doom, their relatives (presumably from their
Maegths)would have to pay one-half of the wergild.
As may be seen, therefore, enforcement of the proscription against homicide was
a comparatively simple matter. Questions of evidence would have been minimal
since the gathering of facts revolved around the act itself and ignored issues of
intent. Thus, once it had been determined that a person had committed an act of
homicide there would have been no need to delve into the complexities of motive
or degrees of culpability. Furthermore, the terms of payment for the homicide, being
based as they were on the victim's wergild, would also have been easily established.
Ability to pay the compensation would have been considered irrelevant and
compensatory "payment plans" were already established by clause 22 of the doom
when it specified, "[i]f one man slays another, he shall pay 20 shillings before the
grave is closed, and the whole of the weregeld within 40 days." 155 Thus, by finding
the victim's wergild in the doom, adding perhaps the protector's mundbyrd, the
folk-moot had little else to do than impose the terms of clause 22. Furthermore,
as has already been noted, even if the perpetrator fled the country, the perpetrator's
family, under a theory of "joint and several Maegth liability," would have been held
liable for half the cost of the wergild, thus obviating the need for any sort of
"pre-trial confinement system." One may be certain that even if the individual
was undeterred by the system of mulcts imposed by the doom, his family could
have been counted upon to reinforce that deterrent potential, if for no other reason
than the preservation of their own self-interest.
USAFA JOURNAL OF LEGAL STUDIES (Vol. 2
In addition to the system of mulcts (i.e., wergilds and mundbyrds) established
in the doom and in addition to the system of personal and Maegth (i.e., family)
liability imposed by clauses 23 and 30, one other provision contained in the doom
insured the maintenance of the public order; that is, the provisions contained in
clause 24.156 The terms of clause 24 specified that, "[I]f a man lays bonds on a
freeman (presumably both Eors and CeorIs), he shall pay 20 shillings
compensation." 157 While this clause could easily have applied to "kidnapping"
situations, it is also probable that it applied in cases of what might be thought of
as "false imprisonment." Thus, were someone to wrongfully accuse another of
violating some proscription of the doom, thereby causing that person to be
apprehended and "confined" (say by an aggrieved Maegth), such wrongful act
would have been punishable under the terms of this clause. Therefore, combined
with the systems already discussed, we see that the maintenance of order in early
English society, and the enforcement of its legal proscriptions, were well provided
for in this first written Anglo-Saxon code.
The remaining clauses of Aethelbert's doom considered the plethora of
wrongdoing in which an Anglo-Saxon might engage and established set mulcts for
such legal violations based upon the degree of harm done to a victim. For example,
clauses 27-29 and clause 32, dealt with the compensation to be paid for breaking
and entering into another's abode, as well as for committing a theft of personal
property once inside that abode.' 5 8 Additionally, clauses 33-72 of the doom dealt,
in some detail, with the problems associated with assaults, batteries, and
impositions of grievous bodily harm. Therefore, consistent with the jurisprudential
nature of the preceding clauses, clauses 33-72 of the doom established precise tariffs
of compensation to be paid for each different type of wrongdoing committed and
each different type of harm caused. Regarding the precise detail provided in these
forty clauses, Professor A. W. B. Simpson has noted:
[The arrangement within this section is basically anatomical. We begin at the top, with
pulling of hair in clause 33.159 The next clause is for harder pulls, involving an element of
scalping.160 With odd lapses we then move down the Anglo-Saxon human anatomy, reaching
the fingernails by clause 55 and eventually the toenails by clause 72.161
Thus, in minute detail, the doom attempted the nearly impossible task of
establishing set tariffs for each possible infliction of bodily harm (grievous or
otherwise) an Anglo-Saxon might suffer and injected ambiguity into the system
only in cases involving the laming of a victim by the breaking of his thigh.
According to the doom, such cases were not handled by the folk-moots but were,
instead, referred to the non-codified customary Anglo-Saxon legal practice of
"arbitration." Apparently, the arbitration involved the victim's "friends," (i.e.,
due. 162
perhaps the victim's Maegth) deciding the compensation
Subsequent to the compensation tariffs concerning instances of personal injury,
the doom next turned to an area of customary legal practice which might broadly
be referred to as "family or social law." For example, clauses 73-75 of the male
dominated doom discussed the subservient role of "freeborn" women in
Anglo-Saxon society and established controls over their behavior. Regarding the
expected social behavior of these individuals, Aethelbert's doom established a
19911 ANGLO-SAXON LAW
system of muIcts for "misconduct" committed by all "freeborn women with long
hair"' 163 and also established mulcts for injuries sustained, and for mundbyrds
violated, in cases involving unmarried women and women of noble birth. 164
Additionally, taking the position that Anglo-Saxon women had legal status little
better than one of chattel, clauses 76 and 77 considered the "taking of a widow"
by a man when the woman did "not [of right] belong to him" and also considered
the contractual efficacy of "buying a maiden."1 65
Continuing with the "family law" theme, clauses 77, subsection 1, through
clause 81, established the procedures to be utilized in cases of "separation and
divorce" arid also established the requirements for testamentary succession. 166
Interestingly, there was little Christian influence in this, or any other, area of
traditional Anglo-Saxon customary law and it is clear that while Aethelbert may
have been willing to incorporate the Catholic church into the existing social
structure, he was not as willing to alter the customary rules of that structure to
meet the philosophical predisposition of the new religion. Equally as clear is that
at this stage in Anglo-Saxon development, the social position of women was
appalling. Just as a free man could, pursuant to customary contractual rules,
purchase a maiden, he could also rescind the purchase contract under a theory of
"breach of express warranty." In such situations, the woman's "owner" (husband
seems to be an imperfect description of such a relationship) could "take her back"
to her original owner if there had been dishonest characterizations made during the
bargaining process regarding her intrinsic value. 167 Women fared little better in
"divorce" situations for the doom also noted that if a free woman wished to leave
(divorce) her "man" (i.e., her owner), she would have to give him half of all her
possessions. 168 Additionally, if the owner/husband wished to maintain custody of
any children born during the "marriage," he had the unfettered contractual right
to do so, providing he compensated the mother with a "share of the good equal to
a child's."' 169 Failing to bear a child during the tenure of the "marriage" also
resulted in a monetary penalty befalling the woman and her Maegth. 170 Finally,
even in death the doom limited the rights of women by mandating that they could
inherit property from their "husbands" only if they had borne living children during
the "marriage."'' Needless to say, there were no corresponding clauses limiting
the rights of men in the area of "family law."
The final area of "family law" with which the doom dealt was what might, for
lack of a better term, be referred to as "adultery law" or, even more descriptively,
as "trespass to chattels or conversion." Forcibly "carrying off" a maiden owned
by another freeman was punishable with a 50 shilling compensation to be paid to
the original owner, plus, at the owner's option, the forced sale of the maiden to the
wrongdoer. 172 If the woman was, at the time of the wrongdoing, "betrothed, at a
price, to another man," an additional 20 shilling compensation had to be paid to
the "bridegroom."' 173 If the person who forcibly carried the maiden off later had
the gall to return her to the original owner, a 35 shilling compensation had to be
paid (presumably for "loss of value") to the original owner, plus 15 shillings to the
king. 174 Finally, having intercourse with the wife of a servant was proscribed with
75
a "two-fold compensation."1
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
The doom of Aethelbert concluded with five clauses considering the position and
obligations owed by family retainers. These retainers were composed of two classes
of individuals: bonded servants (called Esne in Anglo-Saxon); and slaves (called
Peow). Even here the Anglo-Saxons established precise wergilds and also enacted a
system of mulcts denoting the intrinsic value of both a slave's and a bonded
servant's body parts. Additionally, the doom established in great detail, the
penalities imposable for stealing from (or by) such persons. 176 Thus, we see that
in but 90 brief clauses, the entire social structure of early seventh century
Anglo-Saxon England was described. Everyone had a prescribed place in the social
order and this place was pinpointed with monetary exactitude. Furthermore, the
system of compensatory mulcts outlined above was fairly exact and would not have
imposed a significant burden on the relatively primitive administrative organs then
in existence. All that was needed in this system was a determination of what harm
had been committed and who had committed it. The doom took care of the rest.
IV. EVOLUTION OF EARLY ENGLISH LAW
A. Concerning the Extant Laws
of the Kingdom of Kent
Following the death of Aethelbert in 616, the laws of successive Kentish kings
enacted during the seventh century A.D. show that entrenched aristocratic interests
within the Kingdom of Kent were forced to adjust and adapt the Anglo-Saxon
customary law to the realities of rapidly changing social and religious circumstances
then in existence. 177 Foremost among the catalysts for this change was the growing
influence of the Roman Catholic church. First observed in the dooms of Aethelbert,
subsequent Kentish laws exhibited a growing trend to expand the customary law
to encompass the tenets of the new religion.
According to the Venerable Bede, Aethelbert, the first Christian Anglo-Saxon
king in England, governed the kingdom of Kent, including all of the English
provinces lying south of the Humber river, for 56 years. During his reign,
Aethelbert's doom was promulgated to the entire Kentish "nation" and appears 178
to have been widely adopted and observed by his Anglo-Saxon subjects.
However, since his doom explicitly encouraged the development and growth of
Catholic institutions in England, the period of Aethelbert's reign must have been
marked by great psycho-social change. As noted above, few of the clauses of
Aethelbert's doom could be said to exhibit Roman or Catholic influence and it is
probable that many of the customs delineated in the doom would have been
perceived as being inconsistent with the mores of the new religion. Certainly, given
the social and political structure then in place, this clash of conflicting ideals would
have created an atmosphere of friction and distrust between the existing
"entrenched elite" and the proponents of the new religion.
While there are few surviving contemporary accounts of the public debate which
must have taken place regarding the role of the new church in Anglo-Saxon society,
we do know that such debate must have been quite heated. Evidence of this is found
19911 ANGLO-SAXON LAW
in the fact that after Aethelbert died in 616 A.D., a backlash appears to have begun
against the Catholic church. Though short in duration, this backlash would seem
to indicate that there was a great amount of resistance on the part of certain
entrenched interests, including those of the new king, to share privilege and
authority with the new Catholic clergy.
Evidence of the social unrest created in early seventh century Kent by the
entrenched elite is demonstrated by the fact that Aethelbert's successor, Eadbald
(Aethelbert's son), refused to "embrace the faith of Christ." Furthermore,
according to the Venerable Bede, Eadbald's accession to the throne of Kent proved
very prejudicial to the new church. 179 Why such was the case has not been entirely
explained. However, some clues as to the"origin of this clash come to us by way
of the Venerable Bede when he noted that Eadbald was, "troubled with fits of
madness" and that Eadbald had married his "father's wife." Bede went on to
characterize Eadbald's actions as "abhorrent" and described him as a "defiler"
and a "fornicator."' 80 One may only 9peculate that the Catholic missionaries of
Eadbald's time were also somewhat vocal about their opposition to Eadbald's
marriage and that such criticism would not have been particularly well received by
the king, particularly when nothing in the Anglo-Saxon customary law prevented
such relationships. At any rate, there appears to have been an uprising on the part
of the Anglo-Saxons against the meddling of the church in their personal and legal
matters and Bede tells us that Eadbald and his East Saxon cousins re-embraced the
practice of idolatry and "granted free liberty to the people under their government
to serve idols."' 81 In fact, the situation became so tenuous (Bede referred to it as
a "revolt") that many of the Christian 82
missionaries were forced to temporarily
abandon England and return to France.1
Within a year of this "revolt," however, for reasons which have never been
satisfactorily explained, Eadbald was convinced to convert to Christianity. Thus,
Bede tells us that upon his conversion Eadbald "abjured" from the "worship of
idols," renounced his unseemly marriage and thereafter "promoted the affairs of
the church to the utmost of his power."' 183 Yet, this change in outlook proved to
be politically difficult for Eadbald since, according to Bede, "King Eadbald had
not so much authority in the kingdom as his father nor was he able to restore the
bishop to his church against the will and consent of the pagans."' 8 4 One may
speculate, therefore, that under the shared system of authority existing at the time,
the Borls and Ceorls, as well as the Witan-Gemote, refused to allow Eadbald the
ability to enhance the position of the church in England or to give him the power
to legislate on the church's behalf. Thus, because Eadbald embraced a religion and
a cause unpopular with the existing power elite, he suffered a severe degradation
of his own power and prestige.
Based upon this analysis and based upon the evidence of the extent of the unrest
which apparently existed at the time, it should come as no surprise to discover that
during his 25-year reign as King of Kent, Eadbald was unable to change the existing
body of Anglo-Saxon law. There is absolutely no evidence to suggest that Eadbald
was allowed to enact any written or unwritten changes to the customary law of the
time nor that the position of the church was significantly enhanced during his reign.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
On the other hand, it is also apparent that Eadbald did not subtract anything from
the customary law either. Again Bede provided the evidence for this assertion when
he noted that while Eadbald was not as powerful as Aethelbert, Eadbald "and his
nation ... diligently followed the Divine precepts."' 1 5 Thus, one sees that because
of the social and political situation then in existence, Eadbald was forced to utilize
the customary law already in existence and was unable to significantly alter it either
positively or negatively. Because he was perceived as being weak and "out too far
in front" of the social and religious beliefs of his people, Eadbald was powerless
to change the Anglo-Saxon law. Therefore, throughout his reign, the unaltered
doom of Aethelbert continued to be the "law of the land."
When Eadbald died in 640 A.D., Earconbert (Eadbald's son and Aethelbert's
grandson) became the king of Kent.' 8 6 Earconbert ruled Kent for 24 years but,
unlike his father, he apparently added a great deal to the existing body of
Anglo-Saxon law. However, whether these changes to the customary law were
issued in written form is unknown, for no extant copy of Earconbert's laws has
ever been found.18 7 As such, the exact terms of his laws are unknown. What is
known of Earconbert's laws is that Earconbert was "the first of the English kings
that of his supreme authority commanded the idols, throughout his whole kingdom
to be forsaken and destroyed, and the fast of forty days before Easter to be observed;
and that the same might not be neglected, be appointed proper and condign
punishments for the offenders." 188 How or why Earconbert was able to legislate
in this area when his father had been prohibited is not entirely clear. However,
according to the Anglo-Saxon Chronicles for the later years of Eadbald's reign and
the early years of Earconbert's reign, it is clear that during this period the Catholic
missionaries had been busy converting the Anglo-Saxon people to the Catholic
faith.189 Therefore, by the time Earconbert was in a position to legislate, the social
mores of his "subjects" had changed and the Kentish king was finally allowed to
"codify" the existing and prevalent customs of his people. Since these customs
were, by then, heavily influenced by Christian beliefs, it is not surprising to find
that Earconbert was able to add these Christian beliefs to his grandfather's doom,
thereby extending the breadth of the Anglo-Saxon customary law.
Following Earconbert's death in 664, his son Egbert (Aethelbert's great-
grandson), became the king of Kent. 190 While little is directly known of Egbert's
nine-year reign, Bede tells us that Egbert was a pious Catholic and, as such, one
may speculate that he probably subscribed to the prevailing precepts of the
church. 191 However, in addition to his piety, we know that Egbert made no written
changes to the doom of his great-grandfather and it is probable that he made no
significant alterations to the body of traditional Anglo-Saxon customary law. What
may account for this lack of legislative initiative was that late in his reign a great
synod of the Catholic church was held at Hertford and was attended by all of the
bishops of the realm, including the Bishop of Kent. From evidence elicited in the
FcclesiasticalHistories,we learn that this synod met to consider a great variety of
matters,' including the memorialization of certain ecclesiastical pronouncements in
written form. Thus, the resultant document created ten riles of conduct, or
"Chapters," that the bishops believed were necessary for the continued operation
1991] ANGLO-SAXON LAW
of the church in England. Most of these Chapters referred to purely ecclesiastical
matters and served solely to regulate the activities of priests and bishops in England.
However, one of the rules (Chapter Ten) had a broader impact and concerned the
activities of Catholic lay members. Specifically, this Chapter prohibited
extramarital sexual relations, forbade the practice of incest, and established limited
rules under which a divorce could be procured. 192
While the ten Chapters of the synod were never formally adopted as "law" by
Egbert, it is difficult to believe that they did not have a substantial impact on the
beliefs and practices of the Anglo-Saxon populace. As a practicing Catholic,
particularly considering the fact that his bishop had attended, Egbert would most
certainly have felt obligated to subscribe to the tenets of the synod and sanctioned
the promulgation of the Chapters throughout his kingdom. As such, the Chapters
would probably have been afforded great weight by the populace and would have
had a tremendous moral impact on their beliefs. On the other hand, the provisions
of these Chapters were completely contrary to the customary Anglo-Saxon family
law as enunciated by Aethelbert's doom. Thus, while Earconbert may have felt it
permissible to amend Aethelbert's doom, Egbert would still have resisted
specifically overruling and invalidating the customary law of the time. This would
have been particularly true considering the lessons that had been learned by his
grandfather, Eadbald, when he attempted to modify significant portions of
Anglo-Saxon custom. Thus, while the Chapters of the Synod of Hertford may have
been afforded great authority by the king and many of his subjects, during Egbert's
reign as king of Kent they never evidenced the same authority as the Anglo-Saxon
customary law.
With the death of Egbert in 673,193 and with the growing influence of the
Catholic church, one finds that the Anglo-Saxon customary law was ready for its
first significant alteration since Aethelbert codified that custom in 597. What was
surprising about the timing of this was that the period immediately following
Egbert's death was one of great confusion for the Kentians. For example, it is just
possible that two kings ruled Kent jointly. We know that Egbert died leaving two
persons with legitimate claims to the crown of Kent: the first was Egbert's brother,
Hlothhere; the second was Eadric, Egbert's son. We also know that Hlothhere
ascended to the throne in 673 and probably ruled Kent alone until 685 when he died
of wounds received in a battle against the South Saxons, a people whom Eadric had
brought against him. Eadric succeeded to the throne in 685 and reigned for one and
one-half years.194 What is uncertain about this period, however, is whether Eadric
had been jointly associated with his uncle for some time before the aforementioned
quarrel took place or whether he used the South Saxons to overthrow his uncle and
insert himself as king. 195 Regardless of the interpretation, some time between the
years 673 and 685, a new set of written laws was issued in Kent, the prologue of
which stated, "[Tihese are the decrees which Hlothhere and Eadric, kings of Kent,
established. Hlothhere and Eadric, kings of Kent, extended the laws which their
predecessors had made, by the decrees which are stated below,"(emphasis
196
added).
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
Clearly the language of Hflothhere and Eadric's Prologue indicated that this
law/doom was to be read in conjunction with the laws of the earlier Kentish kings.
Additionally, it is possible that both Hlothhere and Eadric, "legislated" separately,
perhaps with Eadric adopting his uncle's code and adding matters of his own.
Regardless, the sixteen clauses of the doom clearly added to the body of law first
established by Aethelbert's doom (as well as the missing laws of Earconbert) and
did so without specifically overruling any specific provisions of Anglo-Saxon
written law.
The clauses enunciated within the laws of Hlothhere and Eadric were evenly
divided between procedural and substantive matters. From a substantive
perspective, it again appears that the codes merely enacted, in writing, what was
already existing Anglo-Saxon custom. For example, clause 12 of the doom noted
that if a man removed "a cup from another where men [were] drinking, without
provocation, he shall according to ancient law (i.e., established custom) 197 pay a
shilling to him who owns the house, and six shillings to him whose cup was
removed, and 12 shillings to the king," (emphasis added).1 98 Clearly, the customary
law of the realm was being memorialized; and the inclusion of this clause in the
doom merely corrected an omission caused by oversight in earlier codes.
Of the remaining clauses pertaining to substantive legal matters, only one dealt
with an area of the law exhibiting any particular Christian influence. Specifically,
clause six of the doom stated that upon the death of a Ceorl, the CeorI'swife could
retain custody of any surviving children from the marriage, with guardians being
appointed from among the deceased CeorI's Maegth. Apparently, these guardians
199
were tasked with the duty of taking care of the children's property. Read in
conjunction with clause 78 of Aethelbert's doom,2 °0 this new clause protected both
mothers and children by allowing mothers to keep their families together, while at
the same time preventing them from committing "waste" to the child's property.
Since, under these circumstances, women were entitled to one-half of their
husbands' estates, this new clause protected the interests of all interested parties
and preserved the integrity of "family units," certainly a goal consistent with the
teachings of the early Catholic church. Furthermore, while nothing in the remainder
of the doom expressly encoded Christian principles, nothing ran contrary to its
edicts either. Thus, not inconsistent with Christian dogma, in addition to the clause
dealing with child custody, the doom alsp prescribed penalties for making
slanderous statements and uttering "insulting words;" 20 ' drawing weapons in
taverns (with or without damaging property); 202 and harboring persons likely to do
203
harm to the citizens of Kent.
What would have been most appealing to the Anglo-Saxons about these
provisions was that they applied ancient and traditional concepts of law to the new
Catholic morality. For example, regarding the custodial status of fatherless children,
one can envision that while the Anglo-Saxon population may have had reservations
concerning the enhanced role of women in society, they would also have regarded
the increased role of the protective kindred (Maegth) as an acceptable compromise
between traditional societal values and contemporary religious teachings. Thus,
when applying this clause to specific situations, we see that Hlothhere and Eadric
19911 ANGLO-SAXON LAW
devolved responsibility for fatherless children to not only the mother, -but also to
the father's kindred group. While this may have been in keeping with religiois
teachings, it would also have served traditional goals of preventing children from
ever being seriously prejudiced before the Anglo-Saxon customary law. One can
see the rationale behind as being that under Anglo-Saxon law if a child was ever
accused of some wrongdoing, he could only answer the charge by swearing an oath
declaring his innocence and supporting his oath with the oaths of other men who
could swear to their principal's veracity. Since these "oath-helpers" normally
came from an accused's Maegth, if a child was totally cut off from his kindred, he
could, potentially, find himself at the mercy of unscrupulous litigants. 204
While the doom of Hlothhere and Eadric appended the aforementioned
substantive matters to the body of written Anglo-Saxon law, the doom is of even
greater significance due to its inclusion of procedural matters regarding the
day-to-day operations of the Anglo-Saxon legal system. Aside from those matters
already discussed concerning Tacitus' observations of the workings of early
Germanic moots, we know little of the specific procedural workings of early
Anglo-Saxon legalism. This is particularly true since Aethelbert's doom was
entirely silent on the matter. As such, one must assume that customary practice in
this area of the law was so settled that its omission in earlier dooms was deemed
irrelevant. However, with its inclusion in the doom of Hlothhere and Eadric, a
substantial gap in our knowledge of the Anglo-Saxon legal system was filled.
Considering the fact that Hlothhere and Eadric's doom was intended to
supplement the Anglo-Saxon customary law, it should not be surprising to find
that the doom did not restate what had been enacted earlier. Instead, the doom
codified areas of the customary law which had been overlooked, specifically
concentrating on the status of certain "lower class" individuals, as well as on
procedural law. As a result, we see that both areas of the customary law received
immediate attention in the doom with the first four clauses focusing on the
procedural rights of bonded servants (i.e., Esne). These clauses of the doom
specified that when an Esne was suspected of committing a homicide, the Esne's
"owner" was obliged to surrender the Esne to the authorities and was liable to pay
a compensation for the killing; the amount of the compensation being based on the
victim's wergild.20 5 Furthermore, if the owner was unable (or unwilling) to turn the
Esne over to the authorities (perhaps by claiming that the Esne had escaped), the
owner was required to pay not only the compensation, but also a heavy penalty.
Additionally, in such cases the owner was also required to prove, through the use
of "oath-helpers," that he had been unable. to capture the slayer. 20 6 These
"oath-helpers" (also translated as "good-witnesses," i.e., persons subject to heavy
penalties for committing perjury) were required to swear before the legal tribunal
that the owner had, indeed, been unable to capture the Esne. In addition clause 5
of the doom continued with the subject of the oath-helpers by noting that when,
"freeman (stole) a man," if the victim later "returned as informer," the victim
had to accuse and confront the supposed wrongdoer !'to his face."207 Upon being
so confronted, the alleged thief, or "kidnapper," could clear himself only by
producing .a number of "free-witnesses" (i.e., oath-helpers) who could swear to
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his innocence and at least one of these oath-helpers had to come from the same
village as the accused.20 8 Additionally, clause 7 of the doom also dealt with the
problems of evidence and noted that in cases where an alleged theft victim
attempted to "reclaim" stolen property, whoever was in possession of the property
in question was obligated to bring it to the "king's residence" whereupon the
possessor would be obliged to "produce the man who sold it to him." If he could
not do so, the other party to the action would obtain title to the property in
20 9
question.
From these specific "procedural rules" enunciated in Hlothhere and Eadric's
doom, one finds for the first time in English history a detailed statement of early
Anglo-Saxon evidentiary practices; perhaps the most striking feature of which was
their relative sophistication. Concepts such as confrontational rights and testimonial
credibility were satisfactorily considered in the doom and formed a foundation for
today's procedural laws. Furthermore, an examination of the procedural rules listed
in the doom reveals that not only were they fairly sophisticated, but they also
created a system that was thoroughly "modem" in its confrontational nature, as
welt as in the way witnesses were considered and credibility assessed. For example,
these procedures denoted the presence of fact-finding tribunals (i.e., "folk-
moots"), otherwise called "meetings" and "assemblies" in the doom. 210 These
folk-moots were presided over by judges, also called Doomsmen, who rendered
"satisfaction" to either accusers or accuseds based upon the Doomsmen's analysis
of evidence presented during tria-like fact finding proceedings. Procedurally, these
folk-moot proceedings were initiated with complaints being orally presented to the
moots by aggrieved parties. In presenting these complaints, "plaintiffs" were
required to assert their allegations and provide supporting evidence to the members
of the moot (i.e., Mootsmen). Upon hearing such evidence, the Mootsmen would
then order accuseds to appear before the moot and face their accusers. When this
transpired, the Mootsmen would then order the accused to provide a monetary
"surety of payment" to the court; an amount of money which was based upon the
mulct for the alleged wrong committed. This surety provided a guarantee to a
plaintiff that he would receive compensatory satisfaction if his allegation was
proven and, thereby, vitiated the need for aggrieved parties taking matters into
their own hands. 21' If such a surety was not made, a fine was assessed against the
accused, the proceeds of the fine were forwarded to the king and the matter was
held over until such time as the surety was provided (fines could be reassessed if
the surety was not provided in a timely manner). 212 Within three days of the surety
being provided, however, the parties to the "suit" were obliged to select an
arbitrator (i.e., a Doomsman) and bring their matters before him. During the
resulting "hearing," the Doomsman would rehear the complaint and the accused
would "render justice" to the accuser either by paying the value of the
compensation required or by providing an oath (backed by at least two oath-helpers)
to extricate himself from liability. Failure to provide either of these two options
subjected the accused to a 100 shilling penalty to be paid within one day of the
arbitration proceeding and forfeiture of the surety.213 Thus, combined with the
19911 ANGLO-SAXON LAW
penalties imposed for perjury, 214 such procedures assured swift, fair, and impartial
consideration of grievances and ensured that the "king's peace" was preserved.
Significantly, the procedures enumerated in Hlothhere and Eadric's doom did
not relate solely to criminal or tortious wrongs, as had been the case earlier;
contractual matters were also considered. Of importance in this regard was clause
16 which specified the procedures for buying property (specifically cattle) in the
city of London. 215 Here the law required purchasers of such property to have, "two
or three trustworthy men, or the reeve of the king's estate," act as witnesses to
sales transactions. Later, if disputes over property ownership transpired, such as
in cases when cattle were alleged to have been stolen, the law required purchasers
to summon the property sellers to "the king's residence" to provide testimony as
to the title of the property in question. If the sellers were unable to so testify, the
purchasers were then required to, "declare on the altar, with the help of one of
(their) witnesses or with the reeve of the king's estate, that (they) bought the
property openly in London ..... " If such purchasers could not provide the required
testamentary evidence to support their title, Doomsmen were obliged to order that
the ownership title be forfeited and the property (or its value) be returned to the
aggrieved party.
From these aforementioned clauses we see that Anglo-Saxon customary law, as
early as the year 673, already placed both accusers and accuseds in positions where
they would, under certain circumstances, have to substantiate their claim with the
testimonial evidence of knowledgeable witnesses. Furthermore, these witnesses not
only served as mere "oath-helpers," swearing to the veracity of the accused.
Instead, in some cases they could be knowledgeable, disinterested parties who
served as witnesses to the underlying transactions and were brought to court (the
king's court) for the sole purpose of telling the arbitrator/Doomsmen what they
knew. On the other hand, accuseds, in order to protect themselves from unfounded
accusations, could defend themselves by taking sacred oaths and backing these oaths
with witnesses (at least one of whom had to be from the accuseds' home village).
In such cases these oath-helpers would testify, subject to penalties for perjury, as
to an accused's credibility. Thus, upon hearing this "evidence," the
arbitrator/Doomsman of the tribunal would then consider that evidence,
apply the appropriate clauses of the Anglo-Saxon customary law, and prescribe the
appropriate satisfaction to be rendered in the case. In other words, preside over a
216
system of justice not totally unlike our own.
Following the death of Eadric in 687, confusion befell Kent. Of this period The
Venerable Bede noted, "...kings of doubtful title, or foreigners, for some time
wasted the kingdom till the lawful king, Wictred (Wihtred), the son of Egbert, being
settled in the throne, by his piety and zeal delivered his nation from foreign
invasion." ' 217 Thus we see that Wihtred began his tumultuous reign some time in
690-691,218 and by the year 695 became the last of the Kentish kings to enact a set
219
of dooms.
According to the prologue of his doom, Wihtred issued his laws during the fifth
year of his reign (i.e., 695) at a place called Barham. At that time, both the
deliberative body of Kentish nobles (the Witan) and the council of Roman Catholic
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
bishops, met and considered Wihtred's proposed additions to the Anglo-Saxon
customary law. "There," according to the doom, "the notables, with the consent
of all, drew up these decrees, and added them to the legal usages of the people of
Kent.... (emphasis added). 220 Thus, nearly 100 years after the issuance of the first
written Anglo-Saxon doom, the Anglo-Saxon customary law was still . being
adapted, amended and codified in accordance with the general scheme of
Aethelbert's doom.
In examining Wihtred's code, one is immediately struck by the fact that its
clauses related almost exclusively to matters of ecclesiastical interest. As such, it
fundamentally differed from the laws of Hlothhere and Eadric. However, we also
see that at this point in Anglo-Saxon history, the king and the Witan were finally
able to enact a set of "statutes" which related explicitly to the religious rights and
privileges of the church in England, as well as to the obligations of the Anglo-Saxon
people to adopt Christian principles. Perhaps the reason they were able to mandate
this was because the majority of the Anglo-Saxon entrenched elites, as well as the
majority of the common people, had already converted to Christianity. Thus, the
immediate object of Wihtred's doom was to bring the Anglo-Saxon customary law
into conformity with the provisions of the "Chapters of Behavior" established by
the Synod of Hertford twenty three years earlier. As such, Wihtred's code
established penalties for unlawful marriages, 22 ' heathen practices,222and the neglect
of fasts and holy days.223 Additionally, nine clauses of the doom provided specific
rules whereby accused persons might establish their innocence by oath.224 Of an
even greater importance than these, however, were the granting of special privileges
to the church, privileges which had, until that time, been reserved for the 225
Anglo-Saxon nobility. In this vein, the church was declared free from taxation;
226 and a
the oath of a bishop was declared as incontrovertible as the king's;
rmundbyrd of 50 shillings was established for the 7
church so that it could extend its
own protection and provide for its own peace.?
With the inclusion of this doom in the panoply of Anglo-Saxon law, we see that
within the period of 100 years the Catholic church, the same church that Aethelbert
had taken under his protection, had become a power all but coordinate with the
king in the Kentish state. 228 Not only was the church specifically guaranteed special
privileges, but the church hierarchy was provided the same deference as the king
when engaged in legal disputes. Furthermore, one notes that by this time in
Anglo-Saxon development, the church was powerful enough to have a mundbyrd of
its own and was not obliged to the king for its protection. In fact, the church
seems, in some ways, to have even surpassed the traditional authoritative position
of the king for in the very act of "deliberating" on the provisions of king's doom
they seem to have played a quasi-governmental legislative oversight role.
Therefore, it is apparent that the power of the church had reached the point where
it no longer required a strong benefactor; instead, the power and authority of the
church had reached the point where it was actually a net provider of beneficial
support for others. As such, it is also apparent that the Church had become a full
participating member of the aristocratic, hierarchical, Anglo-Saxon society.
1991] ANGLO-SAXON LAW
B. Concerning the Laws of Ine, King of Wessex
With the death of Wihtred in 725,229 the preeminent role of the kingdom of
Kent within the English Heptarchy came to an end. Never again would the kings
and Witan of Kent legislate nor would they ever again be the codifiers of
Anglo-Saxon customary law. The reason for this was that the hope of Anglo-Saxon
unity under an Anglo-Saxon "federal" Heptarchy, so long a dream held by many,
came to an abrupt end in 658 when the people of Mercia revolted and subsequently
installed WulIfhere as their king. From that moment on, the struggle for centralized
authority expanded and the number of independent Anglo-Saxon kingdoms
decreased through conquest and absorption. Simultaneously, the center of power
in England moved from the north to the south, with the kingdom of Wessex
eventually unifying England under its control. First to fall in this battle for
unification were the kingdoms of Essex and East Anglia. Then, following the year
670, London and Wessex also came under Wulfhere's reign and Mercian control,
as did Sussex and the Isle of Wight. Upon Wulfhere's death, the kingdom of Mercia
became (for a while) even stronger under the reigns of Aethelbald and Offa, with
Offa eventually holding the title, "King of the Whole of England" from 757 until
796. However, after 821 Mercian power waned and, after a series of battles, Egbert
of Wessex received submission of all the lands formerly ruled by Offa. From then
on, the royal house of Wessex controlled the fortunes of the Anglo-Saxon
30
kingdom.2
The ability of the Wessexian Anglo-Saxon kings to rule England was exercised
in a variety of ways, not the least of which was the enactment of Anglo-Saxon
customary law. Unfortunately, of all the codes enacted by the kings of Wessex,
only one has survived until today; that being the Code of Alfred the Great. Yet,
with the fortuitous preservation of this one code, we have evidence of the great
continuity of Anglo-Saxon law, as well as a superb written record indicating the
intricate history of Wessexian law. The reason for this is that Alfred specifically
credited his forbearers for their contributions to the Anglo-Saxon body of law and
appended copies of those earlier dooms he thought valuable to his own laws. In so
doing, Alfred created an historical digest of Anglo-Saxon law through which he
recognized the legal significance of religious doctrine proclaimed in earlier
Anglo-Saxon dooms. Furthermore, in digesting earlier Wessexian customary law,
Alfred observed that previously held religious synods had, "fixed the compensation
for many human misdeeds" and had written these compensations "in many
synod-books, here one law, there another." Stressing the importance of these
synod-books to Anglo-Saxon legal history, Alfred went on to state,
[T]hen I, King Alfred, collected these together and ordered to be written many of them
which our forefathers observed, those which I liked; and many of those which I did not like
I rejected with the advice of councillors, and ordered them to be differently observed. For I
dared not presume to set in writing at all many of my own, because it was unknown to me
what would please those who would come after us. But those which I found, which seemed
to me most just, either in the time of my kinsman, Kine Ine, or of Offa, king of the Mercians,
or of Ethelbert (King Aethelbert of Kent), who first among the English received baptism, I
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
collected herein, and omitted the others. Then I, Alfred, king of the West Saxons, showed
these to all of my councillors, and they said they were pleased to observe them. 231
With the appendage of the laws of King Ine and the incorporation of the laws of
King Offa, Alfred provided us with a document of great historical significance. Of
particular historical importance is that in crediting the sources of his law, Alfred
provided us with the clearest possible indication that there was a continuity of
Anglo-Saxon law harkening at least back to the year 597. Furthermore, by
considering earlier law as having precedential value, Alfred demonstrated a
profound respect for that law. Thus, we see that even after centuries of bloodshed
and social change (Alfred's laws were probably enacted sometime between 885 and
899) and even after repeated changes in royal dynasties, Alfred felt bound to follow
the customary laws of his Anglo-Saxon forefathers. Therefore, perhaps most
significantly of all, we see that considering the ease with which Alfred adopted not
only the laws of Wessex, but also those of Kent, both sets of laws must have
represented the prevailing values and customs of the entire Anglo-Saxon kingdom.
As such, Alfred's adoption of those laws indicated that they were representative
not only of Kentish and Wessexian practice but also of all legal practice throughout
the English realm. Thus, Kentish law was, to a great extent, largely an expression'
of the greater Anglo-Saxon customary law prevalent throughout England and
thereby served as the historical forbearer to modem English law.
The historical continuity created when Alfred credited his laws, at least in part,
to earlier Kentish laws is further borne out by the fact that he also credited the
laws of kings Offa and Ine of Wessex. The explanation for this significance is that
these laws bore a striking resemblance to the laws of the Kentish kings and, as such,
constituted in their own right a continuity of that Kentish law. Thus, while King
Offa's laws have, unfortunately, been lost, 232 a careful reading of King Ine's doom
clearly indicates that he borrowed significant portions of his law from King Wihtred
of Kent. 233 Therefore, if one observes that Wihtred's laws constituted the apex of
not only Kentish law, but also of Anglo-Saxon customary law in general, then it
is easy to understand that by adopting this law, Ine carried on the great tradition
of successive addition to the body of Anglo-Saxon law first begun by Aethelbert
in 597 A.D.
When examining the laws of Wessex, one is immediately confronted with the
fact that even though they constituted a continuation of Anglo-Saxon customary
law, they also significantly enhanced and enlarged the scope of that law. In fact,
the history of English law enacted subsequent to the time of Wihtred is one in which
the growth and development of the English state was significantly enhanced. Thus,
we see in the laws of Tne and Alfred, as well as in the laws of all subsequent English
kings before the Norman conquest, a growing propensity to enact laws which
significantly encouraged the growth and development of the centralized English
state, enhanced the authority and prestige of the Catholic church, and created a
system of property law which could be called feudal, or at least pre-feudal.
Furthermore, one observes that in the years between 700 and 1066 a fundamental
change occurred in Anglo-Saxon society, a change so profound that William the
19911 ANGLO-SAXON LAW
Conqueror was able to adopt its laws as his own and use them as the basis for
implementing his fully feudal society.
Much of the credit for this fundamental change in Anglo-Saxon society can be
credited to the groundbreaking efforts of King Ine of Wessex, for beginning with
his reign one finds the development of a body of law which was far more mature
and far less experimental than its Kentish predecessors.234 Ine's codes no longer
consisted simply of tariffs of offenses for which one had to make restitution; rather,
they encompassed a serious attempt to create a body of law which would cover the
ever more complicated issues of kingship and powersharing.3 5 As such, Ine's laws
were nearly twice as long as his predecessors', they contained far less criminal law,
and covered a far greater ra~ige of detail concerning the human condition than had
ever been written in the past. Particularly significant was Ine's documentation of
the growing change in the status of the Anglo-Saxon people and their relationship
to the agrarian society.
Certainly there was much that was familiar in Ine's laws. For example, the first
five clauses of the code promoted the practice of Christianity and extended the role
of the church as "protector." In fact, clause 5 of the code created, for the first
time in English history, the concept of religious "sanctuary," a practice whereby
a criminal could escape to a church and forego punishment for the crime he
committed23 6 Furthermore, the code delineated its share of delicts, or mulcts,
including penalties to be paid for fighting,237 stealing,2 s slave trading,239 and
murder. The code also included an updated list of wergilds. (Since the wergildswere
increased in amount over those from earlier dooms, we can assume that inflation
must have been a problem even in these early times). 240 It also greatly expanded
the procedures to be used in court, 241 significantly augmented rules concerning
administration of oaths and surety practices, 242 and increased the penalties payable
for perjury. 243 Additionally, matters of civil law, including the protection of
orphans, were included, which greatly mirrored and expanded those already seen
in the doom of Hlothhere and Eadric. 244 Finally, there was a clause which
complemented provisions contained in earlier Kentish codes dealing with the issue
of trade in London. This clause required that traveling traders (individuals assumed
to be likely dealers in stolen goods) conduct their transactions before witnesss and
245
that these witnesses be available to testify if the need arose.
While the clauses noted above were not unlike their Kentish predecessors, others
were unlike any seen before. For example, many of Ine's laws dealt with the issue
of agriculture, an issue of which the Kentish laws had been silent. Specifically,
these clauses2 46 established two significant facts: first, that the Ceorls of the time
had engaged in open-field cultivation; and second, that the king and his advisors
had, fairly early in English history, engaged in the process of creating a system to
deal with the problems of land usage and land ownership; a system which would,
in a later age, fall within the jurisdiction of the manorial courts. 247 Furthermore,
these provisions, taken in context with the rest of the code, demonstrated that at
this stage in Anglo-Saxon development, the role of Ceoris and Esne was less
elevated than had earlier been the case. While there were still free peasants who
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
owned land, paid taxes to the king, and served in the army when called upon to do
so, the overall social position of the Anglo-Saxon population was beginning to
erode. 248 An example of this was that anyone who moved from "his lord" without
permission was subject to a heavy penalty 9 and anyone traveling "off the
highway" (such as a person who had moved without permission) was assumed to
be a thief and could be slain on sight. 250 The code also spoke of persons whom had
been reduced to penal slavery, noting that they could be scourged for even the
lightest of crimes. 251 Additionally, according to Ine's code, the existence of
dependent tenantry in early Anglo-Saxon society was unequivocal. Thus, we see
that noblemen who moved were entitled to force certain of their "dependents" to
move with them252 and the, code noted, "if anyone covenant[ed] for a yardland or
more at a fixed rent, and plough[ed] it, if the lord wish[ed] to increase for him the
[rent of the] land by demanding service as well as rent, he need not accept it, if he
[did] not3 give him a dwelling; and he [was] to forfeit the crops," (emphasis
added).25
Based npon these observations, we see that the code of Ine envisioned a system
of land tenures not unlike those found in eleventh century Anglo-Norman England.
Peasants who "held" property and housing "of their lords" were effectively tied
to that holding, with the clear implications of such ties being that the "holding"
belonged to the lord and that the peasant was necessary merely to provide the labor
needed to operate the manorial estate. Furthermore, the king and his councilors
(i.e., the Witan) were already beginning to regulate the size of the domain of the
manorial estatee, basing it in relation to the total amount of land actually tenanted.
Thus, as noted by Professor Fisher:
The laws (of Ine) laid down that if a nobleman wished to relinquish an estate, he must show
a proportion of gesettland at the time of his departure. Gesettlandmay mean no more than
land which is sown, in which event the king's concern would have been simply to avoid
having a derelict estate left on his hands by a life tenant; but the term gesettland may equally
well mean land settled by tenants, who would pay both taxes to the king and rent to their
lord, in which event the king's object might have been both fiscal, to avoid a reduction in
the taxpaying capacity of the estate; and, if the land in question had been recently colonized,
to prevent an area still subject to attack being deprived of its potential defenders.25
In addition to revealing the existence of both free and unfree peasants, the codes
of Ine also revealed the existence of a complex aristocracy made up of varying
degrees of nobility. Not only were peasants dependent upon certain lords, but the
codes also noted that there were men of noble status who recognized lords of
intermediate rank between themselves and the king. Thus, quite unlike the original
system implemented in England by the colonizing Teutonic tribesmen, the codes
now revealed the existence of a society which relied upon varying social classes
utilizing differing tenurial structures 355 How such a system came about is unknown.
However, it is probable that it evolved as a result of the harshness of the
environment in which the Anglo-Saxons found themselves. For example, pursuant
to the system of land occupation originally implemented by the conquering Teutonic
tribesmen, transfers of land from the "king" to his "subjects" required the king ' 6
to provide the land in return for provisions of military service and "food rents." 25
19911 ANGLO-SAXON LAW
Since these services were expensive and time consuming, and since life was difficult
even in the best of times, it is probable that both peasants and their overlords could
have been overtaken by misfortune and found themselves unable to pay the rent.
Under such circumstances, the "lord," being unable to pay the rent due, could
either transfer some of his land to another more fortunate lord in return for cash,
or he could increase the rent due from his tenants. In practice, both probably
occurred. When this happened, though two consequences probably resulted: first,
the lord who acquired the additional land would, in the long run, have become
more powerful, thereby creating a layering of the aristocratic class; and second,
poor peasants forced to pay additional rent would have found it easier and more
economical to pay it with labor than with food, thereby creating a system which,
over time and given further misfortune, would have resulted in the individual land
owner surrendering land holdings to the lord and receiving the use of them back
only after pledging himself to the lord's bonded service.
While this process of "infeudation" was on going, a second revolution was
occurring simultaneously, that being the loss in status and importance of family
kindred bonds. Concurrent with the loss of their freedom due to their increasing
ties to their landlords, the Anglo-Saxon peasantry began to lose the protection
afforded by the Maegths. However, since protection was still needed, these
individuals began turning to their overlords to meet their needs. These overlords,
on the other hand, were also losing the protections afforded by their position in the
Maegth for as kingdoms became ever larger through war and absorption, the former
kings of the absorbed kingdoms would have been compelled to accept dependence
on the new kings/overlords (or to one of the superior king's noblemen). Therefore,
in both the noble and peasant classes, the position of the kindred became
increasingly more irrelevant. Poverty and insecurity drove men to accept
dependence in return for the protection that lords or overlords could provide.25
Thus, it is not surprising to find that this need for protection increased the pace of
"infeudation," and all but eliminated the role of the kindred in Anglo-Saxon law.
From a legal standpoint, the diminished role of the Maegth in kindred protection,
combined with the increased social importance of the overlord and king, translated
into the loss of importance the family played in Anglo-Saxon legal proceedings.
Thus, as early as the year 695, the laws of Wihtred limited the power of a Ceorl
to defend himself at the altar by supporting his oath from the ranks of his own
family. Instead, Wihtred's doom mandated that a Ceorl had to obtain
"oath-helpers" from outside his family unit in order to secure a defense.258
Similarly, Ine's code noted that all men of Wessex who wished to clear themselves
of charges of homicide were required to include among their oath-helpers persons
of high rank from outside their Maegtb.2- 9 Furthermore, these same codes also noted
that with the increasing loss of familial responsibility there was corresponding loss
of Maegth ability to provide adequate surety guarantees that an accused would pay
a compensation justly imposed. 260 Therefore, the code mandated new rules for
sureties. Specifically, according to Ine's laws, for the first time in Anglo-Saxon
history a surety could come from outside the family unit and if the accused refused
to pay a penalty justly imposed (or if he escaped the jurisdiction of the folk-moot),
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
the private surety and not the kindred was liable to the court for the compensation.
Thus, under the circumstances, it should not be surprising to find that within a few
years after Ine's laws, with the decreasing importance of the Kindred and the
corresponding increase in lordship rights, lords were required to accept not only the
benefits of tenureship, but also its responsibilities-responsibilities similar, if not
261
identical, to those borne by their Anglo-Norman heirs.
C. Concerning the Laws of Alfred the Great
Two hundred years after Ine and his advisors enacted their doom, Alfred the
Great took the laws of each of his predecessors, sifted through them, discarded
what was outdated and improper, and superseded these "provincial laws" with a
code of general application to his entire dominion. In so doing, he briefly noted the
continuity of the Anglo-Saxon law, praised the morality of biblical proscriptions,
and then passed on to matters of his own interest. However, in all of these
provisions, Alfred provided little that was actually new. For example, the second
half of his code was primarily concerned with rates of compensation for private
wrongs and personal injuries committed, and created a system not unlike that which
was first seen in Aethelbert's day. 262 Additionally, interspersed within the tariffs
were penalties for breaking into the king's fortress (called burgbryce),263 the
alienation of bocland,264 and the keeping of the peace on certain religious
holidays. 265 Conversely, the clauses in the first part of Alfred's code mandated that
persons should abide by their "pledges,''26 and limited the circumstances under
which a church's "sanctuary" could be provided. 267 The code also provided that
breaches of the king's peace (mundbyrd) were to be heavily punished, as were
breaches of an archbishop's mundbyrd.268 From there the Alfred's doom considered
matters relating to the protection of churches, brawling in the king's presence, the
abduction of nuns, various sexual offenses, the slaying of pregnant women, and the
2 69
burning and felling of timber.
From this analysis, one sees that there was little that was significantly different
in Alfred's dooms. Punishments remained as harsh as everyday Anglo-Saxon life. 270
Yet, as noted by Professors Richardson and Sayles, what was significant about
Alfred's code was that it marked the beginning of a continuous era of legislation
which helped make the tenth century the most notable in the history of old English
polity. From Alfred the Great on,"(t)here has survived, though too often in a.
confused and incomplete state, (the uninterrupted) legislation of Edward the Elder,
27
Athelstan, Edmund and Edgar." 1
D. Concerning Subsequent Anglo-Saxon Law
1. During the Era of the Viking Invasions
Perhaps one of the most remarkable features of King Alfred's reign as sovereign
of greater Wessex was that he was able to codify and collate the accumulated
wisdom of Anglo-Saxon law (while, at the same time, legislating his own very
significant additions to that law) during a time of great uncertainty and social strife.
This was the era of the Viking invasions and Alfred's reign as king was beset by
1991] ANGLO-SAXON LAW
the numerous problems brought about by those invasions. First seen in England in
793, the Vikings (or Danes) were a people of Scandinavian descent who came to
England, a land of riches and comparative peacefulness, to rape, pillage, and
plunder. Unlike their predecessors, the invading Teutonic Anglo-Saxon tribesmen,
the Danes were disinterested, at least at first, in conquering and occupying England.
Instead, their original goal was merely to rob England of its riches and transport
those riches back to their Scandinavian homelands. Thus, by the time of Alfred's
reign in the late ninth century A.D., the kingdoms of Mercia and Northumbria had
been conquered and plundered and Wessex was being sorely pressed. However,
pressured to preserve his homeland, as well as the entire Anglo-Saxon way of life,
Alfred rallied his Anglo-Saxon armies and, in 877, defeated the Vikings in battle
at a place called Eddington. This battle proved to be a pivotal point in Anglo-Saxon
history and it insured the peace272(or, if not peace, at least the security) of England
for the next one hundred years.
Remarkably, as noted above, Alfred was able to enact his great code under such
horrendous circumstances. However, not only was he able to enact law, but in an
effort to preserve the peace he was able to force the Viking marauders to enter into
written instruments of armistfce. Two such instruments have survived until today,
one written during Alfred's lifetime and one written during the lifetime of his
successor, King Edward the Elder. The first of these treaties was entered into
between Alfred and his defeated Danish counterpart, Gunthrum the Viking. Signed
in 878, this agreement established boundaries between the warring factions273 and
recognized that if the two peoples were to live together in peace certain uniform
"inter-cultural" rules of behavior had to be established. Thus, the treaties
prescribed penalties for any homicide which might occur between the citizens of
the two "nations;" and they established the procedures under which a person
accused of such a crime could clear himself.274 Additionally, recognizing that
peaceful coexistence envisioned an environment whereby trade might occur, Alfred
and Guthrum entered into a trade agreement, thereby establishing, for the first
known time in Anglo-Saxon history, certain rules for the peaceful transaction of
275
commercial activity between the Anglo-Saxons and people of other nations.
In 921, with the deaths of their kings, the Anglo-Saxons and the Vikings
reaffirmed their commitment to the lrinciples of "peace and friendship" by entering
into a second treaty of understanding. This document expanded upon the original
and established additional inter-cultural rules of conduct, the first of which declared
that the parties agreed they would both "love one god" and zealously renounce all
heathen practices. Furthermore, consistent with this pledge, the treaty established
"secular penalties" for breaches of provisions relating to certain Christian tenets. 276
Finally, in the great Anglo-Saxon legal tradition, the parties enumerated specific
classes of conduct of which citizens of either people could run afoul, particularly
concentrating on the areas of proscribed religious practices, sanctuary, fighting,
stealing, and perjury. 277 Therefore, by expanding upon the procedural aspects
related to breaches of such proscriptions, the Anglo-Saxons and the Vikings created
an environment of relatively peaceful coexistence.
All of this is not to say that problems between the parties, as well as within their
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
individual populations, did not continue to exist. By the mid-tenth century A.D.
internecine wars between differing Scandinavian factions began occurring with
increasing frequency and the Anglo-Saxons, under king Aethelstan, continued their
struggle of consolidating English power within the realm of Wessexian sovereignty.
As such, during Aethelstan's reign (925-939) the people of Wessex conquered areas
in the north of England and brought all of Cornwall under their control.
Additionally, as the bickering within the Viking ranks increased, disagreements
among them became so intense that the Danes could no longer speak with one
voice. Consequently, during the reign of Anglo-Saxon king Edgar (959-975), Viking
raids in England began to reappear sporadically, with their number and intensity
greatly increasing following his death. The culmination of these intra and
inter-cultural squabblings took place in 1016 when all of the Wessexian England
was successfully conquered by the Scandinavian kings, Sweyn and Canute. Upon
their conquest, Canute became king of the Anglo-Saxon people and, for nineteen
years, ruled an empire extending from the "shores of the Baltic to the Isles of
Scilly." However, his empire proved to be unstable and following his death, the
dynasty of Wessex regained the English throne in the person of Edward the
Confessor, an Anglo-Saxon who had been raised outside the country in Normandy.
It was, therefore, during Edward's reign that Norman influence in the country
278
increased, particularly in the areas of religion, law, and administration.
From these events one can see that during the period between Alfred's death in
the year 900279 and the Norman invasion in 1066, England underwent many changes
in government. Yet each change merely amended and added to the body of
Anglo-Saxon law which had first been codified hundreds of years earlier. Thus, by
the time England was, for the last time, invaded, conquered, and unified by
William, Anglo-Saxon law had reached its full maturity and expressiveness and
was fully ready, both politically and institutionally, to accept the centralizing
innovations of the Normans.
Politically and institutionally, the period following Alfred's death was one of
increasing invasiveness and centralization. As noted by Professor Harding, "The
ravages of the Norsemen...increased the power of the noble in England, just as
they stimulated the growth of feudal lordship in France, the word 'feudal' referring
to the 'fee' of land which a retainer received and held on condition that he served
his lord in war." Thus, maintained Professor Harding, while there was not a
complete feudal system in England during this period as there would be under the
Anglo-Norman kings, many Anglo-Saxon tenants were already obliged to perform
specific feudal duties as conditions for holding their land and, as such, "closely
280
resembled feudal retainers."
2. The Laws of Edward the Elder and Aethelstan
While still preserving their customary legal practices, evidence of an ever
increasing amount of centralization and reliance upon the role of the Anglo-Saxon
nobility can clearly be found in the laws passed during the tenth century. The laws
of King Edward the Elder 281 and, later, of King Aethelstan2 82 illustrate the point.
Edward's laws, (i.e., I Edward) following closely on the heels of Alfred's, merely
19911 ANGLO-SAXON LAW
served to supplement and highlight those areas of his predecessors' laws which
were not being fully obeyed (i.e., they served as a supplement to the domboc, or
body of Anglo-Saxon customary law). As such, in order to maintain the peace
during a time of great unrest and uncertainty, Edward admonished his reeves (the
forerunners of the Anglo-Norman sheriffs) to perform their duties faithfully
(apparently an area in which they had been lax), by always "interpret[ing] the
public law" when called upon to do so and by acting in an even handed, timely,
fashion. 283 Furthermore, the public was exhorted to utilize Anglo-Saxon
"port-reeves" as witnesses for their trade transactions since they were men "who
(could) be trusted."' ' 4 The second of Edward's laws (II Edward) also dealt with
these issues, but specifically noted that the reeves, to whom both I Edward and II
Edward had been addressed, had failed to observe the provisions of the Anglo-Saxon
domboc. Thus, the laws of II Edward were far more exacting of the reeves,
demanding, under penalty of law, that they not, "withhold from another his
rights." Additionally, the provisions of II Edward mandated that the reeves "hold
a meeting (i.e., a folk-moot) every four weeks." 285 Therefore, the laws of Edward
the Elder insured that "every man" was able to obtain "the benefit of the public
law, and that every
suit shall have a day assigned to it on which it shall be heard
and decided."
From the laws of Edward the Elder we see that procedure and centralization
were becoming increasingly important to the Anglo-Saxon sovereign. In fact, both
sets of Edward's laws were specifically directed to the king's reeves, persons who
were assumed to already have copies, or at least knowledge, of the Alfredian
domboc and were in positions to procedurally enforce those dooms. Furth6rmore,
since Edward's laws specifically applied to Wessex, East Anglia and Northumbria,
they served as a first step in establishing a uniform set of written laws covering 2the7
whole of England; a step that was to be furthered during the reign of Aethelstan. 8
It is remarkable that during the short span of years between 925 and 939
Aethelstan was able to enact as large a body of law as he did. At least seven
ordinances are credited to his reign, including the first social legislation ever written
in England, a law which provided for direct monetary relief of the poor.2 88
Additionally, among his remaining laws were two which specifically extended
generalized Wessexian legal principles to individual communities located outside
formal Wessexian boundaries. Both of these two pieces of legislation were enacted
by the precursdrs of the English county courts, that is, by local assemblies composed
of local clergy and nobility, and both pieces of legislation greatly extended the
jurisdiction of Wessexian law. The first of these two laws, known now as III
AetheIstan, came to us in the form of a letter. The letter was issued by the Assembly
of Kent and was addressed directly to King Aethelstan. Although unusual in format,
the document clearly indicated that the people of Kent were formally submitting
themselves to Wessexian law and sovereignty and were formally enunciating their
subservience to the authority of the king. 289 Additionally, the terms of the document
indicated that, in return for their actions, the people of Kent were to be granted
indemnity and pardon for any and all crimes they may have committed prior to a
certain "council of Faversham." Furthermore, the letter indicated that the pardon
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
was conditioned on the proviso that they abstained from further evildoing and that
they make amends for their earlier crimes. 29° Following this, the document then
listed certain provisions of Wessexian law with which the people of Kent specifically
agreed to abide, including promises against leaving one's lord without permission 29 1
and exhortations that every lord was responsible for bringing his men to justice
when the law so required. 292 Additionally, the Kentiens agreed that any man so rich,
or belonging to a kindred group so powerful, that he could not be punished, was
to be banished from the country, regardless of whether he was of common or noble
293
birth.
The second of Aethelstan's "enacting ordinances," now styled VI Aethelstan,
was issued in London and related solely to questions regarding operations within
that burghal district. The terms of this law stated that they were to serve as addenda
to decrees already issued at Grately, Exter and Thundersfield, and, as such, were
of a supplementary nature only.294 Following this explanation, VI Aethelstan
proceeded to list, in great detail, certain provisions ensuring the enforcement of
Wessexian law. 295 These provisions, according to Professors Richardson and Sayles,
created organizations known as frithgildswhich were specifically designed to police
the large area of Middlesex, Surrey (east of the Wey), and parts of Essex and
Kent. 296 Furthermore, in describing the function of the frithgild, Professors
Richardson and Sayles noted the following:
For the purpose of administration the area was divided into shires; at the head of each was a
reeve; and within each shire there was constituted an association, or 'gild,' required to act
in cooperation with the gilds in the neighboring shires. The reeve was the executive head and
the members of the association acted as the hue and cry did in later centuries. The object of
the regulations was twofold, to repress the organized stealing of livestock...and to provide
compensation for losses that could not be recovered. 297
Thus, we see in these laws a tendency towards increased institutional centralization,
as well as an increased level of concern on the part of the "government" regarding
the social welfare of its citizens. Additionally, not only was the sovereign power
extending its jurisdiction over its own people; but its jurisdiction was expanding
geographically by its applicability to areas outside the original boundaries of
Wessex.
Of Aethelstan's remaining legislation, little detail need be provided here. The
laws of I Aethelstan, styled at the time as Aethelstan's Ordinances, related primarily
to the area of church tithes. 298 II Aethelstan contained a rather antiquated and
tiresome tariff of prohibited actions which served primarily as an updated fee
schedule. 299 Continuing on, the terms of II Aethelstan showed concern about
"lordless men,'"'3 severely limited the remaining protective ability of the family
kindred (Maegth),301 required attendance of all freemen at certain legal
assemblies, 30 2 prohibited counterfeiting, 303 and established procedures regulating
the practice of "trial by ordeal" in court proceedings. 304 Regarding this last area,
we see that by this time in English history the practice of "trial by ordeal" had
fully superseded the use of the "oath" as the preferred method of requiring an
accused to defend himself in court. How, or why, this occurred is not certain.
However, one may speculate that such a shift in institutional policy apparently
19911 ANGLO-SAXON LAW
indicated a widespread belief that relying on supernatural intervention to punish
perjury was either too remote or too tentative "a system" to serve the needs of the
"modem" society. As such, trial by ordeal, either by water or by hot iron, was
seen as a more effective insurer and indicator of Anglo-Saxon truth telling in
Anglo-Saxon legal proceedings. 30 5 An equally plausible explanation, however,
would be that with the role of the Maegth fully eclipsed, and with social interactions
increasingly more complex, people were simply unable or unwilling to act as
oath-helpers. In such a case, reliance on the supernatural would have provided a
readily available expedient to the very real problems wrought by rapid social change.
Finally, regarding Aethelstan's remaining statutes, little else need be said. The
clauses of IV Aethelstan bear a striking resemblance to III Aethelstan, differing
primarily in the region of England to which they applied and V Aethelstan merely
restated the king's commitment to the Anglo-Saxon domboc 36
and exhorted his reeves
to follow the provisions enumerated in his earlier statutes. 0
3. The Laws of Edmund and Edgar
Two Anglo-Saxon kings ruled Wessex subsequent to the reign of Aethelstan: the
first was Edmund, Aethelstan's brother; the second was Edgar. Between them,
they issued a total of seven ordinances, all of which have survived until today.
Much of what was in these laws was of an ecclesiastical nature and has little
significance to the discussion herein. However, other aspects of their laws provide
fascinating glimpses into the daily operations of the Anglo-Saxon legal system and
bear discussion. For example, the law currently styled as RI Edmund (939-946)
decried the lawless state apparently then current in the countryside (what Edmund
called "illegal and manifold conflicts" taking place among his subjects) and took
particular exception with the continued practice, even then still in existence, of the
blood-feud. 30 7 In establishing heavy penalties for such conduct, Edmund reiterated
the long standing Anglo-Saxon policy that the leading men of the Witan and the
folk-moots were the only officers entitled to settle feuds, 308and he further stated he
would tolerate no such breaches of the peace in the future.
Of Edgar's legislation, four series of laws have survived. Of these, II Edgar is
of a purely ecclesiastical nature and the remaining three ordinances were significant
primarily for the light they shed on the development of the Anglo-Saxon hundred
courts, or hundred-moots. For example, the statute styled as I Edgar, also known
as "The Hundred Ordinance," 309 detailed the customary workings of certain courts
which met at the same locations as where the Hundreds had traditionally held their
meetings. While the proceedings of these courts were never specifically meationed
in earlier dooms, there is certainly evidence that they were not new on the scene
for their existence was mentioned even as early as in Edmund's time. 310 However,
with Edgar's codes, for the first time, specific details of the operations of these
courts were provided, thereby lifting a curtain from what *hadbeen, until then, a
rather obscure area of English institutional legal procedure. What these laws
revealed was that Wessex had, over the years, become divided institutionally into
units called "shires," each of which centered on a defensible town (i.e., burgh),
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
or an important royal estate. Initially established by the Anglo-Saxons to facilitate
the collection of the king's dues, the shires took on added significance when Alfred
and his successor kings retook the lands that had been conquered by the Vikings.
The reason for this additional significance was that in centering around defensible
fortresses, the shires served to assist the Anglo-Saxons in the consolidation of their
31 1
advances.
Each of these Anglo-Saxon shires and boroughs traditionally had its own court
system, known as folk-moots, and each folk-moot essentially constituted a royal
court presided over by one of the king's officials. However, by the time Edgar
enacted his ordinance, a new type of folk-moot had appeared on the English
countryside, one which was based on a different unit of Anglo-Saxon land
possession; "the hundred." The hundred, as noted earlier in this paper, was an
ancient unit of land measurement which was probably composed of one hundred
hides of land. The hide was the amount of land considered by the Anglo-Saxons
to be necessary to support one family unit. However, since the amount of land
necessary to support such a family varied significantly depending on the fertility
and cultivability of the adjacent land, it should not be surprising to find that hides
of land varied greatly in size and that, as such, their corresponding superior units
of measurement, the hundred, also varied greatly in size. In spite of this, the
hundred was usually smaller in size than a shire and, as such, served as the primary
constituent building block in English society. The reason for this was that a
medium-sized shire was typically made up of ten to twelve hundreds, with each
hundred supporting one hundred families. Thus, such a shire would typically have
had over 1000 residents and a shire-moot, the court for such a shire, would have
had to consider the myriad of legal problems arising from such a large society. On
the other hand, with a mere one hundred families comprising a hundred, the hundred
court constituted a comparatively more accessible court system for the common
312
man.
At the time of their development, the hundred folk-moots weie equal and parallel
in jurisdiction with the shire or borough moots. However, because from a
centralized administrative standpoint the shire reeve was more valuable to the crown
than the hundred bailiff, the hundred court eventually lost its usefulness to the king.
Yet, in Edgar's time the hundred-moot was a vibrant and vital legal institution
which probably held more importance for the common man than did the more
remote borough or shire-moots. Evidence for this is found, logically enough, in
Edgar's laws wherein he specified that while a hundred-moot had to meet every
four weeks, 3 13 a borough-moot only had to meet three times yearly and the shire
moot only twice. 314 Additionally, Edgar mandated that, "In the hundred, as in any
other court, it is our will that in every suit the common law be enjoined, and a day
appointed when it shall be carried out." 31 1 Once in that court, Edgar required that
"every man, whether poor or rich [was].. .entitled to the benefit of the common
law, and just judgments [were] to be judged for him." 3 161n fact, if the petitioner
could not "obtain justice at home," or if the law was "too severe," such a person
could "apply directly to the king for alleviation."317
1991] ANGLO-SAXON LAW
While it is true that Edgar legislated in a variety of ecclesiastical and secular
areas, 318 the significance of his work, as we have seen, was primarily two fold: first,
he provided a compelling synopsis of the English court system and filled in the
details of a particularly obscure area of English law; second, and far more
importantly, he served as the capstone, the final expression, to almost four hundred
years of written Anglo-Saxon law and custom. Certainly his weak successor,
Ethelred, would legislate; 319 but when Cnut, the Dane, conquered England in 1016,
it was Edgar's laws he adopted. Furthermore, it was Cnut who said in 1018 that
anyone who "would love King Cnut" would also "zealously observe Edgar's
laws," 320 and it was Cnut who repeated this sometime between the years 1019 and
1020 in a letter to the people of England when he said, "... [Jt is my will that all
the nation, ecclesiastical and lay, shall steadfastly
3 21
observe Edgar's law, which all
men have chosen and sworn to at Oxford."
E. CONCLUSION
Throughout this paper I have attempted to cast a bit of light on the intricate and
often obscure workings of the Anglo-Saxon legal system and to demonstrate that
this system was far more complex than has often been credited. Furthermore, I
have attempted to show that this system developed slowly over a period of at least
five centuries with successive Anglo-Saxon kings building steadily upon the legal
pronouncements of their predecessors. As such, there has been a demonstrable
continuity in Anglo-Saxon law which profoundly affected the way English society
developed, a continuity which survived not only numerous Jeutonic and Danish
invasions but also the Norman invasion of 1066 as well.
What one may learn from these Anglo-Saxon dooms is, of course, dependent
upon the assumptions one makes and the conclusions one draws from the scanty
factual evidence available. It is probable, therefore, that some of the conclusions
drawn herein may be subject to debate and reinterpretation. However, the fact
remains that the broad outlines of Anglo-Saxon jurisprudence may be elicited from
a close examination of these contemporary written documents, documents which
were written as a means of promulgating Anglo-Saxon law to a people already
familiar with its fundamental tenets and basic underpinnings. Thus, much was left
unsaid by the kings and their Witans and must be filled in by our experiences and
hypotheses. Whether these hypotheses prove to be accurate portrayals of what
actually transpired we may never know, for the basic sources of Anglo-Saxon
history are few. And yet, regardless of their factual accuracy, they serve their
purpose, for they provide a way of visualizing and understanding the complexities
of daily Anglo-Saxon legalism. That this legalism may be "translated" differently
by different people only highlights the fact that the law of these people was, indeed,
highly complex and subject to various interpretations, not only in our time but in
theirs as well. Thus, we see in this complexity that the Anglo-Saxon legal system
was sophisticated in the sense that remedies could be fashioned on a case-by-case
basis, based primarily upon the evidence presented and on the harms committed.
As such, much more than mere legal tribalism was at work. Instead, a truly
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
"modem" legal system was being fashioned. From this examination we discover
that the English legal system was, and is, an amalgam of all that went before.
Nothing was ever overtly discarded and the experiences of earlier generations
provided the basic framework for the resolution of later problems. Based on this,
we see that Roman sensibility gave way to Teutonic reality which, in turn, gave
way to the needs of the developing Anglo-Saxon state. We see also that the common
sense approach of customary Germanic tribal law became codified in subsequent
Anglo-Saxon dooms. As such, experience dictated custom which, in turn, dictated
experience. Thus, an endless cycle of trial and error fashioned the corpus, the
domboc, of Anglo-Saxon jurisprudence. Experience and custom were codified and
became the body of Anglo-Saxon law.
We see, therefore, that Anglo-Norman law adopted the customary law of not
only the last of the Anglo-Saxon kings but also of their countless predecessors.
William of Normandy adopted the laws of Edward the Confessor. Yet Edward never
legislated per se. Instead his laws were those of King Edgar who, in turn, based his
laws upon those of Alfred the Great. Alfred of Wessex, likewise, based his laws
upon those of his predecessors, including those of his Kentish cousins, such as
Aethelbert, who also based their laws on Teutonic tribal customs dating back
hundreds of years, well before the first written histories of these people were ever
recorded. As such, what was adopted by the Normans was a highly complex and
mature legal system that relied heavily upon interpretation and experience, concepts
that the Normans would later translate into the English "common law" system of
jurisprudence. Furthermore, Anglo-Norman writs, juries, evidentiary practices,
royal courts, and precedent all had their roots in their Anglo-Saxon predecessors.
And finally, for better or worse, feudalism and the system of land tenures were
already well established long before William, Duke of Normandy, ever stepped
foot upon English soil; and Anglo-Saxon sheriffs were active in England well before
the era of the Doomsday Book. Thus, the full spectrum of Anglo-Norman legal
tools had their infancy in the Anglo-Saxon customary law and owe their very
existence to the hardheaded persistence of the Anglo-Saxon people.
1991] ANGLO-SAXON LAW
APPENDIX 1
AETHELBERT'S DOOMS
Edited and Translated by
F.L. ArrENBOROUGH
These are the decrees which King Aethelbert established in the lifetime of Augustine.
1. [Theft of] God's property shall be compensated twelve fold; a bishop's property eleven fold; a
priests property nine fold; a deacon's property six fold; a clerk's property three fold. Breach of
the peace shall be compensated doubly when it affects a church or a meeting plice.
2. If the king calls his lieges to him, and anyone molests them there, he shall pay double
compensation, and 50 shillings to the king.
3. If the king is feasting at anyone's house, and any sort of offence is committed there, twofold
compensation shall be paid.
4. If a freeman robs the king, he shall pay back nine fold amount.
5. If one man slays another on the king's premises, he shall pay 50 shillings compensation.
6. If a man slays a free man, he shall pay 50 shillings to the king for infraction of his seignorialrights.
7. If [he] slays a smith in the king's service, or a messenger belonging to the king, he shall pay an
ordinary wergeld.
8. The king's mundbyrd shall be 50 shillings.
9. If a freeman robs a freeman, he shall pay a three fold compensation, and the king shall take the
fine or all [the man's] goods.
10. If a man lies with a maiden belonging to the king, he shall pay 50 shillings compensation.
11. If she is a grinding slave, he shall pay 50 shillings compensation [If she is of the] third [class] [he
shall pay] 12 shillings compensation.
12. 20 shillings shall be paid for killing a fedsel belonging to the king.
13. If one man slays another on the premises of a nobleman, he shall pay 12 shillings compensation.
14. If a man lies with a nobleman's serving maid, he shall pay 12 shillings compensation.
15. A commoner's mundbyrd shall be 6 shillings.
16. If a man lies with a commoner's serving maid, he shall pay 6 shillings compensation; [if he lies]
with a slave of the second class, [he shall pay] 50 sceattas [compensation]; if with one of the third
class, 30 sceattas.
17. If a man is the first to make [forcible] entry into another man's premises, he shall pay 6 shillings
compensation. He who comes next shall pay 3 shillings compensation; and afterwards each one
shall pay a shilling.
18. If one man supplies another with weapons when a quarrel is taking place, no injury however being
inflicted, he [the lender] shall pay 6 shillings compensation.
19. If highway robbery is perpetrated [with the aid of those weapons], [the lender] shall pay 6 shillings
compensation.
20. If the man is slain, [the lender of the weapons] shall pay 20 shillings compensation.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
21. If one man slays another, the ordinary wergeld to be paid as compensation shall be 100 shillings.
22. If one man slays another, he shall pay 20 shillings before the grave is closed, and the whole of
the wergeld within 40 days.
23. If a homicide departs from the county, his relatives shall pay half the wergeld.
24. If a man lays bonds on a freeman, he shall pay 20 shillings compensation.
25. If a man slays the dependant of a commoner, he shall pay [the commoner] 6 shillings
compensation.
26. f he slays a laet of the best class, he shall pay 80 shillings; if he slays one of the second class,
he shall pay 60 shillings; [for slaying one of] the third class, he shall pay 40 shillings.
27. If a freeman breaks the fence round [another man's] enclosure, he shall pay 6 shillings
compensation.
28. If any property be seized therein, the man shall pay three fold compensation.
29. If a freeman makes his way into a fenced enclosure, he shall pay 4 shillings compensation.
30. If one man slays another, he shall pay the wergeld with his own money and property (i.e. livestock
or other goods) which whatever its nature must be free from blemish [or damage].
31. If [one] freeman lies with the wife of [another] freeman, he shall pay [the husband] his [or her]
wergeld, and procure a second wife with his own money, and bring her to the other man's home.
32. If anyone damages the enclosure of a dwelling, he shall pay according to its value.
33. For seizing a man by the hair, 50 sceattas shall be paid as compensation.
34. If a bone is laid bare, 3 shillings shall be paid as compensation.
35. If a bone is damaged, 4 shillings shall be paid as compensation.
36. If the outer covering of the skull is broken, 10 shillings shall be paid as compensation.
37. If both are broken, 20 shillings shall be paid as compensation.
38. If a shoulder is broken, 20 shillings shall be paid as compensation.
39. If the hearing of either ear is destroyed, 25 shillings shall be paid as compensation.
40. If an ear is struck off, 12 shillings shall be paid as compensation.
41. If an ear is pierced, 3 shillings shall be paid as compensation.
42. If an ear is lacerated, 6 shillings shall be paid as compensation.
43. If an eye is knocked out, 50 shillings shall be paid as compensation.
44. If the mouth or an eye is disfigured, 12 shillings shall be paid as compensation.
45. If the nose is pierced, 9 shillings shall be paid as compensation.
46. If it is one cheek, 3 shillings shall be paid as compensation.
47. If both are pierced, 6 shillings shall be paid as compensation.
48. If the nose is lacerated otherwise [than by piercing], 6 shillings shall be paid as compensation,
for each laceration.
49. If it is pierced, 6 shillings shall be paid as compensation.
50. He who smashes a chin bone, shall pay for it with 20 shillings.
51. For each of the 4 front teeth, 6 shillings [shall be paid as compensation]; for each of the teeth
which stand next to these, 4 shillings [shall be paid as compensation]; then for each tooth which
1991] ANGLO-SAXON LAW
stands next to them, 3 shillings [shall be paid as compensation]; and beyond that 1 shilling [shall
be paid as compensation] for each tooth.
52. If the power of speech is injured, 12 shillings [shall be paid as compensation].
Sec. 1. If a collar bone is injured, 6 shillings shall be paid as compensation.
53. He who pierces an arm shall pay 6 shillings compensation.
See. 1. If an arm is broken, 6 shillings shall be paid as compensation.
54. If a thumb is struck off, 20 shillings [shall be paid as compensation].
Sec. 1. If a thumb nail is knocked off, 3 shillings shall be paid as compensation.
See. 2. If a man strikes off a forefinger, he shall pay 9 shillings compensation.
See. 3. If a man strikes off a middle finger, he shall pay 4 shillings compensation.
See. 4. If a man strikes off a 'ring finger,' he shall pay 6 shillings compensation.
Sec. 5. If a man strikes off a little finger, he shall pay 11 shillings compensation.
55. For the nails of each [of the above-mentioned fingers], 1 shilling [shall be paid as compensation].
56. For the slightest disfigurement, 3 shillings, and for a greater 6 shillings [shall be paid as
compensation.]
57. If one man strikes another on the nose with his fist, 3 shillings [shall be paid as compensation].
58. If it leaves a bruise, 1 shilling [shall be paid as compensation].
Sec. 1. If the blow is received with uplifted hand, a shilling shall be paid.
59. If it leaves a black bruise [showing] outside the clothes, 30 sceattas shall be paid as compensation.
60. It it [the bruise] is under the clothes, 20 sceattas shall be as compensation for each [bruise].
61. If the belly is wounded, 12 shillings shall be paid as compensation.
Sec. 1. If it be pierced through, 20 shillings shall be paid as compensation.
62. If a man receives medical treatment, 30 shillings shall be paid as compensation.
63. Ifa man is severely wounded, 30 shillings shall be paid as compensation.
64. If anyone destroys the generative organ, he shall pay for it with three times the wergeld.
See. 1. If he pierces it right through, he shall pay 6 shillings compensation.
See. 2. If he pierces it partially, he shall pay 6 shillings compensation.
65. If a thigh is broken, 12 shillings shall be paid as compensation.
Sec. 1. If he becomes lame, the settlement of the matter may be left to friends.
66. If a rib is broken, 3 shillings shall be paid as compensation.
67. If a thigh is pierced right through, 6 shillings compensation shall be paid for each stab [of this
kind].
Sec. 1. For a stab over an inch [deep], I shilling; for a stab between 2 and 3 inches [deep], 2
shillings; for a stab over 3 inches [deep], 3 shillings [shall be paid as compensation].
68. If a sinew is wounded, 3 shillings shall be paid as compensation.
69. If a foot is struck off, 50 shillings shall be paid for it.
70. If the big toe is struck off, 10 shillings shall be paid for it.
71. For each of the other toes, [a sum] equal to half that laid down for the corresponding finger shall
be paid.
72. If the nail of the big toe is knocked off, 30 sceattas shall be paid as compensation.
Sec. 1. 10 sceattas shall be paid as compensation for the loss of each of the other toenails.
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73. If a freeborn woman, with long hair, misconducts herself, she shall pay 30 shillings as
compensation.
74. Compensation [for injury] to be paid to an unmarried woman, shall be on the same scale as that
paid to as freeman.
75. The compensation to be paid for violation of the mund of a widow of the best class, [that is, of
a widow] of the nobility, shall be 50 shillings.
Sec. I. For violation of the mund of a widow of the second class, 20 shillings; of the third class,
12 shillings; of the fourth class, 6 shillings.
76. If a man takes a widow who does not [of right] belong to him, double the value of the mund shall
be paid.
77. If a man buys a maiden, the bargain shall stand, if there is no dishonesty.
Sec. 1. If however there is dishonesty, she shall be taken back to her home, and the money shall
be returned to him.
78. If she bears a living child, she shall have half the goods left by her husband, if he dies first.
79. If she wishes to depart with her children, she shall have half the goods.
80. If the husband wishes to keep [the children], she shall have a share of the goods equal to a child's.
81. If she does not bear a child [her] father's ,relatives shall have her goods and the "morning gift."
82. If a man for6ibly carries off a maiden, [he shall pay] 50 shillings to her owner, and afterwards
buy from the owner his consent.
83. If she is betrothed, at a price, to another man, 20 shillings shall be paid as compensation.
84. If she is brought back, 35 shillings shall be paid, and 15 shillings to the king.
85. If a man lies with the woman of a servant, during the lifetime of the husband, he shall pay a
twofold compensation.
86. If one servant slays another, who has committed no offence, he shall pay his full value.
87. If the eye and foot of a servant are destroyed [by blows], his full value shall be paid.
88. If a man lays bonds on another mans servant, he shall pay 6 shillings compensation.
89. The sum to be paid for robbing a slave on the highway shall be 3 shillings.
90. If the slave steals, he shall pay twice the value [of the stolen goods], as compensation.
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APPENDIX 2
DOOMS OF HLOTHiHERE and EADRIC
Edited and Translated by
F.L. ATImNBoROUGH
These are the decrees which Hlothhere and Eadric, Kings of Kent, established.
Hlothhere and Eadric, Kings of Kent, extended the laws which their predecessors had made, by the
decrees which are stated below.
1. If a man's servant slays a nobleman, whose wergeld is 300 shillings, his owner shall surrender the
homicide and pay the value of three men in addition.
2. If the homicide escapes, he shall add thereto the value of a fourth man and prove by good witnesses
that he has not been able to lay hands on the homicide.
3. If a man's servant slays a freeman whose wergeld is 100 shillings, his owner shall surrender the
homicide and (pay] the value of another man in addition.
4. If the homicide escapes, [his owner] shall pay for him with two wergelds and prove by good
witness that he has not been able to lay hands on the homicide.
5. If a freeman steals a man, and if he [who has been stolen] returns as informer, he shall accuse him
to his face; and he [the thief] shall clear himself if he can. And every man involved in such a
charge shall have a number of free witnesses, and one [at least] of his witnesses from the village
to which he himself belongs. If he cannot do this, he must pay to the best of his ability.
6. If a man dies leaving a wife and child, it is right, that the child should accompany the mother,
and one of his father's relatives who is willing to act, shall be given him as his guardian, to take
care of his property, until he is ten years old.
7. If one man steals property from another, and the owner afterwards reclaims it, he [who is in
possessionj shall bring it to the king's residence, if he can, and produce the man who sold it to
him. If he cannot do that, he shall surrender it, and the owner shall take possession [of it].
8. If one man brings a charge against another, and if he meets the man [whom he accused], at an
assembly or meting, the latter shall always provide the former with a surety, and render him with
satisfaction as the judges of Kent shall prescribe for them.
9. If, however, he refuses to provide a surety, he shall pay 12 shillings to the king, and the suit shall
be considered open as it was before.
10. If one man charges another after the other has provided him with a surety, then three days later
they shall attempt to find an arbitrator, unless the accuser prefers a longer delay. Within a week
after the suit has been decided by arbitration, the accused shall render justice to the other and
satisfy him with money, or with an oath, whichever he [the accused] prefers. If, however, he is
not willing to do this, then he shall pay 100 shillings, without [giving] an oath, on the day after
the arbitration.
11. If one man calls another a perjurer in a third man's house, or accost him abusively with insulting
words, he shall pay one shilling to him who owns the house, 6 shillings to him he has accused,
and 13 shillings to the king.
12. If, where men are drinking, and one man takes away the stoup of another, who has committed
no offence, he shall pay, in accordance with established custom, a shilling to him who owns the
house, 6 shillings to him whose stoup has been taken away, and 12 shillings to the king.
184 USAFA JOURNAL OF LEGAL STUDIES (Vol. 2
13. If, where men are drinking, one man draws his weapon, but no harm is done there, shall pay a
shilling to him who owns the house, and 12 shillings to the king.
14. [But] if the house is stained with blood, the owner shall have his mundbyrd paid to him, and 50
shillings shall be paid to the king.
15. If a man entertains a stranger [a trader or anyone else who came over the border] for three days
in his own home, and then supplies him with food from his own store, and [if] he [the stranger]
then does harm to anyone, the man shall bring the other to justice, to make amends on his behalf.
16. If a man of Kent buys property in London, he shall have two or three trustworthy men, or the
reeve of the king's estate, as witness.
Sec. 1. If afterwards it is claimed from the man in Kent, he shall summon as witness, to the
king's residence in London, the man who sold it to him, if he known him and can produce him
as warrant for the transaction.
See. 2. If he cannot do so, he shall declare on the altar, with one of his witnesses or with the
reeve of the king's estate, that he bought the property openly in London, and with goods known
to be his, and the value [of the property] shall be returned to him.
See. 3. If, however, he cannot prove that by lawful declaration, he shall give it up, and the owner
shall take possession of it.
1991] ANGLO-SAXON LAW 185
APPENDIX 3
WHITRED'S DOOMS
Edited and Translated by
F.L. ArrNBOROUG
These are the decrees of Wihtred, the King of Kent.
During the sovereignty of Wihtred, the most gracious king of Kent, in the fifth year if his reign,
the ninth Indication, the sixth day of Rugern, in a place called Barham, there was assembled a
deliberative council of the notables. There were present there Berhtwald, the chief bishop of Britain,
and the above-mentioned king; the bishop of Rochester, who was called Gefmund; and every order
of the Church of the province expresses itself in unanimity with the loyal laity [assembled there].
There the notables, with the consent of all, drew up these decrees, and added them to the legal
usages of the people of Kent, as in hereafter stated and declared.
1. The Church shall enjoy immunity from taxation.
See. 1. The king shall be prayed for, and they shall honor him freely and without compulsion.
2. The mundbyrd of the Church shall be 50 shillings like the king's.
3. Men living in illicit unions shall tun to a righteous life repenting of their sins, or they shall be
excluded from the community of the Church.
4. Foreigners, if they will not regularize their unions, shall depart from the land with their
possessions and with their sins.
See. 1. Men of our country also shall be excluded from the communion of the Church, without
being subject to forfeiture of their goods.
5. If after this meeting, a noble man presumes to enter into an illicit union, despite the command
of the king and the bishop, and the written law, he shall pay 100 shillings compensation to his
lord, in accordance with established custom.
Sec. 1. If a commoner does so, he shall pay 50 shillings compensation; and [in] either [case the
offender]shall desist from the union, with repentance.
6. If a priest consents to an illicit union, or if he neglects the baptism of a sick man, or is too drunk
to discharge this duty, he shall abstain from his ministrations, pending a decision from the bishop.
7. If a tonsured man, [who is] not under ecclesiastical discipline, wanders about looking for
hospitality, once [only] shall it be granted to him, and unless he has permission, he shall not be
entertained further.
8. If anyone grants one of his men freedom on the altar, his freedom shall be publicly recognized;
[but] the emancipator shall have his heritage and his wergeld and the guardianship of his
household, wherever he [the freed man]may be, [even if it be] beyond the border.
9. If a servant, contrary to his lord's command, does servile work between sunset on Saturday
evening and sunset on Sunday evening, he shall pay 80 sceattas to his lord.
10. If a servant makes a journey of his own [on horseback] on that day, he shall pay 6 shillings
compensation to his lord or undergo the lash.
I1. If a freeman works during the forbidden time, he shall forfeit his healsfang, and the man who
informs against him shall have half the fine, and [the profits arising from] the labor.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
12. If a husband, without his wife's knowledge, makes offerings to devils, he shall forfeit all his
goods or his healsfang. If both [of them] make offerings to devils they shall forfeit their healsfangs
or all their goods.
13. If a slave makes offerings to devils, he shall pay 6 shillings compensation or undergo the lash.
14. If a man gives meat to his household during a fast, he shall redeem [each of them], both bond and
free, by payment of his [own] healsfang.
15. If a slave eats of his own free will, he will pay 6 shillings compensation'or undergo the lash.
16. If a bishop's or king's word, [even] though unsupported by an oath, shall be incontrovertible.
17. The head of a monastery shall clear himself by the formula used by a priest.
18. A priest shall clear himself by his own asservation, (standing] in his holy garments before the altar
and declaring as follows "Veritatem dico in Christo, non mentior." A deacon shall clear himself
in a similar way.
19. A clerk shall clear himself with [the support of] three of his own class, he alone [having] his hand
on the altar. The others shall attend for the purpose of validating the oath.
20. A stranger shall clear himself by his own oath, at the altar. A king's thegn [shall clear himself]
in the same way.
21. A commoner may clear himself at the altar, with three of his own class; and the oath of all of
these [collectively] shall be incontrovertible.
Sec. 1. The church has further prerogatives with regard to expurgation, [which are] as follows:
22. If a servant of a bishop or of the king is accused, he shall clear himself by the hand of the reeve.
The reeve shall either exculpate him or deliver him up to be scourged.
23. If anyone brings an accusation against a bond servant of a company in the presence of the
company, his lord shall clear him by his own oath if he [the lord] is a communicant. If he is not
a communicant he shall get a second good witness [to support him] in the oath, or pay [the fine]
or deliver him to be scourged.
24. If a layman's servant accuse the servant of an ecclesiastic, or if an ecclesiastic's servant accuse
the servant of a layman, his lord shall clear him by his own oath.
25. If anyone slays a man in the act of thieving, no wergeld shall be paid for him.
26. If anyone catches a freeman in the act of stealing, the king shall decide which of the following
three courses shall be adopted-whether he shall be put to death, or sold beyond the sea, or held
to ransom for his wergeld.
Sec. 1. He who catches and secures him shall have half his value. If he is put to death, 70 shillings
shall be paid to him.
27. If a slave steals, and is released, 70 shillings [shall be paid]-whichever the kin wishes. If he is
put to death, half his value shall be paid to the man who has him in his power.
28. If a man from afar, or a stranger, quits the road, and neither shouts, nor blows a horn, he shall
be assumed to be a thief, [and as such] may be either slain or put to ransom.
19911 ANGLO-SAXON LAW
NOTES
1. Sir Frederick Pollock and Frederic William Maitland, The History of EnglishLaw Before the
Time of EdwardI, 2nd Ed., Vol. 1 (Cambridge: Cambridge University Press, 1952) 80.
2. R. J. Walker, The English Legal System, 6th Ed., (London: Butterworths, 1985) 3.
3. H. G. Richardson and G. 0. Sayles, Law and Legislation from Aethelberht to Magna Carta,
(Edinburgh: Edinburgh University Press, 1966) 30.
4. Richardson and Sayles, 30.
5. George Burton Adams, Introduction, Council and Courts in Anglo-Norman England, Yale
Historical Publications Studies V (1926; New York: Russell and Russell, 1965) 1.
6. See, for example, the narrative of the Norman besiegment of the city of Exter in 1068 reported
in "Anglo-Saxon Chronicle," 1067 AD, version D, (B. L. Cott, Tiber B. iv), English Historical
Documents, 2nd Ed., Vol. 2, Ed. David C. Douglass and G. W. Greenaway (London: Oxford
University Press, 1981) 150.
7. J. R. Lander, Ancient and Medieval England - Beginnings to 1509 (New York: Harcourt,
1973) 66. See also Edward A. Freeman, The Historyof the Norman Conquest ofEngland, Its Causes
and Its Results, Vol. 4 (New York: 1873) 3, in which the author described William's coronation as
taking place during a moment of "apparent universal submission." The author continued by noting,
"..if all England had not acknowledged William, no part of England acknowledged anyone else. The
struggle which followed (the conquest) was a reaction after a panic; it was the revolt of the people
goaded to revolt by oppression, far less of William himself than William's unworthy lieutenants."
8. Lander, 66.
9. For a contemporary account of William's claim to the throne of England and of the Battle of
Hastings (the battle through which William secured the English throne), see William of Polters, "The
Deeds of William, Duke of the Normans and King of the English," (c. 1071), English Historical
Documents, 2nd Ed., Vol. 2, Ed. David C. Douglas and G. W. Greenaway (London: Oxford
University Press, 1981) 230-246. In addition, for a vivid pictorial account of the same events, see The
Bayeux Tapestry, A Comprehensive Survey, Ed. Sir Frank Stenton (New York: Phaidon, 1957).
10. Polters, English HistoricalDocuments, 2nd Ed., Vol. 2, 245-246.
11. Poiters, English HistoricalDocuments, 2nd Ed., Vol 2, 245. According to this account, the
bishops and lay magnates of London told Duke William,
"We, are accustomed to obey a king and we desire to have a king as lord."
12. Lander, 66.
13. "Anglo-Saxon Chronicle, 1067 AD, Version D," English HistoricalDocuments, 2nd Ed.,
Vol 2, 157. See also, Freeman, 99-100.
14. Lander, 67.
15. Lander, 67.
16. Adams, Introduction, XI.
17. Dorris M. Stenton, English Justice Between the Norman Conquest and the Great Charter
1066-1215, Jayne Lectures for 1963 (Philadelphia: American Philosophical Society, 1964) 6.
18. As an example of "non-legislative" legal action on the part of William, see generally,
"Solemn Diploma of William I to Giso, Bishop of Wells," May 1068, English -Historical Documents,
2nd Ed., Vol. 2, 644-646. In this diploma, William restored 30 hides of land to the possession of the
church of St. Andrew the Apostle. The church had apparently been dispossessed of the land by King
Harold.
19. Freeman, 19.
20. Stenton, 6; Richardson and Sayles, 30.
21. "Writ of William I Concerning Spiritual and Temporal Courts," English Historical
Documents, 2nd Ed., Vol. 2, 647-648, set forth the writ in translated form and in its entirety. The
writ included a detailed list of summons procedures for ecclesiastical courts and provided procedures
for the manner in which court proceedings were to be conducted. Additionally, in his treatise on the
history of the Norman conquest, Professor Freeman noted that with the issuance of this writ, William
• USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
established ecclesiastical courts which have survived, albeit with lessened powers, up through modem
times. Freeman, 264.
22. H. W. C. Davis, England under the Normans and Angevins, 13th Ed. (London: Metheun,
1949) 30.
23. Stenton, 6.
24. Freeman, 263-264. The "Writ of William I to Archbishop Lanfranc Issued In Favor of the
Church of Ely" prohibited the imposition of new "customs" upon the church. This document provided
the clearest expression of William's desire to maintain the existing practice of Anglo-Saxon law. In
pertinent part William stated, "....I am unwilling that (Bishop Remigius) should have there anything
except what his predecessor had in the time of Edward, namely on that day the king died. And if
Remigius shall wish to plead therein, let him plead therein as he would have done in the time of King
Edw;rd, and let that plea be in your presence..." Writ transcribed in Stenton, 17-18. For an interesting
account of the technicalities of the procedural aspects of this case, see Adams, 85-89.
25. "The Laws of William the Conqueror" appear in their earliest form in the Textus Roffensis,
a manuscript produced in the earlier half of the twelfth century and are translated and reprinted in
English HistoricalDocuments, 2nd Ed., Vol. 2, 431-432.
26. Stenton, 6; Richardson and Sayles, 30.
27. "The Laws of William The Conqueror," Clause 7, English HistoricalDocuments, 2nd Ed.,
Vol. 2, 432.
28. Stenton, 6; Richardson and Sayles, 30. Concerning the question of the degree of change of
Anglo-Saxon law by William, see also Pollock and Maitland, 89. There the authors noted that the
most significant of the changes concerned the separation of ecclesiastical jurisdiction from the lay
courts. Concerning the rest of William's laws, the authors noted that Anglo-Saxon customary law had
already included the prevention of the transfer of stolen goods by prohibiting secret sales; included
prohibitions against the sale of men overseas (see laws of Aetheired and Cnut); and allowed the use
of the pledge by freemen (see laws of Cnut). Additionally, the authors cited the laws of Cnut and
Aethelred and noted that there was "a wave of religious sentiment...against capital punishment" in
Anglo-Saxon times.
29. "The Laws of William the Conqueror," Clause 6, English HistoricalDocuments, 2nd Ed.,
Vol 2, 431-432.
30. Richardson and Sayles, 31.
31. "The Coronation Charter of Henry I," (5 August 1100), English HistoricalDocuments, 2nd
Ed., Vol. 2, 432-434. Proclaimed by Henry I, this document contained the promises which Henry I
hoped to carry out during his reign and nothing during his reign directly overruled his promise to follow
the laws of King Edward. Furthermore, the charter was cited by later kings as having precedential
value. Of the substantive changes he made, most dealt with the practical questions of heirship, family
law and property ownership.
32. King Stephen enacted two charters identically addressed: "Charter of Stephen Addressed
Generally," (probably 1135); and "Charter of Stephen Addressed Generally," (probably 1136).
English Historical Documents, 2nd Ed., Vol. 2, 434-436. Both writs reference the laws of King
Edward and cite them as binding. The first noted that King Stephen granted to all his "barons and
vassals ... all the good laws and good customs which they enjoyed in the time of King Edward." In
the second, the king noted that he would "observe good laws and the ancient and lawful customs in
respect of pecuniary exactions for murder and pleas and other causes, and ... command them to be
observed and established."
33. "Charter of Henry II Addressed Generally," (19 December 1154), English Historical
Documents, 2nd Ed., Vol. 2, 439-440. This document appears modeled after Henry I's coronation
charter. Like that document it confirmed, in vague terms, what the king intended to carry out.
Furthermore, it noted that the king, "granted and restored, and by this present charter confirmed, to
God and to holy church, and to all my earls, barons and vassals all concessions, gifts, liberties and
free customs, which King Henry (I) ... granted and conceded to them." As noted above, Henry I
proclaimed that he would follow the law of Edward with but minor changes.
19911 ANGLO-SAXON LAW
34. Frank Barlow, The FeudalKingdom ofEngland1042-1216, (London: Longmans, Green and
Co., 1955) 135.
35. English HistoricalDocuments, footnote 2, 481. Also see, "The Acts of Lanfianc (1070),"
English HistoricalDocuments, 2nd Ed., Vol. 2, Ed., 678, for a contemporary account of the life of
Bishop Lanfranc in which the date of the trial is established to be 1072.
36. "Report of a Trial on Pinnenden Heath Near Maidstone" (1072? or August 1075-July 1076?),
English istoricalDocuments, 2nd Ed., Vol. 2, 481-483.
37. Freeman, 24.
38. Adams, 80.
39. Freeman, 244.
40. William utilized Geoffrey, Bishop of Countances, in other sensitive cases as well. See, for
example, "The Writ of William I Setting Up A Commission To Inquire Into The Conduct Of Sheriffs
And To Restore Lands They Had Taken From The Church" (1077), and "Writ Of William I In Favour
Of The Abbey Of St. Augustine, Canterbury" (1077), English HistoricalDocuments, 2nd Ed., Vol.
2,463.
41. Freeman, 244.
42. Freeman, 245; "Report Of A Trial On Pinnenden Heath Near Maidstone" (1072? or August
1075-July 1076?), English HistoricalDocuments, 2nd Ed., Vol. 2,482-483.
43. Freeman, 245.
44. "Report Of A Trial On Pinnenden Heath Near Maidstone" (1072? or August 1075-July
1076?) English HistoicalDocuments, 2nd Ed., Vol. 2, 482-483.
45. Additional evidence concerning the maintenance of the status quo of Anglo-Saxon legal
institutions by the Anglo-Norman kings may be found in a number of writs and court cases. Numerous
writs demonstrate that persons of significance to Anglo-Saxon legal institutions survived the conquest
and served both Anglo-Saxon King Edward and Norman King William. For example, the Sheriff of
Somerset, an individual named Tofi, served both kings. For two instances in which the Sheriff played
a role in post-conquest legal matters, see ihe "Writ in Anglo-Saxon of Edward the Confessor to Tofi,
Sheriff of Somerset, Concerning a Sale of Land," (1061-6), and the "Writ in Anglo-Saxon of William
the King and William the Earl' to Giso the Bishop, Eadnoth the Staller and Tofi the Sheriff,"
(March-December 1067), both reported in English HistoricalDocuments, 2nd Ed., Vol. 2, 462-462.
See also "Writ in Anglo-Saxon of William I Concerning the Possessions of Regenbald," (1067),
reported in English HistoricalDocuments, 2nd Ed., Vol. 2, 461, in which William addressed the writ
to Anglo-Saxon authorities (apparently still in power) directing them to respect the transfer of property
to a priest named Regenbald. Regenbald had been employed in the writing office of Edward and
continued in the chancery of William. As such, he was at least partially responsible for the continuity
of diplomatic practice in the transition period between the Anglo-Saxons and the Normans.
Furthermore, a charter dated sometime between 1108 and 1111 and issued by King Henry I noted, "I
grant and order that henceforth my Shire courts and Hundred courts (Anglo-Saxon institutions) shall
meet in the same places and at the same terms as they were wont to do in the time of King Edward,
and not otherwise." "Charter of Henry I Concerning the Holding of Courts of Shire and Hundred,"
(26 July 1108-August 1111), EnglishHistoricalDocuments, 2nd Ed., Vol. 2, 465. Additionally, three
other records of trial serve as examples of Anglo-Norman courts relying on Anglo-Saxon rules or
procedures. See, "Record of the Judgment by William I in a Plea Between the Abbey of Fecamp and
William of Briouze (c. 1086), English HistoricalDocuments, 2nd Ed., Vol. 2, 485-486; "Trial of
William of St. Calais, Bishop of Durham in the Court of William II (c. 1088), English istorical
Documents, 2nd Ed., Vol. 2, 652-669; and "The Suit of Walter, Abbot of Evesham by Wultstin,
Bishop of Worcester," (1079), reported by Adams, 70-79.
46. Adams, 98.
47. Pollock and Maitland, 1.
48. George Patrick Welch, Bitannia, the Roman Conquest and Occupation of Britain
(Middleton: Wesleyan University Press, 1963) Ch. 2, et. seq.
49. John Richard Green, The Making of England(London: 1885) Introduction, B-1.
190 USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
50. For a graphic display of the zones of control in early British history, see, Welch, maps
following page 146.
51. Welch, Chapter 3 and 4, et. seq.
52. Esme Wingfield-Stratford, The History of British Civilization, 2nd Ed.
(1930: London: Routledge and Kegan Paul, 1948) 17.
53. Virgil, The Aeneid, Ed. Robert Fitzgerald (New York; Random House, 1983), lines 854-857,
p. 190.
54. Wingfield-Stratford, 17-19.
55. Wingfield-Stratford, 24.
56. See, Edward Gibbon, The History of the Decline and Fal of the Roman Empire, Vol. 1,
(Philadelphia: 1871) 149, in which the author stated "... the Roman jurisprudence, having closely
united itself with the system of monarchy, was supposed to have attained its full majority and
protection."
57. Pollock and Maitland, 5. Gibbon, Vol. 3, 316-321. See also The Venerable Bede, The
EcclesiasticalHistory of the English Nation, Ed. J.A. Giles (London: 1892), Ch. xi, p. 18.
58. Welch, Chapter 10, et seq.; Bede, 18-23.
59. Bede, Book I,Chapters XI-XIV, 18-23.
60. Pollock and Maitland, 5.
61. Wingfield-Stratford, 31.
62. See the "Anglo-Saxon Chronicle," for the years 449 A.D. - 597 A.D., versions C (B.L.
Tiber. B. i), and E (Bodleian l.b. Land. Misc. 636), English HistoricalDocuments, 2nd Ed., Vol. 1,
Ed. Dorothy Whitelock (London: Oxford University Press, 1979) 153-158, which begins with entries
relating to battles fought by Hengest, Horsa, and Aesc between the years 449 and 473, continues
with a series of entries relating to battles fought by Aelle and his three sons as well as with a description
of the battles fought by Cerdic and Cynric, and concludes (in version E) with the accession of
Aethelbert to the throne of the kingdom of Kent in 565. This series of entries described the
establishment of the three kingdoms of Kent, Sussex, and Wessex in southeastern England in the later
decades of the fifth and sixth centuries. Additionally, the Chronicles recorded a seemingly unbroken
succession of Saxon victories and would appear to be one-sided in their outlook. Certainly reason
would indicate that there must have been defeats for the Saxons, yet none are recorded. See D.J.V.
Fisher, The Anglo-Saxon Age, c. 400-1042, (London: Longman, 1973) 16-54, for a complete
discussion of this stage of English development, particularly regarding the dating of the various
invasions and see also, The Venerable Bede, 25-34, for a discussion of the Teutonic invasions'
combined impact on the British people.
63. F. M. Stenton, Anglo-Saxon England, 3rd Ed., (Oxford: Oxford University Press, 1971),
37.
64. Wingfield-Stratford, 41.
65. Tacitus, "Germania,", Dialogus, Agricola, Germania, Ed. T. E. Page, (1914;
Cambridge: Harvard University Press, 1946), 263, et. seq.
66. Tacitus, 269.
67. Tacitus, 275.
68. Tacitus, 279-283.
69. Pollock and Maitland, 5 and 6.
70. See, for example, the "Laws of Reckessuinth," (652-672); the "Laws of Erwig," (682);
and the "Laws of Egica," (687-701), Pollock and Maitland, 6.
71. Pollock and Maitland, 6 and 7.
72. Pollock and Maitland, 7.
73. See also the note by J.A. Giles, editor of The Venerable Bede's, EcclesiasticalHistory of
England, page 37, in which the editor noted, "(t)he Franks and English Saxons were equally German
nations; the former came 130 years earlier from beyond the Rhine; the latter from the countries about
the mouths of the Rhine and the Elbe .... Hence the French and English both had the same
language .....
19911 ANGLO-SAXON LAW
74. Fisher, 31.
75. Sir Charles Oman, England Before the Norman Conquest, Being a History of the Celtic,
Roman and Anglo-Saxon Periods Down to the Year A.D. 1066, 9th Ed., (1910: London: Methuen
& Co.,1949) 351-353.
76. Beowulf, Ed. Howell D. Chickering, Jr., (Garden City: Anchor Press, 1977), 1, et. seq.
77. Wingfield-Stratford, 41.
78. See Oman, 217-218, in which he described entire families emigrating from the area of
Angulus in Schleswig, totally depopulating that area and repopulating much of Britain.
79. Oman, 352-353.
80. For an excellent discussion on the Anglo-Saxon hamlets of the time, see J. E. A. Jolliffee,
Pre-FeudalEngland - The Jutes, (1933; New York: Barnes and Noble, 1962) Chapter 1, sections a
and b, et. seq. See also, SocialEngland, Vol. 1, Ed. H. D. Trall, (New York: 1894) 121-124.
81. Wingfield-Stratford, 42-43. The first mention of "the Hundred" is in Tacitus' Germania,
at page 273. There, in the first century, A.D., Tacitus referred to the typical body of continental
Teutonic warriors, and noted that "(t)he number of these men is fixed - one hundred from each
canton: and among themselves this 'the Hundred' is the precise name they use. What was once a
number only has become a title and a distinction." As to the term, "hide," see Social England, 123.
There the author described a "hide" as being a measure of land which "needed a full team of eight
oxen to till it, and was usually divided into four yardlands (each of which took a yoke of oxen to till
it, and was the average peasant's holding), and the yardland into two oxgangs or into four fardels.
(A fardel was often attached to a hind's cottage and was probably hoe-tilled.) All the arable land of
four of which
a village lay in two or three common fields, divided by grass balks into furlong strips ....
went to the acre .... " SocialEngland, 123.
82. Wingfield-Stratford, 43.
83. These seven kingdoms were collectively known as the "Heptarchy." The seven kingdoms
comprising the Heptarchy were those of Northumbria, Mercia, Wessex, East Anglia, Essex, Kent,
and Sussex. D. P. Kirby, The Making of Early England, (New York: Schocken Books, 1968) 54.
84. Kirby, Chapter 3, if. See also, The Venerable Bede, who in Book 2, Chapter 5, page 76,
listed the Bretwalda through Oswy. "The Anglo-Saxon Chronicle" also listed the actions of the
Bretwalda.
85. Since much of what we know of early English history comes to us directly by way of the
Venerable Bede's, EcclesiasticalHistory of England, it is, perhaps, appropriate to provide a brief
biography of the great historian's life. Born in England (probably in the village of Jarrow) sometime
between the years 673 and 677 A.D., little is known of Bede's early life. Nothing is recorded
concerning his family or his parents, but Bede himself, in a short narrative of his life, told us that at
the early age of seven he was placed under the care of Abbot Benedict in the abbey of Wearmouth,
near his home village of Jarrow. When, a few years later, the abbey of Jarrow was built, Bede moved
there and spent the remainder of his life at the abbey. The founder of both abbeys was Benedict Biscop,
a man of extraordinary learning and piety. Benedict, a nobleman by birth, traveled extensively to
other countries and introduced foreign literature, art and architecture to his native England.
Furthermore, during his travels, Benedict collected numerous rare and valuable books, as well as
valuable relics and art works. All of these were brought back with him to England and donated to the
abbeys of Wearmouth and Jarrow. Thus, during Bede's early years, he was surr6unded with one of
the finest libraries available anywhere and was assisted in his studies by the scholarly monks of the
abbeys. From these sources, Bede acquired an extensive knowledge of Greek, Latin and Hebrew, as
well as of the Holy Scriptures. At the age of 19 he was admitted to the Deacon's orders and at 30 he
was ordained a Catholic priest. Both of these rites were conferred upon him at an early age and it
would appear, therefore, that Bede was held in high esteem by his superiors. Furthermore, it appears
that Bede was offered the position of Abbot of the Abbey of Jarrow, but turned it down since he felt
the position would impede his scholarly pursuits. Instead, the Venerable Bede accepted the far less
exalted position of "mass-priest," the officiating cleric at Catholic masses said throughout the day
at the abbey. Thus, while it may be inferred that his official duties kept him busy, Bede was largely
able to concentrate his efforts on the writing of his EcclesiasticalHistory of England. In fact,
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
concerning this matter, the Venerable Bede wrote, "(f)rom the time of my taking priest's orders, to
the fifty-ninth year of my age, I have occupied myself in making these short extracts from the works
of the venerable fathers for the use of me and mine, or in adding thereto somewhat of my own, after
the model of their meaning and interpretation." Furthermore, in addition to his Histories, the
Venerable Bede studied literature and science, wrote scriptural commentary and poetry (including two
books concerning the Art of Poetry. which are still extant), composed a book of Hymns and another
of Epigrams. Bede lived the majority of his life in the monastery of Jarrow and it seems unlikely that
he ever strayed far from its boundaries. At a relatively early age he seems to have contracted some
unspecified stomach disorder and suffered greatly in his later years from the disease. He apparently
died of the disease on Saint Ascension Day, 26 May 735. Thus, we owe much of our knowledge of
early Anglo-Saxon history, culture, custom and law to a man who spent the vast majority of his life
cloistered within very narrow physical boundaries, yet who meticulously recorded the acts of a people
considerably removed from him in place and time. The Venerable Bede, Ecclesiastical History of
England,Ed. J. A. Giles, (London: 1892) preface v-xviii.
86. By "wise persons" Bede apparently meant the Witena.Gemot, the legislative and supreme
judicial assembly of the Anglo-Saxon tribes.
87. The term, "after the Roman model" (juxta exempla Romanorum), has caused some
consternation among scholars of Anglo-Saxon law. As noted by Professor Thomas, Aethelbert's code
was "free of any trace of Roman influence." Thus, the question arises of how these codes, devoid
of Roman influence could be based upon the Roman law. The answer to the quandary would appear
to have been arrived at by Frederic Maitland. In a letter Maitland wrote to Sir Frederick Pollock in
October 1890, Maitland noted that for his part he felt the phrase, "juxta exempla Romanorum" meant
"that the notion of written law was new and introduced by the Roman missionaries." The Letters of
Frederic William Maitland, Ed. C. H. S. Fifoot, letter 87, (Cambridge: Harvard University Press,
1965) 84.
88. Bede, Book H, Chapter V, 77.
89. Pollock and Maitland, I1.
90. Dates confirmed in the Anglo-Saxon Chronicle for the year 596, in all versions. English
HistoricalDocuments, 1st ed., Vol I, 147.
91. Bede, Book I, Chapter XXIII, 34.
92. Bede, Book I, Chapter XXV, 36-38.
93. D. M. Wilson, Ancient Pebples and Places, the Anglo-Saxons (New York: Frederick A.
Praeger, 1960), 32.
94. Bede, Book I, Chapter XXV, 36-37.
95. Bede, Book I, Chapter XXV, 37-38.
96. According to Bade, the king told Augustine, "Your words and promises are very fair, but
as they are new to us, and of uncertain import, I cannot approve of them so far as to forsake that
which I have so long followed with the whole English nation. But because you are come from far into
my kingdom, and, as I conceive, are desirous to impart to us those things which you believe to be
true, and most beneficial, we will not molest you, but give you favorable entertainment, and take
care to supply you with your necessary sustenance; nor do we forbid you to preach and gain as many
as you can to your religion. Accordingly he pernitted them to reside in the city of Canterbury, which
was his metropolis of all his dominions, and, pursuant to his promise, besides allowing them
sustenance, did not refuse them liberty to preach."' Bede, Book I, Chapter XXV, 38.
97. Additionally, a certain irony may be found in all of this for the Venerable Bede noted (Book
I, Chapter V, 76) that Aethelbert was the first Anglo-Saxon king to enter, "the eternal joys of the
kingdom which is heavenly." While this fact is not subject to historical documentation, if it is true,
it must have come as somewhat of a surprise to Aethelbert's contemporaries, since Aethelbert was
the great-grandson of Hengist, (who according to one view was a sort of horse), and a direct descendant
of the Anglo-Saxon god Woden.
98. Bede, Book I, Chapter XXXII, 58, citing a letter sent from Pope Gregory to King Aethelbert
in 601 A.D.
1991] ANGLO-SAXON LAW 193
99. Frederic W. Maitland, "Origins of Legal Institutions," The Life of the Law, Readings on
the Growth of Legal Institutions, Ed. John Honnold, (London: Free Press of Glencoe, 1964)
100. A.W.B. Simpson, The Laws of Ethelbert, on the Laws and Customs of England, Ed.
Morris S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White, (Chapel Hill: University
of North Carolina Press, 1981) 4.
101. English HistoricalDocuments, 2nd Ed., Vol I, 357.
102. The Textus Roffensis also contains the only extant text of other later Kentish laws including
those of Hiothere and Eadric (c.670 A.D.) and of Wihtred (c. 695 A.D.). Other collections of
pre-conquest laws survive, such as the laws of me of Wessex (c. 690 A.D.), but some laws, such as
those of Offa of Mercia, which we know once existed, are now lost. Furthermore, as noted by Professor
Simpson, the Textus Roftensis itself was almost lost to us, since, at one point, it was dropped in the
sea. Simpson, 4.
103. English Historical Documents, 2nd Ed., Vol. H, 358. In fact the editor noted, "if one
compares different versions of codes which survive more than once in the Wulfston manuscripts, or
in some other source besides these, one occasionally finds that Wulfston's own terminology has been
substituted for that of the original text. This makes one doubt whether one always has the unchanged
version of the codes ... which are preserved only in manuscripts exposed to his influence."
104. English HistoricalDocuments, 2nd ed., Vol. I, 357-362.
105. Pollock and Maitland, 12-13.
106. i.e., "The Laws of Alfred,"(c. 885-899), English HistoricalDocuments, 2nd ed., Vol. I,
408-409.
107. D.J.V. Fisher, 121.
108. A good case can be made that the "Christian aspects" of Aethelbert's code were either
later additions or the penalties concerning these clauses were increased in later editions of the code
to bring them in line with contemporary conceptions. See, for example, Richardson and Sayles, 2-6.
109. A.W.B. Simpson, 4.
110. D.J.V. Fisher, 121.
111. Honnold, 8.
112. Alan Harding, A Social.HistoryofEnglish Law, (Baltimore: Penguin Books, 1966) 13.
113. Bede, Book H, Chapter 5, 76.
114. The Laws of the EarliestEnglish Kings, Ed. F. L. Attenborough (Cambridge: Cambridge
University Press, 1922) 5, and Douglas and Greenaway, English HistoricalDocuments, Vol. 2, 2nd
Ed. 391.
115. A.W.B. Simpson, 5.
116. William A. Chaney, "Aethelberht's Code and the King's Number," 6 American Journalof
Legal History, 151-2 (1962). In this work the author noted, "Thus, behind the non-ecclesiastical
features of Aethelberht's laws can undoubtedly be detected the framework of the earlier pagan society,
and it was still northern, Germanic custom that was largely formulated."
117. Oman, 353.
118. Wingfield-Stratford, 43.
119. Aethelbert, Clause 1, Attenborough, 5.
120. Harding, 15.
121. Aethelbert, Clause 2, Attenborough, 5.
122. Aethelbert, Clause 3, Attenborough, 5. Attenborough translates the term "drincaep' as
"feasting;" Douglas and Greenaway translate it as "drinking." English Histodcal Documents, Vol
2, Ed. 2, 391. In either case, the activity in question took place in the liege's home.
123. Aethelbert, Clauses 4 and 5, Attenborough, 5. English HistoricalDocuments, 2nd ed.,
Vol. I, 391.
124. Douglas and Greenaway interpret Fedsel as meaning "boarder."
125. EnglishHistoricalDocuments, 2nd ed., Vol. I, footnote 1,392. Richardson and Sayles, 4.
126. Aethelbert, Clause 6, Attenborough, 5. Attenborough suggests in footnote 6.1 that the
term "seignorial rights" (dritinbeagein Anglo-Saxon) relates to a payment due to a lord for the loss
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
of one of his men and believes payment took the form of a fine due to the king for an infraction of his
sovereignty. Furthermore, he posits the theory that the clause suggests that Aethelbert was the
"personal lord" (as opposed to king) of every free man. Attenborough, footnote 6.1, 175. Douglas
and Greenaway translate the clause as "(i)f anyone kills a freeman, (he is to pay) 50 shillings to the
king as 'lordring."' (emphasis added) Douglas and Greenaway maintain that the term in question is
similar in concept to the later Anglo-Saxon term of manbot. Furthermore, they theorize that
"Lordring" is of ancient derivation, probably belonging to a time in the Anglo-Saxon dark ages when
payments were more often made in rings rather than currency. English HistoricalDocuments, 2nd
ed., Vol.1, 391.
127. Aethelbert, Clauses 6 and 8, Attenborough, 5. Rendered as, "(t)he [breach of the] king's
protection, 50 shillings." English HistoricalDocuments, 2nd ed., Vol.1, 391.
128. Attenborough, footnote 8.1, 175. English HistoricalDocuments, footnote 6, 2nd ed., Vol.
I, 391.
129. Aethelbert, Clause 2, Attenborough, 5. English HistoricalDocuments, 2nd ed., Vol. I, 391.
130. Harding, 15.
131. David A. Thomas, "Origins of the Common Law (A Three-Part Series, Part
I: Anglo-Saxon Antecedents of the Common Law," Brigham Young University Law Review 468,
(1985).
132. John Mitchell Kemble, The Saxons in England, A History of the English Commonwealth
Till the Period of the Norman Conquest, Vol. 1, (1876; New York: Ams Press, 1971), 267.
133. Kemble, 268.
134. Kemble, 268.
135. Wingfield-Stratford, 15.
136. Kemble, 268. Kemble added, "(F)or setting aside the loss to the whole community which
may arise from private feud, the moral sense of men may be shocked by its results: an individual's
own estimate of the satisfaction necessary to atone for the injury done to him, may lead to the
commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of 'an
eye for an eye, and a tooth for a tooth,' be applied, where the erection of the penalty depends upon
the measure of force between appellant and defender.... They could not entirely abrogate it (the
Anglo-Saxon right to feud), for it was the very basis of that freedom which enabled every man to enter
into a contract or engagement as to the mode of its exercise; but they defined, and as far as possible
limited, its sphere and extent of its action."Kemble, 268-269. Continuing, Kemble noted, "(t)his is
the wild right of every outlaw, the law of nature which resumes its force when human law has been
relinquished. 'I lost mine eye in laying the prize aboard/ And therefore, to revenge it, shalt thou die!'
Henry VI, Part 2, Act IV, Sc. 1. Such is the justice of him who has returned to the universal state of
war. Against such a society, if it mean to be society, must on its sick declare a war of extermination."
Kemble, footnote 1, et. seq., 269.
137. Wingfield-Stratford, 45.
138. Erika Nagy Jert, "Fault in the Law: The Influence of the Penetentials on the Anglo-Saxon
Legal System," 31 CatholicLawyer, Number 4, 273, (1985).
139. See, for example, the laws of Ine (690 A.D.), which provided for differing compensations
to be paid for the same legal violations, the compensations being dependent upon the wrongdoer's
status, i.e., commoners, noblemen and noblemen who owned property. Attenborough, Laws of Ine,
clause 51, 53.
140. Wingfield-Stratford, 45.
141. Thomas, 469.
142. It is interesting to note that not only did Aethelbert's doom establish "the king's peace,"
but it also established a "noble's peace" whereby a person injured or killed while in the employ or
the presence of certain nobles caused the payment of the wergild to the victim or his Maegth and also
caused the payment of a compensation to the noble who had been injured. Richardson and Sayles, 5.
143. For a comprehensive discussion of Anglo-Saxon wergilds, see Kemble, 267-268.
144. Richardson and Sayles, 4, made the argument that clause 1 of the doom had a dubious
origin, and they proposed that the clause was added later by more religious men. However, Professor
19911 ANGLO-SAXON LAW
A.W.B. Simpson, at footnote 23, page 10, noted, "H.G. Richardson and G.O. Sayles...argue that
(clause 1) is an interpolation, an argument related to their geheral skepticism over Ethelbert's
conversion. But they do not face up to the problem of explaining the interp6lation - there was some
version of (clause 1) in Bede's time. Nor do they provide any positive explanation of Ethelbert's
ventures into legislation." In addition to Professor Simpson's observations, however, Professor
William A. Chaney noted in a law review article published in 1962 that in spite of the apparent
contradictions of placing the position of the clergy ahead of the king, such positioning was fully in
keeping with Aethelbert's conversion to Christianity. Furthermore, the author noted that the amounts
payable for the listed trespasses to church and clergy who owned land were fully in compliance with
Anglo-Saxon, pre-Christian, "pagan" norms and could be justified as such based on analysis of
Anglo-Saxon customs and superstitions. Noted Professor Chaney, "(t)hat the compensation by both
bishop and Church is higher in this code than that of the king is but further evidence of the impact of
the new religion. The number which it surmounted, however, was one already integrated into royal
cult and pagan religion, and the standard to which hierarchized compensation was referred. The
numerical 'triumph' of the ecclesiastical compensation forecast both concretely and symbolically the
triumph of the new religion in the realms of the Anglo-Saxons and its dominance in law and at the
courts of their Woden-sprang monarches." William A. Chaney, "Aethelbert's Code and the King's
Number," 6 American JournalolLegal History, 177, (1962).
145. Aethelbert, Clause 1, Attenborough, 5.
146. Aethelbert, Clauses 2-12, Attenborough, 5-7, English HistoricalDocuments,2nd ed., Vol.
1, 391-392.
147. Aethelbert, Clauses 13-14, Attenborough, 6-7, Douglas and Greenaway, 29.
148. Oman, 355.
149. Oman, 356-358.
150. Aethelbert, Clause 15, Attenborough, 7.
151. Aethelbert, Clause 13 and 14, Attenborough, 7.
152. Aethelbert, Clauses 17-20, Attenborough, 7.
153. Aethelbert, Clauses 21-26, Attenborough, 7.
154. Aethelbert, Clause 30, Attenborough, 9.
155. Aethelbert, Clause 22, Attenborough, 7.
156. Aethelbert, Clause 24, Attenborough, 7.
157. In addition, clause 88 of the doom extended this proscription when it noted, "(i)f a man
lays bonds on another man's servant, he shall pay 6 shillings compensation." Aethelbert, Clause 88,
Attenborough, 17.
158. Aethelbert, Clauses 27-29, 32, Attenborough, 9.
159. Aethelbert, Clause 33, Attenborough, 9.
160. Aethelbert, Clause 34, Attenborough, 9.
161. Simpson, 7. The detail contained in these clauses is, indeed, minute. Clause 35 notes that
if the bone is damaged when scalping someone, an additional 4 shilling compensation would be paid.
Clause 38 dealt with shoulder injuries, clause 39 with the loss of hearing. Clauses 39-42 dealt with
the more specific areas of ear mutilation and noted that there were monetary differences to be paid
depending on whether the ear was "struck off" entirely, "pierced," or "lacerated." The loss of an
eye was covered in clause 43, the disfigurement of a mouth or an eye in clause 44, and the piercing
of a nose in clause 45. The variety of disfigurements to cheek and noses were covered in clauses
46.49, while clauses 50-52 concerned the bodily areas of the chin and mouth (a penalty of 1 shilling
was to be paid, for example, for causing the loss of a tooth). Next in line came the collarbone, the
hand, and the fingers (clause 52-56). Clauses 57.60 dealt with poking someone in the nose with a fist
(3 shilling fine), with additional compensation to be paid if it left a simple bruise (another shilling),
and even more if it left a particularly dark bruise (the amount to be paid depending on whether the
bruise could be covered with clothing). The next clauses (61-64) proceeded down the torso, pausing
to consider the value of certain belly wounds, and then in a phoebic fit, concentrating on some
particularly grisly losses to one's "generative organs." Finally moving on to the extremities, the
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
doom noted the compensation to be paid for losses suffered to one's ribs, thighs, feet, and toes and
toenails (clauses 65-72). Aethelbert, Clauses 33-72, Attenborough, 9-15.
162. It has been suggested that this clause provided proof that early Anglo-Saxons engaged in a
form of arbitration. As noted by Professor Daniel E. Murray, "(i)t has been asserted that 'there is
apparently no germ of arbitration in Anglo-Saxon law, and the idea of arbitration is not one which the
king's courts would favorably entertain at the time we find it making its appearance.' "Nevertheless,
it is submitted that the first faint glimmerings of arbitration appeared in the oldest series of the Kentish
laws of Aethelberht (circa 602-603). After providing in specific detail the amount of wergild for
numerous injuries, the law provided that if a man's thigh was broken twelve shillings were to be paid
as compensation, but 'if he becomes lame, the settlement of the matter may be left to friends.' It has
been suggested that the word 'friends' meant the relatives of both parties. It is to be noted that even
at this early date, the voluntary nature of the settlement was indicated by the word "may." This
law, however, failed to indicate clearly whether this arbitration was to be conducted as part of a court
process or as an extra-judicial manner of settlement." Daniel- E. Murray, "Arbitration in the
Anglo-Saxon and Early Norman Periods," 16 The ArbitrationJournal, 194-195, (1961).
163. Aethelbert, Clause 73, Attenborough, 15.
164. Aethelbert, Clauses 74-75, Attenborough, 15.
165. Aethelbert, Clauses 76-77, Attenborough, 15.
166. Aethelbert, Clauses 77-81, Attenborough, 15.
167. Aethelbert, Clause 77, Attenborough, 15.
168. Aethelbert, Clause 79, Attenboraugh, 15.
169. Aethelbert, Clause 80, Attenborough, 15.
170. Aethelbert, Clause 81, Attenborough, 15.
171. Aethelbert, Clause 78, Attenborough, 15.
172. Aethelbert, Clause 82, Attenborough, 15.
173. Aethelbert, Clause 83, Attenborough, 15.
174. Aethelbert, Clause 84, Attenborough, 15.
175. Aethelbert, Clause 85, Attenborough, 15.
176. Aethelbert, Clauses 86-90, Attenborough, 15.
177. Fisher, 123.
178. Bede, Book II, Chapter V, 76-78.
179. Bede, Book 1, Chapter V, 77.
180. Bede, Book 11, Chapter V, 77.
181. Bede, Book 11, Chapter V, 77.
182. Bede, Book II, Chapter V. 78.
183. Bede, Book II, Chapter VI, 79.
184. Bede, Book II, Chapter VI, 79.
185. Bede, Book 1I, Chapter VI, 79.
186. Bede, Book III, Chapter VIII, 121. See also the "Anglo-Saxon Chronicle," Versions A,
B, C, and E for the years 640, English HistoricalDocuments,Vol. 1, 151.
187. Attenborough, 2.
188. Evidence of Earconbert's laws comes to us by way of Bede's assertions in Book I, Chapter
VIII, 121. However, for Bede to have known of these laws, long after their supposed promulgation,
would indicate that he had access to some sort of written copy of the laws.
189. For example, in the year 626, the West Saxon king Edwin sought assistance from a Catholic
bishop'so that he could "destroy his enemy." The bishop apparently complied, offered up his prayers,
and Edwin entered Wessex with his army, destroyed 5 kings, and was victorious. Upon his victory,
Edwin, his daughter, and "12 people" (probably Eoris) were baptised. Other examples include the
baptism of the king of East Anglia in 627-28, the baptism of the West Saxons in 634, and the baptism
of the king of the Northumbrians in 635. "Anglo-Saxon Chronicle," versions A-C and E, English
HistoricalDocuments, 2nd ed., Vol. 1, 161-162.
190. "Anglo-Saxon Chronicle for the year 664," Version E, EnglishHistoricalDocuments, 2nd
ed., Vol. 1, 153.
19911 ANGLO-SAXON LAW
191. Bede, Book IV, Chapter1, 170.
192. The full text of the ten chapters of the Hertford Synod are as follows:
Chapter I. That we all in common keep the holy day of Easter on the Sunday after the fourteenth
moon of the first month.
II. That no bishop intrude into the diocese of another, but be satisfied with the government of
the people committed to him.
MIT. That it shall not be lawful for any bishop to trouble monasteries dedicated to God, nor to
take anything forcibly from them.
IV. That monks do not remove from one place to another, that is, from monastery to monastery,
unless with the consent of their own abbot; but that they continue in the obedience which they promised
at the time of their conversion.
V. That no clergyman, forsaking his own bishop, shall wander about, or be anywhere entertained
without letters of recommendation from his own prelate. But if he shall be once received, and will
not return when invited, both the receiver, and the person received, be under excommunication.
VI. That bishops and clergymen, when travelling, shall be content with the hospitality that is
afforded them; and that it be not lawful for them to exercise any priestly function without leave of
the bishop in whose diocese they are.
VII. That a synod be assembled twice a year, but in regard that several causes obstruct the same,
it was approved by all, that we should meet on the Ist of August once a year, at the place called
Clofeshoch.
VIII. That no bishop, through ambition, shall set himself before another, but that they shall all
observe the time and order of their consecration.
IX. It was generally set forth, that more bishops should be made, as the number of believers
increased; but this matter for the present was passed over.
X. Of marriages; that nothing be allowed but lawful wedlock; that none commit incest; no man
quit his true wife, unless, as the gospel teaches, on account of fornication. And if any man shall put
away his own wife, lawfully joined to him in matrimony, that he take no other, if he wishes to be a
good Christian, but continue as he is, or else be reconciled to his own wife.
Bede, Book IV, Chapter V, 182.
193. "Anglo-Saxon Chronicle" for the year 673, Versions A-C, English HistoricalDocuments,
lsted., Vol. 1, 154.
194. Bede, Book IV, Chapter XXVI, 224-225.
195. Attenborough, 2. English HistoricalDocuments, Ist ed., Vol. 1, 360.
196. Laws of Hlothhere and Eadric, Attenborough, 19. See also English HistodcalDocuments,
1st ed., Vol. 1, 360-361. There the prologue was translated as saying, "...Hlothhere and Eadric, kings
of the people of Kent, added to the law which their forefathers had made these decrees which are
stated hereafter."
197. The term "established custom" is used by Attenborough in his translation of this clause.
Laws of Hlothhere and Eadric, Clause 12, Attenborough, 21.
198. Laws of Hlothhere and Eadric, Clause'12, English HistoricalDocuments, Ist ed., Vol. 1,
360.
199. Laws of Hlothhere and Eadric, Clause 6, Attenborough, 19.
200. Aethelbert's Doom, Clause 78, Attenborough, 15.
201. Laws of Hlothere and Eadric, Clause 11, Attenborough, 21.
202. Laws of Hlothere and Eadric, Clauses 13 and 14, Attenborough, 21.
203. Laws of Hlothere and Eadric, Clause 15, Attenborough, 21.
204. Fisher, 122.
205. Laws of Hlothhere and Eadric, Clauses 1 and 3, Attenborough, 19.
206. Laws of Hlothhere and Eadric, Clauses 2 and 4, Attenborough, 19. In addition, see Clauses
2 and 4, English HistoricalDocuments, 1st ed., Vol. 1, 360.
207. Laws of Hlothhere and Eadric, Clause 5, Attenborough, 19.
208. Laws of Hlothhere and Eadric, Clause 7, Attenborough, 19.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
209. This clause is included in the translation provided in English Historical Documents, 1st
ed., Vol. 1, 360.
210. Laws of Hlothhere and Eadric, Clause 8, Attenborough, 21.
211. Laws of Hlothhere and Eadric, Clause 8, Attenborough, 21.
212. Laws of Hlothhere and Eadric, Clause 9, Attenborough, 21.
213. Laws of Hlothhere and Eadric, Clause 10, Attenborough, 21.
214. Laws of Hlothhere and Eadric, Clause 11, Attenborough, 21.
215. Laws of Hlothhere and Eadric, Clause 16, Attenborough, 23.
216. Certainly the role of this tribunal in early Anglo-Saxon history is subject to much debate.
For example, Professor Harding noted, "...Kentish laws set out the quite elaborate procedure which
had become customary for arbitration in the folk-moots (i.e., legal tribunals/assemblies). When a man
had a claim against another, he took surety from him to submit to arbitration: in other words he forced
someone to be responsible for the defendant's appearance. The defendant had then to do 'such right
as the judges of the people of Kent should prescribe.' There was no attempt to sift evidence. The
judges or doomsmen were merely guardians of a ritual performance, who at the most decided by which
of a number of mechanical means the defendent should clear himself." Harding, 16. While Professor
Harding's view, as well as the view of others, is well-founded, it seems to overlook the role of dispute
resolution and minimization of the blood feud inherent in this system of justice. It would be hard to
imagine a Maegth being satisfied with a system of justice which allowed an accused to "prove his
innocence" merely with the assistance of oath-helpers from his own family-kindred group.
Furthermore, this view that the doomsman was merely a counter of oath-helpers and served no
substantive role overlooks the clear language of the code itself. The doomsman served as an arbitrator
who was charged by both parties of the dispute to hear the evidence of the witnesses and to consider
the "testimony" of the oath-helpers. That such an arbitrator under such a system of tribal justice
would just "count heads" and disregard the evidence produced by the accuser approaches the absurd.
Clearly the role of the folk-moot and the doomsmen had more significance, or the system would not
have worked for as contentious a people as described by Tacitus.
217. Bede, Book IV, Chapter XXVI.
218. English HistoricalDocuments, 1st ed., Vol. 1, 361.
219. English HistoricalDocuments, 1st ed., Vol. 1, 361.
220. Laws of Wihtred, king of Kent (695), Prologue, Attenborough, 25.
221. Laws of Wihtred, Clauses 3-6, Ist ed., Attenborough, 26-27. Here the law prohibited men
from "living in illicit unions" under penalty of excommunication and deportation (if they were
foreigners) and heavy penalties were prescribed for any who failed to live by this tenet.
Additionally, 20 priests, according to clause 6, who consented to such "illicit unions" were subject
to defrocking.
222. For example, the code prohibited working and traveling on the Sabbath (Clauses 9-11) and
also prohibited, under heavy penalty, making "offerings to the devil" (Clauses 12-13), Laws of
Wihtred, Attenborough, 27.
223. See Clauses 14 and 15 which established heavy penalties for eating meat during fast-days.
Laws of Wihtred, Attenborough, 27.
224. Laws of Wihtred, Clauses 16-24, Attenborough, 27-29. These clauses established elaborate
oath-taking procedures for different members of Anglo-Saxon society. For example, a bishop's or a
king's word was viewed as incontrovertible, regardless of oath (Clause 16); clergy members could
clear themselves by taking the oath in their "holy garments" while standing before the altar (Clauses
17 and 18); and a commoner could clear himself at the altar with the help of three of his class.
Interestingly, with the heavy inclusion of Christian doctrine in Anglo-Saxon law, the concept of the
"oath" and the "oath-helper" circumvented traditional customary Anglo-Saxon law. In other words,
prior to this time, the folk-moot considered the evidence of the accuser and the oath of the accused.
However, since the accused was subject only to the penalty of perjury if he should lie, the doomsman
had the unenviable position of determining guilt or innocence based upon the totality of the evidence.
However, with the inclusion of heavy amounts of Christianity in Anglo-Saxon law, the oath took on
a greatly added significance. Now, divine intervention played a significant role in the law, since it
1991] ANGLO-SAXON LAW 199
was perceived that anyone lying while providing a sacred oath would be subject to extra-worldly
punishments. Now the doomsman could hear all the secular testimony in the world, and such would
not outweigh the credence put on the testimony of a person who swore a sacred oath and put his eternal
soul on the line.
225. Wihtred, Clause 1, Attenborough, 25.
226. Wihtred, Clause 16, Attenborough, 27.
227. Wihtred, Clause 2, Attenborough, 25.
228. F. M. Stanton, 62.
229. Bede, Book V, Chapter XXIII, 291.
230. Wilson, 34-35.
231. Laws of Alfred (c. 885-899), Introductory Paragraphs 49.8, 49.9 and 49.10, English
HistoricalDocuments, 2nd ed., Vol. 1, 408-409.
232. Except as incorporated into the body of Alfred's law.
233. For example, clause 28 of Wihtred's laws is nearly identical with clause 20 of Ine's Laws.
The Laws of Wihtred, Clause 28, Attenborough, 31, noted, "If a man from afar, or a stranger, quits
the road, and neither shouts nor blows a horn, he shall be assumed to be a thief, (and as such) may
be either slain or put to ransom." The Laws of Ine, Clause 20, Attenborough, 43, noted, "If a man
from afar, or a stranger, travels through a wood off the highway and neither shouts nor blows a horn,
he shall be assumed to be a thief, and as such may be either slain or put to ransom." Attenborough
noted that such coincidences should not be considered unusual since "(t)his may be regarded as
painting to communication between the governing authorities of the two kingdoms, such as would
naturally follow the restoration of friendly nations in 694." Attenborough, 34. In this regard, it should
be noted that Wihtred and Ine were contemporaries. Wihtred probably wrote his codes in 695 and
died in 725. Ine's codes were probably written sometime after the period of between 688 and 694. He
also reigned until 725. "Anglo-Saxon Chronicle," Versions A, B, and C, English Historical
Documents, 1st ed., Vol. I, 156. The reason for some of the confusion of the dates of the codes is
that Ine probably wrote his dooms after Wihtred wrote his. However, the preambles to the two sets
of dooms indicated that Wihtred wrote his dooms a year or so before In. An explanation for this
discrepancy was suggested by Professors Richardson and Sayles (at page 14) when they noted that the
date of the preambles might not reflect the date of enactment for each of the clauses in the code.
Thus, for example, the clauses dealt with herein, i.e., In 20 and Wihtred 28, may have been enacted
earlier than the rest of the clauses in either or both kingdoms; and the preamble so reflects that
situation.
234. Richardson and Sayles, 14.
235. F. M. Stanton, 71-73.
236. Laws of Ine, Clauses 1-5, Attenborough, 37-39.
237. Laws of Ine, Clause 10, Attenborough, 11.
238. Laws of Ine, Clauses 7, 10, 12, 17, 22, 36, 37, 46, 48, 72, 73, and 75, Attenborough, 39.
239. Laws of Ine, Clause 6, Attenborough, 39.
240. Laws of Ine, Clauses 16, 23, 33, 34, 35, 54, 74, and 76, Attenborough, 11.
241. Laws of Ine, Clauses 8 and 9, Attenborough 39.
242. For example, Laws of The, Clause 13, Attenborough, 13, provides for a 120 shilling
compensation for bearing false witness in the presence of a bishop or repudiating a pledge made before
a bishop. Clauses 14-16 considered the oath necessary to clear one of the charge of "thieving, raiding
or marauding," depending on whether the accused was a communicant, as well as the oath necessary
to clear oneself for having killed a thief. Other oaths depend on one's social status (i.e.,
commoner-clause 18; member of the king's household-clause 19; noblemen-clause 54).
243. Laws of Ine, Clause 22, Attenborough, 43.
244. Laws of Ine, Clauses 26, 27, and 38, Attenborough, 38.
245. Laws of Ine, Clause 25, Attenborough, 45.
246. Laws of Ine, Clauses 40, 42-4, 49, 55-60, 64-9, Attenborough, 51-59.
247. Fisher, 123.
248. Fisher, 124.
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
249. Laws of ne, Clause 39, Attenborough, 49.
250. Laws of ne, Clause 20, Attenborough, 43.
251. Laws of ine, Clause 48, Attenborough, 43.
252. Laws of Ine, Clause 63, Attenborough, 57.
253. Laws of Ine, Clause 67, Attenborough, 57. See also English Historical Documents, 2nd
ed., Vol. 1,408.
254. Fisher, 125.
255. Fisher, 125.
256. As far as the requirement for military service, note that clause 51 of Ine's laws demanded
that anyone (nobleman or commoner) who neglected his required military service was subject to a
heavy penalty. In fact, a nobleman who owned land "of the king" and neglected his military service
not only paid a 120 shilling penalty, but also forfeited his land. Therefore, we see that continued
nobility and land tenure in England, even as early as 688, depended upon the provision of military
service. Thus, it would seem that even this innovation was denied William the Conqueror. Laws of
Ine, Clause 51, Attenborough, 53.
257. Fisher, 131.
258. Laws of Wihtred, Clause 21, Attenborough, 29.
259. Laws of Ine, Clause 54, Attenborough, 55.
260. Laws of Wihtred, Clause 62, Attenborough, 57. Additionally, see Clause 50. There the
code of Ine specified that if a nobleman "came to terms with the king on behalf of his dependents,
free or unfree," then the nobleman, and not the family unit, was liable for a loss of revenue for the
misdeeds of that "dependent", since the nobleman had "not previously taken care at home to restrain
them (his men) from evildoing." Laws of Ine, Clause 50, Attenborough, 53. Thus, we see that the
lord began the process by assuming the responsibility for producing men in court and for paying the
fines imposed for their wrongdoing.
261. In fact, early English charters discuss at length the obligations owed by the landed
aristocracy to the crown. As early as 732, King Aethelbert of Kent granted to Abbot Dann a certain
piece of property in Kent free from royal rights, EnglishHistorcalDocuments, 2nd ed., Vol. , 490.
In 739, Aethelheard, King of Wessex, granted Bishop Foxthhere a parcel of land in Shereborn
"immune and eternally secure from all ... royal concerns and secular works, except only matters
pertaining to military services." Id., 496. A grant by King Offa in 801 rendered the lord obtainer to
provide the "three public causes," i.e., construction of bridges and forts, as well as providing military
service (of 5 men). Id. at 501. Other such charters were granted in 770 from the "sub-king of Hwicce"
to a certain Aethelmund, Id. at 502, and in 855 by the king of Mercia to Bishop Ealhhun. Id., 522.
262. Laws of Alfred, Clauses 35-77, Attenborough, 81-93. Such matters as hurting someone
with a spear that was slung over one's shoulder was covered (clauses 35 and 36), as were fighting
(clause 39) and causing injuries to heads (clause 44), ears (clause 46), eyes (clause 47), noses (clause
48), jaws (clause 50), throats (clause 51), shoulders (clause 53), arms (clauses 54-55), fingers (clauses
56-60, e.g., 9 shillings for the loss of a little finger, I shilling for striking off a finger nail), bellies,
thighs, and shins (clauses 61-3), toes, testicles, and loins (clauses 64-67).
263. Laws of Alfred, Clause 40, Attenborough, 82-83.
264. Bocland was land taken from the focland, or Anglo-Saxon common acreage, and granted
by boo (that is, by written charter, see footnote 260 for examples) to a private owner. Specifically,
clause 41 of the code specified that once a person obtained private title by boc to bocland (primarily
by will - see, for example, the will of King Alfred, probably written between 878 and 888, in which
the king devised to his son all the boclands he had in Kent; English HistoricalDocuments, 2nd ed.,
Vol. I, 534-537), he could not "give it out of his kindred, if there is documentary or (other) evidence
that the power to do so was forbidden him by the men who first acquired it, or by those who gave it
to him." Laws of Alfred, Clause 41, Attenborough, 83. Thus, we see for the first time a provision
which explicitly noted that restrictive covenants could run with land. In fact, evidence of such
prohibited transfers are seen in two Anglo-Saxon legal documents. The first concerned a case occurring
in 781, entitled "The Settlement at the Synod of Brentford of a Claim Made by Offa, King of Mercia,
against the Church at Worcester." In this case, King Offa demanded that certain property be returned
1991] ANGLO-SAXON LAW
from the church and be placed in his possession. Offa maintained that his ancestor, King Aethelbald,
had no right to transfer the property since Aethelbald held no "hereditary right" of possessory
"inheritance of his kinsmen." For whatever reason, the settlement reinstated title to Offa. English
HistoricalDocuments, 2nd ed., Vol. I, 505-507. The second document dealing with this subject
involved a "grant of land at the south Hams, Devon by Aethelwulf, king of Wessex, to himself" in
846. This charter implied that the king could not leave in the form of inheritance, or otherwise divest
himself of title to a piece of property nor free it from any tribute or services until it had been formally
"booked" to him. English HistoricalDocuments, 2nd ed., Vol. I, 522-524.
265. Laws of Alfred, Clauses 42-43, Attenborough, 83-85. Significantly, these clauses were still
concerned with the vendetta and the blood-feud, specifically prohibiting such actions before
"demanding justice" of the alleged wrongdoer and providing seven detailed subclauses suggesting
when a vendetta could be carried out.
266. Laws of Alfred, Clause 1, Attenborough, 62.
267. Laws of Alfred, Clause 2, Attenborough, 65.
268. Laws of Alfred, Clauses 3 and 4, Attenborough,
269. Laws of Alfred, Clauses 5-34, Attenborough, 67-69.
270. For example, slaves could be beaten, lashed and castrated. See also, for comparisons, the
Laws of Ine, Clause 3 and the Laws of Wihtred, Clause 12.
271. Richardson and Sayles, 16.
272. D. M. Wilson, 35-37.
273. The Treaty of Alfred and Gunthrum, Clause 1, Attenborough, 99.
274. The Treaty of Alfred and Gunthrum, Clauses 2 and 3, Attenborough, 99.
275. The Treaty of Alfred and Gunthrum, Clauses 4 and 5, Attenborough, 101.
276. The Treaty of Edward and Gunthrun, Prologue, Parts I and 2, Attenborough, 103.
277. The Treaty of Edward and Gunthrum, Clauses 1-12, Attenborough, 107-109.
278. D. M. Wilson, 35-38.
279. "Anglo-Saxon Chronicle" for the year 900, Versions A-F, English HistoricalDocuments,
lst ed., Vol. I, 189-190.
280. Harding, 18-19
281. Edward the Eider enacted two sets of laws which are still extant, known collectively as I
Edward and H Edward. Promulgated between the years 900 and 925, they are reproduced in their
entirety in Attenborough, 114-122.
282. Aethelstan of Wessex issued six series of laws, as well as a short ordinance respecting
charities between the years 925 and 935. I Aethelstan was of exclusively ecclesiastical importance
and dealt with the payment of tithes and other church dues. Attenborough speculated that, based on
its preamble, it probably was issued without much influence on the part of the Witan. II Aethelstan
was promulgated at a council held at Grately and concerned itself with the administration of justice
and good order by the Anglo-Saxon kings, primarily by restating and reforming delicts for various
wrongdoings. III Aethelstan largely repeated matters found in Aethelstan's other codes, but is in the
form of a letter from the Archbishop, nobleman (theynes), and people of Kent to the king. IV
Aethelstan was promulgated at Thunresfeld and primarily, like II Aethelstan, dealt with matters of
justice. V Aethelstan was of a similar nature, but was promulgated at a meeting of the council held
at Exter. VI Aethelstan is an ordinance drawn up by the bishops and reeves of London and was
concerned mainly with the gilds of that city/borough. Finally, the Ordinance on Charities gave
directions for the maintenance of poor men and the release of penal slaves. Attenborough, 112-113,
122-173.
283. I Edward, Prologue. Attenborough, 115.
284. I Edward, Clause 1, Attenborough, 115-117.
285. I Edward, Clauses 2 and 3, 119.
286. I Edward, Clause 8, 121.
287. Richardson and Sayles, 17.
288. Called the "Ordinance Relating to Charities," Attenborough, 127, the law was composed
of a short prologue and only two subsequent clauses. Addressed to all of the reeves of his kingdom,
USAFA JOURNAL OF LEGAL STUDIES [Vol. 2
Aethelstan mandated that it was his "wish" that the reeves always provide destitute Englishmen
with food, that they annually free at least one person who had been reduced to penal slavery, and that
they provide free meals, worth at least "four pence," to two of the king's dependents. Failure to abide
by these provisions subjected the reeve to a heavy penalty, with the proceeds being spent among the
poor of that district. Apparently, the manumissions of slaves did not go unheeded. See, for example,
"Old English Manumission of King Aethelstan" (925), and eight manumissions contained in a
gospel-book from Bodmin, English HistoricalDocuments, 2nd ed., Vol. 1, 607-610.
289. Richardson and Sayles, 18.
290. Il Aethelstan, Clause 3, Attenborough, 143-147.
291. Ill Aethelstan, Clause 6, Attenborough, 145.
292. 11 Aethelstan, Clause 7, Attenborough, 145.
293. III Aethelstan, Clause 6, Attenborough, 145.
294. VI Aethelstan, Clause 2, Attenborough, 147.
295. VI Aethelstan, Clauses 1-5, Attenborough, 157-159.
296. Richardson and Sayles, 18.
297. Richardson and Sayles, 18-19.
298. I Aethelstan, Attenborough, 123-125.
299. II Aethelsan. Attenborough, 127-143.
300. II Aethelstan, Clause 2, Attenborough, 129.
301. II Aethelstan, Clause 8, Attenborough, 133.
302. II Aethelstan, Clause 14, Attenborough, 135.
303. II Aethelstan, Clause 20, Attenborough, 137.
304. II Aethelstan, Clauses 21 and 23, Attenborough, 139.
305. For a fascinating discussion of the general area of early punishment and court procedures,
see Steven Hatfield, "Criminal Punishment in America: From the Colonial to the Modem Era," 1
USAFA Journal of Legal Studies, 139, et. seq., (1991). Additionally, see Addendum II to VI
Aethelstan, Decree Concerning Hot Iron and Water, Attenborough, 170-173.
306. IV and V Aethelstan, Attenborough, 147-155.
307. Edmund's Code concerning the Blood-Feud (I Edmund, 939-946), English Historical
Documents, 2nd ed., Vol. 1,427-430.
308. II Edmund, Clause 7, EnglishHistoricalDocuments,2nd ed., Vol. 1, 428.
309. The Hundred Ordinance, English HistoricalDocuments, 2nd ed., Vol. 1, 429.
310. English HistoricalDocuments, 2nd ed., Vol. 1, 429.
311. Harding, 19-20.
312. Harding, 20-21.
313. I Edgar, Clause 1, English HistoricalDocuments, 2nd ed., Vol. 1, 430.
314. III Edgar, Clause 5.1, EnglishHistoricalDocuments, 2nd ed., Vol. 1,433.
315. I Edgar, Clause 7, EnglishHistoricalDocuments, 2nd ed., Vol. 1, 430.
316. III Edgar, Clause 1.1, EnglishHistoricalDocuments, 2nd ad., Vol. 1, 432.
317. I1 Edgar, Clauses 2 and 2.1, English HistoricalDocuments, 2nd ed., Vol. 1, 432.
318. See IV Edgar, at. seq., English HistoricalDocuments,2nd ed., Vol. 1,434, for a discussion
of court-appointed witnesses who were to be present at every commercial transaction and testify later,
if needed, regarding that transaction.
319. See Laws of Ethelred including: II Ethered (991-994), a treaty with the Viking army; III
Ethelred (978-1008), concerning the Dane law; V Ethelred (1008) and VII Ethelred (1009), both
primarily of ecclesiastical concern; and VIII Ethelred (1014) whose primary point of interest was the
extent to which the concept of kingship had developed in a Christian sense (e.g., Clause 2.1, which
stated, "(f)or a Christian king is Christ's deputy in a Christian people, and he must avenge very
zealously offenses against Christ." English HistoricalDocuments, 2nd ed., Vol. 1, 437-451.
320. Preface to the version of Cnut's laws contained in Corpus Christi College, Cambridge,
MS. 201 (1018), English HistoricalDocuments, 2nd ed.,Vol. 1,452.
321. Cnut's letter to the people of England (1019-1020), English ifstozical Documents, 2nd
ed., Vol. 1, 452.
References (270)
If the king calls his lieges to him, and anyone molests them there, he shall pay double compensation, and 50 shillings to the king.
If the king is feasting at anyone's house, and any sort of offence is committed there, twofold compensation shall be paid.
If a freeman robs the king, he shall pay back nine fold amount.
If one man slays another on the king's premises, he shall pay 50 shillings compensation.
If a man slays a free man, he shall pay 50 shillings to the king for infraction of his seignorialrights.
If [he] slays a smith in the king's service, or a messenger belonging to the king, he shall pay an ordinary wergeld.
The king's mundbyrd shall be 50 shillings.
If a freeman robs a freeman, he shall pay a three fold compensation, and the king shall take the fine or all [the man's] goods.
If a man lies with a maiden belonging to the king, he shall pay 50 shillings compensation.
If she is a grinding slave, he shall pay 50 shillings compensation [If she is of the] third [class] [he shall pay] 12 shillings compensation.
20 shillings shall be paid for killing a fedsel belonging to the king.
If one man slays another on the premises of a nobleman, he shall pay 12 shillings compensation.
If a man lies with a nobleman's serving maid, he shall pay 12 shillings compensation.
A commoner's mundbyrd shall be 6 shillings.
If a man lies with a commoner's serving maid, he shall pay 6 shillings compensation; [if he lies] with a slave of the second class, [he shall pay] 50 sceattas [compensation]; if with one of the third class, 30 sceattas.
If a man is the first to make [forcible] entry into another man's premises, he shall pay 6 shillings compensation. He who comes next shall pay 3 shillings compensation; and afterwards each one shall pay a shilling.
If one man supplies another with weapons when a quarrel is taking place, no injury however being inflicted, he [the lender] shall pay 6 shillings compensation.
If highway robbery is perpetrated [with the aid of those weapons], [the lender] shall pay 6 shillings compensation.
If the man is slain, [the lender of the weapons] shall pay 20 shillings compensation. 21. If one man slays another, the ordinary wergeld to be paid as compensation shall be 100 shillings.
If one man slays another, he shall pay 20 shillings before the grave is closed, and the whole of the wergeld within 40 days.
If a homicide departs from the county, his relatives shall pay half the wergeld.
If a man slays the dependant of a commoner, he shall pay [the commoner] 6 shillings compensation.
f he slays a laet of the best class, he shall pay 80 shillings; if he slays one of the second class, he shall pay 60 shillings; [for slaying one of] the third class, he shall pay 40 shillings.
If a freeman breaks the fence round [another man's] enclosure, he shall pay 6 shillings compensation.
If any property be seized therein, the man shall pay three fold compensation.
If a freeman makes his way into a fenced enclosure, he shall pay 4 shillings compensation.
If one man slays another, he shall pay the wergeld with his own money and property (i.e. livestock or other goods) which whatever its nature must be free from blemish [or damage].
If [one] freeman lies with the wife of [another] freeman, he shall pay [the husband] his [or her] wergeld, and procure a second wife with his own money, and bring her to the other man's home.
If anyone damages the enclosure of a dwelling, he shall pay according to its value.
For seizing a man by the hair, 50 sceattas shall be paid as compensation.
If a bone is laid bare, 3 shillings shall be paid as compensation.
If a bone is damaged, 4 shillings shall be paid as compensation.
If the outer covering of the skull is broken, 10 shillings shall be paid as compensation.
If both are broken, 20 shillings shall be paid as compensation.
If a shoulder is broken, 20 shillings shall be paid as compensation.
If the hearing of either ear is destroyed, 25 shillings shall be paid as compensation.
If an ear is struck off, 12 shillings shall be paid as compensation.
If an ear is lacerated, 6 shillings shall be paid as compensation.
If an eye is knocked out, 50 shillings shall be paid as compensation.
If the mouth or an eye is disfigured, 12 shillings shall be paid as compensation.
If the nose is pierced, 9 shillings shall be paid as compensation.
If it is one cheek, 3 shillings shall be paid as compensation.
If both are pierced, 6 shillings shall be paid as compensation.
If the nose is lacerated otherwise [than by piercing], 6 shillings shall be paid as compensation, for each laceration.
If it is pierced, 6 shillings shall be paid as compensation.
He who smashes a chin bone, shall pay for it with 20 shillings.
For each of the 4 front teeth, 6 shillings [shall be paid as compensation]; for each of the teeth which stand next to these, 4 shillings [shall be paid as compensation]; then for each tooth which [Vol. 2 stands next to them, 3 shillings [shall be paid as compensation]; and beyond that 1 shilling [shall be paid as compensation] for each tooth.
If the power of speech is injured, 12 shillings [shall be paid as compensation].
Sec. 1. If a collar bone is injured, 6 shillings shall be paid as compensation.
He who pierces an arm shall pay 6 shillings compensation. See. 1. If an arm is broken, 6 shillings shall be paid as compensation.
If a thumb is struck off, 20 shillings [shall be paid as compensation].
Sec. 1. If a thumb nail is knocked off, 3 shillings shall be paid as compensation. See. 2. If a man strikes off a forefinger, he shall pay 9 shillings compensation. See. 3. If a man strikes off a middle finger, he shall pay 4 shillings compensation. See. 4. If a man strikes off a 'ring finger,' he shall pay 6 shillings compensation. Sec. 5. If a man strikes off a little finger, he shall pay 11 shillings compensation.
For the nails of each [of the above-mentioned fingers], 1 shilling [shall be paid as compensation].
For the slightest disfigurement, 3 shillings, and for a greater 6 shillings [shall be paid as compensation.]
If one man strikes another on the nose with his fist, 3 shillings [shall be paid as compensation].
If it leaves a bruise, 1 shilling [shall be paid as compensation].
Sec. 1. If the blow is received with uplifted hand, a shilling shall be paid.
If it leaves a black bruise [showing] outside the clothes, 30 sceattas shall be paid as compensation.
If the belly is wounded, 12 shillings shall be paid as compensation. Sec. 1. If it be pierced through, 20 shillings shall be paid as compensation.
If a man receives medical treatment, 30 shillings shall be paid as compensation.
Ifa man is severely wounded, 30 shillings shall be paid as compensation.
If anyone destroys the generative organ, he shall pay for it with three times the wergeld. See. 1. If he pierces it right through, he shall pay 6 shillings compensation. See. 2. If he pierces it partially, he shall pay 6 shillings compensation.
If a thigh is broken, 12 shillings shall be paid as compensation. Sec. 1. If he becomes lame, the settlement of the matter may be left to friends.
If a rib is broken, 3 shillings shall be paid as compensation.
If a thigh is pierced right through, 6 shillings compensation shall be paid for each stab [of this kind].
Sec. 1. For a stab over an inch [deep], I shilling; for a stab between 2 and 3 inches [deep], 2 shillings; for a stab over 3 inches [deep], 3 shillings [shall be paid as compensation].
If a sinew is wounded, 3 shillings shall be paid as compensation.
If a foot is struck off, 50 shillings shall be paid for it.
If the big toe is struck off, 10 shillings shall be paid for it.
For each of the other toes, [a sum] equal to half that laid down for the corresponding finger shall be paid.
If the nail of the big toe is knocked off, 30 sceattas shall be paid as compensation. Sec. 1. 10 sceattas shall be paid as compensation for the loss of each of the other toenails.
If a freeborn woman, with long hair, misconducts herself, she shall pay 30 shillings as compensation.
The compensation to be paid for violation of the mund of a widow of the best class, [that is, of a widow] of the nobility, shall be 50 shillings. Sec. I. For violation of the mund of a widow of the second class, 20 shillings; of the third class, 12 shillings; of the fourth class, 6 shillings.
If a man takes a widow who does not [of right] belong to him, double the value of the mund shall be paid.
If a man buys a maiden, the bargain shall stand, if there is no dishonesty. Sec. 1. If however there is dishonesty, she shall be taken back to her home, and the money shall be returned to him.
If she bears a living child, she shall have half the goods left by her husband, if he dies first.
If she wishes to depart with her children, she shall have half the goods.
If the husband wishes to keep [the children], she shall have a share of the goods equal to a child's.
If she does not bear a child [her] father's ,relatives shall have her goods and the "morning gift."
If a man for6ibly carries off a maiden, [he shall pay] 50 shillings to her owner, and afterwards buy from the owner his consent.
If she is brought back, 35 shillings shall be paid, and 15 shillings to the king.
If a man lies with the woman of a servant, during the lifetime of the husband, he shall pay a twofold compensation.
If one servant slays another, who has committed no offence, he shall pay his full value.
If the eye and foot of a servant are destroyed [by blows], his full value shall be paid.
If a man lays bonds on another mans servant, he shall pay 6 shillings compensation.
The sum to be paid for robbing a slave on the highway shall be 3 shillings.
If the slave steals, he shall pay twice the value [of the stolen goods], as compensation. (Vol. 2
The Church shall enjoy immunity from taxation. See. 1. The king shall be prayed for, and they shall honor him freely and without compulsion.
The mundbyrd of the Church shall be 50 shillings like the king's.
Men living in illicit unions shall tun to a righteous life repenting of their sins, or they shall be excluded from the community of the Church.
Foreigners, if they will not regularize their unions, shall depart from the land with their possessions and with their sins.
See. 1. Men of our country also shall be excluded from the communion of the Church, without being subject to forfeiture of their goods.
If after this meeting, a noble man presumes to enter into an illicit union, despite the command of the king and the bishop, and the written law, he shall pay 100 shillings compensation to his lord, in accordance with established custom. Sec. 1. If a commoner does so, he shall pay 50 shillings compensation; and [in] either [case the offender]shall desist from the union, with repentance.
If a priest consents to an illicit union, or if he neglects the baptism of a sick man, or is too drunk to discharge this duty, he shall abstain from his ministrations, pending a decision from the bishop.
If a tonsured man, [who is] not under ecclesiastical discipline, wanders about looking for hospitality, once [only] shall it be granted to him, and unless he has permission, he shall not be entertained further.
If anyone grants one of his men freedom on the altar, his freedom shall be publicly recognized;
the emancipator shall have his heritage and his wergeld and the guardianship of his household, wherever he [the freed man]may be, [even if it be] beyond the border.
If a servant, contrary to his lord's command, does servile work between sunset on Saturday evening and sunset on Sunday evening, he shall pay 80 sceattas to his lord.
If a servant makes a journey of his own [on horseback] on that day, he shall pay 6 shillings compensation to his lord or undergo the lash.
If a freeman works during the forbidden time, he shall forfeit his healsfang, and the man who informs against him shall have half the fine, and [the profits arising from] the labor. NOTES
Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, 2nd Ed., Vol. 1 (Cambridge: Cambridge University Press, 1952) 80.
R. J. Walker, The English Legal System, 6th Ed., (London: Butterworths, 1985) 3.
H. G. Richardson and G. 0. Sayles, Law and Legislation from Aethelberht to Magna Carta, (Edinburgh: Edinburgh University Press, 1966) 30.
Richardson and Sayles, 30.
George Burton Adams, Introduction, Council and Courts in Anglo-Norman England, Yale Historical Publications Studies V (1926; New York: Russell and Russell, 1965) 1.
See, for example, the narrative of the Norman besiegment of the city of Exter in 1068 reported in "Anglo-Saxon Chronicle," 1067 AD, version D, (B. L. Cott, Tiber B. iv), English Historical Documents, 2nd Ed., Vol. 2, Ed. David C. Douglass and G. W. Greenaway (London: Oxford University Press, 1981) 150.
J. R. Lander, Ancient and Medieval England -Beginnings to 1509 (New York: Harcourt, 1973) 66. See also Edward A. Freeman, The History of the Norman Conquest of England, Its Causes and Its Results, Vol. 4 (New York: 1873) 3, in which the author described William's coronation as taking place during a moment of "apparent universal submission." The author continued by noting, "..if all England had not acknowledged William, no part of England acknowledged anyone else. The struggle which followed (the conquest) was a reaction after a panic; it was the revolt of the people goaded to revolt by oppression, far less of William himself than William's unworthy lieutenants." 8. Lander, 66.
For a contemporary account of William's claim to the throne of England and of the Battle of Hastings (the battle through which William secured the English throne), see William of Polters, "The Deeds of William, Duke of the Normans and King of the English," (c. 1071), English Historical Documents, 2nd Ed., Vol. 2, Ed. David C. Douglas and G. W. Greenaway (London: Oxford University Press, 1981) 230-246. In addition, for a vivid pictorial account of the same events, see The Bayeux Tapestry, A Comprehensive Survey, Ed. Sir Frank Stenton (New York: Phaidon, 1957).
Polters, English Historical Documents, 2nd Ed., Vol. 2, 245-246.
Poiters, English Historical Documents, 2nd Ed., Vol 2, 245. According to this account, the bishops and lay magnates of London told Duke William, "We, are accustomed to obey a king and we desire to have a king as lord." 12. Lander, 66.
"Anglo-Saxon Chronicle, 1067 AD, Version D," English Historical Documents, 2nd Ed., Vol 2, 157. See also, Freeman, 99-100. 14. Lander, 67. 15. Lander, 67.
Adams, Introduction, XI.
Dorris M. Stenton, English Justice Between the Norman Conquest and the Great Charter 1066-1215, Jayne Lectures for 1963 (Philadelphia: American Philosophical Society, 1964) 6. 18. As an example of "non-legislative" legal action on the part of William, see generally, "Solemn Diploma of William I to Giso, Bishop of Wells," May 1068, English -Historical Documents, 2nd
Ed., Vol. 2, 644-646. In this diploma, William restored 30 hides of land to the possession of the church of St. Andrew the Apostle. The church had apparently been dispossessed of the land by King Harold. 19. Freeman, 19.
"Writ of William I Concerning Spiritual and Temporal Courts," English Historical Documents, 2nd Ed., Vol. 2, 647-648, set forth the writ in translated form and in its entirety. The writ included a detailed list of summons procedures for ecclesiastical courts and provided procedures for the manner in which court proceedings were to be conducted. Additionally, in his treatise on the history of the Norman conquest, Professor Freeman noted that with the issuance of this writ, William established ecclesiastical courts which have survived, albeit with lessened powers, up through modem times. Freeman, 264.
H. W. C. Davis, England under the Normans and Angevins, 13th Ed. (London: Metheun, 1949) 30. 23. Stenton, 6.
Freeman, 263-264. The "Writ of William I to Archbishop Lanfranc Issued In Favor of the Church of Ely" prohibited the imposition of new "customs" upon the church. This document provided the clearest expression of William's desire to maintain the existing practice of Anglo-Saxon law. In pertinent part William stated, "....I am unwilling that (Bishop Remigius) should have there anything except what his predecessor had in the time of Edward, namely on that day the king died. And if Remigius shall wish to plead therein, let him plead therein as he would have done in the time of King Edw;rd, and let that plea be in your presence..." Writ transcribed in Stenton, 17-18. For an interesting account of the technicalities of the procedural aspects of this case, see Adams, 85-89.
"The Laws of William the Conqueror" appear in their earliest form in the Textus Roffensis, a manuscript produced in the earlier half of the twelfth century and are translated and reprinted in English Historical Documents, 2nd Ed., Vol. 2, 431-432.
"The Laws of William The Conqueror," Clause 7, English Historical Documents, 2nd Ed., Vol. 2, 432.
Stenton, 6; Richardson and Sayles, 30. Concerning the question of the degree of change of Anglo-Saxon law by William, see also Pollock and Maitland, 89. There the authors noted that the most significant of the changes concerned the separation of ecclesiastical jurisdiction from the lay courts. Concerning the rest of William's laws, the authors noted that Anglo-Saxon customary law had already included the prevention of the transfer of stolen goods by prohibiting secret sales; included prohibitions against the sale of men overseas (see laws of Aetheired and Cnut); and allowed the use of the pledge by freemen (see laws of Cnut). Additionally, the authors cited the laws of Cnut and Aethelred and noted that there was "a wave of religious sentiment...against capital punishment" in Anglo-Saxon times.
"The Laws of William the Conqueror," Clause 6, English Historical Documents, 2nd Ed., Vol 2, 431-432.
Richardson and Sayles, 31.
"The Coronation Charter of Henry I," (5 August 1100), English Historical Documents, 2nd
Ed., Vol. 2, 432-434. Proclaimed by Henry I, this document contained the promises which Henry I hoped to carry out during his reign and nothing during his reign directly overruled his promise to follow the laws of King Edward. Furthermore, the charter was cited by later kings as having precedential value. Of the substantive changes he made, most dealt with the practical questions of heirship, family law and property ownership.
King Stephen enacted two charters identically addressed: "Charter of Stephen Addressed Generally," (probably 1135); and "Charter of Stephen Addressed Generally," (probably 1136). English Historical Documents, 2nd Ed., Vol. 2, 434-436. Both writs reference the laws of King Edward and cite them as binding. The first noted that King Stephen granted to all his "barons and vassals ... all the good laws and good customs which they enjoyed in the time of King Edward." In the second, the king noted that he would "observe good laws and the ancient and lawful customs in respect of pecuniary exactions for murder and pleas and other causes, and ... command them to be observed and established." 33. "Charter of Henry II Addressed Generally," (19 December 1154), English Historical Documents, 2nd Ed., Vol. 2, 439-440. This document appears modeled after Henry I's coronation charter. Like that document it confirmed, in vague terms, what the king intended to carry out. Furthermore, it noted that the king, "granted and restored, and by this present charter confirmed, to God and to holy church, and to all my earls, barons and vassals all concessions, gifts, liberties and free customs, which King Henry (I) ... granted and conceded to them." As noted above, Henry I proclaimed that he would follow the law of Edward with but minor changes. [Vol. 2
Frank Barlow, The Feudal Kingdom ofEngland 1042-1216, (London: Longmans, Green and Co., 1955) 135.
English Historical Documents, footnote 2, 481. Also see, "The Acts of Lanfianc (1070),"
"Report of a Trial on Pinnenden Heath Near Maidstone" (1072? or August 1075-July 1076?), English istorical Documents, 2nd Ed., Vol. 2, 481-483. 37. Freeman, 24. 38. Adams, 80. 39. Freeman, 244.
William utilized Geoffrey, Bishop of Countances, in other sensitive cases as well. See, for example, "The Writ of William I Setting Up A Commission To Inquire Into The Conduct Of Sheriffs And To Restore Lands They Had Taken From The Church" (1077), and "Writ Of William I In Favour Of The Abbey Of St. Augustine, Canterbury" (1077), English Historical Documents, 2nd Ed., Vol. 2,463. 41. Freeman, 244.
Freeman, 245; "Report Of A Trial On Pinnenden Heath Near Maidstone" (1072? or August 1075-July 1076?), English Historical Documents, 2nd Ed., Vol. 2, 482-483. 43. Freeman, 245.
"Report Of A Trial On Pinnenden Heath Near Maidstone" (1072? or August 1075-July 1076?) English Histoical Documents, 2nd Ed., Vol. 2, 482-483.
Additional evidence concerning the maintenance of the status quo of Anglo-Saxon legal institutions by the Anglo-Norman kings may be found in a number of writs and court cases. Numerous writs demonstrate that persons of significance to Anglo-Saxon legal institutions survived the conquest and served both Anglo-Saxon King Edward and Norman King William. For example, the Sheriff of Somerset, an individual named Tofi, served both kings. For two instances in which the Sheriff played a role in post-conquest legal matters, see ihe "Writ in Anglo-Saxon of Edward the Confessor to Tofi, Sheriff of Somerset, Concerning a Sale of Land," (1061-6), and the "Writ in Anglo-Saxon of William the King and William the Earl' to Giso the Bishop, Eadnoth the Staller and Tofi the Sheriff," (March-December 1067), both reported in English Historical Documents, 2nd Ed., Vol. 2, 462-462. See also "Writ in Anglo-Saxon of William I Concerning the Possessions of Regenbald," (1067), reported in English Historical Documents, 2nd Ed., Vol. 2, 461, in which William addressed the writ to Anglo-Saxon authorities (apparently still in power) directing them to respect the transfer of property to a priest named Regenbald. Regenbald had been employed in the writing office of Edward and continued in the chancery of William. As such, he was at least partially responsible for the continuity of diplomatic practice in the transition period between the Anglo-Saxons and the Normans. Furthermore, a charter dated sometime between 1108 and 1111 and issued by King Henry I noted, "I grant and order that henceforth my Shire courts and Hundred courts (Anglo-Saxon institutions) shall meet in the same places and at the same terms as they were wont to do in the time of King Edward, and not otherwise." "Charter of Henry I Concerning the Holding of Courts of Shire and Hundred," (26 July 1108-August 1111), English Historical Documents, 2nd Ed., Vol. 2, 465. Additionally, three other records of trial serve as examples of Anglo-Norman courts relying on Anglo-Saxon rules or procedures. See, "Record of the Judgment by William I in a Plea Between the Abbey of Fecamp and William of Briouze (c. 1086), English Historical Documents, 2nd Ed., Vol. 2, 485-486; "Trial of William of St. Calais, Bishop of Durham in the Court of William II (c. 1088), English istorical Documents, 2nd Ed., Vol. 2, 652-669; and "The Suit of Walter, Abbot of Evesham by Wultstin, Bishop of Worcester," (1079), reported by Adams, 70-79. 46. Adams, 98.
Pollock and Maitland, 1.
George Patrick Welch, Bitannia, the Roman Conquest and Occupation of Britain (Middleton: Wesleyan University Press, 1963) Ch. 2, et. seq.
John Richard Green, The Making of England (London: 1885) Introduction, B-1.
Frederic W. Maitland, "Origins of Legal Institutions," The Life of the Law, Readings on the Growth of Legal Institutions, Ed. John Honnold, (London: Free Press of Glencoe, 1964) 100.
A.W.B. Simpson, The Laws of Ethelbert, on the Laws and Customs of England, Ed.
Morris S. Arnold, Thomas A. Green, Sally A. Scully, and Stephen D. White, (Chapel Hill: University of North Carolina Press, 1981) 4.
The Textus Roffensis also contains the only extant text of other later Kentish laws including those of Hiothere and Eadric (c. 670 A.D.) and of Wihtred (c. 695 A.D.). Other collections of pre-conquest laws survive, such as the laws of me of Wessex (c. 690 A.D.), but some laws, such as those of Offa of Mercia, which we know once existed, are now lost. Furthermore, as noted by Professor Simpson, the Textus Roftensis itself was almost lost to us, since, at one point, it was dropped in the sea. Simpson, 4.
English Historical Documents, 2nd Ed., Vol. H, 358. In fact the editor noted, "if one compares different versions of codes which survive more than once in the Wulfston manuscripts, or in some other source besides these, one occasionally finds that Wulfston's own terminology has been substituted for that of the original text. This makes one doubt whether one always has the unchanged version of the codes ... which are preserved only in manuscripts exposed to his influence." 104. English Historical Documents, 2nd ed., Vol. I, 357-362.
Pollock and Maitland, 12-13.
i.e., "The Laws of Alfred,"(c. 885-899), English Historical Documents, 2nd ed., Vol. I, 408-409. 107. D.J.V. Fisher, 121.
A good case can be made that the "Christian aspects" of Aethelbert's code were either later additions or the penalties concerning these clauses were increased in later editions of the code to bring them in line with contemporary conceptions. See, for example, Richardson and Sayles, 2-6. 109. A.W.B. Simpson, 4. 110. D.J.V. Fisher, 121. 111. Honnold, 8.
The Laws of the Earliest English Kings, Ed. F. L. Attenborough (Cambridge: Cambridge University Press, 1922) 5, and Douglas and Greenaway, English Historical Documents, Vol. 2, 2nd
William A. Chaney, "Aethelberht's Code and the King's Number," 6 American Journal of Legal History, 151-2 (1962). In this work the author noted, "Thus, behind the non-ecclesiastical features of Aethelberht's laws can undoubtedly be detected the framework of the earlier pagan society, and it was still northern, Germanic custom that was largely formulated." 117. Oman, 353.
Wingfield-Stratford, 43.
Aethelbert, Clause 1, Attenborough, 5. 120. Harding, 15.
Aethelbert, Clause 2, Attenborough, 5.
Aethelbert, Clause 3, Attenborough, 5. Attenborough translates the term "drincaep' as "feasting;" Douglas and Greenaway translate it as "drinking." English Histodcal Documents, Vol 2, Ed. 2, 391. In either case, the activity in question took place in the liege's home.
Aethelbert, Clauses 4 and 5, Attenborough, 5. English Historical Documents, 2nd ed., Vol. I, 391.
Douglas and Greenaway interpret Fedsel as meaning "boarder."
Aethelbert, Clause 6, Attenborough, 5. Attenborough suggests in footnote 6.1 that the term "seignorial rights" (dritinbeage in Anglo-Saxon) relates to a payment due to a lord for the loss A.W.B. Simpson, at footnote 23, page 10, noted, "H.G. Richardson and G.O. Sayles...argue that (clause 1) is an interpolation, an argument related to their geheral skepticism over Ethelbert's conversion. But they do not face up to the problem of explaining the interp6lation -there was some version of (clause 1) in Bede's time. Nor do they provide any positive explanation of Ethelbert's ventures into legislation." In addition to Professor Simpson's observations, however, Professor William A. Chaney noted in a law review article published in 1962 that in spite of the apparent contradictions of placing the position of the clergy ahead of the king, such positioning was fully in keeping with Aethelbert's conversion to Christianity. Furthermore, the author noted that the amounts payable for the listed trespasses to church and clergy who owned land were fully in compliance with Anglo-Saxon, pre-Christian, "pagan" norms and could be justified as such based on analysis of Anglo-Saxon customs and superstitions. Noted Professor Chaney, "(t)hat the compensation by both bishop and Church is higher in this code than that of the king is but further evidence of the impact of the new religion. The number which it surmounted, however, was one already integrated into royal cult and pagan religion, and the standard to which hierarchized compensation was referred. The numerical 'triumph' of the ecclesiastical compensation forecast both concretely and symbolically the triumph of the new religion in the realms of the Anglo-Saxons and its dominance in law and at the courts of their Woden-sprang monarches." William A. Chaney, "Aethelbert's Code and the King's Number," 6 American Journal olLegal History, 177, (1962).
Aethelbert, Clause 1, Attenborough, 5.
Aethelbert, Clauses 2-12, Attenborough, 5-7, English HistoricalDocuments, 2nd ed., Vol. 1, 391-392.
Aethelbert, Clauses 13-14, Attenborough, 6-7, Douglas and Greenaway, 29. 148. Oman, 355. 149. Oman, 356-358.
Aethelbert, Clause 15, Attenborough, 7.
Aethelbert, Clause 13 and 14, Attenborough, 7.
Aethelbert, Clauses 17-20, Attenborough, 7.
Aethelbert, Clauses 21-26, Attenborough, 7.
Aethelbert, Clause 30, Attenborough, 9.
Aethelbert, Clause 22, Attenborough, 7.
Aethelbert, Clause 24, Attenborough, 7.
In addition, clause 88 of the doom extended this proscription when it noted, "(i)f a man lays bonds on another man's servant, he shall pay 6 shillings compensation." Aethelbert, Clause 88, Attenborough, 17.
Aethelbert, Clauses 27-29, 32, Attenborough, 9.
Aethelbert, Clause 33, Attenborough, 9.
Aethelbert, Clause 34, Attenborough, 9.
Simpson, 7. The detail contained in these clauses is, indeed, minute. Clause 35 notes that if the bone is damaged when scalping someone, an additional 4 shilling compensation would be paid. Clause 38 dealt with shoulder injuries, clause 39 with the loss of hearing. Clauses 39-42 dealt with the more specific areas of ear mutilation and noted that there were monetary differences to be paid depending on whether the ear was "struck off" entirely, "pierced," or "lacerated." The loss of an eye was covered in clause 43, the disfigurement of a mouth or an eye in clause 44, and the piercing of a nose in clause 45. The variety of disfigurements to cheek and noses were covered in clauses 46.49, while clauses 50-52 concerned the bodily areas of the chin and mouth (a penalty of 1 shilling was to be paid, for example, for causing the loss of a tooth). Next in line came the collarbone, the hand, and the fingers (clause 52-56). Clauses 57.60 dealt with poking someone in the nose with a fist (3 shilling fine), with additional compensation to be paid if it left a simple bruise (another shilling), and even more if it left a particularly dark bruise (the amount to be paid depending on whether the bruise could be covered with clothing). The next clauses (61-64) proceeded down the torso, pausing to consider the value of certain belly wounds, and then in a phoebic fit, concentrating on some particularly grisly losses to one's "generative organs." Finally moving on to the extremities, the Anglo-Saxon and Early Norman Periods," 16 The Arbitration Journal, 194-195, (1961).
Aethelbert, Clause 73, Attenborough, 15.
Aethelbert, Clauses 74-75, Attenborough, 15.
Aethelbert, Clauses 76-77, Attenborough, 15.
Aethelbert, Clauses 77-81, Attenborough, 15.
Aethelbert, Clause 77, Attenborough, 15.
Aethelbert, Clause 79, Attenboraugh, 15.
Aethelbert, Clause 80, Attenborough, 15.
Aethelbert, Clause 81, Attenborough, 15.
Aethelbert, Clause 78, Attenborough, 15.
Aethelbert, Clause 82, Attenborough, 15.
Aethelbert, Clause 83, Attenborough, 15.
Aethelbert, Clause 84, Attenborough, 15.
Aethelbert, Clause 85, Attenborough, 15.
Aethelbert, Clauses 86-90, Attenborough, 15.
Fisher, 123.
Bede, Book II, Chapter V, 76-78.
Bede, Book 1, Chapter V, 77.
Bede, Book 11, Chapter V, 77.
Bede, Book 11, Chapter V, 77.
Bede, Book II, Chapter V. 78.
Bede, Book II, Chapter VI, 79.
Bede, Book II, Chapter VI, 79.
Bede, Book 1I, Chapter VI, 79.
Bede, Book III, Chapter VIII, 121. See also the "Anglo-Saxon Chronicle," Versions A, B, C, and E for the years 640, English HistoricalDocuments, Vol. 1, 151. 187. Attenborough, 2.
Evidence of Earconbert's laws comes to us by way of Bede's assertions in Book I, Chapter VIII, 121. However, for Bede to have known of these laws, long after their supposed promulgation, would indicate that he had access to some sort of written copy of the laws.
For example, in the year 626, the West Saxon king Edwin sought assistance from a Catholic bishop'so that he could "destroy his enemy." The bishop apparently complied, offered up his prayers, and Edwin entered Wessex with his army, destroyed 5 kings, and was victorious. Upon his victory, Edwin, his daughter, and "12 people" (probably Eoris) were baptised. Other examples include the baptism of the king of East Anglia in 627-28, the baptism of the West Saxons in 634, and the baptism of the king of the Northumbrians in 635. "Anglo-Saxon Chronicle," versions A-C and E, English Historical Documents, 2nd ed., Vol. 1, 161-162.
"Anglo-Saxon Chronicle for the year 664," Version E, English Historical Documents, 2nd ed., Vol. 1, 153. [Vol. 2
Bede, Book IV, Chapter1, 170.
The full text of the ten chapters of the Hertford Synod are as follows: , nor to take anything forcibly from them. IV. That monks do not remove from one place to another, that is, from monastery to monastery, unless with the consent of their own abbot; but that they continue in the obedience which they promised at the time of their conversion. V. That no clergyman, forsaking his own bishop, shall wander about, or be anywhere entertained without letters of recommendation from his own prelate. But if he shall be once received, and will not return when invited, both the receiver, and the person received, be under excommunication. VI. That bishops and clergymen, when travelling, shall be content with the hospitality that is afforded them; and that it be not lawful for them to exercise any priestly function without leave of the bishop in whose diocese they are. VII. That a synod be assembled twice a year, but in regard that several causes obstruct the same, it was approved by all, that we should meet on the Ist of August once a year, at the place called Clofeshoch. VIII. That no bishop, through ambition, shall set himself before another, but that they shall all observe the time and order of their consecration. IX. It was generally set forth, that more bishops should be made, as the number of believers increased; but this matter for the present was passed over. X. Of marriages; that nothing be allowed but lawful wedlock; that none commit incest; no man quit his true wife, unless, as the gospel teaches, on account of fornication. And if any man shall put away his own wife, lawfully joined to him in matrimony, that he take no other, if he wishes to be a good Christian, but continue as he is, or else be reconciled to his own wife. Bede, Book IV, Chapter V, 182.
"Anglo-Saxon Chronicle" for the year 673, Versions A-C, English Historical Documents, lsted., Vol. 1, 154.
Bede, Book IV, Chapter XXVI, 224-225.
Attenborough, 2. English Historical Documents, Ist ed., Vol. 1, 360.
Laws of Hlothhere and Eadric, Attenborough, 19. See also English Histodcal Documents, 1st ed., Vol. 1, 360-361. There the prologue was translated as saying, "...Hlothhere and Eadric, kings of the people of Kent, added to the law which their forefathers had made these decrees which are stated hereafter."
The term "established custom" is used by Attenborough in his translation of this clause. Laws of Hlothhere and Eadric, Clause 12, Attenborough, 21.
Laws of Hlothhere and Eadric, Clause'12, English Historical Documents, Ist ed., Vol. 1, 360. 199. Laws of Hlothhere and Eadric, Clause 6, Attenborough, 19.
Laws of Hlothere and Eadric, Clauses 13 and 14, Attenborough, 21. 203. Laws of Hlothere and Eadric, Clause 15, Attenborough, 21. 204. Fisher, 122.
Laws of Hlothhere and Eadric, Clauses 2 and 4, Attenborough, 19. In addition, see Clauses 2 and 4, English Historical Documents, 1st ed., Vol. 1, 360. 207. Laws of Hlothhere and Eadric, Clause 5, Attenborough, 19.
Laws of Hlothhere and Eadric, Clause 7, Attenborough, 19. -worldly punishments. Now the doomsman could hear all the secular testimony in the world, and such would not outweigh the credence put on the testimony of a person who swore a sacred oath and put his eternal soul on the line.
Wihtred, Clause 1, Attenborough, 25.
Wihtred, Clause 16, Attenborough, 27.
Wihtred, Clause 2, Attenborough, 25.
F. M. Stanton, 62.
Bede, Book V, Chapter XXIII, 291. 230. Wilson, 34-35.
Laws of Alfred (c. 885-899), Introductory Paragraphs 49.8, 49.9 and 49.10, English Historical Documents, 2nd ed., Vol. 1, 408-409. 232. Except as incorporated into the body of Alfred's law.
For example, clause 28 of Wihtred's laws is nearly identical with clause 20 of Ine's Laws. The Laws of Wihtred, Clause 28, Attenborough, 31, noted, "If a man from afar, or a stranger, quits the road, and neither shouts nor blows a horn, he shall be assumed to be a thief, (and as such) may be either slain or put to ransom." The Laws of Ine, Clause 20, Attenborough, 43, noted, "If a man from afar, or a stranger, travels through a wood off the highway and neither shouts nor blows a horn, he shall be assumed to be a thief, and as such may be either slain or put to ransom." Attenborough noted that such coincidences should not be considered unusual since "(t)his may be regarded as painting to communication between the governing authorities of the two kingdoms, such as would naturally follow the restoration of friendly nations in 694." Attenborough, 34. In this regard, it should be noted that Wihtred and Ine were contemporaries. Wihtred probably wrote his codes in 695 and died in 725. Ine's codes were probably written sometime after the period of between 688 and 694. He also reigned until 725. "Anglo-Saxon Chronicle," Versions A, B, and C, English Historical Documents, 1st ed., Vol. I, 156. The reason for some of the confusion of the dates of the codes is that Ine probably wrote his dooms after Wihtred wrote his. However, the preambles to the two sets of dooms indicated that Wihtred wrote his dooms a year or so before In. An explanation for this discrepancy was suggested by Professors Richardson and Sayles (at page 14) when they noted that the date of the preambles might not reflect the date of enactment for each of the clauses in the code. Thus, for example, the clauses dealt with herein, i.e., In 20 and Wihtred 28, may have been enacted earlier than the rest of the clauses in either or both kingdoms; and the preamble so reflects that situation. 234. Richardson and Sayles, 14.
F. M. Stanton, 71-73.
Laws of Ine, Clauses 1-5, Attenborough, 37-39.
Laws of Ine, Clause 10, Attenborough, 11.
Laws of Ine, Clauses 16, 23, 33, 34, 35, 54, 74, and 76, Attenborough, 11. 241. Laws of Ine, Clauses 8 and 9, Attenborough 39.
For example, Laws of The, Clause 13, Attenborough, 13, provides for a 120 shilling compensation for bearing false witness in the presence of a bishop or repudiating a pledge made before a bishop. Clauses 14-16 considered the oath necessary to clear one of the charge of "thieving, raiding or marauding," depending on whether the accused was a communicant, as well as the oath necessary to clear oneself for having killed a thief. Other oaths depend on one's social status (i.e., commoner-clause 18; member of the king's household-clause 19; noblemen-clause 54).
Laws of Ine, Clauses 26, 27, and 38, Attenborough, 38. 245. Laws of Ine, Clause 25, Attenborough, 45.
Laws of Ine, Clauses 40, 42-4, 49, 55-60, 64-9, Attenborough, 51-59. 247. Fisher, 123. 248. Fisher, 124.
Laws of ne, Clause 39, Attenborough, 49.
Laws of ne, Clause 20, Attenborough, 43.
Laws of ine, Clause 48, Attenborough, 43.
Laws of Ine, Clause 67, Attenborough, 57. See also English Historical Documents, 2nd ed., Vol. 1,408. 254. Fisher, 125. 255. Fisher, 125.
As far as the requirement for military service, note that clause 51 of Ine's laws demanded that anyone (nobleman or commoner) who neglected his required military service was subject to a heavy penalty. In fact, a nobleman who owned land "of the king" and neglected his military service not only paid a 120 shilling penalty, but also forfeited his land. Therefore, we see that continued nobility and land tenure in England, even as early as 688, depended upon the provision of military service. Thus, it would seem that even this innovation was denied William the Conqueror. Laws of Ine, Clause 51, Attenborough, 53. 257. Fisher, 131.
Laws of Wihtred, Clause 21, Attenborough, 29.
Laws of Wihtred, Clause 62, Attenborough, 57. Additionally, see Clause 50. There the code of Ine specified that if a nobleman "came to terms with the king on behalf of his dependents, free or unfree," then the nobleman, and not the family unit, was liable for a loss of revenue for the misdeeds of that "dependent", since the nobleman had "not previously taken care at home to restrain them (his men) from evildoing." Laws of Ine, Clause 50, Attenborough, 53. Thus, we see that the lord began the process by assuming the responsibility for producing men in court and for paying the fines imposed for their wrongdoing.
In fact, early English charters discuss at length the obligations owed by the landed aristocracy to the crown. As early as 732, King Aethelbert of Kent granted to Abbot Dann a certain piece of property in Kent free from royal rights, English Historcal Documents, 2nd ed., Vol. , 490. In 739, Aethelheard, King of Wessex, granted Bishop Foxthhere a parcel of land in Shereborn "immune and eternally secure from all ... royal concerns and secular works, except only matters pertaining to military services." Id., 496. A grant by King Offa in 801 rendered the lord obtainer to provide the "three public causes," i.e., construction of bridges and forts, as well as providing military service (of 5 men). Id. at 501. Other such charters were granted in 770 from the "sub-king of Hwicce" to a certain Aethelmund, Id. at 502, and in 855 by the king of Mercia to Bishop Ealhhun. Id., 522. 262. Laws of Alfred, Clauses 35-77, Attenborough, 81-93. Such matters as hurting someone with a spear that was slung over one's shoulder was covered (clauses 35 and 36), as were fighting (clause 39) and causing injuries to heads (clause 44), ears (clause 46), eyes (clause 47), noses (clause 48), jaws (clause 50), throats (clause 51), shoulders (clause 53), arms (clauses 54-55), fingers (clauses 56-60, e.g., 9 shillings for the loss of a little finger, I shilling for striking off a finger nail), bellies, thighs, and shins (clauses 61-3), toes, testicles, and loins (clauses 64-67).
Laws of Alfred, Clause 40, Attenborough, 82-83.
Bocland was land taken from the focland, or Anglo-Saxon common acreage, and granted by boo (that is, by written charter, see footnote 260 for examples) to a private owner. Specifically, clause 41 of the code specified that once a person obtained private title by boc to bocland (primarily by will -see, for example, the will of King Alfred, probably written between 878 and 888, in which the king devised to his son all the boclands he had in Kent; English Historical Documents, 2nd ed., Vol. I, 534-537), he could not "give it out of his kindred, if there is documentary or (other) evidence that the power to do so was forbidden him by the men who first acquired it, or by those who gave it to him." Laws of Alfred, Clause 41, Attenborough, 83. Thus, we see for the first time a provision which explicitly noted that restrictive covenants could run with land. In fact, evidence of such prohibited transfers are seen in two Anglo-Saxon legal documents. The first concerned a case occurring in 781, entitled "The Settlement at the Synod of Brentford of a Claim Made by Offa, King of Mercia, against the Church at Worcester." In this case, King Offa demanded that certain property be returned from the church and be placed in his possession. Offa maintained that his ancestor, King Aethelbald, had no right to transfer the property since Aethelbald held no "hereditary right" of possessory "inheritance of his kinsmen." For whatever reason, the settlement reinstated title to Offa. English Historical Documents, 2nd ed., Vol. I, 505-507. The second document dealing with this subject involved a "grant of land at the south Hams, Devon by Aethelwulf, king of Wessex, to himself" in 846. This charter implied that the king could not leave in the form of inheritance, or otherwise divest himself of title to a piece of property nor free it from any tribute or services until it had been formally "booked" to him. English Historical Documents, 2nd ed., Vol. I, 522-524. 265. Laws of Alfred, Clauses 42-43, Attenborough, 83-85. Significantly, these clauses were still concerned with the vendetta and the blood-feud, specifically prohibiting such actions before "demanding justice" of the alleged wrongdoer and providing seven detailed subclauses suggesting when a vendetta could be carried out. 266. Laws of Alfred, Clause 1, Attenborough, 62.
Laws of Alfred, Clause 2, Attenborough, 65.
Laws of Alfred, Clauses 3 and 4, Attenborough, 269. Laws of Alfred, Clauses 5-34, Attenborough, 67-69.
For example, slaves could be beaten, lashed and castrated. See also, for comparisons, the Laws of Ine, Clause 3 and the Laws of Wihtred, Clause 12. 271. Richardson and Sayles, 16. 272. D. M. Wilson, 35-37.
The Treaty of Alfred and Gunthrum, Clause 1, Attenborough, 99. 274. The Treaty of Alfred and Gunthrum, Clauses 2 and 3, Attenborough, 99. 275. The Treaty of Alfred and Gunthrum, Clauses 4 and 5, Attenborough, 101. 276. The Treaty of Edward and Gunthrun, Prologue, Parts I and 2, Attenborough, 103. 277. The Treaty of Edward and Gunthrum, Clauses 1-12, Attenborough, 107-109. 278. D. M. Wilson, 35-38.
"Anglo-Saxon Chronicle" for the year 900, Versions A-F, English Historical Documents, lst ed., Vol. I, 189-190. 280. Harding, 18-19
Edward the Eider enacted two sets of laws which are still extant, known collectively as I Edward and H Edward. Promulgated between the years 900 and 925, they are reproduced in their entirety in Attenborough, 114-122.
Aethelstan of Wessex issued six series of laws, as well as a short ordinance respecting charities between the years 925 and 935. I Aethelstan was of exclusively ecclesiastical importance and dealt with the payment of tithes and other church dues. Attenborough speculated that, based on its preamble, it probably was issued without much influence on the part of the Witan. II Aethelstan was promulgated at a council held at Grately and concerned itself with the administration of justice and good order by the Anglo-Saxon kings, primarily by restating and reforming delicts for various wrongdoings. III Aethelstan largely repeated matters found in Aethelstan's other codes, but is in the form of a letter from the Archbishop, nobleman (theynes), and people of Kent to the king. IV Aethelstan was promulgated at Thunresfeld and primarily, like II Aethelstan, dealt with matters of justice. V Aethelstan was of a similar nature, but was promulgated at a meeting of the council held at Exter. VI Aethelstan is an ordinance drawn up by the bishops and reeves of London and was concerned mainly with the gilds of that city/borough. Finally, the Ordinance on Charities gave directions for the maintenance of poor men and the release of penal slaves. Attenborough, 112-113, 122-173.
I Edward, Prologue. Attenborough, 115.
I Edward, Clause 1, Attenborough, 115-117.
I Edward, Clauses 2 and 3, 119.
I Edward, Clause 8, 121.
Richardson and Sayles, 17.
Called the "Ordinance Relating to Charities," Attenborough, 127, the law was composed of a short prologue and only two subsequent clauses. Addressed to all of the reeves of his kingdom, Aethelstan mandated that it was his "wish" that the reeves always provide destitute Englishmen with food, that they annually free at least one person who had been reduced to penal slavery, and that they provide free meals, worth at least "four pence," to two of the king's dependents. Failure to abide by these provisions subjected the reeve to a heavy penalty, with the proceeds being spent among the poor of that district. Apparently, the manumissions of slaves did not go unheeded. See, for example, "Old English Manumission of King Aethelstan" (925), and eight manumissions contained in a gospel-book from Bodmin, English Historical Documents, 2nd ed., Vol. 1, 607-610.
Richardson and Sayles, 18.
Il Aethelstan, Clause 3, Attenborough, 143-147.
Ill Aethelstan, Clause 6, Attenborough, 145. 292. 11 Aethelstan, Clause 7, Attenborough, 145.
III Aethelstan, Clause 6, Attenborough, 145.
VI Aethelstan, Clause 2, Attenborough, 147.
VI Aethelstan, Clauses 1-5, Attenborough, 157-159.
Richardson and Sayles, 18.
Richardson and Sayles, 18-19.
I Aethelstan, Attenborough, 123-125.
II Aethelsan. Attenborough, 127-143.
II Aethelstan, Clause 2, Attenborough, 129.
II Aethelstan, Clause 8, Attenborough, 133.
II Aethelstan, Clause 14, Attenborough, 135.
II Aethelstan, Clause 20, Attenborough, 137.
II Aethelstan, Clauses 21 and 23, Attenborough, 139.
For a fascinating discussion of the general area of early punishment and court procedures, see Steven Hatfield, "Criminal Punishment in America: From the Colonial to the Modem Era," 1 USAFA Journal of Legal Studies, 139, et. seq., (1991). Additionally, see Addendum II to VI Aethelstan, Decree Concerning Hot Iron and Water, Attenborough, 170-173.
IV and V Aethelstan, Attenborough, 147-155.
Edmund's Code concerning the Blood-Feud (I Edmund, 939-946), English Historical Documents, 2nd ed., Vol. 1,427-430.
II Edmund, Clause 7, English HistoricalDocuments, 2nd ed., Vol. 1, 428.
The Hundred Ordinance, English Historical Documents, 2nd ed., Vol. 1, 429. 310. English Historical Documents, 2nd ed., Vol. 1, 429. 311. Harding, 19-20. 312. Harding, 20-21.
I Edgar, Clause 1, English Historical Documents, 2nd ed., Vol. 1, 430.
III Edgar, Clause 5.1, English Historical Documents, 2nd ed., Vol. 1,433.
I Edgar, Clause 7, English Historical Documents, 2nd ed., Vol. 1, 430.
III Edgar, Clause 1.1, English Historical Documents, 2nd ad., Vol. 1, 432.
I1 Edgar, Clauses 2 and 2.1, English Historical Documents, 2nd ed., Vol. 1, 432.
See IV Edgar, at. seq., English Historical Documents, 2nd ed., Vol. 1,434, for a discussion of court-appointed witnesses who were to be present at every commercial transaction and testify later, if needed, regarding that transaction.
See Laws of Ethelred including: II Ethered (991-994), a treaty with the Viking army; III Ethelred (978-1008), concerning the Dane law; V Ethelred (1008) and VII Ethelred (1009), both primarily of ecclesiastical concern; and VIII Ethelred (1014) whose primary point of interest was the extent to which the concept of kingship had developed in a Christian sense (e.g., Clause 2.1, which stated, "(f)or a Christian king is Christ's deputy in a Christian people, and he must avenge very zealously offenses against Christ." English Historical Documents, 2nd ed., Vol. 1, 437-451. 320. Preface to the version of Cnut's laws contained in Corpus Christi College, Cambridge, MS. 201 (1018), English Historical Documents, 2nd ed.,Vol. 1,452.
Cnut's letter to the people of England (1019-1020), English ifstozical Documents, 2nd ed., Vol. 1, 452.
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What explains Anglo-Saxon acceptance of Norman rule under William the Conqueror?
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The research suggests that Anglo-Saxons accepted Norman rule primarily due to the destruction of their aristocracy and William's respect for their existing laws, confirmed by charters granting traditional rights.
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William's primary legislation, mainly writs and charters, largely preserved existing Anglo-Saxon law while introducing minimal changes, such as the prohibition of execution for murder and new jurisdictional practices.
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The Witan recognized William's claim to the throne, crown him following Anglo-Saxon tradition, and continued to influence governance by advising on legislation and confirming rights.
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Aethelbert's doom established a complex social hierarchy with varied wergilds for different social classes, reflecting the status and power dynamics in early Anglo-Saxon society.
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Aethelstan's laws expanded Wessexian legal principles to new communities, enhancing the authority of central governance while promoting legal protection duties among local nobility.
Charles Tucker
Major General (USAF, Ret.) Charles Tucker serves as Executive Director of two International Non-Governmental Organizations: the Sustainable Capacity International Institute, Arezzo, Italy; and the World Engagement Institute, Chicago, IL, USA. In these capacities, he designs and manages institutional capacity building programs throughout the world. He likewise promotes the economic and legal development of people through education, research, documentation, and advocacy. In addition, Gen. Tucker serves as a Senior Fellow of the Center for the Study of the Middle East (CSME), School of Global & International Studies, Indiana University, Bloomington, as well as the International Projects Director for the National Strategy Forum, a non-partisan training institute and think-tank located in Chicago. He also he serves as a Member of the Board of Directors of the International Code of Conduct for Private Security Service Providers’ Association (ICoCA), Geneva, Switzerland, where, as the United States Government representative on the 12-member Board, he is charged with promoting, governing and overseeing the implementation of the International Code of Conduct for Private Security Service Providers to promote the responsible provision of private security services and respect for human rights and national and international law by exercising independent governance and oversight of the ICoC.
Professor Chuck Tucker has been an educator, international legal expert, and institutional capacity development practitioner for more than thirty years. Throughout his career, he has routinely served with the US State Department, United Nations and various International Organizations in numerous countries. His academic career has included teaching positions in International Law for the University of Colorado (1999-2002) and DePaul University (2008-2011). He attained the rank of Assistant Professor of Law at the US Air Force Academy and served as Course Director of the Academy’s Comparative International Law Program (1999-2002). He was the founding Co-Editor of the USAFA Journal of Legal Studies and the DePaul University Rule of Law Journal. Prof. Tucker has also served as Adjunct Professor of Business and Labor Management for Bradley University (2002-2008), as Adjunct Professor of Political Science for the University of Maryland (1984-1989), and as Adjunct Professor of Government for Wayland University (1982-1984). Prof. Tucker currently serves as the Co-Course Director of the United Nations’ Annual International Humanitarian Law Symposium. He has lectured as a Visiting Professor at the Vietnam National University (Đại học Quốc gia Hà Nội); the Universität Heidelberg (Germany; the University of Zagreb (Sveučilištu u Zagrebu, Croatia); the University of Sarajevo (Univerziteta u Sarajevu, Bosnia and Herzegovina); Ankara Üniversitesi (Turkey); the University of Sulaimani (جامعة السليمانية, Sulaymaniyah, Iraq); and Duhok University (جامعة دهوك , Duhok, Iraq). Prior to retiring from his active duty and reserve military career, Gen. Tucker served as the National Guard’s Director of Joint Doctrine, Training and Force Development. He was responsible for overseeing the National Guard’s various Joint Education and Training Centers, as well as its entire Joint Professional Education Program and curricula development efforts. Since his military retirement, he has assisted the Vietnamese, Kenyan and Somali governments with their constitutional and legal development and has published widely on these subjects. He is a 1979 graduate of the University of Notre Dame (B.A., Government) and a 1982 graduate of the DePaul University College of Law (Juris Doctor).
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Eric Weiskott
Studies in the Age of Chaucer, 2015
Stephen M. Yeager. From Lawmen to Plowmen: Anglo-Saxon Legal Tradition and the School of Langland. Toronto: University of Toronto Press, 2014. This book constructs a new genealogy for the Piers Plowman tradition of Middle English alliterative verse. Through a combination of discourse analysis and close reading, Stephen Yeager situates the Piers Plowman tradition in a literary and documentary longue durée extending back through twelfth-and thirteenth-century alliterative verse to the tenth/eleventh-century homilist Wulfstan.
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Studies in English legal history. An introduction
Łukasz Korporowicz
Acta Universitatis Lodziensis. Folia Iuridica
In this article, the general goals of the following volume of the journal were defined. It was described how Polish-English commercial and political relations evolved. Besides, a short history of the Polish lawyers’ interest in English law was presented. Finally, the author referred to the outcomes of the research of Polish scholars who were studying English legal history in the last half a century.
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Review of S.F.C. Milsom, THE LEGAL FRAMEWORK OF ENGLISH FEUDALISM (Cambridge: University Press: Cambridge, 1976), ENGLISH HISTORICAL REVIEW 93 (1978), 856-861
Paul R Hyams
A 'long' review of the most important book on English legal history published in my time.
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"Agreement Supersedes Law, and Love, Judgment:" Legal Flexibility and Amical Settlement in Anglo-Norman England
Richard Keyser
2012
The anonymous author of the Laws of Henry I (Leges Henrici Primi) seems to undercut the value of the laws and courts of early-twelfth-century England by making a number of pessimistic comments about the capacity of formal legal proceedings to render justice. At a few points in this treatise, probably completed shortly after 1108, he also voices a preference for friendly agreement. Noting that similar predilections were widespread in medieval Europe, many recent scholars have seized on one of the author's remarks that explicitly compares these two approaches to conflict resolution by proclaiming: Pactum enim legem uincit et amor iudicium, which is translated by L. J. Downer, the work's most recent editor, as, "For an agreement supersedes law and amicable settlement a court judgment." 1 Ever since Stephen White and Michael Clanchy used this Latin
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The Anglo-‐French origin of the medieval French legal register revisited (old version!)
PD Dr. Yela Schauwecker
It seems to have been taken largely for granted that Medieval French legal terminology developed from everyday language as it was spoken in England in the years after the Norman conquest. As Rothwell puts it: « La langue qui se lit dans les recueils de jurisprudence vers la fin du treizième siècle s'est développée sémantiquement à partir du français de tous les jours qui se parlait et s'écrivait en Angleterre après la Conquête » (Rothwell 2000c, 17; 23) 1 . Since we all know that England had been under French rule since 1066, this scenario seems clearly plausible, at least at first sight. But there are reasons to doubt this Anglo--French origin of the medieval French legal register, and the purpose of this paper is to show why 2 .
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