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Anglo-Saxon law (Old English:ǣ, laterlagu'law';dōm'decree','judgement') was the legal system ofAnglo-Saxon England from the 6th century until theNorman Conquest of 1066. It was a form ofGermanic law based on unwritten custom known as folk-right and on written laws enacted bykings with the advice of theirwitan or council. By the later Anglo-Saxon period, a system of courts had developed to administer the law, while enforcement was the responsibility ofealdormen and royal officials such assheriffs, in addition to self-policing (friborh) by local communities.
Originally, eachAnglo-Saxon kingdom had its own laws. As a result ofViking invasions and settlement, theDanelaw followedScandinavian laws. In the 10th century, a unifiedKingdom of England was created with a singleAnglo-Saxon government; however, different regions continued to follow their customary legal systems. The last Anglo-Saxon law codes were enacted in the early 11th century during the reign ofCnut the Great.
The native inhabitants of England wereCeltic Britons. The unwrittenCeltic law was learned and preserved by theDruids, who in addition to their religious role also acted as judges. After theRoman conquest of Britain in the first century,Roman law was operative at least concerningRoman citizens. But the Roman legal system disappeared after the Romans left the island in the 5th century.[1]
In the 5th and 6th centuries, theAnglo-Saxons migrated from continental Europe and established severalAnglo-Saxon kingdoms. These had their own legal traditions based inGermanic law that "owed little if anything" to Celtic or Roman influences.[2] Anglo-Saxon law largely derived from unwritten customs termed folk-right (Old English:folcriht,'right or justice of the people').[3]
The older law of real property, of succession, of contracts, the customary tariffs of fines, were mainly regulated by folk-right. Customary law differed between local cultures. There were different folk-rights ofWest andEast Saxons, ofEast Angles, ofKentish men,Mercians,Northumbrians,Danes,Welshmen, and these main folk-right divisions remained even when tribal kingdoms disappeared and the people were concentrated in one kingdom.[4]
Following theChristianisation of the Anglo-Saxons, written law codes or "dooms" were produced.[5] The Christian clergy brought with them the art of letters, writing, and literacy.[6] The oldest Anglo-Saxon law codes, especially from Kent and Wessex, reveal a close affinity to Germanic law.[2] The first written Anglo-Saxon laws were issued around 600 byÆthelberht of Kent. Writing in the 8th century, theVenerable Bede comments that Æthelberht created his law code "after the examples of the Romans" (Latin:iuxta exempla Romanorum).[7] This likely refers toRomanised peoples such as theFranks, whoseSalic law was codified underClovis I. As a newly Christian king, Æthelberht's creation of his own law code symbolised his belonging to the Roman and Christian traditions. The actual legislation, however, was not influenced by Roman law. Rather, it converted older customs into written legislation, and, reflecting the role of thebishops in drafting it, protected theEnglish church. The first seven clauses deal solely with compensation for the church.[8]
Folk-right could be broken or modified by special law or special grant, and the fountain of such privileges was the royal power. Alterations and exceptions were, as a matter of fact, suggested by the interested parties themselves, and chiefly by the church. Thus a privileged land-tenure was created—bookland; the rules as to the succession of kinsmen were set at nought by concession of testamentary power and confirmations of grants and wills; special exemptions from the jurisdiction of the hundreds and special privileges as to levying fines were conferred. In process of time the rights originating in royal grants of privilege overbalanced, as it were, folk-right in many respects, and became themselves the starting-point of a new legal system—thefeudal one.[4]
In the 9th century, theDanelaw was conquered byDanes and governed underScandinavian law. The wordlaw itself derives from theOld Norse wordlaga. Starting withAlfred the Great (r. 871–899), the kings ofWessex united the other Anglo-Saxon peoples against their common Danish enemy. In the process, they created a singleKingdom of England. This unification process was completed underÆthelstan (r. 924–939).[9]
There is a good deal of resemblance between thecapitularies legislation ofCharlemagne and his successors on one hand and the acts of Alfred,Edward the Elder, Æthelstan andEdgar on the other, a resemblance called forth less by direct borrowing of Frankish institutions than by the similarity of political problems and condition.[4]
TheNorman Conquest of 1066 ended the Anglo-Saxon monarchy. But Anglo-Saxon law and institutions survived and formed the foundation for thecommon law.[10]
While custom was respected, kings could adapt the laws of their predecessors and also create new laws.[11] Royal law codes were produced in consultation with thewitan, the king's council comprising the lay and ecclesiasticalnobility.[12] Some law codes portrayed the witan as initiating new legislation and the king assenting to it. For example, one code begins, "these are the ordinances which the wise men established at Exeter, by the counsel of King Æthelstan".[13] Royal law codes were written to address specific situations and were intended to be read by people who were already familiar with the law.[6]
The first law code was theLaw of Æthelberht (c. 602), which put into writing the unwritten legal customs of Kent. This was followed by two later Kentish law codes, theLaw of Hlothhere and Eadric (c. 673 – c. 685) and theLaw of Wihtred (695). Outside of Kent,Ine of Wessex issued a law code between 688 and 694.Offa of Mercia (r. 757–796) produced a law code that has not survived. Alfred the Great, king of Wessex, produced a law codec. 890 known as theDoom Book.[14] The prologue of Alfred's code states that theBible andpenitentials were studied as part of creating his code. In addition, older law codes were studied, including the laws of Æthelberht, Ine, and Offa. This may have been the first attempt to create a limited set of uniform laws across England, and it set a precedent for future English kings.[9]
TheHouse of Wessex became rulers of all England in the 10th century, and their laws were applied throughout the kingdom. Significant 10th-century law codes were promulgated byEdward the Elder,Æthelstan,Edmund I,Edgar, andÆthelred the Unready.[15] But regional variations in laws and customs survived as well. TheDomesday Book of 1086 noted that distinct laws existed for Wessex, Mercia, and the Danelaw.[16]
Thelaw codes of Cnut (r. 1016–1035) were the last to be promulgated in the Anglo-Saxon period and are primarily a collection of earlier laws.[15] They became the main source for old English law after the Norman Conquest. For political reasons, these laws were attributed toEdward the Confessor (r. 1042–1066), and "under the guise of theLeges Edwardi Confessoris they achieved an almost mystical authority which inspiredMagna Carta in 1215 and were for centuries embedded in thecoronation oath."[17] TheLeges Edwardi Confessoris is the best known of thecustumals, compilations of Anglo-Saxon customs written after the Conquest to explain Anglo-Saxon laws to the new Norman rulers.[15]
The English dialect in which the Anglo-Saxon laws have been handed down is in most cases a common speech derived from theWest Saxon dialect. Wessex formed the core of the unified Kingdom of England, and the royal court atWinchester became the main literary centre. Traces of theKentish dialect can be detected in theTextus Roffensis, a manuscript containing the earliest Kentish laws.Northumbrian dialectical peculiarities are also noticeable in some codes, whileDanish words occur as technical terms in some documents. With the Norman Conquest, Latin took the place of English as the language of legislation.[18]
The Anglo-Saxons developed a sophisticated system of assemblies ormoots (the Old English wordsmot andgemot mean "meeting").[19] Historians often call these assembliescourts; however, they were not like the specialised law courts that developed underAngevin government. These assemblies performed a variety of functions beyond judicial business. They issued legislation, organised and performed law enforcement, and witnessed transactions.[20]
Vague references to courts appear in earlier laws. These texts use terms such asfolcegemot ('public court or meeting'). Later laws use more specific terminology. The laws of Edgar (r. 959–975) outline a precise division of courts. Thehundred court was to meet every four weeks. Theborough court was to meet three times a year, and theshire court was to meet twice a year.[21]
In addition to being a legislator, the king was also a judge.[22] The king heard cases in the presence of his witan or council.[23] Kings could also hear and act on complaints alone, outside of a formal judicial context. The cases heard by the king included:[24]
The law reserved some cases to the king's jurisdiction. In the laws of Cnut, they include:[25][26]
These reserved cases could only be tried in the presence of the king or a royal official, and the fines were paid into the royal treasury. The requirement that a royal official preside usually meant that these cases, if not heard directly by the king, were heard in the shire court.[27]
The shire court was a royal court presided over by theealdorman and local bishop as royal representatives. Thesheriff might also be there, either alongside the ealdorman or in his stead.[29] It met twice a year around Easter andMichaelmas.[30] A law of Cnut allowed it to meet more often if necessary.[31]
While the ealdorman and bishop presided over the court, they were not judges in the modern sense. Decisions were made by the localthegns (nobles) who attended the court as suitors (those who declared the law and made judgements).[30][32] Litigants and their supporters (such asoath-helpers) would also be present.[31]
The shire court likely addressed the most serious crimes, such as death penalty cases. The shire was also the most likely setting for cases reserved to the king(seeabove). The shire court witnessed land purchases, and it also adjudicated land disputes.[29]
Most people experienced the judicial system through their localhundred orwapentake.[26] The hundred court met monthly and was presided over by a royalreeve.[33] The laws of Edward the Elder and Æthelstan required reeves to ensure everyone received the benefits of folk-right and royal law.[34]
The hundred had a role in witnessing transactions. Edgar's law required all sales and purchases (such as land, cattle, and themanumission of slaves) to be witnessed by 12 men chosen by the hundred.[35] The hundred handled criminal cases, civil cases, land disputes, andtort.[36] It heard accusations of theft not involving the death penalty and may have executed thieves caught in the act; however, most serious offences were reserved to the shire court's jurisdiction.[35] The hundred handled most ecclesiastical cases (such astithe and marriage cases),[37] and the bishop or his representative was expected to attend.[36]
Each hundred was responsible for policing itself through a system calledfriborh ('peace-pledge'). Free men were organised into groups of 10 or 12 calledtithings. They pledged to be law abiding and to report crimes on pain ofamercement. When a crime was committed, the victim or witnesses could raise the "hue and cry", requiring all able-bodied men to pursue the suspect.[38] The Hundred Ordinance attributed to Edgar commands, "if the need is pressing, the man in charge of the hundred is to be told, and he then is to tell the men in charge of the tithings; and all are to go forth, where God guides them, that they may reach [the thief]. Justice is to be done on the thief as Edmund decreed previously."[39] Suspects who escaped were declaredoutlaws, and it was said that they "wore the wolf's head", meaning they could be hunted and killed like wolves.[40]
The identities of suitors to the hundred court are unclear. Cnut's law required all freemen 12 years and older to belong to a hundred and tithing. However, this law referred to peacekeeping, and it is unknown if all free men would have attended the hundred court.[41] It is possible that local thegns (or theirbailiffs) controlled the court and made its decisions.[42]
Decisions of a hundred court could be appealed to the shire or to the king. Beforedistraining property, Cnut's law required a man to seek justice three times in the hundred court and, failing that, to appeal to the shire court. Other laws required plaintiffs to seek justice in hundred courts before appealing to the king.[43]
Boroughs were separate from the hundreds and had their own courts (variously termed burghmoot, portmanmoot, orhusting).[3] These met three times a year.[33] Like hundreds, boroughs were required to appoint official witnesses for all transactions, 36 witnesses for large boroughs and 12 witnesses for small ones.[35] While initially a regular court, the borough court developed into a special court for thelaw merchant.[44]
The king could grant judicial rights and powers to a lord over his lands or over entire hundreds. It was common for royalwrits granting such rights to include the phrases "sake and soke" and "sake and soke,toll and team, andinfangentheof."[45]
Sometimes further rights were granted, such as jurisdiction overmundbryce (breach of the king's protection),hamsocn (assault on a person inside a house), andforsteal (assault on a royal road).[45] The king could revoke all of these grants.[47]
Synods dealt with legal disputes. Initially, synods may have had jurisdiction over cases involvingbookland since this form ofland tenure originated within the church.[48]
The king could also grant the church (either the bishop of adiocese or theabbot of areligious house) the right to administer a hundred. The hundred's reeve would then answer to the bishop or abbot. The same cases would be tried as before, but the profits of justice would now go to the church.[49] One such hundred was theSoke of Peterborough.
While common legal procedures existed, they can be difficult to reconstruct due to lack of evidence and variation in local custom. Shires possessed their own local traditions, and the Danelaw deviated in important ways from other parts of England.[50]
Legal proceedings began with an accusation by an aggrieved party. In addition, tithing groups couldpresent accusations as part of the system offriborh(seeabove).[37] In cases involving royal rights, accusations could be brought by royal officials.[51]
There were two types of cases that could be brought to court. In the first kind, a party claimed they or, in the case of homicide, a relative had been wronged. In the second kind, a claimant asserted that another party was in possession of movable or immovable property rightfully belonging to the claimant. The outcome sought could vary based on the type of case. Claimants might seek restoration of property, compensation, or the offender's punishment.[52]
The initiating party formally stated his charge with a fore-oath. An example formula in the anonymous textSwerian states, "by the Lord, I accuse N. neither for hatred nor for calumny nor for unjust gain; nor do I know anything more true, except as my informant told me and I myself truly relate that he was the thief of my cattle".[53] If strong evidence existed, the accuser would not need to make a fore-oath. However, false accusations were severely punished; the offender would lose his tongue unless he redeemed himself by paying hiswergeld.[54]
The defendant had to appear in court at the scheduled time or provide anessoin (excuse) for not attending.[55] Surety (Old English:borh) could be required to ensure the accused attended court and did not attempt to flee justice. This could take the form of a financial pledge, but it also included people standing as pledges. If the accused could find no people to stand surety and had no property to pledge, then he would be imprisoned. The man's kinsmen or lord had a particular responsibility to act as surety for him. If a man fled justice, his surety had to pay his wergeld to the king or to the entitled party.[56]
The accused had to formally deny the accusation in person; however, women and the mute or deaf needed a representative. The denial took the form of an oath, such as "by the Lord, I am guiltless, both in deed and counsel, of the accusation of which N. accuses me".[57]
After the initial accusation and denial, the parties themselves (or their supporters) were able to argue their case. Each side told their version of the facts of the case, which could be supported by witnesses or written evidence (such as the well-knownFonthill Letter). Arguments could also cite folk-right or legal norms.[58]
Following the arguments, the court might issue a mesne or intermediate judgement. A mesne judgement might declare the form of proof to be used in the trial and which party should provide that proof. Alternatively, a mesne judgement could appoint a smaller group of people to decide a case.[59]
Witnesses were an important form of evidence, especially in cases involving property. The parties might bring their own witnesses, but the official presiding over the court might also search for witnesses.[60]Charters and other documents could help decide land disputes.[40] Physical evidence could also be utilised. The Fonthill Letter recounts that a cattle thief named Helmstan was scratched in the face by a bramble while fleeing the scene of the crime. In court, the scratch was used as evidence against him.[61]
In compurgation or trial by oath, adefendant swore oaths to prove his innocence withoutcross-examination. A defendant was expected to bring oath-helpers (Latin:juratores), neighbours willing to swear to his good character or "oathworthiness". In the Christian society of Anglo-Saxon England, a false oath was a grave offence against God and could endanger one's immortal soul.[62][63]
In Anglo-Saxon law, "denial is always stronger than accusation".[64] The defendant was acquitted if he produced the necessary number of oaths.[62] If a defendant's community believed him to be guilty or generally untrustworthy, he would be unable to gather oath-helpers and would lose his case.[65] This system was vulnerable to abuse. A defendant might be unable to gather oath-helpers because his opponent was more powerful or influential within the community.[66]
The number of oaths needed depended on the seriousness of the accusation and the person's social status. If the law required oaths valued at 1200shillings, then a thegn would not need any oath-helpers because his wergeld equalled 1200 shillings. However, aceorl (200 shilling wergeld) would need oath-helpers.[64]
When a defendant failed to establish his innocence by oath in criminal cases (such as murder, arson, forgery, theft andwitchcraft), he might still redeem himself through trial by ordeal. Trial by ordeal was an appeal to God to revealperjury, and its divine nature meant it was regulated by the church. The ordeal had to be overseen by a priest at a place designated by the bishop. The most common forms in England wereordeal by hot iron andordeal by water.[67] Before a defendant was put through the ordeal, theplaintiff had to establish aprima facie case under oath. The plaintiff was assisted by his own supporters or "suit", who might act as witnesses for the plaintiff.[63]
The final judgement was made collectively by the suitors of the court, especially the thegns. In the Danelaw, judgement might be made by a group of "doomsmen" or judges. There is also evidence that those presiding over the court sometimes issued their own judgements.[68]
A court could order the guilty party to pay a fine, compensate a victim, orforfeit property. A religious penalty, such as apenance, might also be imposed. In land disputes, a court could order the restoration of property to a successful litigant. Sometimes resolutions took the form of compromise. For example, a party who lost their claim to land might be given alife-tenure in the property.[69]
The most serious crimes (murder, treachery to one's lord, arson, house-breaking, and open theft) were punishable by death and forfeiture.Hanging by thegallows andbeheading were common forms of execution. A woman convicted of murder by witchcraft was punished bydrowning.[70] According to thelaws of Æthelstan, thieves over 15 years of age who stole more than 12pence were to be executed (men bystoning, women byburning, and free women could bepushed off a cliff ordrowned).[71]
In Cnut's code, a first criminal offence usually merited compensation to victims and fines to the king. Later offences saw progressively severe forms of bodily mutilation. Cnut also introducedoutlawry, a punishment only the king could remove.[16]
Anglo-Saxon law assumed that a man's wife and children were his accomplices in any crime. If a man could not return or pay for stolen property, he and his family could be enslaved.[72]
One of the foundations of Anglo-Saxon law was the extended family or kindred (Old English:mægþ). Membership in a kindred provided the individual with protection and security.[73]
In the case of homicide, the victim's family was responsible for avenging him or her through ablood feud. The law set criteria for legitimate blood feuds. A family did not have the right to retaliate if a member was killed while stealing property, committingcapital crimes, or resisting capture. A person was exempt from retaliation if he killed while:[74]
Kings and the church promoted financial compensation (Old English:bote) for death or injury as an alternative to blood feuds. In the case of death, the victim's family was owed theweregild ("man price"). A person's weregild was greater or lesser depending on social status.[75]
Cnut's code allowedsecular clergy to demand or pay compensation in a feud. However,monks were prohibited because they had abandoned their "kin-law when [they bowed] to [monastic] rule-law".[76]
A man had to own at least fivehides of land to be considered athegn (nobleman). Ealdormen (and later earls) were the highest-ranking nobles. High-ranking churchmen such as archbishops, bishops, and abbots also formed part of the aristocracy.[77]
There were various categories of freemen:[78]
Thegns enjoyed greater rights and privileges than did ordinary freemen. The weregild of aceorl was 200shillings while that of a thegn was 1200. In court, a thegn's oath was equal to the oath of sixceorls.[79]
Slavery was widespread in early medieval England. The price of a slave (Old English:þēow) orthrall (Old Norse:þræll) was onepound or eight oxen. If a slave was killed, his murderer only had to pay the purchase price because slaves had no wergild. Because slaves had no property, they could not pay fines as a punishment for crime. Instead, slaves received corporal punishments such as flogging, mutilation, or death.[80]
Slavery was an inherited status. The slave population included the conquered Britons and their descendants. Some people were enslaved as war captives or as punishment for crimes (such as theft). Others became slaves due to unpaid debts. While owners had extensive power over their slaves, their power was not absolute. Slaves could be manumitted; however, only second- or third-generation descendants of freed slaves received all the privileges of a freeman.[81][82][44]
Slavery may have declined in the late eleventh century as it was considered a pious act for Christians to free their slaves on their deathbed. The church condemned the sale of slaves outside the country, and the internal trade declined in the twelfth century. It may have been more economic to settle slaves on land than to feed and house them, and the change to serfdom was probably an evolutionary change in status rather a clear distinction between the two.[83]
Land in Anglo-Saxon England can be divided into three types:bookland, loanland, and folkland.[84]
When a royalcharter (Old English:boc) transferred land ownership from the king to another person, the land was known as bookland (Old English:bocland). Owning bookland carried three important benefits. First,food rent and other services owed to the king (except for thetrinoda necessitas) were transferred to the new owner.[85] Second, the charter itself served as important evidence of ownership in case of a dispute. Third, the charter granted perpetual ownership to the grantee and his heirs unless freelyalienated. The king had special jurisdiction over legal disputes involving bookland, and sometimes the king had to consent to its alienation. Originally, onlyreligious houses received bookland, but kings started granting it tolaymen in the late 8th century.[86]
When a king, religious house, or lay lordleased property to others, it became loanland (Old English:lænland). Most of the surviving evidence involves leases from religious houses. Sometimes land was leased to pay back a monetary loan; as part of such an agreement, a lender paid alump sum of money to the borrower in exchange for the right to collect the loanland's income for a set period (commonly three lives). For example, one document records loanland granted for three years in return for a loan of £3. Leases were witnessed in court, and written documents have survived, such aschirographs.[87]
The meaning of folkland (Old English:folcland) is unclear, and historians have proposed at least three definitions. The first view, popular in the 19th century, is that folkland was a form of communal property belonging to the nation (the folk). The second view is that it belonged to the Crown but was separate from the king's personal property; it could therefore be leased but not permanently alienated. The third view is that folkland referred to land held according to custom or tradition, which included all land except bookland.[88]
Lords granted peasants land in return for rent and labour. It was also common for free peasants who owned their land to submit to a lord for protection through a process calledcommendation. Peasants who commended their land owed their lord labour service. Theoretically, a commended peasant could transfer his land to a new lord whenever he liked. In reality, this was not permitted. By 1066,manorialism was entrenched in England.[89]
Many parts of England (including Kent, East Anglia, and Dorset) practised forms ofpartible inheritance in which land was equally divided among heirs. In Kent, this took the form ofgavelkind.[90]
Every house had a peace (Old English:mund). Intruders and other violators of the peace had to pay a fine called amundbyrd. A man's status determined the amount of themundbyrd. The laws of Æthelberht set themundbyrd for the king at 50shillings, the eorl (noble) at 12s., and the ceorl (freeman) at 6s. In Alfred the Great's time, the king'smundbyrd was £5.[91]
Mund is the origin of theking's peace.[82] Initially, the king'smund was limited to the royal residence. As royal power and responsibilities grew, the king's peace was applied to other areas: shire courts, hundred courts, highways, rivers, bridges, churches, monasteries, markets, and towns. Theoretically, the king was present at these places. King's imposed fines called wites as punishments forbreaches of the king's peace.[92]
Individuals received protection through kinship ties or by entering the service of a lord.[93] The king could grant individuals a personal peace (orgrith). For example, the king's peace protected his counselors when travelling to and from meetings of the witan.[94] Foreign traders and others not protected by lordship or kinship ties were under the king's protection.[95]
Anglo-Saxon law mandated that a person pay compensation when injuring another person. The injured body part determined the amount of compensation. According to Æthelberht's law, pulling someone's hair cost 50sceattas, a severed foot cost 50 shillings, and "damaging the kindling limb" (the reproductive organs) cost 300 shillings.[96]
In the case of murder, the victim's kindred could forego a blood feud in return for payment of awergild. In addition to paying the king a wite (fine), the killer also owed compensation to the victim's lord. Some crimes could not be satisfied by financial compensation. These botless crimes were punished with death or forfeiture of property. They included:[97]
The creation of written law codes coincided with Christianisation, and the church received special privileges and protections in the earliest codes. TheLaw of Æthelberht demanded compensation for offences against church property:[98]
In the late 7th century, the laws of Kent and Wessex supported the church in various ways. Failure to receivebaptism was punished with a financial penalty, and the oath of acommunicant was worth more than a non-communicant in legal proceedings. Laws supportedSabbath observance and payment of church-scot (church dues). Laws also established rights to churchsanctuary(seeRight of asylum in Medieval England).[99]