Definitions

folk-right

Anglo-Saxon law

While there is virtually no evidence of Anglo-Saxon law per se (i.e. case law and jurisprudence), a significant amount of the literature of law from the Anglo-Saxon period still survives. Discussion of Anglo-Saxon law must, therefore, be confined to discussion of the legal literature (mainly law codes and charters) written during the period.

Anglo-Saxon law (Old English ǽ, later laȝu "law"; dóm "decree, judgement") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Scandinavian law and continental Germanic law, descended from a family of ancient Germanic custom and legal thought. However, Anglo-Saxon law codes are distinct from other early Germanic legal statements - known as the leges barbarorum - in that they were written in the vernacular, instead of in Latin. As such, the laws of the Anglo-Saxons were the first laws in medieval Western Europe to be expressed in a people's native language.

Overview

Written records of early Germanic law (leges barbarorum) were, in many ways, the product of Roman influence. Throughout the early middle ages, as various 'Teutonic', or Germanic, tribes on the continent came into closer and more civil contact with the highly-institutionalized civilizations surrounding the Mediterranean - chiefly Rome - it was inevitable that many of these tribes would attempt to express themselves, culturally and institutionally, through Roman idiom. The numerous legal and customary statements which make up the earliest written Germanic law codes from the continent are testament to this influence, as each was written in Latin (a foreign language) and each was decidedly influenced by Emperor Justinian's great legal code.

In Britain, the situation was somewhat different, as Rome had retreated from the island by about 400 AD, and the native inhabitants who remained were, for a time, relatively free of foreign influence. When, in 597 AD, strong Roman influence again reached Britain (by now in the hands of the Anglo-Saxons) it was in the form of Christianity, the practitioners of which brought with them the art of letters, writing, and literacy. It is significant that it was shortly after the arrival of the first evangelical mission in England - led by Augustine, and sent by Pope Gregory I - the first Anglo-Saxon law code appeared, issued by Ethelbert, King of Kent. The first six pronouncements of this code deal solely with sanctions against molesting the property of the Christian church and its officers, demanding twelve-fold compensation for stealing from God's house. In contrast, compensation for stealing from the king is set at only nine-fold. Writing in the eighth century, the Venerable Bede comments that King Ethelbert, "beside all other benefits that he of wise policy bestowed upon his subjects, appointed them, with his council of wise men, judicial dooms according to the examples of the Romans." Iuxta exempla Romanorum is the Latin phrase Bede uses here; the meaning of this statement has exercised the curiosity of historians for centuries. It was not, as with the continental Germanic tribes, that Ethelbert had the law written down in Latin; rather, without precedent, he used his own native language, Old English, to express the 'dooms', or laws and judgements, which had force in his kingdom. Some have speculated that "according to the examples of the Romans" simply meant that Ethelbert had decided to cast the law in writing, whereas previously it had always been a matter of unwritten tradition and custom, handed down through generations through oral transmission, and supplemented by kings' edicts. As such, Ethelbert's law code constituted an important break in the tradition of Anglo-Saxon law: the body of Kentish legal customs, or at least a portion of them, were now represented by a written statement - fixed, unchanging, no longer subject to the vagueries of memory. Law was now something that could be pointed to, and, significantly, disseminated with ease.

Whatever the exact motives for making oral law into written code, King Ethelbert's law code was the first of a long series of Anglo-Saxon law codes that would be published in England for the next four and a half centuries. Almost without exception, every official version of the royal law issued during the Anglo-Saxon period was written in Old English.

Making Law

Strictly speaking, Anglo-Saxon law was rarely "made" in the sense that new law was introduced when existing laws were felt to be insufficient or lacking in some way. Rather, most often - especially in the earlier codes - existing custom was committed to writing in spurts. One problem with this process is that, when a later law code made a pronouncement on an issue that an earlier code had overlooked, it seems to the historian that new law was being "made" before his very eyes. However, it is very often the case that such "new" laws had in fact been in force for some time in the form of custom, even though they had just appeared in writing for the first time. Legal innovation was the exception rather than the rule. This situation is quite different from the one seen today, where custom typically plays less a role in legal literature, and often law is not felt to exist until it is expressed in writing.

Laws of some celebrity - i.e. those dealing with the church, the king, etc. - were typically the first to be put down in writing. This leads to the law codes appearing as if they were concocted to be as much a tool for engendering the political magnificence of the king, as they were for aiding in the juridical process. The most important laws, which also happen to be the most mundane, were those dealing with property transfer and civil action; these issues received short shrift, or were ignored completely, in most Anglo-Saxon law codes. The earliest law codes are most striking in the limited range of issues they cover. They are not only short, but highly un-balanced in bearing, treating almost exclusively matters concerning theft from the church, the king, murder, and bodily injury. Many issues one would expect to find covered in a statement of a people's law are missing. For example, the rights of common folk, ceorlas, beyond the stipulation that their property should be protected against thievery, are not dealt with. Discussions of slavery, trade and economics, and what we would now call 'tort law', are also absent. However, as time went on and successive law codes were published, each more or less complimenting the ones that went before, the coverage of the law codes expanded. By the time of Cnut's great law code, published around 1020, and considered to be the greatest legal statement from the Anglo-Saxon period, many of these issues had finally found written expression.

Witan (Lawson)

Verbum Regis (Wormald)

Divisions

The various types of secular legal pronouncements which survive from the Anglo-Saxon period can be grouped into three general categories, according to the manner of their publication:

  1. laws and collections of laws promulgated by public authority;
  2. statements of custom;
  3. private compilations of legal rules and enactments.

Laws and collections of laws promulgated by public authority

To the first division belong the laws of the Kentish kings, Æthelberht, Hlothhere and Eadric, Withraed; those of Ine of Wessex, of Alfred the Great, Edward the Elder, Æthelstan (The Judicia civitatis Lundoniae are a guild statute confirmed by King Æthelstan), Edmund I, Edgar, Æthelred and Canute; the treaty between Alfred and Guthrum and the so-called treaty between Edward and Guthrum.

Statements of custom

The second division is formed by the convention between the English and the Welsh Dunsaetas, the law of the Northumbrian priests, the customs of the North people, the fragments of local custumals entered in Domesday Book.

Private compilations of legal rules and enactments

The third division would consist of the collections of the so-called Pseudo-leges Canuti, the laws of Edward the Confessor, of Henry I, and the great compilation of the Quadripartitus, then, a number of short notices and extracts like the fragments on the "wedding of a wife," on oaths, on ordeals, on the king's peace, on rural customs (Rectitudines singularum personarum), the treatises on the reeve (gerefa) and on the judge (dema), formulae of oaths, notions as to wergeld, &c.

Charters

A fourth group might be made of the charters, as they are based on Old English private and public law and supply us with most important materials in regard to it. Looking somewhat deeper at the sources from which Old English law was derived, we shall have to modify our classification to some extent, as the external forms of publication, although important from the point of view of historical criticism, are not sufficient standards as to the juridical character of the various kinds of material. Direct statements of law would fall under the following heads, from the point of view of their legal origins:

  1. customary rules followed by divers communities capable of formulating law;
  2. enactments of authorities, especially of kings;
  3. private arrangements made under recognized legal rules.

The first would comprise, besides most of the statements of custom included in the second division according to the first classification, a great many of the rules entered in collections promulgated by kings; most of the paragraphs of Æthelberht's, Hlothhere's, and Eadric's and Ine's laws, are popular legal customs that have received the stamp of royal authority by their insertion in official codes. On the other hand, from Withraed's and Alfred's laws downwards, the element of enactment by central authority becomes more and more prominent. The kings endeavour, with the help of secular and clerical witan, to introduce new rules and to break the power of long-standing customs (e.g. the precepts about the keeping of holidays, the enactments of Edmund restricting private vengeance, and the solidarity of kindreds as to feuds, and the like). There are, however, no outward signs enabling us to distinguish conclusively between both categories of laws in the codes, nor is it possible to draw a line between permanent laws and personal ordinances of single sovereigns, as has been attempted in the case of Frankish legislation.

Statistical analysis

Matters which seem to us primary are almost entirely absent in Anglo-Saxon laws or relegated to the background. A survey is rendered almost impossible by the arbitrary manner in which paragraphs are divided, by the difficulty of making Old English enactments fit into modern rubrics, and by the necessity of multiple counting; but here is brief statistical analysis of the contents of royal codes and laws. There are roughly 419 paragraphs devoted to criminal law and procedure as against 91 concerned with questions of private law and civil procedure. Of the criminal law clauses, as many as 238 are taken up with tariffs of fines, while 80 treat of capital and corporal punishment, outlawry and confiscation, and 101 include rules of procedure. On the private law side 18 clauses apply to rights of property and possession, 13 to succession and family law, 37 to contracts, including marriage when treated as an act of sale; 18 touch on civil procedure. The law of status had no less than 107 paragraphs, dictated by the wish to discriminate between the classes of society. Questions of public law and administration are discussed in 217 clauses, while 197 concern the Church in one way or another, apart from purely ecclesiastical collections. In the public law division it is chiefly the power, interests and privileges of the king that are dealt with, in roughly 93 paragraphs, while local administration comes in for 39 and purely economic and fiscal matter for 13 clauses.. Police regulations are very much to the fore and occupy no less than 72 clauses of the royal legislation. As to church matters, the most prolific group is formed by general precepts based on religious and moral considerations, roughly 115, while secular privileges conferred on the Church hold about 62, and questions of organization some 20 clauses.

The statistical contrasts are especially sharp and characteristic when we take into account the chronological sequence in the elaboration of laws. Practically the entire code of Æthelberht, for instance, is a tariff of fines for crimes, and the same subject continues to occupy a great place in the laws of Hlothhere and Eadric, Ine and Alfred, whereas it appears only occasionally in the treaties with the Danes, the laws of Withraed, Edward the Elder, Æthelstan, Edgar, Edmund I and Æthelred. It reappears in some strength in the code of Canute, but the latter is chiefly a recapitulation of former enactments. The system of "compositions" or fines, paid in many cases with the help of kinsmen, finds its natural place in the ancient, tribal period of English history and loses its vitality later on in consequence of the growth of central power and of the scattering of maegths. Royalty and the Church, when they acquire the lead in social life, work out a new penal system based on outlawry, death penalties and corporal punishments, which make their first appearance in the legislation of Withraed and culminate in that of Æthelred and Canute.

As regards status, the most elaborate enactments fall into the period preceding the Danish settlements. After the treaties with the Danes, the tendency is to simplify distinctions on the lines of an opposition between twelvehynd-men and twyhynd-men, paving the way towards the feudal distinction between the free and the unfree. In the arrangements of the commonwealth the clauses treating of royal privileges are more or less evenly distributed over all reigns, but the systematic development of police functions, especially in regard to responsibility for crimes, the catching of thieves, the suppression of lawlessness, is mainly the object of 10th and 11th century legislation. The reign of Æthelred, which witnessed the greatest national humiliation and the greatest crime in English history, is also marked by the most lavish expressions of religious feeling and the most frequent appeals to morality. This sketch would, of course, have to be modified in many ways if we attempted to treat the unofficial fragments of customary law in the same way as the paragraphs of royal codes, and even more so if we were able to tabulate the indirect evidence as to legal rules. But, imperfect as such statistics may be, they give us at any rate some insight into the direction of governmental legislation.

Influences

The next question to be approached concerns the pedigree of Anglo-Saxon law and the latter's natural affinities. What is its position in the legal history of Germanic nations? How far has it been influenced by non-Germanic elements, especially by Roman and Canon law? The oldest Anglo-Saxon codes, especially the Kentish and the West Saxon ones, disclose a close relationship to the barbaric laws of Lower Germany—those of Saxons, Frisians, Thuringians. We find a division of social ranks which reminds us of the threefold gradation of Lower Germany (edelings, frilings, lazzen-eorls, ceorls, laets), and not of the twofold Frankish one (ingenui Franci, Romani), nor of the minute differentiation of the Upper Germans and Lombards. In subsequent history there is a good deal of resemblance between the capitularies' legislation of Charlemagne and his successors on one hand, the acts of Alfred, Edward the Elder, Æthelstan and Edgar on the other, a resemblance called forth less by direct borrowing of Frankish institutions than by the similarity of political problems and condition. Frankish law becomes a powerful modifying element in English legal history after the Conquest, when it was introduced wholesale in royal and in feudal courts. The Scandinavian invasions brought in many northern legal customs, especially in the districts thickly populated with Danes. The Domesday survey of Lincolnshire, Nottinghamshire, Yorkshire, Norfolk, &c., shows remarkable deviations in local organization and justice (lagmen, sokes), and great peculiarities as to status (socmen, freemen), while from laws and a few charters we can perceive some influence on criminal law (nidings-vaerk), special usages as to fines (lahslit), the keeping of peace, attestation and sureties of acts (faestermen), &c. But, on the whole, the introduction of Danish and Norse elements, apart from local cases, was more important owing to the conflicts and compromises it called forth and its social results,—than on account of any distinct trail of Scandinavian views in English law. The Scandinavian newcomers coalesced easily and quickly with the native population.

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

It would be useless to attempt to trace in a brief sketch the history of the legal principles embodied in the documents of Anglo-Saxon law. But it may be of some value to give an outline of a few particularly characteristic subjects.

Important features

Folk-right and privilege

The Anglo-Saxon legal system cannot be understood unless one realizes the fundamental opposition between folk-right and privilege. Folk-right is the aggregate of rules, formulated or latent but susceptible of formulation, which can be appealed to as the expression of the juridical consciousness of the people at large or of the communities of which it is composed. It is tribal in its origin, and differentiated, not according to boundaries between states, but on national and provincial lines. There may be the folk-right of West and East Saxons, of East Angles, of Kentish men, Mercians, Northumbrians, Danes, Welshmen, and these main folk-right divisions remain even when tribal kingdoms disappear and the people is concentrated in one or two realms. The chief centres for the formulation and application of folk-right were in the 10th and 11th centuries the shire-moots, while the witan of the realm generally placed themselves on the higher ground of State expediency, although occasionally using folk-right ideas. The older law of real property, of succession, of contracts, the customary tariffs of fines, were mainly regulated by folk-right; the reeves employed by the king and great men were supposed to take care of local and rural affairs according to folk-right. The law had to be declared and applied by the people itself in its communities, while the spokesmen of the people were neither democratic majorities nor individual experts, but a few leading men—the twelve eldest thanes or some similar quorum. Folk-right could, however, be broken or modified by special law or special grant, and the fountain of such privileges was the royal power. Alterations and exceptions were, as a matter of fact, suggested by the interested parties themselves, and chiefly by the Church. Thus a privileged land-tenure was created—bookland; the rules as to the succession of kinsmen were set at nought by concession of testamentary power and confirmations of grants and wills; special exemptions from the jurisdiction of the hundreds and special privileges as to levying fines were conferred. In process of time the rights originating in royal grants of privilege overbalanced, as it were, folk-right in many respects, and became themselves the starting-point of a new legal system—the feudal one.

The preservation of peace

Another feature of vital importance in the history of Anglo-Saxon law is its tendency towards the preservation of peace. Society is constantly struggling to ensure the main condition of its existence—peace. Already in Æthelberht's legislation we find characteristic fines inflicted for breach of the peace of householders of different ranks—the ceorl, the eorl, and the king himself appearing as the most exalted among them. Peace is considered not so much a state of equilibrium and friendly relations between parties, but rather as the rule of a third within a certain region—a house, an estate, a kingdom. This leads on one side to the recognition of private authorities—the father's in his family, the master's as to servants, the lord's as to his personal or territorial dependents. On the other hand, the tendency to maintain peace naturally takes its course towards the strongest ruler, the king, and we witness in Anglo-Saxon law the gradual evolution of more and more stringent and complete rules in respect of the king's peace and its infringements.

Maegth

The more ancient documents of Anglo-Saxon law show us the individual not merely as the subject and citizen of a certain commonwealth, but also as a member of some group, all the fellows of which are closely allied in claims and responsibilities. The most elementary of these groups is the maegth, the association of agnatic and cognatic relations. Personal protection and revenge, oaths, marriage, wardship, succession, supervision over settlement, and good behaviour, are regulated by the law of kinship. A man's actions are considered not as exertions of his individual will, but as acts of the kindred, and all the fellows of the maegth are held responsible for them. What began as a natural alliance was used later as a means of enforcing responsibility and keeping lawless individuals in order. When the association of kinsmen failed, the voluntary associations—guilds—appeared as substitutes. The guild brothers associated in mutual defence and support, and they had to share in the payment of fines. The township and the hundred came also in for certain forms of collective responsibility, because they presented groups of people associated in their economic and legal interests.

Police legislation

In course of time the natural associations get loosened and intermixed, and this calls forth the elaborate police legislation of the later Anglo-Saxon kings. Regulations are issued about the sale of cattle in the presence of witnesses. Enactments about the pursuit of thieves, and the calling in of warrantors to justify sales of chattels, are other expressions of the difficulties attending peaceful intercourse. Personal surety appears as a complement of and substitute for collective responsibility. The hlaford and his hiredmen are an institution not only of private patronage, but also of police supervision for the sake of laying hands on malefactors and suspected persons. The landrica assumes the same part in a territorial district. Ultimately the laws of the 10th and 11th centuries show the beginnings of the frankpledge associations, which came to act so important a part in the local police and administration of the feudal age.

The points mentioned are not many, but, apart from their intrinsic importance in any system of law, they are, as it were, made prominent by the documents themselves, as they are constantly referred to in the latter.

Language and dialect

The English dialect in which the Anglo-Saxon laws have been handed down is in most cases a common speech derived from West Saxon. By the tenth century Wessex had became the predominant Anglo-Saxon kingdom, and was home to some of the most developed religious and monsatic centres on the island. It was such centres which had the wealth, expertise, motivation, to create and to copy texts for distribution. Therefore, the dialect current in Wessex - and particularly that of Wincester - became the dominant literary dialect. As most of the surviving Old English law codes are only preserved in copies made during the eleventh century, the West Saxon dialect is predominant. However, traces of the Kentish dialect can be detected in codes copied out in the Textus Roffensis, a manuscript containing the earliest Kentish laws. Northumbrian dialectical peculiarities are also noticeable in some codes, while Danish words occur as technical terms in some documents, especially throse composed in the eleventh century. Come the Norman Conquest, Latin took the place of English as the language of legislation, though many technical terms from English for which Latin did not have an equivalent expression were retained.

References

Editions

Modern works

  • Konrad Maurer, Über Angelsachsische Rechtsverhaltnisse, Kritische Ueberschau (Munich, 1853 ff.), account of the history of Anglo-Saxon law;
  • Essays on Anglo-Saxon Law, by H. Adams, H. C. Lodge, J. L. Laughlin and E. Young (1876);
  • J. M. Kemble, Saxons in England;
  • F. Palgrave, History of the English Commonwealth;
  • William Stubbs, Constitutional History of England, i.;
  • Pollock and Maitland, History of English Law, i.;
  • H. Brunner, Zur Rechtsgeschichte der romisch-germanischen Urkunde (1880);
  • Sir Frederick Pollock, The King's Peace (Oxford Lectures);
  • Frederic Seebohm, The English Village Community;
  • Frederic Seebohm, Tribal Custom in Anglo-Saxon Law;
  • Heinrich Marquardsen, Haft und Burgschaft im Angelsachsischen Recht;
  • Hermann Jastrow, Über die Strafrechtliche Stellung der Sklaven, Gierke's Untersuchungen, i.;
  • J. C. H. R. Steenstrup, Normannerne, iv.;
  • F. W. Maitland, Domesday and Beyond (Cambridge, 1897);
  • H. M. Chadwick, Studies on Anglo-Saxon Institutions (1905);
  • P. Vinogradoff, "Folcland" in the English Historical Review, 1893;
  • P. Vinogradoff, "Romanistische Einflusse im Angelsächsischen Recht: Das Buchland" in the Mélanges Fitting, 1907;
  • P. Vinogradoff, "The Transfer of Land in Old English Law" in the Harvard Law Review, 1907.

External links

See also

  • The Walkington Wold Burials are evidence for the practice of beheading criminals and the public display of their severed heads.

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