Anglo-Saxon law
Anglo-Saxon law (Old English ǣ, later lagu "law"; dōm "decree, judgment") is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Medieval Scandinavian law and Germanic law, descended from a family of ancient Germanic custom and legal thought. However, Anglo-Saxon law codes are distinct from other early Germanic legal statements—known as the leges barbarorum, in part because they were written in Old English instead of in Latin. The laws of the Anglo-Saxons were the second in medieval Western Europe after those of the Irish to be expressed in a language other than Latin.
Development[edit]
Before Christianisation[edit]
The native inhabitants of England were Celtic Britons. The unwritten Celtic law was learned and preserved by the Druids, who in addition to their religious role also acted as judges. After the Roman conquest of Britain in the first century, Roman law was operative at least concerning Roman citizens. But the Roman legal system disappeared after the Romans left the island in the 5th century.[1]
In the 5th and 6th centuries, the Anglo-Saxons migrated from Germany and established several Anglo-Saxon kingdoms. These had their own legal traditions based in Germanic law that "owed little if anything" to Celtic or Roman influences.[2] Anglo-Saxon law largely derived from unwritten customs termed folk-right (Old English: folcriht; literally '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 of West and East Saxons, of East Angles, of Kentish men, Mercians, Northumbrians, Danes, Welshmen, and these main folk-right divisions remained even when tribal kingdoms disappeared and the people were concentrated in one kingdom.[4]
After Christianisation[edit]
Following the Christianisation 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 by Æthelberht of Kent. Writing in the eighth century, the Venerable Bede comments that Æthelberht created his law code "after the examples of the Romans" (Latin: iuxta exempla Romanorum).[7] This likely refers to Romanised peoples such as the Franks, whose Salic law was codified under Clovis I. As a newly Christian king, Æthelberht's creation of his own law code symbolised his belonging to the Roman and Christian traditions. The actual legislation, however, was not influenced by Roman law. Rather, it converted older customs into written legislation, and, reflecting the role of the bishops in drafting it, protected the Christian 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—the feudal one.[4]
Anglo-Saxon kings issued regulations about the sale of cattle in the presence of witnesses, enactments about the pursuit of thieves, and the calling in of warrantors to justify sales of chattels. Personal surety groups appear as a complement of and substitute for more collective responsibility. The hlaford and his hiredmen are an institution not only of private patronage, but also of supervision for the sake of laying hands on malefactors and suspected persons.[4]
In the 9th century, the Danelaw was conquered by Danes and governed under Scandinavian law. The word law itself derives from the Old Norse word laga. Starting with Alfred the Great (r. 871–899), the kings of Wessex united the other Anglo-Saxon peoples against their common Danish enemy. In the process, they created a single Kingdom of England. This unification process was completed under Æthelstan (r. 924–939).[9]
In subsequent history, there is a good deal of resemblance between the capitularies legislation of Charlemagne and his successors on one hand and 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.[4]
The Norman Conquest of 1066 ended the Anglo-Saxon monarchy. But Anglo-Saxon law and institutions survived and formed the foundation for the common law.[10]
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.[68]
In the case of homicide, the victim's family was responsible for avenging him or her through a blood 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, committing capital crimes, or resisting capture. A person was exempt from retaliation if he killed while:[69]
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 the weregild ("man price"). A person's weregild was greater or lesser depending on social status.[70]
Cnut's code allowed secular 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".[71]
A man had to own at least five hides of land to be considered a thegn (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.[72]
There were various categories of freemen:[73]
Thegns enjoyed greater rights and privileges than did ordinary freemen. The weregild of a ceorl was 200 shillings while that of a thegn was 1200. In court, a thegn's oath was equal to the oath of six ceorls.[74]
Slavery was widespread in Anglo-Saxon England. The price of a slave (Old English: þēow) or thrall (Old Norse: þræll) was one pound 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.[75]
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 2nd or 3rd-generation descendants of freed slaves received all the privileges of a freeman.[76][77][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.[78]
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 50 sceattas, a severed foot cost 50 shillings, and "damaging the kindling limb" (the reproductive organs) cost 300 shillings.[87]
In the case of murder, the victim's kindred could forego a blood feud in return for payment of a wergild. 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:[88]
Hanging by the gallows and beheading were common forms of execution. Murder by witchcraft was punished by drowning.[89] According to the laws of Æthelstan, thieves over 15 years of age who stole more than 12 pence were to be executed (men by stoning, women by burning, and free women could be pushed off a cliff or drowned).[90]
In Cnut's code, a first criminal offence usually merited compensation to victims and fines to the king. Later offenses saw progressively severe forms of bodily mutilation. Cnut also introduced outlawry, 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.[91]
The creation of written law codes coincided with Christianisation, and the church received special privileges and protections in the earliest codes. The Law of Æthelberht demanded compensation for offenses against church property:[92]
In the late 7th century, the laws of Kent and Wessex supported the church in various ways. Failure to receive baptism was punished with a financial penalty, and the oath of a communicant was worth more than a non-communicant in legal proceedings. Laws supported Sabbath observance and payment of church-scot (church dues). Laws also established rights to church sanctuary .[93]