1911 Encyclopædia Britannica/Anglo-Saxon Law
ANGLO-SAXON LAW. 1. The body of legal rules and customs which obtained in England before the Norman conquest constitutes, with the Scandinavian laws, the most genuine expression of Teutonic legal thought. While the so-called “barbaric laws” (leges barbarorum) of the continent, not excepting those compiled in the territory now called Germany, were largely the product of Roman influence, the continuity of Roman life was almost completely broken in the island, and even the Church, the direct heir of Roman tradition, did not carry on a continuous existence: Canterbury was not a see formed in a Roman province in the same sense as Tours or Reims. One of the striking expressions of this Teutonism is presented by the language in which the Anglo-Saxon laws were written. They are uniformly worded in English, while continental laws, apart from the Scandinavian, are all in Latin. The English dialect in which the Anglo-Saxon laws have been handed down to us is in most cases a common speech derived from West Saxon—naturally enough as Wessex became the predominant English state, and the court of its kings the principal literary centre from which most of the compilers and scribes derived their dialect and spelling. Traces of Kentish speech may be detected, however, in the Textus Roffensis, the MS. of the Kentish laws, and Northumbrian dialectical peculiarities are also noticeable on some occasions, while Danish words occur only as technical terms. At the conquest, Latin takes the place of English in the compilations made to meet the demand for Anglo-Saxon law texts as still applied in practice.
2. It is easy to group the Anglo-Saxon laws according to the manner of their publication. They would fall into three divisions: (1) laws and collections of laws promulgated by public authority; (2) statements of custom; (3) private compilations of legal rules and enactments. To the first division belong the laws of the Kentish kings, Æthelberht, Hlothhere and Eadric, Withraed; those of Ine of Wessex, of Alfred, Edward the Elder, Æthelstan, Edmund, Edgar, Æthelred and Canute; the treaty between Alfred and Guthrum and the so-called treaty between Edward and Guthrum. 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. 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 of 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. 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: i. customary rules followed by divers communities capable of formulating law; ii. enactments of authorities, especially of kings; iii. 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.
3. Even in the course of a general survey of the legal lore at our disposal, one cannot help being struck by peculiarities in the distribution of legal subjects. Matters which seem to us of primary importance and occupy a wide place in our law-books are almost entirely absent in Anglo-Saxon laws or relegated to the background. While it is impossible to give here anything like a complete or exact survey of the field—a task 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 counting several times certain paragraphs bearing on different subjects—a brief statistical analysis of the contents of royal codes and laws may be found instructive.
We find 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. A subject which attracted special attention was the law of status, and no less than 107 paragraphs contain disposition 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 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.
4. 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 (nidingsvaerk), 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.
5. 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.
(a) 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.
(b) 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.
(c) 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—gilds—appeared as substitutes. The gild 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.
(d) 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.
Bibliography.—Editions: Liebermann, Die Gesetze der Angelsachsen (1903, 1906) is indispensable, and leaves nothing to be desired as to the constitution of the texts. The translations and notes are, of course, to be considered in the light of an instructive, but not final, commentary. R. Schmid, Gesetze der Angelsachsen (2nd ed., Leipzig, 1858) is still valuable on account of its handiness and the fulness of its glossary. B. Thorpe, Ancient Laws and Institutes of England (1840) is not very trustworthy. Domesday Book, i. ii. (Rec. Comm.); Codex Diplomaticus Aevi Saxonici, i.-vi. ed. J. M. Kemble (1839-1848); Cartularium Saxonicum (up to 940), ed. W. de Gray Birch (1885-1893); J. Earle, Land Charters (Oxford, 1888); Thorpe, Diplomatarium Anglicanum; Facsimiles of Ancient Charters, edited by the Ordnance Survey and by the British Museum; Haddan and Stubbs, Councils of Great Britain, i.-iii. (Oxford, 1869-1878).
Modern works.—Konrad Maurer, Über Angelsächsische Rechtsverhältnisse, Kritische Ueberschau (Munich, 1853 ff.), still the best 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; Stubbs, Constitutional History of England, i.; Pollock and Maitland, History of English Law, i.; H. Brunner, Zur Rechtsgeschichte der römisch-germanischen Urkunde (1880); Sir F. Pollock, The King's Peace (Oxford Lectures); F. Seebohm; The English Village Community; Ibid. Tribal Custom in Anglo-Saxon Law; Marquardsen, Haft und Bürgschaft im Angelsächsischen Recht; Jastrow, “Über die Strafrechtliche Stellung der Sklaven,” Gierke's Untersuchungen, i.; 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; “Romanistische Einflüsse im Angelsächsischen Recht: Das Buchland ” in the Mélanges Fitting, 1907; “The Transfer of Land in Old English Law” in the Harvard Law Review, 1907. (P. Vi.)
- The Judicia civitatis Lundoniae are a gild statute confirmed by King Æthelstan.