Anglo Saxon Courts in the History of the United Kingdom

This issue under the Ruling of the Anglo Saxons

Courts and Jurisdiction

Courts and justice

An Anglo-Saxon court, whether of public or private justice, was not surrounded with such visible majesty of the law as in our own time, nor furnished with any obvious means of compelling obedience. It is the feebleness of executive power that explains the large space occupied in archaic law by provisions for the conduct of suits when parties make default. In like manner the solemn prohibition of taking the law into one’s own hands without having demanded one’s right in the proper court shows that law is only just becoming the rule of life. Such provisions occur as early as the dooms of Ine of Wessex, and perhaps preserve the tradition of a time when there was no jurisdiction save by consent of the parties. Probably the public courts were always held in the open air; there is no mention of churches being used for this purpose, a practice which was expressly forbidden in various parts of the continent when court houses were built. Private courts were held, when practicable, in the house of the lord having the jurisdiction, as is shown by the name halimote or hall-moot. This name may indeed have been given to a lord’s court by way of designed contrast with the open-air hundred and county courts. The manor-house itself is still known as a court in many places in the west and south-east of England.31 Halimote is not known, however, to occur before the Norman Conquest.

So far as we can say that there was any regular judicial system in Anglo-Saxon law, it was of a highly archaic type. We find indeed a clear enough distinction between public offences and private wrongs. Liability to a public fine or, in grave cases, corporal or capital punishment, may concur with liability to make redress to a person wronged or slain, or to his kindred, or to incur his feud in default. But neither these ideas nor their appropriate terms are confused at any time. On the other hand, there is no perceptible difference of authorities or procedure in civil and criminal matters until, within a century before the Conquest, we find certain of the graver public offences reserved in a special manner for the king’s jurisdiction.

The staple matter of judicial proceedings was of a rude and simple kind. In so far as we can trust the written laws, the only topics of general importance were manslaying, wounding, and cattle-stealing. So frequent was the last-named practice that it was by no means easy for a man, who was minded to buy cattle honestly, to be sure that he was not buying stolen beasts, and the Anglo-Saxon dooms are full of elaborate precautions on this head, to which we shall return presently.

Procedure

As to procedure, the forms were sometimes complicated, always stiff and unbending. Mistakes in form were probably fatal at every stage. Trial of questions of fact, in anything like the modern sense, was unknown. Archaic rules of evidence make no attempt to apply any measure of probability to individual cases.32 Oath was the primary mode of proof, an oath going not to the truth of specific fact, but to the justice of the claim or defence as a whole. The number of persons required to swear varied according to the nature of the case and the rank of the persons concerned. Inasmuch as the oath, if duly made, was conclusive, what we now call the burden of [44] proof was rather a benefit than otherwise under ancient Germanic procedure.

The process of clearing oneself by the full performance of the oath which the law required in the particular case is that which later medieval authorities call “making one’s law,” facere legem. It remained possible, in certain cases, down to quite modern times. An accused person who failed in his oath, by not having the proper number of oath-helpers33 prepared to swear, or who was already disqualified from clearing himself by oath, had to go to one[16] of the forms of ordeal. The ordeal of hot water appears in Ine’s laws though until lately it was concealed from our view by the misreading of one letter in the text.34 Trial by combat was to all appearance unknown to the Anglo-Saxon procedure,35 though it was formally sanctioned on the continent by Gundobad, king of the Burgundians, at the beginning of the sixth century and is found in the laws of nearly all the German tribes.

An apparently genuine ordinance of William the Conqueror enables Englishmen to make use of trial by battle in their lawsuits with Normans, but expressly allows them to decline it. This is strong to prove that it was not an English institution in any form.37 Permitted or justified private war, of which we do find considerable traces in England,38 is quite a different matter. The Anglo-Norman judicial combat belongs to a perfectly regular and regulated course of proceeding, is as strictly controlled as any other part of it, and has no less strictly defined legal consequences.

A “fore-oath,” distinct from the definitive oath of proof, was required [45] of the party commencing a suit, unless the fact complained of were manifest; thus a fore-oath was needless if a man sued for wounding and showed the wound to the court. A defendant who was of evil repute might be driven by the fore-oath alone to the alternative of a threefold oath or the ordeal.

As regards the constitution of Anglo-Saxon courts, our direct evidence is of the scantiest. We have to supplement it with indications derived from the Norman and later times.

Union of temporal and spiritual jurisdiction

One well-known peculiarity of the Anglo-Saxon period is that secular and ecclesiastical courts were not sharply separated, and the two jurisdictions were hardly distinguished. The bishop sat in the county court; the church claimed for him a large share in the direction of even secular justice,40 and the claim was fully allowed by princes who could not be charged with weakness.41 Probably the bishop was often the only member of the court who possessed any learning or any systematic training in public affairs.

The king’s justice not ordinary.The most general Anglo-Saxon term for a court or assembly empowered to do justice is gemót. In this word is included all authority of the kind from the king and his witan42 downwards. Folcgemót appears to mean any public court whatever, greater or less. The king has judicial functions, but they are very far removed from our modern way of regarding the king as the fountain of justice. His business is not to see justice done in his name in an ordinary course, but to exercise a special and reserved power which a man must not invoke unless he has failed to get his cause heard in the jurisdiction of his own hundred. Such failure of justice might happen, not from ill-will or corruption on the part of any public officer, but from a powerful lord protecting offenders who were his men.

In such cases the king might be invoked to put forth his power. It is obvious that the process was barely distinguishable from that of combating an open rebellion.

After the Norman Conquest, as time went on, the king’s justice became organized and regular, and superseded nearly all the functions of the ancient county and hundred courts. But the king’s power to do justice of an extraordinary kind was far from being abandoned. The great constructive work of Henry II. and Edward I. made it less important for a time. In the fifteenth and sixteenth centuries it showed its vitality in the hands of the king’s chancellors, and became the root of the modern system of equity. Down to our own time that system preserved the marks of its origin in the peculiar character of the compulsion exercised by courts of equitable jurisdiction. Disobedience to their process and decrees was a direct and special contempt of the king’s authority, and a “commission[18] of rebellion” might issue against a defendant making default in a chancery suit, however widely remote its subject-matter might be from the public affairs of the kingdom.

Jurisdiction of witan

We have many examples, notwithstanding the repeated ordinances forbidding men to seek the king’s justice except after failure to obtain right elsewhere, of the witan exercising an original jurisdiction in matters of disputed claims to book-land.48 This may be explained in more than one way. Book-land was (as we shall see) a special form of property which only the king could create, and which, as a rule, he created with the consent and witness of his wise men. Moreover, one or both parties to such suits were often bishops or the heads of great houses of religion, and thus the cause might be regarded as an ecclesiastical matter fit to be dealt with by a synod rather than by temporal authority, both parties doubtless consenting to the jurisdiction.

The charters that inform us of what was done, especially in 803 and 825, at the synods or synodal councils of Clovesho, that “famous place” whose situation is now matter of mere conjecture,50 leave no doubt that on these occasions, at least, the same assembly which is called a synod also acted as the witan. The secular and spiritual functions of these great meetings might have been discriminated by lay members not taking part in the ecclesiastical business; but it is by no means certain that they were.51 In any case it is highly probable that the prohibitions above cited were never meant to apply to the great men of the kingdom, or royal foundations, or the king’s immediate followers.

County and hundred courts.The ordinary Anglo-Saxon courts of public justice were the county court and the hundred court, of which the county court was appointed to be held twice a year, the hundred every four weeks.52 Poor and rich men alike were entitled to have right done to them, though the need of emphasizing this elementary point of law in the third quarter of the tenth century suggests that the fact was often otherwise.53

Thus the hundred court was the judicial unit, so to speak, for ordinary affairs. We have no evidence that any lesser public court existed. It is quite possible that some sort of township meeting was held for the regulation of the common-field husbandry which prevailed in most parts of England: and the total absence of any written record of such meetings, or (so far as we know) allusion to them, hardly makes the fact less probable. But we have no ground whatever for concluding that the township-moot, if that were its name, had any properly judicial functions. “Mark-moot,” which has been supposed to be the name of a primary court, appears rather to mean a court held on the marches of adjacent counties or hundreds, or perhaps on the boundary dyke itself.

The ordinances which tell us of the times of meeting appointed for the county and hundred courts tell us nothing whatever of their procedure. It may be taken as certain, however, that they had no efficient mode of compelling the attendance of parties or enforcing their orders. A man who refused to do justice to others according to the law could only be put out of the protection of the law, save in the cases which were grave enough to call for a special expedition against him. Outlawry, developed in the Danish period as a definite part of English legal process, remained such until our own time. All this is thoroughly characteristic of archaic legal systems in general. Nothing in it is peculiarly English, not much is peculiarly Germanic.

Private jurisdiction

Thus far we have spoken only of public jurisdiction. But we know that after the Norman Conquest England was covered with the private jurisdictions of lords of various degrees, from the king himself downwards, holding courts on their lands at which their tenants were entitled to seek justice in their own local affairs, and bound to attend that justice might be done to their fellows. “Court baron” is now the most usual technical name for a court of this kind, but it is a comparatively modern name. Further, we know that private jurisdiction existed on the continent much earlier, and that it existed in England in the early part of the eleventh century. It is a question not free from doubt whether the institution was imported from the continent not long before that time, or on the contrary had been known in England a good while before, perhaps as early as the date of our earliest Anglo-Saxon laws and charters, notwithstanding that it is not expressly and directly mentioned in documents of the earlier period. For our present purpose it is enough to be sure that private courts were well established at the date of the Conquest, and had been increasing in number and power for some time.

Subject-matter of Anglo-Saxon justice. Proceeding to the subject-matters of Anglo-Saxon jurisdiction, we find what may be called the usual archaic features. The only substantive rules that are at all fully set forth have to do with offences and wrongs, mostly those which are of a violent kind, and with theft, mostly cattle-lifting. Except so far as it is involved in the law of theft, the law of property is almost entirely left in the region of unwritten custom and local usage. The law of contract is rudimentary, so rudimentary as to be barely distinguishable from the law of property. In fact people who have no system of credit and very little foreign trade, and who do nearly all their business in person and by word of mouth with neighbours whom they know, have not much occasion for a law of contract.

It is not our purpose to consider in this place the relation of Anglo-Saxon customs and ordinances to those of Germanic nations on the continent; to inquire, for example, why the Salic or the Lombard laws should present striking resemblances even in detail to the laws of Alfred or Cnut, but provide with equal or greater minuteness for other similar cases on which the Anglo-Saxon authorities are silent. In the period of antiquarian compilation which set in after the Norman Conquest, and of which the so-called laws of Henry I. are the most conspicuous product, we see not only imitation of the continental collections, but sometimes express reference to their rules.56 But this kind of reference, at the hands of a compiler who could also quote the Theodosian code,57 throws no light whatever on the possibilities of continental influence at an earlier time. It is highly probable that Alfred and his successors had learned persons about them who were more or less acquainted with Frankish legislation if not with that of remoter kingdoms. But it suffices to know that, in its general features, Anglo-Saxon law is not only archaic, but offers an especially pure type of Germanic archaism. We are therefore warranted in supposing, where English authority fails, that the English usages of the Anglo-Saxon period were generally like the earliest corresponding ones of which evidence can be found on the continent.

The king’s peace.Preservation of the peace and punishment of offences were dealt with, in England as elsewhere, partly under the customary [50] jurisdiction of the local courts, partly by the special authority of the king. In England that authority gradually superseded all others. All criminal offences have long been said to be committed against the king’s peace; and this phrase, along with “the king’s highway,” has passed into common use as a kind of ornament of speech, without any clear sense of its historical meaning. The two phrases are, indeed, intimately connected; they come from the time when the king’s protection was not universal but particular, when the king’s peace was not for all men or all places, and the king’s highway was in a special manner protected by it. Breach of the king’s peace was an act of personal disobedience, and a much graver matter than an ordinary breach of public order; it made the wrong-doer the king’s enemy.

The notion of the king’s peace appears to have had two distinct origins. These were, first, the special sanctity of the king’s house, which may be regarded as differing only in degree from that which Germanic usage attached everywhere to the homestead of a freeman; and, secondly, the special protection of the king’s attendants and servants, and other persons whom he thought fit to place on the same footing. In the later Anglo-Saxon period the king’s particular protection is called grið as distinct from the more general word frið. Although the proper name is of comparatively recent[23] introduction58 and of Scandinavian extraction, the thing seems to answer to the Frankish sermo or verbum regis, which is as old as the Salic law.59 The rapid extension of the king’s peace till it becomes, after the Norman Conquest, the normal and general safeguard of public order, seems peculiarly English. On the continent the king appears at an early time to have been recognized as protector of the general peace, besides having power to grant special protection or peace of a higher order.

The various peaces

It is not clear whether there was any fixed name for the general peace which was protected only by the hundred court and the ealdorman. Very possibly the medieval usage by which an inferior court was said to be in the peace of the lord who held the court may go back in some form to the earliest time when there were any set forms of justice; and there is some evidence that in the early part of the tenth century men spoke of the peace of the witan.62 We have not found English authority for any such term as folk-peace, which has sometimes been used in imitation of German writers. No light is thrown on early Anglo-Saxon ideas or methods of keeping the peace by the provision that every man shall be in a hundred and tithing, for it first appears in this definite form in the laws of Cnut,63 and both its history and meaning are disputable. This, however, is a matter of administrative mechanism rather than of the law itself. We shall have a word to say about this matter when hereafter we speak of frankpledge.

Feud and atonement

In Anglo-Saxon as well as in other Germanic laws we find that the idea of wrong to a person or his kindred is still primary, and that of offence against the common weal secondary, even in the gravest cases. Only by degrees did the modern principles prevail, that the members of the community must be content with the remedies afforded them by law, and must not seek private vengeance, and that, on the other hand, public offences cannot be remitted or compounded by private bargain.

Personal injury is in the first place a cause of feud, of private war between the kindreds of the wrong-doer and of the person wronged. This must be carefully distinguished from a right of specific retaliation, of which there are no traces in Germanic law. But the feud may be appeased by the acceptance of a composition. Some kind of arbitration was probably resorted to from a very early time to fix the amount. The next stage is a scale of compensation fixed by custom or enactment for death or minor injuries, which may be graduated according to the rank of the person injured. Such a scale may well exist for a time without any positive duty of the kindred to accept the composition it offers.

It may serve only the purpose of saving disputes as to the amount proper to be paid when the parties are disposed to make peace. But this naturally leads to the kindred being first expected by public opinion and then required by public authority not to pursue the feud if the proper composition is forthcoming, except in a few extreme cases which also finally disappear. At the same time, the wrong done to an individual extends beyond his own family; it is a wrong to the community of which he is a member; and thus the wrong-doer may be regarded as a public enemy. Such expressions as “outlaw against all the people” in the Anglo-Saxon laws preserve this point of view.65 The conception of an offence done to the state in its corporate person, or (as in our own system) as represented by the king, is of later growth.

Tariff of compositions

Absolute chronology has very little to do with the stage of growth or decay in which archaic institutions, and this one in particular, may be found in different countries and times. The Homeric poems show us the blood-feud in full force in cases of manslaying (there is little or nothing about wounding), tempered by ransom or composition which appears to be settled by agreement or arbitration in each case. In the classical period of Greek history this has wholly disappeared. But in Iceland, as late as the time of the Norman Conquest of England, we find a state of society which takes us back to Homer. Manslayings and blood-feuds are constant, and the semi-judicial arbitration of wise men, though often invoked, is but imperfectly successful in staying breaches of the peace and reconciling adversaries.

A man’s life has its price, but otherwise there is not even any recognized scale of compositions. In the Germanic laws both of England and of the mainland we find a much more settled rule some centuries earlier. Full scales of composition are established. A freeman’s life has a regular value set upon it, called wergild, literally “man’s price” or “man-payment,” or oftener in English documents wer simply; moreover, for injuries to the person short of death there is an elaborate tariff. The modern practice of assessing damages, though familiar to Roman law in the later republican period, is unknown to early Germanic law, nor were there in Germanic procedure any means of applying the idea if it had existed. Composition must generally be accepted if offered; private war is lawful only when the adversary obstinately refuses to do right.

In that case indeed, as we learn from a well-known ordinance of Alfred, the power of the ealdorman, and of the king at need, may be called in if the plaintiff is not strong enough by himself; in other words the contumacious denier of justice may be dealt with as an enemy of the commonwealth. At a somewhat later time we find the acceptance and payment of compositions enforced by putting the obligation between the parties under the special sanction of the king’s peace.68 But it was at least theoretically possible, down to the middle of the tenth century, for a manslayer to elect to bear the feud of the kindred.69 His own kindred, however, might avoid any share in the feud by disclaiming him; any of them who maintained him after this, as well as any of the avenging kinsfolk who meddled with any but the actual wrong-doer, was deemed a foe to the king (the strongest form of expressing outlawry) and forfeited all his property.

Difficulties in compelling submission to courts

It would appear that great difficulty was found both in obtaining specific evidence of offences, and in compelling accused and suspected persons to submit themselves to justice, and pay their fines if convicted. This may serve to explain the severe provisions of the later Anglo-Saxon period against a kind of persons described as “frequently accused,” “of no credit.” One who had been several times charged (with theft, it seems we must understand), and kept away from three courts running, might be pursued and arrested as a thief, and treated as an outlaw if he failed to give security to answer his accusers.78 A man of evil repute is already half condemned, and if he evades justice it is all but conclusive proof of guilt. In communities where an honest man’s neighbours knew pretty well what he was doing every day and most of the day, this probably did not work much injustice. And English criminal procedure still held to this point of view two centuries after the Conquest. It may be said to linger even now-a-days in the theoretical power of grand juries to present offences of their own knowledge.

Why no trial by battle

Putting together these indications of a feeble executive power, we are apt to think that the absence of trial by battle from Anglo-Saxon procedure can best be explained by the persistence of extra-judicial fighting. Gundobad of Burgundy, and other Germanic rulers after him, tempted their subjects into court by a kind of compromise. It is hardly possible to suppose that their ostensible reason of avoiding perjury was the real one. Rather it was understood, though it could not be officially expressed, that Burgundian and Lombard81 freemen would submit to being forbidden to fight out of court on the terms of being allowed to fight under legal sanction, thus combining the physical joy of battle with the intellectual luxury of strictly formal procedure. It seems plausible to suppose that the mechanism of Anglo-Saxon government was not commonly strong enough to accomplish even so much. All this, however, is conjectural. There is no reason to doubt that among some Germanic tribes battle was recognized as a form of ordeal from very ancient times; we have no means of solving the ulterior question why those tribes did not include the ancestors of the Anglo-Saxons.

Source: Sir Frederick Pollock, The History of English Law before the Time of Edward I (1895)

Anglo Saxon Ecclesiastical Courts and Medieval Law

Anglo Saxon Ecclesiastical Courts and Legal History

Legal Materials

(Compiled by the University of South Caroline Gould School of Law) Clark, George T., ed. Cartae Et Alia Munimenta Quae Ad Dominium De Glamorgancia Pertinent, 447-1721. 6 Vols . Talygarn: W. Lewis, 1910.

Abstract: Text in Latin with notes and introduction in English. Includes charters, pleas, inquisitions post mortem, etc.

Walsingham, Thomas, Matthew Paris, and Henry T. Riley , eds. Gesta Abbatum Monasterii Sancti Albani, a Thoma Walsingham, Regnante Ricardo Secundo, Ejusdem Ecclesiae Praecentore, Compilata. 3 Vols. Rerum Britannicarum Medii Aevi Scriptores (Rolls Series), 28. London: Longmans, Green, 1867-1969.

Abstract: Text in Latin. Chronicles of St. Albans Monastery. Vol. 1, AD 793-1290; Vol. 2, AD 1290-1349; Vol. 3, AD 1349-1411. Reprinted by Kraus, 1965.

Bibliographies of English Law History

Maxwell, William H. A Legal Bibliography of the British Commonwealth of Nations. Volume 1: English Law to 1800. London: Sweet and Maxwell, 1955-
Beale, Joseph H. A Bibliography of Early English Law Books. Cambridge: Harvard University Press, 1926.
Winfield, Percy H. The Chief Sources of English Legal History. Cambridge: Harvard University Press, 1925.

Anglo Saxon Court System