Anglo-Saxon Law in United Kingdom

History of Anglo-Saxon Criminal Law

The stage which the development of criminal law had reached in England by the reign of Edward the Confessor is thus described by Pollock and Maitland (Hist. Eng. Law, ii. 447): “On the eve of the Norman Conquest what we may call Anglo-Saxon law. the criminal law of England (but it was also the law of torts or civil wrongs) contained four elements which deserve attention: Its past history had in the main consisted of the varying relations between them. We have to speak of outlawry, of the blood feud (faidus), of the tariffs of wer and wite (fredus or friede), and bot, of punishment in life and limb. As regards the malefactor the community may assume one of four attitudes: it may make war on him; it may have him exposed to the vengeance of those whom he has wronged; it may suffer him to make atonement; it may inflict on him a determinate punishment, death, mutilation or the like.”

The wite or sum paid to the king or lord is now thought to have been originally not a penalty but a fee for time and trouble taken in hearing and determining a controversy. But at an early stage fines for breach of peace were imposed. An evil result from the public point of view followed from the system of atoning for crime by pecuniary mulct. “Criminal jurisdiction became a source of revenue.” So early as Canute’s time certain crimes were pleas of the crown; but grants of criminal jurisdiction, with the attendant forfeitures, were freely made to prelates, towns and lords of manors, and some traces of this jurisdiction still survive (e.g. the criminal jurisdiction of the justices of the soke (soc) of Peterborough, and the rights of some boroughs, e.g. Nottingham, to forfeitures).

Outlawry soon ceased to be a mode of punishment, and became, as it still is, a process to compel submission to justice (Crown Office Rules, 1906, rules 88-110). Certain crimes, such as murder, rape, arson and burglary, became unamendable or bootless, i.e. placed the offender’s life, limb, lands and goods at the king’s mercy. These crimes came to be generally described by the name felony. Other crimes became punishable by fines which took the place of wites. These were styled trespasses and correspond to what is now called misdemeanour.

Source: Encyclopedia Britannica (1911)

History of the Anglo-Saxon Law

Imperfection of written records of early Germanic law

The habit of preserving some written record of all affairs of importance is a modern one in the north and west of Europe. But it is so prevalent and so much bound up with our daily habits that we have almost forgotten how much of the world’s business, even in communities by no means barbarous, has been carried on without it. And the student of early laws and institutions, although the fact is constantly thrust upon him, can hardly accept it without a sort of continuing surprise. This brings with it a temptation of some practical danger, that of overrating both the trustworthiness of written documents and the importance of the matters they deal with as compared with other things for which the direct authority of documents is wanting. The danger is a specially besetting one in the early history of English law; and that inquirer is fortunate who is not beguiled into positive error by the desire of making his statements appear less imperfect. In truth, the manners, dress, and dialects of our ancestors before the Norman Conquest are far better known to us than their laws.

Historical inquiry must be subject, in the field of law, to peculiar and inevitable difficulties. In most other cases the evidence, whether full or scanty, is clear so far as it goes. Arms, ornaments, miniatures, tell their own story. But written laws and legal documents, being written for present use and not for the purpose of enlightening future historians, assume knowledge on the reader’s part of an indefinite mass of received custom and practice. They are intelligible only when they are taken as part of a whole which they commonly give us little help to conceive. It may even happen that we do not know whether a particular document or class of documents represents the normal course of affairs, or was committed to writing for the very reason that the transaction was exceptional. Even our modern law is found perplexing, for reasons of this kind, not only by foreigners, but by Englishmen who are not lawyers.

We cannot expect, then, that the extant collections of Anglo-Saxon laws should give us anything like a complete view of the legal or judicial institutions of the time. Our Germanic ancestors were no great penmen, and we know that the reduction of any part of their customary laws to writing was in the first place due to foreign influence. Princes who had forsaken heathendom under the guidance of Roman clerks made haste, according to their lights, to imitate the ways of imperial and Christian Rome.

Although English princes issued written dooms with the advice of their wise men at intervals during nearly five centuries, it seems all but certain that none of them did so with the intention of constructing a complete body of law. The very slight and inconspicuous part which procedure takes in the written Anglo-Saxon laws is enough to show that they are mere superstructures on a much larger base of custom. All they do is to regulate and amend in details now this branch of customary law, now another. In short, their relation to the laws and customs of the country as a whole is not unlike that which Acts of Parliament continue to bear in our own day to the indefinite mass of the common law.

Punishment

The only punishments, in the proper sense, generally applicable to freemen, were money fines, and death in the extreme cases where redemption with a money fine was not allowed. A credible tradition preserved in the prologue to Alfred’s laws tells us that after the conversion of the English to Christianity the bishops and wise-men “for the mild-heartedness sake that Christ taught” sanctioned the redemption by fine of offences less than that of treason against one’s lord. Mutilation and other corporal punishments are prescribed (but with the alternative of redemption by a heavy fine) for false accusers, for habitual criminals, and for persons of evil repute who have failed in the ordeal.

Imprisonment occurs in the Anglo-Saxon laws only as a means of temporary security. Slaves were liable to capital and other corporal punishment, and generally without redemption. The details have no material bearing on the general history of the law, and may be left to students of semi-barbarous manners. Outlawry, at first a declaration of war by the commonwealth against an offending member, became a regular means of compelling submission to the authority of the courts, as in form it continued so to be down to modern times. In criminal proceedings, however, it was used as a substantive penalty for violent resistance to a legal process or persistent contempt of court. Before the Conquest, outlawry involved not only forfeiture of goods to the king, but liability to be killed with impunity. It was no offence to the king to kill his enemy, and the kindred might not claim the wergild. It was thought, indeed, down to the latter part of the sixteenth century, that the same reason applied to persons under the penalties appointed by the statutes of praemunire, which expressly included being put out of the king’s protection.

Special offences treason

Offences specially dealt with in various parts of the Anglo-Saxon laws are treason, homicide, wounding and assault (which, however, if committed by freemen, are more wrongs than crimes), and theft. Treason to one’s lord, especially to the king, is a capital crime. And the essence of the crime already consists in compassing or imagining the king’s death, to use the later language of Edward III.’s Parliament.82 The like appears in other Germanic documents.83 It seems probable, however, that this does not represent any original Germanic tradition, but is borrowed from the Roman law of maiestas, of which one main head was plotting against the lives of the chief magistrates.

No part of the Roman law was more likely to be imitated by the conquerors of Roman territory and provinces; and when an idea first appears in England in Alfred’s time, there is no difficulty whatever in supposing it imported from the continent. Not that rulers exercising undefined powers in a rude state of society needed the Lex Julia to teach them the importance of putting down conspiracies at the earliest possible stage. We are now speaking of the formal enunciation of the rule. On the other hand, the close association of treason against the king with treason against one’s personal lord who is not the king is eminently Germanic. This was preserved in the “petty treason” of medieval and modern criminal law.

The crime of treason was unatonable, and the charge had to be repelled by an oath adequate in number of oath-helpers, and perhaps in solemnity, to the wergild of the king or other lord as the case might be. If the accused could not clear himself by oath, and was driven to ordeal, he had to submit to the threefold ordeal,86 that [58] is, the hot iron was of three pounds’ weight instead of one pound, or the arm had to be plunged elbow-deep instead of wrist-deep into the boiling water.

Homicide.Homicide appears in the Anglo-Saxon dooms as a matter for composition in the ordinary case of slaying in open quarrel. There are additional public penalties in aggravated cases, as where a man is slain in the king’s presence or otherwise in breach of the king’s peace. And a special application of the king’s protection is made in favour of strangers; a matter of some importance when we remember that before the time of Alfred a Mercian was a stranger in Kent, and a Wessex man in Mercia. Two-thirds of a slain stranger’s wer goes to the king. We find a rudiment of the modern distinction between murder and manslaughter, but the line is drawn not between wilful and other killing, but between killing openly and in secret. It would seem indeed that “morð” at one time meant only killing by poison or witchcraft. The offence of “morð” was unatonable, and the murderer, if ascertained, might be delivered over to the dead man’s kindred.

Justifiable homicide.An outlaw might, as we have seen, be slain with impunity; and it was not only lawful but meritorious to kill a thief flying from justice.89 An adulterer taken in flagrante delicto by the woman’s lawful husband, father, brother, or son, might be killed without risk of blood-feud. In like manner homicide was excusable when the slayer was fighting in defence of his lord, or of a man whose lord he was, or of his kinsman; but a man must in no case fight against his own lord. A man who slew a thief (or, it would seem, any one) was expected to declare the fact without delay, otherwise the dead man’s kindred might clear his fame by their oath and require the slayer to pay wergild as for a true man. We do not find any formalities prescribed in the genuine dooms. The safest course would no doubt be to report to the first credible person met with, and to the first accessible person having any sort of authority.

Personal injuries: misadventure.Injuries and assaults to the person were dealt with by a minute scale of fixed compensations, which appears, though much abridged, as late as the Anglo-Norman compilations. But rules of this kind are not heard of in practice after the Conquest. It is worth while to notice that the contumelious outrage of binding a freeman, or shaving his head in derision, or shaving off his beard, was visited with heavier fines than any but the gravest wounds.93 In the modern common law compensation for insult, as distinct from actual[31] bodily hurt, is arrived at only in a somewhat indirect fashion, by giving juries a free hand in the measure of damages. Accidental injuries are provided for in a certain number of particular cases. A man carrying a spear should carry it level on his shoulder in order to be free from blame if another runs upon the point. If the point is three fingers or more above the butt (so as to bring the point to the level of a man’s face), he will be liable to pay wer in case of a fatal accident, and all the more if the point were in front (so that he could have seen the other’s danger).

This is rational enough; but in the case of harm ensuing even by pure accident from a distinct voluntary act, we find that the actor, however innocent his intention, is liable, and that the question of negligence is not considered at all. Legis enim est qui inscienter peccat, scienter emendet, says the compiler of the so-called laws of Henry I., translating what was doubtless an English proverb.95 There is no earlier English authority, but such is known to have been the principle of all old Germanic laws. It seems to have extended, or to have been thought by some to extend, even to harm done by a stranger with weapons which the owner bad left unguarded. Cnut’s laws expressly declare, as if it were at least an unsettled point, that only the actual wrong-doer shall be liable if the owner can clear himself of having any part or counsel in the mischief.

Borrowing or stealing another man’s weapons, or getting them by force or fraud from an armourer who had them in charge for repair, seems to have been a rather common way of obscuring the evidence of manslaying, or making false evidence; and it was a thing that might well be done in collusion. One man would be ready to swear with his oath-helpers, “I did not kill him,” the other, with equal confidence, “No weapon of mine killed him.” And in consequence, it would seem, of the general suspicion attaching[32] to every one possibly concerned, an armourer was bound to answer to the owner at all hazards (unless it were agreed to the contrary) for the safe custody and return of weapons entrusted to him, perhaps even for their return free from any charge of having been unlawfully used.99 Such a charge might have involved the forfeiture of the weapon until quite modern times.

Archaic principle of responsibility for accidents.The extreme difficulty of getting any proof of intention, or of its absence, in archaic procedure is, perhaps, the best explanation of rules of this kind. At all events, they not only are characteristic of early German law, but they have left their mark on the developed common law to a notable extent. In modern times the principle of general responsibility for pure accidents arising from one’s lawful act has been disallowed in the United States, and more lately in [61] England. But, as regards the duty of safely keeping in cattle, and in the case of persons collecting or dealing with things deemed of a specially dangerous kind, the old Germanic law is still the law of this land and of the greater part of North America.

Fire, which English law has regarded for several centuries as a specially dangerous thing in this sense, and which is dealt with in some of the early Germanic dooms, is not mentioned for this purpose in our documents.100 Liability for damage done by dogs is on the other hand rather elaborately dealt with by a scale of compensation increasing after the first bite.

There are traces of the idea which underlay the Roman noxal actions, and which crops up in the medieval rule of deodand, that where a man is killed by accident, the immediate cause of death, be it animate or inanimate, is to be handed over to the avenger of blood as a guilty thing. When men were at work together in a forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man’s kinsfolk if they took it away within thirty days.102 This kind of accident is still quite well known in the forest countries of Europe, as witness the rude memorial pictures, entreating the passer’s prayers, that may be seen in any Tyrolese valley. Also a man whose beast wounded another might surrender the beast as an alternative for money compensation.

Theft.Theft, especially of cattle and horses, appears to have been by far the commonest and most troublesome of offences. There is a solitary and obscure reference to “stolen flesh” in the laws of Ine.104 Perhaps this is to meet the case of a thief driving cattle a certain distance and then slaughtering them, and hiding the flesh apart from the hides and horns, which would be more easily identified. If we are surprised by the severity with which our ancestors treated theft, we have only to look at the prevalence of horse-stealing in the less settled parts of the western American states and territories in our own time, and the revival of archaic methods for its abatement. Collusion with thieves on the part of seemingly honest folk appears to have been thought quite possible: Cnut required every man above twelve years to swear that he would be neither a thief nor an accomplice with thieves,105 and special penalties for letting a thief escape, or failing to raise, or follow, the hue and cry, point in the same direction.106 Slavery was a recognized penalty when the thief was unable to make restitution.

This, if it stood alone, might be regarded as handing over the debtor’s person by way of compensation rather than a punishment in the modern sense. But moreover the offender’s whole family might lose their freedom as accomplices. The harshness of this rule was somewhat relaxed if the thief’s wife could clear herself by oath from having had any part in stolen cattle which had been found in his house.107 But as late as the early part of the eleventh century, Wulfstan’s homily108 complains that “cradle-children” are unjustly involved in the slavery of their parents. All this, however, belongs to social antiquities rather than to legal history. The common law of theft is wholly post-Norman. Nor is it needful to dwell on the Anglo-Saxon treatment of special and aggravated forms of theft, such as sacrilege.109 Stealing on Sunday, in Lent, and on Christmas, Easter, or Ascension Day, was punishable with a double fine by the old Wessex law.110

Property.In a modern system of law we expect a large portion of the whole to be concerned with the rules of acquiring, holding, and transferring property. We look for distinctions between land and movables, between sale and gift, between the acts completed among living[34] persons and dispositions to take effect by way of inheritance. If the word property be extended to include rights created by contract, we may say that we contemplate under this head by far the greater and weightier part of the whole body of legal rules affecting citizens in their private relations. But if we came with such expectations to examine laws and customs so archaic as the Anglo-Saxon, we should be singularly disappointed.

Here the law of property is customary and unwritten, and no definite statement of it is to be found anywhere, while a law of contract can hardly be said to exist, and, so far as it does exist, is an insignificant appurtenance to the law of property. But we must remember that even Hale and Blackstone, long after that view had ceased to be appropriate, regarded contract only as a means of acquiring ownership or possession. Yet more than this; it is hardly correct to say that Anglo-Saxon customs or any Germanic customs, deal with ownership at all. What modern lawyers call ownership or property, the dominium of the Roman system, is not recognized in early Germanic ideas. Possession, not ownership, is the leading conception; it is possession that has to be defended or recovered, and to possess without dispute, or by judicial award after a dispute real or feigned, is the only sure foundation of title and end of strife. A right to possess, distinct from actual possession, must be admitted if there is any rule of judicial redress at all; but it is only through the conception of that specific right that ownership finds any place in pure Germanic law. Those who have studied the modern learning of possessory rights and remedies are aware that our common law has never really abandoned this point of view.

Sale and other contracts.Movable property, in Anglo-Saxon law, seems for all practical purposes to be synonymous with cattle. Not that there was no other valuable property; but arms, jewels, and the like, must with rare exceptions have been in the constant personal custody of the owners or their immediate attendants. Our documents leave us in complete ignorance of whatever rules existed. We may assume that actual delivery was the only known mode of transfer between living persons; that the acceptance of earnest-money and giving of faith and pledges were customary means of binding a bargain; and that contracts in writing were not in use. There is no evidence of any regular process of enforcing contracts, but no doubt promises of any special importance were commonly made by oath, with the purpose and result of putting them under the sanction of the church.

There is great reason to believe that everywhere or almost everywhere a religious sanction of promises has preceded the secular one, and that honourable obligation has been more effective than might be supposed in aiding or supplementing the imperfections of legality. Apparently the earliest form of civil obligation in German law was the duty of paying wergild. Payment, when it could not be made forthwith, was secured by pledges, who no doubt were originally hostages. Gradually the giving of security sinks into the background, and the deferred duty of payment is transformed into a promise to pay. But our Anglo-Saxon authorities are of the very scantiest. We find the composition of a feud secured by giving pledges and the payment by instalments regulated; and in Alfred’s laws there is mention of a solemn kind of promise called “god-borh”; if a suit is brought upon it, the plaintiff must make his fore-oath in four churches, and when that has been done, the defendant must clear himself in twelve, so that falsehood on either side would involve manifold perjury and contempt of the church and the saints.114 Here we seem to have a mixture of secular and ecclesiastical sanctions, rendered all the easier by the bishop constantly being, as we have seen, the chief judicial officer of the shire.

But this must have been a very special procedure, and probably confined to persons of high rank. And it is hard to tell what the subject-matter of these solemn undertakings can have been, unless it were marriages of the parties’ children and what we now should call family settlements and, perhaps, reconciliation of standing feuds. We may guess, from what is known of the practice of local courts in the twelfth and thirteenth centuries, that before the Conquest the hundred courts did to some extent do justice in matters of bargain[36] and promise in the ordinary affairs of life. But we have no direct information whatever.

Claims for stolen things: warranty.On the other hand, there runs persistently through the Anglo-Saxon laws a series of ordinances impressing on buyers of cattle the need of buying before good witnesses. But this has nothing to do with the validity of the sale between the parties. The sole purpose, judging by the terms and context of these enactments, is to protect the buyer against the subsequent claims of any person who might allege that the cattle had been stolen from him. Difficulties of this kind were especially rife when the sale had been made (in the earlier times) in another English kingdom, or up the country. Hlothær and Eadric laid down the precautions to be observed by a Kentish man buying cattle in London, then a Mercian town.

Evidently great suspicion attached to sales made anywhere out of open market. Some ordinances require the presence of the portreeve or other credible men at sales without the gates; others attempt to prohibit selling altogether except in towns. Afterwards witnesses are required in town and country alike,116 and in the latest period we find the number of four witnesses specified.117 A buyer who neglected to take witness was liable to eviction, if the cattle were claimed as stolen, without even the chance of calling the seller to warrant him, and he might also incur a forfeiture to the lord of the place, and be called on to clear himself by oath of any complicity in the theft. If he had duly taken witness, he still had to produce the seller, or, if the seller could not be found, to establish his own good faith by oath.

If the seller appeared, he had in turn to justify his possession, and this process might be carried back to the fourth remove from the ultimate purchaser. These elaborate provisions for vouching to warranty (A.-S. teám)118 or the custom on which they were founded, persisted for some time after the Norman Conquest,119 and are interesting by their analogy to the doctrine of warranty in the law of real property, which afterwards underwent a far more full and technical development, and remained, long after it had been forgotten in practice, at the foundation of many parts of modern conveyancing. The dooms of Ine contain a curious archaic provision120 for a buyer clearing himself by an oath taken over the stolen property at the seller’s grave, in the case of the seller having died since the purchase of the slave, or other thing in dispute.

Land tenure

With regard to the tenure of land we have a considerable bulk of information, derived partly from charters and wills, partly from occasional passages in the laws, and partly from other documents, especially the tract known as Rectitudines singularum personarum. We have gone into the matter elsewhere, and we may confine ourselves here to a short statement of what is positively known.

Book-land.Our Anglo-Saxon charters or books are mostly grants of considerable portions of land made by kings to bishops and religious houses, or to lay nobles. Land so granted was called book-land, and the grant conferred a larger dominion than was known to the popular customary law. During the ninth century and the early part of the tenth the grant usually purports to be with the consent of the witan. Alodium (of which we have no English form) is, in documents of the Norman age, a regular Latin translation of book-land. There is great reason to believe that a grant of book-land usually made no difference at all to the actual occupation of the soil. It was a grant of lordship and revenues, and in some cases of jurisdiction and its profits. The inhabitants rendered their services and dues to new lords, possibly enough to the same bailiff on behalf of the new lord, and things went on otherwise as before. The right of alienating book-land depended on the terms of the original grant. They were often large enough to confer powers equivalent to those of a modern tenant in fee simple. Accordingly book-land granted by such terms could be and was disposed of by will, though it is impossible to say that the land dealt with in extant Anglo-Saxon wills was always book-land. Lords of book-land might and sometimes did create smaller holdings of the same kind by making grants to dependants. It is important to remember that book-land was a clerkly and exotic institution, and that grants of it owe their existence directly or indirectly to royal favour, and throw no light, save[38] incidentally, on the old customary rules of landholding.

Inferior tenures: læ´ n-land.When the day of conquest was at hand, many of the tillers of the ground were dependent on a lord to whom they owed rents and services substantially like those of which we have ample and detailed evidence in later documents. A large proportion of them were personally freemen;122 the homesteads were several, and every freeman was answerable for his own fence.123 There is little doubt that, except in the western counties, common-field agriculture was general if not universal;124 and probably the scheme of distribution and the normal amount of holdings was very like that which we find after the Conquest. Freemen sometimes held considerable estates under a lord, but our authorities are too scanty to enable us to say on what terms. In the later Anglo-Saxon period, land held of a superior, whether much or little, is called læ´n-land. It is not clear whether this term extended to customary tenures (those for example which would result from a grant of book-land as between the new lord and the occupiers) or was limited to interests created by an express agreement. In the latter case it may be compared with the Gallo-Frankish precarium, from which indeed it was perhaps derived.

Folk-land.Folk-land is a term which occurs only in a few documents, and then without any decisive explanation. In the most authoritative of these, a law of Edward the Elder, it is contrasted with book-land as if it included all land that was not book-land. Spelman, so reading the passage, defined folk-land as land held by common, that is customary law, without written title. On this view an Englishman who was asked, “What do you mean by folk-land? ” would have answered, “Land held by folk-right.” In 1830 John Allen put forth another view which prevailed for two generations. He said127 that “folk-land, as the word imports, was the land of the folk or people. It was the property of the community.” The proposed analogy to the Latin ager publicus was accepted as confidently as it was proposed, and with singularly little discussion, by Kemble and almost every one who treated of Anglo-Saxon land tenures down to 1893. Difficulties occurred, however, in working out Allen’s theory, and were found to increase as one scholar after another entered farther upon details.

In particular, it was hard to account for the number of freemen, which must have been considerable in the time of Edward the Elder at all events, holding land which was not book-land. Various conjectural names for that kind of holding were proposed by Kemble and others, but for none of them was there any authority. If these lands were included in folk-land, and folc-land meant ager publicus, then every one who had not book-land was in name and in law a mere tenant from the state. If not, there was no evidence that land held by the most general and practically important form of title had any proper name at all. Neither conclusion could be deemed satisfying. In 1893 Mr. Paul Vinogradoff128 pointed out that Allen’s theory was really gratuitous.

The documents do not by any means require it; the analogy of other compounds in which the word folc occurs is against it; and when it turns out to give rise to more difficulties than it removes, it is better to fall back upon the older and simpler explanation. Folk-land, then, appears to have been, as Spelman said, land held without written title under customary law. We have no right to assume that there were not varieties of tenure within this general description, or that custom was uniform even in the same kingdom. It is probable that the alienation of folk-land was difficult, and we do not know to what extent, if to any considerable extent, power to dispose of it by will had been introduced. The problem of reconstructing the old folk-right in detail belongs, however, rather to the history of Germanic social antiquities than to that of the laws of England; and our interpretation of the scanty evidence available must depend in great measure on the manner in which the fuller evidence of the two centuries after the Conquest is interpreted.

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

Anglo-Saxon Law and the Anglo-Norman period

In relation to the legal history of the Anglo-Norman period, see here.