Anglo Saxon in United Kingdom

This issue under the Ruling of the Anglo Saxons et seq

Survey of Anglo-Saxon legal institutions

On the whole the state of English law before the Conquest presents a great deal of obscurity to a modern inquirer, not so much for actual lack of materials as for want of any sure clue to their right interpretation at a certain number of critical points. Nevertheless we cannot trace the history of our laws during the two centuries that followed the Conquest without having some general notions of the earlier period; and we must endeavour to obtain a view that may suffice for this purpose. It would be a barren task to apply the refined classification of modern systems to the dooms of Ine and Alfred or the more ambitious definitions of the Leges Henrici Primi. We shall take the main topics rather in their archaic order of importance. First comes the condition of persons; next, the establishment of courts, and the process of justice; then the rules applicable to breaches of the peace, wrongs and offences, and finally the law of property, so far as usage had been officially defined and enforced, or new modes of dealing with property introduced. The origin and development of purely political institutions has been purposely excluded from our scope.

Personal conditions: lordship

As regards personal condition, we find the radical distinction, universal in ancient society, between the freeman and the slave. But in the earliest English authorities, nay, in our earliest accounts of Germanic society, we do not find it in the clear-cut simplicity of Roman law. There is a great gulf between the lowest of freemen and the slave; but there are also differences of rank and degrees of independence among freemen, which already prepare the way for the complexities of medieval society. Some freemen are lords, others are dependents or followers of lords. We have nothing to show the origin or antiquity of this division; we know that it was the immemorial custom of Germanic chiefs to surround themselves with a band of personal followers, the comites described by Tacitus, and we may suppose that imitation or repetition of this custom led to the relation of lord and man being formally recognized as a necessary part of public order. We know, moreover, that as early as the first half of the tenth century the division had become exhaustive.

An ordinance of Æthelstan treats a “lordless man” as a suspicious if not dangerous person; if he has not a lord who will answer for him, his kindred must find him one; if they fail in this, he may be dealt with (to use the nearest modern terms) as a rogue and vagabond.5 The term “lord” is applied to the king, in a more eminent and extensive but at the same time in a looser sense, with reference to all men owing or professing allegiance to him.

Kings were glad to draw to their own use, if they might, the feeling of personal attachment that belonged to lordship in the proper sense, and at a later time the greater lords may now and again have sought to emulate the king’s general power. In any case this pervading division of free persons into lords and men, together with the king’s position as general over-lord, combined at a later time with the prevalence of dependent land tenures to form the more elaborate arrangements and theories of medieval feudalism. It does not seem possible either to assign any time in English history when some freemen did not hold land from their personal lords, or to assign the time when this became a normal state of things.

In the latter part of the ninth century there was already a considerable class of freemen bound to work on the lands of others, for an ordinance of Alfred fixes the holidays that are to be allowed them; and we can hardly doubt that this work was incident to their own tenure. At all events dependent landholding appears to have been common in the century before the Norman Conquest. It was the work of the succeeding century to establish the theory that all land must be “held of” some one as a fixed principle of English law, and to give to the conditions of tenure as distinct from the personal status of the tenant an importance which soon became preponderant, and had much to do with the ultimate extinction of personal servitude under the Tudor dynasty.

The family

Dependence on a lord was not the only check on the individual freedom of a freeborn man. Anglo-Saxon polity preserved, even down to the Norman Conquest, many traces of a time when kinship was the strongest of all bonds. Such a stage of society, we hardly need add, is not confined to any one region of the world or any one race of men. In its domestic aspect it may take the form of the joint family or household which, in various stages of resistance to modern tendencies and on various scales of magnitude, is still an integral part of Hindu and South Slavonic life. When it puts on the face of strife between hostile kindreds, it is shown in the war of tribal factions, and more specifically in the blood-feud. A man’s kindred are his avengers; and, as it is their right and honour to avenge him, so it is their duty to make amends for his misdeeds, or else maintain his cause in fight.

Step by step, as the power of the State waxes, the self-centred and self-helping autonomy of the kindred wanes. Private feud is controlled, regulated, put, one may say, into legal harness; the avenging and the protecting clan of the slain and the slayer are made pledges and auxiliaries of public justice. In England the legalized blood-feud expired almost within living memory, when the criminal procedure by way of “appeal” was finally abolished. We have to conceive, then, of the kindred not as an artificial body or corporation to which the State allows authority over its members in order that it may be answerable for them, but as an element of the State not yielding precedence to the State itself. There is a constant tendency to conflict between the old customs of the family and the newer laws of the State; the family preserves archaic habits and claims which clash at every turn with the development of a law-abiding commonwealth of the modern type. In the England of the tenth century,9 we find that a powerful kindred may still be a danger to public order, and that the power of three shires may be called out to bring an offending member of it to justice.

At the same time the family was utilized by the growing institutions of the State, so far as was found possible. We have seen that a lordless man’s kinsfolk might be called upon to find him a lord. In other ways too the kindred was dealt with as collectively responsible for its members.10 We need not however regard the kindred as a defined body like a tribe or clan, indeed this would not stand with the fact that the burden of making and the duty of exacting compensation ran on the mother’s side as well as the father’s. A father and son, or two half-brothers, would for the purposes of the blood-feud have some of their kindred in common, but by no means all.

The legal importance of the kindred continues to be recognized in the very latest Anglo-Saxon custumals, though some details that we find on the subject in the so-called laws of Henry I. fall under grave suspicion, not merely of an antiquary’s pedantic exaggeration, but of deliberate copying from other Germanic law-texts. It is probable that a man could abjure his kindred, and that the oath used for the purpose included an express renunciation of any future rights of inheritance. We do not know whether this was at all a common practice, or whether any symbolic ceremonies like those of the Salic law were or ever had been required in England.

Ranks: ceorl, eorl, gesíð

Further, we find distinctions of rank among freemen which, though not amounting to fundamental differences of condition, and not always rigidly fixed, had more or less definite legal incidents. From the earliest times a certain preeminence is accorded (as among almost all Germanic people)12 to men of noble birth. The ordinary freeman is a “ceorl,” churl (there is no trace before the Norman Conquest of the modern degradation of the word); the noble by birth is an “eorl.” This last word came later, under Danish influence, to denote a specific office of state, and our present “earl” goes back to it in that sense.

The Latin equivalent comes got specialized in much the same way. But such was not its ancient meaning. Special relations to the king’s person or service produced another and somewhat different classification. “Gesíð” was the earliest English equivalent, in practical as well as literal meaning, of comes[9] as employed by Tacitus; it signified a well-born man attached to the king by the general duty of warlike service, though not necessarily holding any special office about his person. It is, however, a common poetic word, and it is not confined to men. It was current in Ine’s time but already obsolete for practical purposes in Alfred’s; latterly it appears to have implied hereditary rank and considerable landed possessions. The element of noble birth is emphasized by the fuller and commoner form “gesíðcund.”

Thegn

The official term of rank which we find in use in and after Alfred’s time is “thegn”13 (þegen, in Latin usually minister). Originally a thegn is a household officer of some great man, eminently and especially of the king. From the tenth century to the Conquest [38] thegnship is not an office unless described by some specific addition (horsþegen, discþegen, and the like) showing what the office[10] was. It is a social condition above that of the churl, carrying with it both privileges and customary duties. The “king’s thegns,” those who are in fact attached to the king’s person and service, are specially distinguished. We may perhaps roughly compare the thegns of the later Anglo-Saxon monarchy to the country gentlemen of modern times who are in the commission of the peace and serve on the grand jury. But we must remember that the thegn had a definite legal rank.

His wergild, for example, the fixed sum with which his death must be atoned for to his kindred, or which he might in some cases have to pay for his own misdoing, was six times as great as a common man’s; and his oath weighed as much more in the curious contest of asseverations, quite different from anything we now understand by evidence, by which early Germanic lawsuits were decided. It is stated in more than one old document that a thegn’s rights might be claimed by the owner of five hides (at the normal value of the hide, 600 acres) of land, a church and belfry, a “burgh-gate-seat” (which may imply a private jurisdiction, or may only signify a town house), and a special place in the king’s hall. The like right is ascribed to a merchant who has thrice crossed “the wide sea” (the North Sea as opposed to the Channel) at his own charges.14 This may be suspected, in the absence of confirmation, of being merely the expression of what, in the writer’s opinion, an enlightened English king ought to have done to encourage trade, still it is not improbable. We have no reason to reject the tradition about the five hides, which is borne out by some later evidence. But this gives us no warrant in any case for denying that a thegn might have less than five hides of land, or asserting that he would forfeit his rank if he lost the means of supporting it on the usual scale. However, these details are really of no importance in the general history of our later law, for they left no visible mark on the structure of Anglo-Norman aristocracy.

Other distinctions

The last remark applies to certain other distinctions which are mentioned in our authorities as well known, but never distinctly explained. We read of “twelf-hynd” and “twy-hynd” men, apparently so called from their wergild being twelve hundred and two hundred shillings respectively. There was also an intermediate class of “six-hynd” men. It would seem that the “twelf-hynd” men were thegns, and the “twy-hynd” man might or might not be. But these things perhaps had no more practical interest for Glanvill, certainly no more for Bracton, than they have for us.

Slavery

Slavery, personal slavery, and not merely serfdom or villeinage consisting mainly in attachment to the soil, existed, and was fully recognized, in England until the twelfth century. We have no means of knowing with any exactness the number of slaves, either in itself, or as compared with the free population. But the recorded manumissions would alone suffice to prove that the number was large. Moreover, we know, not only that slaves were bought and sold, but that a real slave-trade was carried on from English ports. This abuse was increased in the evil times that set in with the Danish invasions. Raids of heathen Northmen, while they relaxed social [40] order and encouraged crime, brought wealthy slave-buyers, who would not ask many questions, to the unscrupulous trader’s hand. But slaves were exported from England much earlier. Selling a man beyond the seas occurs in the Kentish laws as an alternative for capital punishment; and one obscure passage seems to relate to the offence of kidnapping freeborn men.17 Ine’s dooms forbade the men of Wessex to sell a countryman beyond seas, even if he were really a slave or justly condemned to slavery.

Slave-trade.Selling Christian men beyond seas, and specially into bondage to heathen, is forbidden by an ordinance of Æthelred, repeated almost word for word in Cnut’s laws. Wulfstan, Archbishop of York, who probably took an active part in the legislation of Æthelred, denounced the practice in his homilies,20 and also complained that men’s thrall-right was narrowed. This is significant as pointing to a more humane doctrine, whatever the practice may have been, than that of the earlier Roman law. It seems that even the thrall had personal rights of some sort, though we are not able with our present information to specify them. Towards the end of the eleventh century the slave trade from Bristol to Ireland (where the Danes were then in power) called forth the righteous indignation of another Wulfstan, the Bishop of Worcester, who held his place through the Conquest. He went to Bristol in person, and succeeded in putting down the scandal. Its continued existence till that time is further attested by the prohibition of Æthelred and Cnut being yet again repeated in the laws attributed to William the Conqueror.22

Manumission

Freemen sometimes enslaved themselves in times of distress as the only means of subsistence; manumission of such persons after the need was past would be deemed a specially meritorious work, if not a duty. Sometimes well-to-do people bought slaves, and immediately afterwards freed them for the good of their own souls, or the soul of some ancestor. At a later time we meet with formal sales by the lord to a third person in trust (as we should now say) to manumit the serf. The Anglo-Saxon cases do not appear to be of this kind. Sometimes a serf “bought himself” free. We may suppose that a freedman was generally required or expected to take his place among the free dependants of his former master; and the express licence to the freedman to choose his own lord, which is occasionally met with, tends to show that this was the rule. The lord’s rights over the freedman’s family were not affected if the freedman left the domain. There is nothing to suggest that freed-men were treated as a distinct class in any other way. What has just been said implies that a bondman might acquire, and not unfrequently did acquire, money of his own; and, in fact, an ordinance of Alfred expressly makes the Wednesday in the four ember weeks a free day for him, and declares his earnings to be at his own disposal. Moreover, even the earliest written laws constantly assume that a “theow” might be able to pay fines for public offences.

Slavery and serfage

On the whole the evidence seems to show that serfdom was much more of a personal bondage and less involved with the occupation of particular land before the Norman Conquest than after; in short that it approached, though it only approached, the slavery of the Roman law. Once, and only once, in the earliest of our Anglo-Saxon texts,27 we find mention in Kent, under the name of lœt, of the half-free class of persons called litus and other like names in continental documents. To all appearance there had ceased to be any such class in England before the time of Alfred: it is therefore needless to discuss their condition or origin.

There are traces of some kind of public authority having been required for the owner of a serf to make him free as regards third persons; but from almost the earliest Christian times manumission at an altar had full effect.28 In such cases a written record was commonly preserved in the later Anglo-Saxon period at any rate,[14] but it does not appear to have been necessary or to have been what we should now call an operative instrument. This kind of manumission disappears after the Conquest, and it was long disputed whether a freed bondman might not be objected to as a witness or oath-helper.

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

Royal Charters and Writs of Proclamation

Anglo Saxon and Medieval Law

Anglo Saxon and Legal History

Legal Materials

(Compiled by the University of South Caroline Gould School of Law) Birch, Walter de Gray, ed. and trans. The Historical Charters and Constitutional Documents of the City of London. Rev. ed. London: Whiting, 1887.

Bond, Edward A., ed. Facsimiles of Ancient Charters in the British Museum. 4 Parts. London: The British Museum, 1873-1878.

Abstract: 144 plates which are transcribed but not translated. Continued by Warner and Ellis, Facsimiles of Royal and other charters in the British Museum (1903).

Bristol (England). Bristol : the City Charters : Containing the Original Institution of Mayors … and All … Officers Whatsoever … Also of a Common-Council, and the Ancient Laws and Customs of the City … Corrected According to the Latin Originals . Bristol: F. Farley, 1736.

Notes: Also available online in ECCO (subscription database)Abstract: Text in English from the original Latin.

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.

Dugdale, William, and Roger Dodsworth, ed. Monasticon Anglicanum : a History of the Abbies and Other Monasteries, Hospitals, Frieries, and Cathedral and Collegiate Churches, With Their Dependencies, in England and Wales : Also of All Such Scotch, Irish, and French Monasteries, As Were in Any Manner Connected With Religious Houses in England .. 6 Vols. in 8. New enlarged ed.1817..

Notes: 1693 edition also available online in Early English Books Online; 1718 edition availale online in ECCO (subscription databases)Abstract: “New edition, enriched with a large accession of materials now first printed from leiger (sic) books, chartularies, rolls, and other documents preserved in the national archives, public libraries, and other repositories; the history of each religious foundation in English being prefixed to its respective series of Latin charters.” Considered the richest collection in England of charters and documents of the 11th and 12th centuries.

Finberg, H. P. R., ed. The Early Charters of Devon and Cornwall. University of Leicester. Department of English Local History. Occasional papers, 2. Leicester: Leicester University Press, 1953.

—, ed. The Early Charters of the West Midlands. Studies in Early English History, 2. Leicester: Leicester University Press, 1961.

—, ed. The Early Charters of Wessex. Studies in Early English History, 3. Leicester: Leicester University Press, 1964.

Foster, Charles W., and Kathleen Major, eds. The Registrum Antiquissimum of the Cathedral Church of Lincoln. 10 Vols. Lincoln Record Society Publications, 27, 29, 32, 34, 41, 42, 46, 51, 62, 67. Hereford: Lincoln Record Society, 1931-1973.

Abstract: Important collection of charters relating to the possessions of Lincoln Cathedral. The series includes an atlas of 20 facsimiles.

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