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English
Legal History
2/4/2009
Outline
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II. THE ANGLO-SAXON “CONSTITUTION” IN SUMMARY
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ANGLO-SAXON CONSTITUTIONAL HISTORY (Cont’d)
ANGLO-SAXON LAW AND CONSTITUTION AS
VIEWED FROM THE LAW “CODES”
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1.
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Bede (Mats. p. II–3):
“In the year of our Lord’s incarnation 616, which is the 21st year after
Augustine with his companions was sent to preach to the nation of the
English, Ethelbert, king of the people of Kent, after his temporal kingdom
which he had held most gloriously for 56 years, entered into the eternal
joys of the heavenly kingdom. … King Ethelbert died on 24 February … and
was buried in the chapel of St Martin
within the church of the blessed Apostles Peter and Paul, where also Queen
Berhta lies buried. Among the other
benefits which in his care for his people he conferred on them, he also
established for them with the advice of his councillors judicial decrees
after the examples of the Romans, which, written in the English language,
are preserved to this day and observed by them; in which he first laid down
how he who should steal any of the property of the Church, of the bishop,
or of other orders, ought to make amends for it, desiring to give
protection to those whom, along with their teaching, he had received.”
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2.
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Is the text that we have the text that Bede is talking about?
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3.
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What does Bede mean by:
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a.
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‘judicial decrees’ (decreta iudicialia; domas)
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b.
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‘according to the examples of the Romans’ (iuxta exempla Romanorum)
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4.
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So why did Aethlebert do this? Here are the suggestions of Brian Simpson
in the article that I included in the materials.:
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a.
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the motivation that might be derived from Bede, that the purpose of the laws
was fitting the Church into the society, won’t work (cc.1–7 are suspect and
nothing else in the laws tells us about the church; contrast Wihtred at the
end of the century, which has a great deal about the church).
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b.
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fixed tariffs in lieu of the responsibility to
take revenge. I have my doubts.
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c.
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a written law which can be read
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d.
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penitential
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possible Celtic influence in both (c & d)
From an Irish Penitential of c.800 (McNeil and
Gamer p. 165) (Mats.,
p. II–48]: “Ch.5 Of anger. 2
Anyone who kills his son or daughter does penance twenty-one years. Anyone
who kills his mother or father does penance fourteen years. Anyone who
kills his brother or sister or the sister of his mother or father, or the
brother of his father or mother, does penance ten years: and this rule is
to be followed to seven degrees both of the mother’s and father’s kin — to
the grandson and great-grandson and great-great-grandson, and the sons of
the great-great-grandson, as far as the finger-nails.... Seven years of
penance are assigned for all other homicides; excepting persons in orders,
such as a bishop or a priest, for the power to fix penance rests with the
king who is over the laity, and with the bishop, whether it be exile for life,
or penance for life. If the offender can pay fines, his penance is less in
proportion.”
“Ch. 4 Of
envy. 5.... There are four cases in which it is right to find fault
with the evil that is in a man who will not accept cure by means of
entreaty and kindness: either to prevent someone else from abetting him to
this evil; or to correct the evil itself; or to confirm the good; or out of
compassion for him who does the evil. But anyone who does not do it for one
of these four reasons, is a fault-finder, and does penance four days, or
recites the hundred and fifty psalms naked.”
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5.
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P. II-24: “Godes feoh 7 ciricean XII [twelf] gylde. Biscopes feoh XI
[endlefan] gylde. Preostes feoh IX [nigon] gylde. Diacones feoh VI [siex]
gylde. Cleroces feoh III [ðrim] gylde. Ciricfriþ II [twæm] gylde. M[æthl]friþ II [twæm] gylde.” C.1 the problem of authenticity,
the problem of the self-understood, the problem of the extreme terseness of
the language suggesting that we are dealing with the beginnings of
literacy. (Note that the form is not the Gif form used in virtually all the
others.)
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6.
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Method. the first e.g.’s of juristic elaboration, very early eg’s of
reasoning by analogy, ciricfirth = maethlfrith, the anatomical elaboration
of cc. 33–72
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7.
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Organization
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a.
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The Church cc.1–7
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b.
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The king cc. 8–17
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c.
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Eorls cc. 18–19
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d.
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Ceorls cc. 20–71
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i.
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20–31 mundbyrd,
wergeld, prop. offenses
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ii.
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32–71 personal injury
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e.
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Women cc.72–78
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f.
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Servants cc. 78–83 (brief overlap here)
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8.
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The conceptual economy of the code wergeld, frith, mundbyrd
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9.
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The sorts and conditions of men; Aethelbert’s Code and Ine’s Code
compared. (Mats. p. II-47)
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Aethelberht
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Ine
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mundbyrd
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wergeld
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wergeld
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king
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50
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?
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eorl
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12
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300a=6000b
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1200=6000c
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600=3000
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ceorl
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6
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100=2000
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200=1000
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læt
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80/60/40
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esne=læt
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theow
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The wergeld of 1000 (Ine) or 2000 (Abt) pennies for killing a free man.
Price lists from London
in the first half of the 10th century value an ox at 30 pennies, a cow at 20,
a pig at 10, a sheep at 5. Probably no ordinary ceorl in Athelbert’s Kent
could command 400 sheep, and precious few kingroups of ceorlas could.
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10.
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Three views of the code:
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a.
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What the customary law was.
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b.
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What a king ought to do.
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c.
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Establish the compensation may take the place of blood revenge.
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d.
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An ideal that was not meant to be applied.
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e.
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What happens at the beginning of literacy.
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1.
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Basic Summary
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a.
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The role of the king (see coronation oath, Mats.
p. II–3):
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i.
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keep the peace internally
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ii.
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war, external peace, territorial expansion, personal aggrandizement, fyrd,
brycbot, burghbot
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iii.
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patron of warriors (not only by giving rings but also land), “civil
servants” (thegns), monasteries
—>art, religion, poetry
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iv.
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economy--laws about sales, merchants, borough charters, money
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b.
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Strong local institutions--hide, tithing, hundred, shire, borough—a
device for taxation, levying an army, administering justice (no distinction
between criminal and civil)
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c.
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Social structure—king, lord, freemen, slaves, certainly not a democracy,
but certainly too a notion of free men—the free peasant.
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d.
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The church
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2.
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Kinship, lordship, kinship—an attempt to get a sense of the dynamics.
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a.
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Great increase of the power of the king
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b.
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Lordship becomes more important than kindred ties.
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c.
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What is the relationship between the increasing importance of kingship
and lordship and the seeming decline of the kindred?
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4.
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Bertha Phillpotts’ theory of the decline of the kindred.
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a.
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Where kindred is strong and can pay lordship is weak—Scandanavia, the
Low Countries vs. Iceland,
England, Normandy, Central and South
Germany.
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b.
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The main disintegrating force of the kindred is migration by sea.
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c.
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Granted the bilateral nature of the Germanic kindred it is a constantly
shifting group.
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5.
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The kindred as evidenced by:
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a.
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Anglo-Saxon kinship terminology: faedera=fbr fadhu=fs, eam=mbr,
modrige=ms; suhterga=nephew or 1st cousin bson or
fbson--bilateral terminology but preference for the patriline, shown in the
term suhtergefaederan, the relationship with one’s father’s brother
and one’s cousins on one’s father’s side and nephew. There is no equivalent
term for kin on one’s mother’s side.
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b.
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The laws (Mats., p. II-49):
Abt 30 (p. II–29): “If a
person should kill someone, let him pay [with] his own money or unblemished
property, whichever.”
Abt 24: If a person kills
someone, let him pay an ordinary person-price, 100 shillings.
24.1. If a
person kills someone, let him pay 20 shillings at the open grave, and let
him pay the entire person[-price] in 40 nights.
24.2. If the
killer departs from the land, let his kinsmen pay a half person[-price]
Alf 42 (p. II–47): “We also
command that any one knowing his enemy to be at home shall not fight him
before demanding justice of him [in court].
If [the accuser] has strength to surround and besiege his enemy
inside [the latter’s house], let him be held there seven nights and not
attacked so long as he will remain inside.
Then after seven nights, if the [besieged enemy] will surrender and
give up his weapons, let him be kept unharmed for thirty nights while news
of him is sent to his kinsmen and friends. ... If, however, [the accuser] lacks the
strength to besiege his enemy, he shall ride to the alderman and ask him
for aid; if the latter refuses him aid, he shall ride to the king before
beginning a fight. ... We declare
furthermore that one may fight for his lord without incurring blood-feud,
if the lord has been attacked. So
also the lord may fight for his man.
In the same way one may fight for his blood-relative, should the
latter be unjustly attacked, except against his own lord—that we do not
permit. …”
2 Aethelstan 2 (p. II–47):
“And with regard to lordless men from whom no justice is to be obtained, we
have ordained that their kindred be commanded to settle them in homes where
they will be subject to folkright, and to find them lords in the popular
court (folcgemote). And if, by the
day set, the kindred will not or cannot do so, he shall thenceforth be an
outlaw, to be treated as a thief by any one who meets him. ...”
Edmund 2.1 (p. II–47): “2.1. Henceforth, if any man slays another, [we
order] that he by himself shall incur the blood-feud, unless he, with the
help of his friends, buys it off by paying the full wergeld [of the slain
man] within twelve months, no matter of what rank the latter may be. If, however, his kinsmen abandon him,
refusing to pay anything in his behalf, then it is my will that the whole
kindred, with the sole exception of the actual slayer, be free of the
blood-feud so long as they give him neither food nor protection. If, on the other hand, one of his kinsmen
later gives him such assistance, the former shall forfeit to the king all
that he has, and he shall incur the blood-feud [along with the slayer]
because the latter has already been disowned by the kindred. And if any one of the other kindred takes
vengeance on any men besides the true slayer, he shall incur the enmity of
the king and all of the king’s friends, and he shall forfeit all that he
has.”
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6.
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The relationship of the king to the laws (Mats., p. II-47). Is there an idea of
“constitution” here?
“I then, King Alfred, have collected these
[dooms] and ordered [them] to be written down—[that is to say,] many of
those which our predecessors observed and which were also pleasing to me.
And those which were not pleasing to me, by the advice of my witan, I have rejected, ordering
them to be observed only as amended. I have not ventured to put in writing
much of my own, being what might please those who shall come after us. So I
have here collected the dooms that seemed to me the most just, whether they
were from the time of Ine, my kinsman, from that of Offa, king of the
Mercians, or from that of Aethelberht, the first of the English to receive
baptism; the rest I have discarded. I, then, Alfred, king to the West Saxons, have shown these [dooms] to all my witan,
who have declared it is the will of all that they be observed. . . .”
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