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English Legal History
2/6/2009
Outline
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II. AETHELBERHTS CODE: CLUES AS TO
SOCIAL RELATIONS?
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III. THE DECLINE OF THE KINDRED?
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IV. THE RELATIONSHIP OF THE KING
TO THE LAWS
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ANGLO-SAXON
CONSTITUTIONAL HISTORY (Contd)
ANGLO-SAXON LAW AND CONSTITUTION AS VIEWED FROM
ARCHAEOLOGOICAL REMAINS AND FROM THE LAW CODES
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1.
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The Roman arch in Lincoln
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2.
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Offas dyke (8th century)
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3.
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The Escomb church (co. Durham, 9th century)
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4.
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St. Peters
in Lincoln
(11th century, pre-Conquest)
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5.
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Jarrow (founded 681; burned
867; destroyed 937; Bedes body removed to Durham cathedral 1022; burned again by
the Conqueror 1069; refounded 1074 by Aldwin of Winchcombe)
Chi Rho. DEDICATIO BASILIKAE
SCI PAULI VIIII KL MAI [i.e., 23 April 681, Tues. after Quasimodo)
ANNO
XV ECFRIDI REG
..................……………….
CEOLFRIDI ABB EIVSDEM
Q ECCLES DO AUCTORE
CONDITORIS ANNO IIII.
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6.
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Lindisfarne Gospels, early
8th century
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7.
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Edgar the Peaceable c. 966
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The
Anglo-Saxon reads:
76. Gif man mægþ gebigeð ceapi,
geceapod sy gif hit unfacne is. [77]
76.1. Gif hit þonne facne is, ef[t] þær æt ham
gebrenge, 7 him
man his scæt agefe. [77.1]
76.2. Gif
hio cwic bearn
gebyreþ, healfne scæt age gif ceorl ær swylteþ. /3v/ [78]
76.3. Gif
mid bearnum bugan wille, healfne scæt age. [79]
76.4. Gif
ceorl agan wile, swa an bearn. [80]
76.5. Gif
hio bearn
ne gebyreþ, fæderingmagas fioh agan 7 morgengyfe. [81]
Oliver translation:
76. If a person buys
a maiden with a [bride-]price, let the bargain be
[valid], if there is no deception.
76.1 If there is deception, afterwards let him
bring [her to her] home, and let him be given his money.
76.2 If she bears a living
child, let her obtain half the goods [belonging to the household] if the
husband dies first.
76.3 If she should wish to dwell with the
children, let her obtain half the goods [of the household].
76.4 If
she should wish to take a man [i.e., another husband], provision as for one
child [i.e., the inheritance is split equally between the mother and each
of the children].
76.5 If she does not bear a child, her
paternal kin should obtain [her] property and the morning-gift.
Attenborough
translation (he uses a different numbering system):
77. If a man buys a maiden, the bargain shall
stand, if there is no dishonesty.
§ 1. If however there is
dishonesty, she shall be taken back to her home, and the money shall be
returned to him.
78. If she bears a living child, she shall have
half the goods left by her husband, if he dies Wrst.
79. If she wishes to depart with her children, she
shall have half the goods.
80. If the husband wishes to keep [the children],
she shall have a share of the goods equal to a childs.
81. If she does not bear a child, [her] fathers relatives shall have her goods, and the morning
gift.
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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. Emphasis heavy on
blood kin. An Anglo-Saxon rarely if ever referred to his/her parent’s
siblings by the terms used for ‘aunt’ and ‘uncle.’ Terminology for affines
is poor. A preference for the patriline may, once again, be noted in the
fact that tacor, means
brother-in-law, in the sense of husband’s brother, but aðum is used generically for
wife’s brother, sister’s husband, and son-in-law.
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B.
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The evidence of the laws (cf.
II-47):
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1.
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Abt 30—we’ve seen this before—individual responsibility (p. II–29)
If a person should kill someone, let him pay [with] his own money or
unblemished property, whichever.
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2.
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Abt 24—(p. II–29)
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]
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3.
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Alf 42—surrounding the house and demanding justice (p. II–47)
42. 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 [that’s an interpretation, the A-S is orwige, meaning without liability], if the lord has been
attacked. So also the lord may fight
for his man. In the same way one my fight
for his blood-relative, should the latter be unjustly attacked, except
against his own lord—that we do not permit. …
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4.
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2 Aethelstan 2—everyone must have a lord (p. II–47)
2. 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. ...
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5.
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Edmund 2.1—further isolating the individual (p. II–47)
2.1. Henceforth, if any man slays
another, [we order] that he by himself shall incur the blood-feud [that’s
right on: faedhe], 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 [unfah] 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 [faedhe]
[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.
Notice the predominance of if … then, even in 10th century laws.
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“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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