Anglo-Saxon Law's Impact on the English Legal System

ANGLO-SAXON LAW:
ITS DEVELOPMENT AND IMPACT
ON THE ENGLISH LEGAL SYSTEM
CHARius E. TuCKE JR.*
The conquest of England by the Normans in the year 1066 has been described
by the renowned English historian, Frederic William Maitland, as being a
catastrophe which determined the entire future of English law.1 This traditional
view oflegal history has regarded the primary source ofmodem English law as being
of Anglo-Norman origin and has often overlooked the valuable contributions made
to it by the antecedent Anglo-Saxon customary law.2 The purpose of this article is
to rectify this deficiency and to examine, in some detail, the operation of the
Anglo-Saxon legal system.
I. IMPACT OF ANGLO-SAXON LAW
ON ENGLISH LEGAL HISTORY
Scholars have long debated whether the medieval government of England owed
most to the Anglo-Saxons or to the ideas brought to Britain by the victorious
Norman invaders. However, despite the seemingly endless nature of this debate,
current historical evidence suggests that early medieval English governmental
institutions owed little to the jurisprudential innovations of the invading Normans.
This group of avaricious marauders was a largely uneducated, unimaginative lot,
wholly without learning, literature, or written law.3 Motivated solely by profit and
greed, the Normans conquered England but found they had no readily transplantable
system of legal administration with which to govern the indigenous Anglo-Saxon
populace. Thus, with few alternatives, the Normans were forced to adopt the
existing governmental structures already in place and to govern in accordance with
the broad underpinnings of Anglo-Saxon legal principles.4 This is not to say that
the Normans did not later add to what they found, but rather to point out that the
Norman conquest did not fundamentally alter the nature of Anglo-Saxon legal
institutions already in place.5
While William, Duke of Normandy's, reign has often been seen as one of forced
occupation, the reality of post-conquest England was far more complicated. For
example, when examining early post-conquest England, one is immediately
confronted by the degree of cooperation engaged in by the indigenous
Anglo-Saxons, at least by 1070. Thus, while it is true that there continued to be
pockets of resistance to Norman rule after the Battle of Hastings in 1066,6 it is also
* Major, United States Air Force. Assistant Professor of Law, United States Air Force Academy.
BA, University of Notre Dame; JD, DePaul University.

USAFA JOURNAL OF LEGAL STUDIES
true that the Anglo-Saxon populace was largely willing to submit to the reign of
Duke William so long as he was able to ensure continued firm governance. 7 Perhaps
this was due, at least partially, to the fact that the majority of Anglo-Saxon
aristocracy had been destroyed in the various battles occurring between the years
1066 and 1070 and that the majority of the remaining Anglo-Saxon estates were
expropritated in succeeding years by William. Conversely, it is also possible that
this symbiotic relationship derived from William's predisposition to maintain the
status quo, thereby creating an environment in which most Anglo-Saxons found it
in their own best interest to succumb peacefully to Norman rule.8
For his part, William was convinced he was the natural and legitimate heir to the
English throne.9 This perception would appear to have been vindicated, at least
partially, when the Anglo-Saxon Witan Gemote (or Witan), the group of learned
noblemen who advised Anglo-Saxon kings, recognized Williams's claim to the
English title and crowned him in accordance with Anglo-Saxon ceremonial
tradition.' 0 Furthermore, acceptance of William's sovereignty would also seem to
be evidenced by the fact that the citizens of London and Canterbury voluntarily and
peacefully surrendered their cities to William, and the bishops and lay magnates
of those cities "begged" the "conqueror" to assume the English crown.11 William
reciprocated this fealty soon thereafter by granting the city of London a charter
(written in Anglo-Saxon) confirming its traditional privileges. Thus, as William
began to guarantee the rights of the Anglo-Saxon populace, they came to have a
vested interest in the maintenance of the new monarchy.12
A mere two years after the invasion, William called upon the Anglo-Saxon
militia, the iyrd, to quell an uprising in the English city of Exter.13 Relying on the
fealty of "his" militia, William's Anglo-Saxon army successfully quieted the
disturbance and returned order to the countryside. Additionally, the remarkable
degree of confidence he had in the fyrdwas again demonstrated when William had
them accompany him to France to put down a revolt ofrebellious Norman vassals. 14
Thus, from the evidence available to us today, it would seem that William had as
much claim of legitimacy to the English throne as he did to the Norman and that,
he had no more difficulty (nor any greater ease) controlling his Anglo-Saxon
subjects than he did controlling their French counterparts.
In spite of (or because of) the relative political stability he encountered in
England, King William I found he still needed to maintain the uneasy peace with
his Anglo-Saxon vassals; he also needed to maintain order among these same
vassals. In addition, William's invasion force had included over 5000 Norman
soldiers, and this unruly band needed to be kept happy and in order.15 Therefore,
armed with but a relative paucity of inherent administrative experience, William's
nascent government was'forced to rely upon the broad structural foundations of
pre-existing Anglo-Saxon institutions.16
Regardless of one's interpretation of the unique aspects of legal administration
brought to England by the Normans in the late eleventh and early twelfth centuries,
it is clear that the early Anglo-Norman kings were no prodigious legislators.'7 Aside
from various specific diplomas, charters and writs, William himself is credited with
only three pieces of what may broadly be characterized as "legislation."'' 8 The first
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ANGLO-SAXON LAW
piece of legislation is actually a writ, written in Anglo-Saxon and addressed to the
Norman bishop and port reeve of the city of London. This document, discussed
briefly above, assured both the ecclesiastical and secular authorities of London that
their rights, possessions and customs would be respected by the Norman crown. 19
Additionally, this writ confirmed that the citizens of London would continue to
live under the same laws as established by King Edward (i.e., "be worthy of all the
laws they were worthy of in King Edward's day") and that no landowner would
be disinherfited (i.e., "every child be his father's heir after his father's day").20
The second of William's acts of "legislation" also appeared in the form of a
writ.21
Probably issued between the years 1072 and 1076,2 William, with the
concurrence of the Witan, overruled the earlier Anglo-Saxon practice of c6mbining
temporal (lay) and ecclesiastical cases being heard at both ecclesiastical councils
and governmental assemblies. Thus, in establishing a new policy, William brought
the English system of justice in conformity with continental practice.2 Episcopal
laws then in existence were declared invalid and bishops were, thereafter, forbidden
from bringing cases involving canon law, orquestions involving the "rule of souls,"
before the ancient Anglo-Saxon Hundred and Shire courts. Conversely, bishops
were granted exclusive jurisdiction in ecclesiastical matters and were directed to
reexamine and amend pre-existing episcopal.laws.24
The third and final piece of legislation enacted by William I was actually a
compilation of several separate writs issued at various times. Entitled "The Laws
of William the Conqueror," the provisions contained therein were probably issued
between the years 1070 and 1087.2 The primary thrust of these laws was the
regulation of relations between the native Anglo-Saxon population and the Norman
invaders, but they seem to have added only a little to the substantive and procedural
body of law then in existence.26 However, for the purposes of this dicussion, at
least one important clause was enacted when William proclaimed, "[tlhis also I
command and will, that all shall have and hold the law of King Edward in respect
of their lands and all their possessions, with the addition of those decrees I have
ordained for the welfare of the English people." 27
When adopting the laws in existence during the reign of King Edward the
Confessor as the laws of Anglo-Saxon England, William created only two areas of
substantive change to the existing body of Anglo-Saxon law.3 First, clauses three
and ten of William's laws reshaped the penalty for murder by prohibiting the
execution of any of William's subjects and by mandating that murderers were to
be held monetarily liable to the king for the killings of any of William's Norman
subjects. Furthermore, if an Anglo-Saxon killed a Norman and was unable to pay
any or all of the fine, the community (i.e., the Hundred)in which the killing took
place was held jointly and severally liable for the unpaid portion. Thus, by including
these clauses, William apparently gave the indigenous Anglo-Saxon population a
substantial interest in the preservation of Norman life. The second area of
substantive change made by William to the existing body of Anglo-Saxon law
occurred in clause six of his laws. According to this provision, if a Norman accused
an Anglo-Saxon of committing certain crimes, the Anglo-Saxon .could defend
himself only through ordeal of hot iron or by wager of battle. If, on the other hand,
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a Norman was accused of a crime by an Anglo-Saxon and the Anglo-Saxon was
unwilling to prove his accusation by either ordeal or wager of battle, then the
Norman could acquit himself by a valid bath (i.e. compurgation).2 Therefore, we
see that not only did the Anglo-Saxons have an interest in preserving Norman life,
they also had an interest in preserving the Norman peace.
By examining the above-referenced laws of King William, we see that the
Normans made little fundamental or radical change in existing Anglo-Saxon legal
institutions or rules. Each of William's three legislative acts relied heavily upon the
law in operation during the reign of Anglo-Saxon King Edward and nothing in
William's writs can be said to have fundamentally altered the Anglo-Saxon system
of justice. Furthermore, while it may be asserted that William was merely
parsimonious in his legal activism, it should be noted that his successors also
demonstrated little inclination to put their mark on the English legal system.
William's immediate successor, King William Rufus, enacted no new legislation
whatsoever.30 His successor, Henry I, provided some substantive legislation, but
also mandated that "the law of King Edward together with emendations to it as
my father made" would be "restored" to the people of England. 31 Likewise, his
successors, Kings Stephen32 and Henry I133 relied heavily on the Anglo-Saxon law
of King Edward's time. Thus, for more than a century after the "catastrophic"
invasion of England by the Normans, little fundamental change in the substance
of Anglo-Saxon law occurred. 34
While it is arguable that the law on the books and the law in practice did not
always agree, a case arising around 107635 illustrates that in post-conquest England,
the use of Anglo-Saxon law was prevalent and binding, even when applied against
well-placed Normans. According to the trial report for the case which was heard
on Pinnenden Heath iear Maidstone, England, 36 William's half-brother, Odo, was
the Bishop of Bayeux, France; he was also the Earl of Kent, England. As the Earl
of Kent, Bishop Odo wrongfully seized certain possessions and rights of the
Archbishopric of Canterbury. Not long after Bishop Odo seized the church's
possessions, Lanfranc became the Archbishop of Canterbury and the Primate of
England.37 Upon discovering what had transpired, Lanfranc asserted a claim to
King William seeking redress for the wrong and, as a result of Lanfrane's petition,
William issued a writ directing the whole shire court to "sit upon the case under
him as justice."
38
Upon issuing this writ, William mandated that the ancient shire court (an
Anglo-Saxon institution) be assembled on Pinnenden Heath and he also ordered the
matter to be heard in ancient English form. Furthermore, William mandated that
Anglo-Saxons "known to be well versed in the laws of England should be specially
summoned," not just from Kent, but "from other parts of the kingdom" as well.
This, apparently, was necessitated by the possible conflicts of interest arising from
the various degrees of loyalty different areas of England owed the conqueror.39
Since both Bishop Odo and Archbishop Lanfrane were the litigants in the case and
since they would have been the natural presidents of the assembly, William directed
Bishop Geoffrey of Countances to act as the president of the shire court.40
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ANGLO-SAXON LAW
Once assembled, the shire court was composed of both Normans and
Anglo-Saxons who acted in dual roles as both witnesses and judges.4 1
Evidence
was heard over a three-day period and during the trial it became clear that additional
Anglo-Saxon legal expertise was needed. Thus, by special order of the king, the
deposed bishop ofthe South-Saxons, an aged and sickly individual named Aethelric
of SelseF, was brought to the trial by wagon so he could testify (i.e., "declare and
expound") on the ancient practice and customs of Anglo-Saxon law.42
At the trial, the combined assembly of Normans and Anglo-Saxons heard the
pleas of the parties and reached a decision on grounds "so strong and clear that
from that day no man ever dared to call in question one jot or one tittle of its
decision." 43 What is, perhaps, most remarkable about this decision is that the shire
court found for Lanfranc and recommended the removal of Bishop Odo and his
followers from the lands in dispute. Furthermore, Bishop Lanfranc was successful
in persuading the court to narrowly define the rights the king had over church
properties. In fact, the shire court held that the king had no rights over these lands
whatsoever except for the safe maintenance of the king's highways. Thus, based
upon the overwhelming logic and justice of the Anglo-Saxon court, the king
"confirmed the judgment with the assent of all his magnates, and ordered that it
should be steadfastly and completely upheld.' "44
Based on tfe evidence of this case, as well as from others of a similar nature,45
and based on the evidence elicited from the extant statutes of early Anglo-Norman
kings, it is clear that there was no great break with Anglo-Saxon law with the
coming of the Norman invasion. While there were, over succeeding years, a number
of innovations made by Anglo-Norman kings, none was radically revolutionary
(with the possible exception of the advanced system of land tenures) and all the
innovations which were made adjusted easily to the older Anglo-Saxon institutions
of justice already in place.46 Thus, as demonstrated above, the institutions of
Anglo-Norman government and law were largely inherited from the Anglo-Saxon
kingdom and the major achievement of the Anglo-Normans in succeeding years
was to find new uses for the tools they had been given. Therefore, by adopting
these Anglo-Saxon tools, the Normans insured a continuity of law dating back to
the dawn of English civilization; a continuity which can still be seen in today's
English legal system.
II. EARLY PRE-NORMAN JURISPRUDENCE
In the beginning of their epic work on the history of English law, Sir Frederick
Pollock and Frederic Maitland noted:
Such is the unity ofall history that anyone who endeavours to tella piece ofit must feel his
first sentence tears a seamless web. The oldest utterance of English law that has come down
to us has Greek words in it: words such as bishop,priestanddeacon.Ifwe would search out
the origins of Roman law, we must study Babylon .... A statute of limitations must be set;
but it must be arbitrary. The web must be rent; but as we rend it, we may watch the whence
and whether of a few of the several and ravelling threads which have been making a pattern
too large for any man's eye.47
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Since these words were first written in 1895 little has changed. To pick a time
when English legal history, or for that matter, Anglo-Saxon legal history "began"
is an impossible task, for some degree of uncertainty and ambiguity must,
necessarily, be present in any selection of "a beginning." Thus, as demonstrated
in Section I of this paper, Anglo-Norman law did not begin with the Normans;
rather we know that it was significantly influenced by its Anglo-Saxon predecessor.
Likewise if we attempt to "begin" with the Anglo-Saxons, why not start with the
Romans or the Celts? After all, Saxon law cannot be said to have "begun" merely
with the first written code of Aethelbert. Yet, a beginning must be found and a
plunge into the stream of the law must be taken. For the purposes of this paper
then, we will begin with the invasion of Britain by the Legions of the Roman
Empire.
A. Roman Influences In English Legal History
Any attempt to give an account of the social and political organization of the
early Teutonic kingdoms in England must include at least a passing reference to the
state of the Roman Empire in the early centuries of this millenium and the influence
of the Roman Empire on the development of the Germanic tribes which populated
Britain.
The strengths of the Roman empire lay in its military power and its ability to
project that power to the outermost limits of the known world.48 Thus, the isle of
Britain, which lay at the westernmost boundary of that world, constituted an
enticing plum to be picked by an adventurous Roman. Yet, as successive Roman
invaders discovered, the isle would not fall easily. Twice invaded by Julius Caesar,
it took more than 130 years for the majority of Britain to be brought under control
by the Roman emperors.49 When it did fall, during the first century A.D., that
portion of the island50 which came under control of the empire became thoroughly
Romanized.
51
In his excellent treatise on the history of British civilization, Professor
Wingfield-Stratford noted, "[t]o the Roman citizen of the first or second centuries,
the boundaries of civilization were those of Roman law and Roman peace." 52 To
this could be added Virgil's exhortations to the Romans of the time, "Roman,
remember by your strength to rule Earth's peoples-for your arts are these: to
pacify, to improve the rule of law, to spare the conquered, [to] battle down the
proud."1
53 Both quotes describe the state of the empire at the beginning of the first
millennium A.D. and both exemplify the role Rome played in "pacifying" Britain.
To the Romans, once Britain was conquered, it became just another province of
the empire; and the problem for the expanding empire was how to impose and
maintain Roman justice and peace upon it.
If the strength of the Roman Empire was its ability to extend its power to the
farthest reaches of the known world, this was also its greatest weakness. Exercising
sovereignty over such a large geographical area, particularly during an era of limited
transportation and communications abilities, proved extremely difficult. Rome
"solved" these problems by imposing a uniform system oflaw and peace over each
of its provinces. To do this, the empire "struck an average" among the peoples
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and nations it conquered and centrally imposed the law from a vast bureaucracy in
Rome. Thus, given the constraints under which it operated, ideals of individual
liberty were subordinated to the needs of the state and a "logical uniformity" in
the ordering of relations between diverse people was imposed. Yet, this proved to
be the undoing of Roman law, for with each conquest the Romans had to absorb
the customs and manners of the conquered people. Furthermore, in doing so they
"necessarily sacrificed [their] own soul and that of the peoples on whom [their]
rule fell." 54
The island of Britain, once conquered, was the last of Rome's conquests in the
west. As with each of its earlier conquests, Britain was thoroughly organized along
Roman lines and "civilized" in accordance with Roman custom. IfRome absorbed
any of the customs or laws of the British population, however, none have been
recorded. Yet it is clear from the evidence available that the Romanized population
of Britain, once succumbing to Roman rule, applied the Roman law. What is also
clear, however, is that being at the outermost edge ofthe empire and being so close
to the "active forces of kindred barbarism," it is doubtful whether the British
province ever became as thoroughly and as efficiently Romanized as either Gaul
or Spain.55
The conquest of Britain proved to be Rome's last great campaign and with its
annexation, the expansion of the Empire came to an end. In the decades that
followed, Rome's influence waned and the Roman Empire commenced its
inexorable decline. Thus, we see that by the year 200 A.D. Roman jurisprudence
had reached its zenith and would soon cease to grow or develop.56 No longer
expansionist in its development nor forward looking in its outlook, the Roman
infrastructure began to crumble under its own weight. By the year 407, Rome had
abandoned Britain to the "barbarians at the gate," 57 and the Romanized population
again settled with the indigenous Celtic population.58 However, what was most
significant about these events, at least from a legal history point of view, was that
as the Romans withdrew from Britain, they took their legal institutions with them.
Therefore, since the Britons had never been thoroughly "Romanized" and since
they had not adopted Roman institutions as their own, this left them bereft of an
inherent system of legal justice upon which to rely.
Upon finding themselves devoid of legal and administrative infrastructure, the
Britons were forced into the unenviable position of either developing such an
infrastructure for themselves (a nearly impossible task given the state of continual
warfare they were then facing),59 or trying to imitate the system of government
already developed by the Romans. Unfortunately, the Romans had not prepared the
Britons satisfactorily for self-government. The years leading up to, and immediately
following, Roman withdrawal from Britain had been tumultuous. The Roman
Legions had engaged in nearly constant warfare with numerous tribes of Teutonic
invaders and the subsequent transfer of power from Rome to the indigenous Britons
did not go smoothly. Furthermore, the transfer of Roman jurisprudence to the
British population proceeded little better. Roman legalism was in utter disarray.
The nearly continual state of warfare and social decay had taken its toll and the
legal system of the Roman Empire was undergoing a period of complete stagnation.
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Thus, considering the horrific conditions then in existence, it is not surprising to
find that even the compilation of the Roman Theodisian code proved of little
assistance to the Britons. This backward looking collection of Imperial Roman
statutes might have been of great assistance to the Britons in their quest to maintain
the reigns of government, except for two factors: first, by the time the code was
issued in 438 A.D., the Romans had been out of Britain for over thirty years; and
second, by the time the code was issued, the Roman Empire was in such disarray
(Rome itself had, by that time, already been sacked by the Goths), that the Romans
would never againbe in aposition to reoccupy the island and infuse Roman concepts
of law onto the indigenous population. In fact, it is probable that the Theodosian
code did not reach Britain until well after it had been compiled; and it is certain
that by the time it did reach the Isle, the last remnants of the Roman empire had
been swept from Britain by invading hordes of Germanic peoples.60 Thus, in spite
of over 350 years of Roman occupation and administration, British governmental
institutions seemingly internalized almost no Roman law and, even today exhibit
almost no Roman influence.
B. The Tbutonic Invasions
Nearly contemporaneous with the withdrawal of Roman troops from Britain
were the first of what proved to be successive waves of Teutonic invasions. While
it is not totally certain what brought about the first of these invasions, it appears
that the Britons may have invited the first of the invaders, the Jutes, to England
to help them hold offthe advances of the Picts (i.e., the non-Romanized indigenous
co-occupants of Britain). At any rate, some time around the year 449, these
Teutonic tribesmen first arrived in England and never left; thus proving to be the
end of whatever was left of Romanized Britain. Once they arrived in Britain they
established control over the sea lanes and they secured a safe beachhead on the
island. Furthermore, once safely entrenched in Britain, it is highly probable that
they conspired with other Germanic tribes to assist in the conquering and inhabiting
of the new land.61 However, even though the exact role the Jutes played in the
Teutonic invasion is unclear, one thing is certain; while they may have been the
first to arrive in Britain after the withdrawal of the Romans, they certainly were
not the last for after their arrival came the Angles and then the Saxons. Thus, by
the end of the sixth century A.D., in battle after battle, the Germanic tribes fought
off the last remnants of the Romanized Britons and established a new homeland for
themselves; a homeland in what is now known as southeastern England. 62
The conquest of Britain was not accomplished by tribesmen under traditional
tribal leadership, but rather by a body of Teutonic adventurers who traced their
lineage back to some of the more remote parts of the continental mainland.6 3
Furthermore, these individuals were not pirates bent merely on plundering the
British countryside; rather, they were groups of people tied together by family
bonds who-invaded Britain as a means of establishing permanent settlements. As
such, the invaders were not recruited as individuals, but rather the basic recruiting
unit was the family, or the extended family, known in Anglo-Saxon as the Maegth,
or kin. These families included women, children and the elderly, individuals who
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naturally stood together and lived together in both their old continental homeland,
as well as in their new English/Anglo-Saxon home.64
What we know of these Teutonic invaders we have learned from mostly Roman
sources, particularly from the Roman historian Tacitus. In a manuscript called
Germania,65 Tacitus described the familial nature of the migrating Germanic people
and noted that they were "a peculiar people ... like no one but themselves." 66 He
also noted that their "kings" ruled by hereditary right, but were not allowed to
rule in an unlimited or arbitrary fashion. Furthermore, with the family forming the
basic unit of the tribe, criminal sanctions for misbehavior had to be meted out by
persons with absolute authority. Thus, punishments such as imprisonment, death,
or even corporal punishment, could only be administered by priests who derived
their "inspiration" for the appropriate punishment from the gods. 67
In addition to these general accounts on the familial nature ofthe Teutonic tribes,
Tacitus described, in some detail, the workings of tribal legal assemblies, known
as "moots." Regarding these institutions, Tacitus noted:
On small matters the chiefs consult; on larger questions the community; but with this
limitation thateven the subjects, the decision ofwhich rests with the people, are best handled
by the chiefs. They meet, unless there be some unforeseen and sudden emergency, on days
set apart ... [W]hen the moot is pleased to begin, they take their seats carrying arms. Silence
is called for by the priests, who thenceforward have powers also to coerce: then a king or
a chief is listened to, in order of age, birth, glory in war, or eloquence, with the prestige
which belongs to their counsel rather than with any prescriptive right to command. If the
advice tendered be displeasing, they reject it with groans; ifit pleases them, they clash their
spears: the most complimentary expression of assent is this martial approbation.
At this assembly itis also permissible to lay accusations and to bring capital charges. The
nature of the death penalty differs according to the offense: traitors and deserters are hung
from trees; cowards and poor fighters and notorious evil-livers are plunged in the mud of
marshes with a hurdle on theirheads: thedifference ofpunishmenthas regard to theprinciple
that crime should be blazoned abroad by its retribution, but abomination hidden. Lighter
offenses have also a measured punishment: those convicted are fined in a number of horses
and cattle: part of the fine goes to the king or the state; part is paid to the person himself
who brings the charge or to his relatives. At the same gatherings are selected chiefs who
administer law through the cantons and villages: each of them has one hundred assessors
from the people to be his responsible advisors.6i
It is clear from the evidence available that these continental Germanic tribesmen
did not have a Roman sensibility of law. Though we have little direct evidence as
to the specific nature of their customary law and procedure, we can speculate that
the laws enacted by these folk or tribal moots must have been very different from
the efficiently sterile legalism established in the Roman empire. We may also
speculate that in such a family-based society, the laws of the folk-moot would
probably have left much unsaid since the majority of legal disputes would have
been settled internally by the Maegths. Additionally, one may imagine that issues
too serious to have been handled internally, such as disputes between Maegths,or
cases involving serious criminal misbehavior, would have been matters for the entire
tribe to discuss in open forum at the folk-moot. Disputes would have been brought
before the moot and evidence would have been presented to the entire assembled
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community. After hearing all of the evidence, we can imagine the members of the
community considering the matter and providing their advice on an appropriate
outcome. The chiefs would then have consulted among themselves and made their
decision to resolve the dispute based on what they heard and on the advice of the
moot. If punishment was warranted, it would have been left to the priests to be
imposed. Thus, while this scenario is entirely speculative, it is also consistent with
the direct evidence we possess relating to continental Germanic legal practices of
the fifth century A.D., and it is a fair hypothesis based upon that evidence.
The first known written code of Germanic origin was probably enacted sometime
between the years 470 and 475 A.D. It became the legal code of that area which
now comprises all of Spain and a large part of southern France, and was written
by King Euric, a person of Gothic-Germanic origins. Even though only fragments
of the code survive, enough is still extant to show that Euric had cast off any
pretense of ruling in the Roman Emperor's name and was passing laws which were
thoroughly Germanic in content.69 Furthermore, it is clear that Euric's laws, as
well as other folk-moot laws of succeeding Germanic kings,70 contained the essence
of their legal customs and consisted largely of tariffs of offenses and atonements
which had been worked out over the generations by the collective tribal
experience.
7 1
Of all the continental Germanic codes produced in the late fifth and early sixth
centuries, the most significant, at least for the purposes of this paper, is the Lex
Salica. Probably written between the years 486 and 511, the Lex Salica became the
law of all the Frankish people in what had previously been known as Gaul. This
thoroughly Germanic code showed almost no Roman influence and mirrored the
forms of other early Germanic codes written during this same era. What is of
particular significance about this code, however, is that it later became a basic
source of Norman law.72 As such, two points may be made: first, by having a
common heritage, early Anglo-Saxon and Norman substantive laws bear a striking
resemblance to one another, even as late as the eleventh century; and second, with
the Norman invasion of England in 1066, the Germanic-Norman laws were united
with the Germanic-Anglo-Saxon laws. Thus, it should have surprised no one that
the extant laws of Anglo-Saxon king Edward the Confessor matched the
jurisprudential needs of William the Conqueror.73.
While a fair amount of direct information is known about the laws and customs
of the continental Germanic tribes, very little is actually known about the legal
customs of Germanic tribes in fifth and sixth century England. The kings of Kent
between Aesc and Aethelberht, and of Sussex after Aelle, are no more than names.
Furthermore, advances of the West-Saxons out of the Hampshire area are not
recorded until 552.74
Thus, while we can assume that the Anglo-Saxon invaders
continued to apply the customary laws of their continental Germanic ancestors (as
described by Tacitus), we have little direct evidence to support this hypothesis.
Before proceeding with any discussion concerning the jurisprudential nature of
the early pre-literate Anglo-Saxon invaders, it is important to recognize the
limitations inherent in any such analysis. First of all, Tacitus wrote his Germanrfa
more than three hundred years before the first settlement of Anglo-Saxons ever
[Vol. 2

ANGLO-SAXON LAW
took place on the eastern shores of England. As such, it is fair to assume that in
the intervening centuries the Tutonic tribes and their legal institutions may have
-undergone a great deal of change.75 Furthermore, of all the continental Germanic
codes noted above, none became a direct predecessor of English law until after the
Norman invasion of 1066 A.D. Thus, while we may speculate as to the probable
similarity of the continental Germanic codes with their Anglo-Saxon customary law
counterparts, there is little to directly link the two systems. Therefore, with little
else to rely upon, what we know of this period in Anglo-Saxon history comes to
us mainly from two sources: the Anglo-Saxon Chroniclesand the Ecclesiastical
Historyof he VenerableBede.
The first issue one must examine when looking at early Anglo-Saxon systems
of legal administration is the question of who comprised the leadership of the
Anglo-Saxon settlers and what relationship these leaders had to their followers. In
other words, was the conquest of Britain carried out by traditional continental
Teutonic tribal chieftains bringing their entire tribal units with them, or was Britain
conquered by individual warbands composed of individual chieftains and certain
selected followers? The probable answer to this question is that the latter was the
case. We can envision one of these leaders as being a high-born Anglo-Saxon
adventurer, of whom the epic hero Beowulf76 was an idealized type. We can also
envision this character speaking before one of the Teutonic folk-moots described
so eloquently by Tacitus. He would have tried to convince the assembled moot of
the benefits to be achieved by invading Britain and he would have particularly
emphasized the spoils of land, crops, and booty to be gained by the venture.
Furthermore, thanks to the vivid description of such events provided by Tacitus,
we can also envision such a leader receiving the approval of the assembly as they
clapped their spears against their shields. Thus, with the concurrence of the tribal
chieftains, entire Maegth families could have enlisted in such dangerous ventures
and the combined entourage would have taken off for the "new world" to make
their fortunes.
77
Once this group of Tiutonic conquerors subdued their part of Britain, it is
probable that the Anglo-Saxon communities they established must have begun
when the band's warlord (or prince/king) transferred possession of certain of the
conquered lands to individual members ofhis comitatus (i.e., to his sworn followers
of whom the leader was bound to support in return for their loyal service in battle).
Furthermore, with the possible exception of the Angles,78 the newcomers probably
left behind on the continent the majority of their extended tribal units and they
formed their new settlements under the authority of their new prince/kings. Cut off
from their homeland, these bands would probably have organized themselves as
military states, more dependent on their new chiefs than on their old tribal leaders.
In such situations, the settlers would have regarded themselves as sworn liegemen
of the conqueror whom had parcelled out among them the lands of the Roman
provincials and not as mere tribesmen owing their allegiance to ancestral
monarchs.
79
Once established in England, these Anglo-Saxon leaders must have had a
tremendously difficult task in organizing their followers. Everyone accompanying
19911

the invasion force (eventually including women, children and the aged) had to be
fed, clothed and protected in the strange new land. In order to effectuate this,
communities had to be established and loyalty' maintained. In examining this
situation, we find from the archeological evidence available that different Maegths
were settled in more orless self-contained agricultural units, orhamlets, each having
their own group of dwellings, their own fields of arable land portioned in strips,
their own pasturages and their own smithies and mills.80
Furthermore, according
to Professor Wingfield-Stratford, "these units would have been grouped in
'hundreds', either of 'hides' of land, or more probably, of families, at first, one
conjectures, for mutual support against the natives, later for administrative and
judicial purposes."
81
If the "hundred" formed the basic unit of an Anglo-Saxon settlement, it was,
in turn, subsumed into the larger Anglo-Saxon "kingdom." Ruling each of the
hundreds would have been a sub-chieftain, a person who owed his allegiance to his
overlord, the "promoter-in-chief" of the invasion. This overlord, or "king," would
then, in turn, have been responsible for the maintenance of as much sovereignty
and control over the hundreds as he could muster, probably by relying upon his
personal or family prestige for assistance, as well as relying upon the perceived
communal need for military combination and the inherent loyalty of his personal
followers.82 Furthermore, this overlord would have been responsible for interacting
with other Anglo-Saxon overlords and for preserving the peace and security between
the Anglo-Saxon "Kingdoms." In fact, it is clear that there were at least seven
major Anglo-Saxon Kingdoms in England during the early centuries of the first
millennium and each was ruled by its own king/overlord.8 3
The seven major Anglo-Saxon kingdoms of early England, collectively known
as the Heptarchy, dominated the political development of England for over five
hundred years. The kings of each of these kingdoms, while pursuing their individual
interests, maintained a constant rivalry for a position of military and political
suzerainty over the others. Thus, the most powerful ruler in his day would seek the
position of Bretwalda, or ruler of Britain, which would involve the establishment
of his overlordship upon the other kingdoms and by which he could exact tribute.
Naturally, the rise and fall of a Bretwaldainvolved a great deal of warfare between
the kingdoms and the position seemingly passed from kingdom to kingdom. For
example, Kings Aelle of Sussex and Ceawlin of the Thames Valley Saxons held the
title during the early Anglo-Saxon invasion periods. Later, during the Christian
period, the title turned to the kings of Kent, then East Anglia, followed, in turn,
by Northambria, Mercia, and Wessex.84 That each of these kingdoms had some
degree of sovereignty is certain. That each had its own system of legal
administration based on Teutonic customary tribal law is probable. What is
uncertain, however, is the exact nature of those administrative legal institutions
and the specifics oftheir laws; at least before the beginning ofthe sixth century A.D.
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ANGLO-SAXON LAW
i[. ANGLO-SAXON LAW AFTER THE SIXTH CENTURY A.D.
A. The Beginnings of Anglo-Saxon Written Law
While there may be little direct evidence concerning the specifics of Anglo-Saxon
legal administration prior to the end of the sixth century A.D., the clouds begin to
clear with the coming ofthe reign ofKing Aethelbert ofKent in 597 A.D. According
to The Venerable Bede in his EcclesiasticalHistoiyofEngland: 85
[A]mong other benefits which he [Aethelbert] conferred upon the nation, by the advice of
wise persons,86
[he] introduced judicial decrees after the Roman model;
8 7
which, being
written inEnglish, am stillkept and observed by them. Among which, he in the firstplace set
down what satisfaction should be given by those who should steal anything belonging to the
church, the bishop, or the other clergy, resolving to give protection to those whose doctrine
he had embraced. (emphasis added).88
Thus, according to Bede (as well as to other surviving written documents
concerning early legal administration) King Aethelbert of Kent was the first
Anglo-Saxon king to reduce the customary law of the Anglo-Saxon people to
writing.89
That Aethelbert should have been the first Anglo-Saxon king to reduce the
customary law to writing should constitute little mystery, for the Venerable Bede
has noted that Aethelbert decided to encode his law only after he came into contact
with Roman missionaries. This apparently came about in the year 596 A.D. 90 when
Pope Gregory of the Roman Catholic church sent St. Augustine ofRome to "preach
the word of God to the English nation."'91 Augustine complied with the wishes of
Pope Gregory, arrived in England at the Isle of Thanet, Kent, in 597 A.D., and
immediately sought to obtain permission to preach to the 600, or so, Anglo-Saxon
families of Thanet.92
At the time of Augustine's mission to England, the Anglo-Saxons controlled the
whole of the British island, from Kent to East Dorset, and from the British east
coast to the Lower Severn, Staffordshire and Derbyshire, most of Yorkshire, and
part of Northumberland and Durham.93 This area was divided and controlled by the
numerous royal dynasties of the Heptarchy, with Kent comprising but one of the
powerful Anglo-Saxon kingdoms. However, as fate would have it, as Augustine
landed in Kent to preach to the "English people," Aethelbert, King of Kent, was
the Bretwalda, or dominant king, of the Heptarchy. 94 Thus, when St. Augustine
made known his desire to preach to the people of Thanet, Aethelbert, at first,
forbade him from doing so until he could personally evaluate the merits of
Augustine's message. 95 When, in 597, Aethelbert personally traveled to the Isle
of Thanet to hear Augustine preach, he was so impressed with the Roman that he
rescinded his earlier order and allowed Augustine to proselytize to all the people
of the Heptarchy.96 Furthermore, it would appear that in the ensuing years
Aethelbert had a great deal of contact with Augustine, so much so that the
Anglo-Saxon king later converted to Christianity.97
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From these facts we can speculate that the impetus for Aethelbert's codification
of Anglo-Saxon customary law stemmed from his contact with Roman missionaries.
We know, for example, he had been exhorted by Augustine and Pope Gregory to
"edify the manners of [his] subjects by much cleanness oflife, exhorting, terrifying,
soothing, correcting, and giving examples ofgood works, [so] that [he might] find
[in] Him [a] rewarder in heaven, whose name andknowledge you shall spread abroad
upon earth." (emphasis added).98 Furthermore, we know that Aethelbert's reign
as Bretwaldaoverlapped the reign of Emperor Justinian of Rome. 99 Thus, just at
the time when the Corpus Juris Civilus, the culmination of a thousand years of
Roman law, was being published by Justinian, Aethelbert also caused the
culmination of hundreds of years of Anglo-Saxon legal custom to be set down in
writing. Furthermore, while there is no proof that Aethelbert ever actually read the
"Justinian Code," and while Aethelbert's code bears little resemblance to the
Roman code, it is highly possible that the Roman experience of legal codification
was made known to Aethelbert and the very fact that such a compilation existed
had a profound impact on him. Regardless of one's interpretation of the matter,
however, it is clear that soon after coming into contact with the Roman
missionaries, Aethelbert caused the customary laws of the Anglo-Saxon people to
be codified.
Although it has been well reported that Aethelbert was the first English
Anglo-Saxon king to record his codes in writing, it is by the merest of chances that
any copy of that law has survived until today. It is true that Aethelbert's codes
(probably written between the years 597 to 603 A.D.) would most certainly have
been copied numerous times and promulgated to the entire people of Kent, if not
to the entire Heptarchy, in order for them to know of the decisions which had been
made by their king and their Witan-Gemot. However, not one original copy of
Aethelbert's code is still in existence. In fact, the only copy of the code to survive
until today comes to us by way of a twelfth-century manuscript, entitled the Textus
Roffensis, a document which was compiled and maintained in the cathedral library
at Rochester. 10 This document was probably compiled at the instigation of Bishop
Ermulf between the years 1115-1124 and was doubtlessly derived from a now
missing original copy of the laws which had been kept at Canterbury where Emulf
had previously been a prior. 101 Thus, it is to the activity of ecclesiastical scribes
that we owe the existence of the only surviving extant copy of not only Aethelbert's
code, but other early Anglo-Saxon codes as well.102
B. Problems of Utilizing
Early Anglo-Saxon Legal Sources
It is, perhaps, revealing that the majority of what we know of everyday life in
pre-Norman Anglo-Saxon society comes to us not in the form of literature, music,
art, religion, or contemporary accounts, but rather' in the form of the mundane
workings of written law. The laws of the Anglo-Saxon kings, as few as those laws
may be, speak volumes about the status of ordinary people living in Anglo-Saxon
society and relate directly to the changes that society faced between the years 597
and 1066 A.D.
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ANGLO-SAXON LAW
In spite of the miraculous preservation of Aethelbert's code in the Textus
Roffensis, it should be noted that his code, as well as other early Anglo-Saxon
codes, were not generally preserved and re-copied out of some inherent respect for
the past. In fact, the religious scribes preserved these early codes to serve as later
examples for when they were tasked to draft new codes. Thus, an important caveat
comes to the fore when examining early Anglo-Saxon codes: since the documents
containing the codes were preserved to serve as later models, absolute fidelity to
the ancient wording would not necessarily have been considered a necessity.103
Therefore, one should always keep in mind that the copies we have available may
not be true to their original and may include later additions, subtractions, and/or
modifications. 1°4 In spite of this, however, given the paucity of information
available we must proceed from the standpoint that the documents in question are
substantially true to their originals and comply generally with the terms of the law
as originally promulgated.
In addition to the aforementioned caveats, and in spite of the great importance
these laws play in our understanding ofAnglo-Saxon society, it is important to also
consider any other inherent limitations these laws may have before drawing too
many conclusions from them. First, as noted above, we cannot be sure that the
texts which have come down to us are wholly accurate in their portrayal of the law
as enacted. The Textus Roffensis, compiled early in the twelfth century, was
created over 500 years after the purported enactment of Aethelbert's code and was
copied from documents which we cannot be certain were original in the first place.
Therefore, regardless of the motives and the supposed accuracy of the scribes who
compiled the copies of the codes we now possess, errors in transcription could
possibly have been made.
A second problem also arises when examining the early Anglo-Saxon codes and
that is the fact that we possess the written law of only two kingdoms of the
Heptarchy: Kent and Wessex.105 Though we have evidence from a later
Anglo-Saxon code1°6 that Offa of Mercia also enacted a doom, this doom, or code,
is not extant. Thus, we must be careful when drawing conclusions about
"Anglo-Saxon society" from such a small sample of that society for what may
have been the custom or law in Kent would not necessarily have been the custom
in Northumbria.
10 7
In addition to the purely structural problems involved in extrapolating broad
sociological information from potentially suspect sources, a third problem arises
when examining the documents in question. That is the fact that we are attempting
to elicit information relating to the broad spectrum of Anglo-Saxon legal custom
from a fairly limited source, i.e., the law itself. This is a particularly vexing problem
since other sources of information concerning daily Anglo-Saxon life are not as
abundantly available. Therefore, even assuming we have accurate copies of the
dooms with which to work, we are attempting to extrapolate information about how
ordinary, every day legal affairs were conducted based primarily on the laws
themselves. However, since contemporary experience would seem to indicate that
there is a wide gulf between the realities of "law on the books" and "law as
1991]

applied," we must be careful not to be overly dogmatic in our understanding of the
Anglo-Saxon legal system.
If there are inherent structural and contextual difficulties in extrapolating
information from these somewhat limited sources, we must also remember that
these problems are exacerbated by the fact that the dooms in question were written
at a time of great social change, change that fundamentally and radically altered
both the content and the application of Anglo-Saxon customary law. The import
of this change is particularly acute when we attempt to interpolate information from
the dooms regarding the decades immediately preceding the seventh century. The
fact is, the first Anglo-Saxon dooms were not written until after Anglo-Saxon
society came into contact with Romao-Christian society. In fact, Bede himself told
us that the codes of Aethelbert, the first Anglo-Saxon dooms ever written in the
vernacular, were written "after the Roman model." In other words, the mere act
of codifying "the law" was inspired by the influence of the Roman missionaries
and was not a naturally occurring Anglo-Saxon act. Therefore, regardless of one's
estimation of the extent of sociological and philosophical "contamination" wrought
by the Roman missionaries to the traditional underpinnings of Anglo-Saxon society,
it is clear that the society described by Tacitus hundreds of years earlier was
undergoing a period of externally induced change.
Given the state of change Kentish society was experiencing in the early seventh
century, to thereby conclude that even the first written expression of Anglo-Saxon
law accurately reflected the realities of traditional Anglo-Saxon society would be
ill advised. Likewise, to conclude that these same dooms accurately reflected the
then contemporary legalisms ofthe wider Anglo-Saxon population would also seem
to be intellectually disingenuous. The fact remains that because of Aethelbert's
conversion to Christianity, it is clear that he was influenced by Roman/Christian
philosophy and dogma. The very fact that Aethelbert's doom placed the Catholic
church and clergy in such high esteem clearly indicated that his dooms were not
entirely reflective of the status of the customary law of the late sixth and early
seventh centuries. Furthermore, even assuming the dooms, as available to us today,
accurately reflect Aethelbert's code as written (and it is not absolutely clear that
they do), 1
0 8 it is far from certain whether one king'sfBretwalda'sconversion to
Christianity was indicative of a general embrace by the wider Anglo-Saxon
population of the same ideals. Thus, one must wonder with what degree of zeal
these "Anglo-Saxon laws," contaminated as they were by Roman dogma, were
received at the time they were written. One must also wonder whether the other
kingdoms of the Heptarchy had dooms which were consistent with Aethelbert's.
However, since no other contemporaneous written dooms are likely to ever be
discovered, these queries must remain unanswered.
Considering the situation described above, when examining the Codes/Dooms
that follow, we must be ever cognizant of the fact that we are examining evidence
of but a small segment of Anglo-Saxon society; a sample which may have been
contaminated by cultural bias and subsequent alteration. On the other hand, based
solely on the fact of its continued survival, we must also be aware that this evidence
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ANGLO-SAXON LAW
must have played a critical role in the development of Anglo-Saxon society. The
fact is, that of all the aspects of Anglo-Saxon society to have been recorded and
preserved, documents relating to the early customary law stand .paramount.
Therefore, from this fact alone one may legitimately conclude that untold
generations of scholars, dating back even before the "dark ages" preceding the
time of the Venerable Bede, rightly considered the early Anglo-Saxon dooms as
having played a pivotal and vital role in the development of Anglo-Saxon society.
If, perchance, the law as written preceded the views of the Anglo-Saxon people and
served as a model rather than as a mirror, then so be it. For regardless of how new
or "avant-garde" the law may have appeared at the time it was written, it would
appear that the mass consciousness of the Anglo-Saxon people caught up with, and
eventually embraced, the jurisprudence of the Kentish kings.
C. Aethelbert's Doom
Although the precision of the Textus Roffensis and the accuracy of Aethelbert's
doom contained within it may be somewhat suspect, for the purposes of this
discussion I will proceed on the assumption that the extant text of the doom has
survived in something closely resembling its original. Therefore, assuming the text
of Aethelbert's doom currently available to us fairly represents the law as
promulgated in the early seventh century, at least two significant observations may
be made regarding it: first, the dooms are the earliest set of written laws ever
drafted by a Germanic people in Europe; and second, they constitute the earliest
example, so far as we know, of any text, on any subject, ever written in the English
language.109 As such, Aethelbert's doom provides us with the earliest known written
information we have regarding both early Anglo-Saxon social life and the origins
of the English common-law system.
In ninety brief lines the dooms of Aethelbert, Bretwalda of Kent, reveal a
complex Anglo-Saxon society composed of clergy, noblemen, commoners,
freedmen, and slaves." 0 Furthermore, even though the dooms were the first written
expressions ever attempted by the Anglo-Saxon people, there is nothing about them
which marks them as being "primitive" in any absolute sense of the word.", For
one thing, their purpose was clear: the traditional customary law of the
Anglo-Saxon people was to be set down for posterity and the position of the Roman
newcomers was to be accommodated within the existing social and legal framework
of the time.112 Thus, in keeping with both ancient tradition and contemporary
reality, Aethelbert encoded the customary worth of his subjects, noted offenses for
which one might be "prosecuted," established penalties one might suffer ifhe dared
commit such an offense and inserted the newcomers into the traditional legal fabric.
In fact, the desire to protect the fledgling church was given by the Venerable Bede
as the very reason Aethelbert created the dooms in the first place." 3
In spite of the apparent simplicity of purpose the dooms seem to have served, a
careful examination reveals that they were, in fact, a rather complex set of legal
rules. Part of this complexity derives from the fact that they were more than just a
list of do's and don'ts. In fact, before a careful examination of what Aethelbert
1991]

created can be accomplished, the term "doom" must be fully understood. The
original source for the word "doom" comes from the doom itself. In the Preamble
of Aethelbert's Doom, there appears the following statement: "[these are the
'domas' of King Aethelbert established in the lifetime of Augustine." The
Anglo-Saxon word "domas" has been translated into the contemporary English
word "doom." However, the definition for the word "doom" appears nowhere in
early English literature and has created somewhat of a controversy as to its piecise
meaning. At least two scholars have translated/defined "domas" as meaning
"decrees" 114 (thereby rendering Aethelbert's preamble as, "these are the decrees
of King Aethelbert..."). Other scholars, however, have suggested the word implies
more than this.
Into this affray has stepped Professor A. W. B. Simpson who noted in his treatise,
The Laws ofEthelbert
[T]he word domas, commonly rendered as 'dooms,' is almost untranslatable .... The nearest
equivalent is 'judgments,' and the difficulty we have in finding an equivalent forthe contemporary
description is not without its significance. Today, of course, we draw a distinction between
legislation on the one hand and adjudication on the other .... Essentially, however, legislation
involves the idea of laying down abstract general rules to deal with situations that, it is thought,
will arise in the future: adjudication on the other hand involves giving decisions in particular
cases after they have arisen. But this distinction was not part of the intellectual stock of ideas
of the seventh century. So what we think of as the laws, the legislative code, that is, of King
Aethelbert, consisted in the eyes of contemporaries as a set of judgments pronounced by a king
(and his council of elders) who didnotthink therewas any critical difference between pronouncing
abstract decisions of a general character for the future and giving particular decisions in concrete
areas. The king and his counselors proceed to give judgments without waiting for any actual
dispute to come before them. If this or this happens, this is the judgment. Aethelbert then in a
sense legislated without knowing that this was what he was doing, without realizing that he was
employing a new and immensely important social technique. 11
s
From this analysis provided by Professor Simpson, we see that Aethelbert and
his Council of Elders (the Witan) "enacted)" in writing, a restatement of the then
existing Anglo-Saxon legal custom and only incorporated "new elements" into the
law as a means of defining the social status of the religious newcomers. Therefore,
by means of "legislation," Aethelbert's dooms defined existing legal custom and
pro-ided a fairly inflexible list of tariffs of compensation to be paid for violent
attacks against people or property. What the dooms did not do was create a sort
of neo-Roman law. Furthermore, Aethelbert's dooms, in spite of being
"semi-legislated," did not announce general principles of law to help in the orderly
resolution of disputes, nor did they create new principles of law or right for the
Anglo-Saxon people. No new crimes were established by the dooms, nor were any
traditional acts of the Anglo-Saxon people newly redefined as being wrongful or
criminal. What is most surprising about this is that such additions might have been
expected from a king and council who had recently converted from "paganism"
to Christianity. Therefore, in spite of the social changes going on around them,
Aethelbert and his council chose to limit their "legislation" to the terse
proclamation of a scale of pecuniary penalties to be paid in the event an
Anglo-Saxon committed a specific offense against a person or property.
[Vol. 2

ANGLO-SAXON LAW
Additionally, since these offenses were based on traditional legal concepts, there
was no need to provide expansive accounts of their "elements." These elements,
as well as rules concerning legal procedure, would have been thoroughly defined
by the existing customary law and would have been entirely recognizable and
familiar to the Anglo-Saxon people.
As may be seen from this analysis, aside from incorporating the religious
newcomers into the existing social and legal structure of Anglo-Saxon society,
Aethelbert's codes seem to have served as a sort of "jurisprudential restatement,"
mirroring existing custom and focusing on what would have been fairly obvious to
even the most casual practitioner of Anglo-Saxon law. Therefore, based on this,
the codes, in spite of the difficulties of accuracy and cultural contamination, would
seem to provide a window into the every day workings of Anglo-Saxon society in
the early seventh century A.D.1 6
Given the fact that Aethelbert's dooms were reflective of existing Anglo-Saxon
society, perhaps what is most surprising when examining them is that they do not
seem to evidence a social organization based solely upon a simple military
monarchy.' 17 From thesefirst written laws of an Anglo-Saxon king, we see that the
king's "subjects" were not organized into a social system founded upon passive
submission to authority. Instead, loyalty was given not out of a sense of obligation,
but rather was based upon a freely rationalized sense of reason. 118 Furthermore, in
spite of his conversion to Christianity (and in spite of an earlier claim of descent
from the Germanic god Woden), there is nothing in his dooms which would lead
one to believe that Aethelbert had mystical or divine aspirations, nor that his
subjects saw him in such light. In fact, Aethelbert did not even hold the highest
social position within his own dooms; this honor was reserved for Roman Catholic
bishops, priests, deacons and ecclesiastical clerks. 119 What is revealed in the text
of his doom is that BretwaldaAethelbert extended royal protection to his subjects
at a time when protection from competing clans was sorely needed. Therefore,
Aethelbert based his laws not upon divine or mystical right, but rather upon the
idea that the king was the ensurer of peace within his kingdom and that if the king
extended his "peace" (or protection) to a particular subject, then it was considered
a more heinous act to infringe upon that peace than it would have been to have acted
against a person not so empowered. Indeed, this concept of "peace" was based
on the traditional Anglo-Saxon belief that, "[jiust as one could injure a man
himself, one could injure his peace, by committing a crime in his house, or his
presence, or against his protected servant; and there was a traditional compensation
for the breach of his peace."' 120
In other words, breaching the king's peace resulted
in a heavy fine, or mulct, being paid to the king with the amount ofthe mulctbeing
based upon the degree of the breach; the greater the interest that was breached, the
greater the compensation that was due the king.
Considering the perspective of the day, particularly the idea that the king's
subjects owed their loyalty to the king in return for his protection, as well as the
idea that the king could, under certain circumstances, extend his "peace" to
specific individuals, Aethelbert's dooms possess a logical unity. Those interests the
king held dearest were protected to the greatest degree; those he held less dear
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USAFA JOURNAL OFLEGAL STUDIES
were, consequently, protected to a lesser degree. Thus, it is not surprising to find
that first in priority for protection by the newly converted, pious, Christian king
was the fledgling Catholic church and its leadership. Furthermore, as would be
expected, next in order of protection came the king's direct interests. As such, we
find that those of the kings subjects (i.e., his lieges)who were on their way to his
royal court at his instigation were heavily protected,' 2' as were the households in
which the king visited.122 Property owned by the king, including his residence, and
all those persons within the confines of his residence, also received heavy
protection. 23 Additionally, "man slaying" and robbery committed in the king's
presence received special condemnation, as did the killing of one of the king's
messengers, smiths, or fedsels.124 In all, aside from the first clause of the doom
which closely protected the interests of the church, the first eleven articles of
Aethelbert's doom dealt solely with secular subjects relating to the preservation of
the king's majesty. 12
In addition to clearly providing special protection for those interests relating
strictly to royal privilege, we see that the doom also provided Aethelbert with two
rights which marked him as a special guardian of the peace. First, according to
clauses 6 and 8 of the doom, we find that, "[fif a man slays a freeman, he shall pay
50 shillings to the king for infraction of his Seignorialrights.' 26 We also find the
statement that, "the king's mundbyrd shall be 50 shillings."' 127 The term
"mwndbyrd" referred to the right of the king to extend his protection to an
individual as well as to the amount of the mulct to be paid for a breach of that
protection or guardianship. 128
Thus, assuming the king's .mundbyrdwas breached,
or assuming a freeman was killed, not only would the injured party's family be
compensated (see discussion below), but additionally, a special fine would have to
be paid to the king. In addition to this, a second special right accrued to the king: if
one of Aethelbert's subjects was "molested" either at the court of the king or one
of his assemblies, not only was the injured party to receive double compensation,
but the king was also to receive a payment of 50 shillings.1 9 Thus, we see that the
concept of the king's peace was protected not only with heavy compensation to the
victim (or his family), but also with a heavy fine payable to the king. We also see
that even at this very early stage in English legal history, the king's court was
already acquiring special authority.130
Aside from these special provisions granting the king a special legal position
when his "peace" had been breached, it is clear that Aethelbert's dooms also
addressed the ancient Anglo-Saxon custom of the "blood feud." As we have seen,
the early Anglo-Saxons were organized on a traditional tribal basis with heavy
reliance paid to kindred affiliation. In fact, it is believed by some historians that
within these tribal units, Anglo-Saxon kindred encompassed all blood relations
within the sixth degree (i.e., to fourth cousins) and served as the primary institution
through which the law functioned.131 The mechanism by which blood relationships
created the basic tenets of Anglo-Saxon customary law was the concept that
Anglo-Saxon kindred had the right to protect members of their extended families.
This "protection" was effectuated through the wide-spread use of private warfare,
technically called the faehcle, or feud, and was considered to be the inalienable
(Vol. 2

ANGLO-SAXON LAW
right/obligation of every Anglo-Saxon freeman. These freemen believed the right
to feud was the threshold privilege an Anglo-Saxon must obtain before he consented
to enter into any political union and it constituted the commonality upon which all
freemen could meet in an equal form of polity. Therefore, from a philosophical
perspective, the feud was seen as an immediate corollary of the "law of nature;"
that is, a person, no matter how situated, could provide for his or her own personal
defense as well as for the quiet possession of life, liberty, and the fruits of one's
labor.132 Thus, if one's neighbors did not behave in a "neighborly way," then it
was considered the right and obligation of "the many against the few" to coerce
the wrongdoers back into peace.133
As the basis of Anglo-Saxon customary law, the blood feud admitted as its most
basic tenet that each freeman was at liberty to defend himself, his family and his
friends, and had the right to avenge any and all wrongs done to them. 134 However,
this practice had inherent limitations, for once the kindreds (or Maegths) began
engaging in feuds, an endless cycle of violence could be put into motion. If some
wrong was committed, the Maegth could avenge that wrong through the use of the
blood feud. However, the kindred of the punished party might consider the
punishment/vengeance wreaked upon their family member as being wholly or
partially unjustified. As such, they could seek to punish the people they considered
to be the wrongdoers and the violence could escalate. Murderous vendettas between
Maegths could, and did, last for generations, thereby rendering the formation of
an orderly society difficult, ifnot impossible. 135
It was left to Aethelbert to devise a method of regulating this fundamental right
of the Anglo-Saxon populace. His problem, therefore, simply stated, was finding
a way to reconcile two seemingly contradictory aims. First, he had to develop a
method of limiting (or regulating) private vengeance so as to ensure themaintenance
of the "common good" and thepreservation of a general state ofpeace and security.
within the Anglo-Saxon community. On the other hand, based upon the "social
contract" then existing, Aethelbert had to allow for the continuing existence of a
private right of atonement for wrongs committed against the Maegths.136 The
compromise arrived at in Aethelbert's doom demonstrated a certain brilliance by
providing the expedient remedy of commuting the blood feud to a fixed payment
of cash from the wrongdoer to the injured party (or his Maegth), as well as for a
fixed payment to the "central government.' 1 37 Therefore, by providing for the
payment of cash to help alleviate the need for the blood feud, Aethelbert's codes
helped foster the transition of Anglo-Saxon society from a society based upon
family loyalty (i.e., tribalism), to one based upon governmental authority.
Underlying this concept of cash payments as a way of obviating the need for
more violent methods of private vengeance and atonement was the concept of
"strict liability" on the part of the wrongdoer. Nothing in Aethelbert's doom either
explicitly or implicitly addressed the social status of the wrongdoer; the
wrongdoer's ability to pay a tariff for his transgression, nor the degree of fault
engaged in by the wrongdoer. In fact, the cash to be paid by the wrongdoer (or his
Maegtb)to the victim (or his Maegtb)was set and fixed by the doom and did not
vary in the slightest regardless of the social status of the wrongdoer, nor did it vary
19911

with the degree of the wrongdoer's culpability. In fact, just the opposite was true.13s
Applying the theory that social rank carried with it certain privileges, among which
was absolute protection, the degree of fault engaged in by the wrongdoer was
considered wholly irrelevant. Absolute liability was imposed on the Anglo-Saxon
populace and the fine/compensation to be paid to the victim or his family depended
solely on the social status of that victim. The higher the social status of the victim,
the higher the mulct to be paid. We see, then, that concepts such as "fault" and
"culpability" did not emerge in Anglo-Saxon law until much later.1
39
Given the fact that Anglo-Saxon society was just entering the beginnings of
governmental centralization, it should not be surprising that we find little evidence
of a sophisticated legal structure in existence when Aethelbert's doom was written.
Furthermore, given this fact, it should not be surprising to find that the legal
structure in existence in early seventh century England was wholly unable to
consider every injured person's personal merits when assessing an appropriate
amount of money damages to be paid. Thus, since it would have been impractical
for this fledgling legal system to assess every injury on its impact on the victim,
the dooms fixed, by set tariff, the amount to be paid for each injury and based that
amount on the social rank of the injured party. 14 These fixed payments, therefore,
were based on the ancient Anglo-Saxon concept of the wergild.
The customary practice encoded in Aethelbert's doom of assigning a fixed value
to be paid for the death of a particular victim based upon that victim's social status
(i.e., based upon that person's wergild) was known as "composition," and every
member of Anglo-Saxon society had his or her wergildestablished and fixed by the
doom. Therefore, the death of a member ofthe nobility, for example, would require
the payment of a wergildwhich was three times higher than the wergildto be paid
in the case of a death of a peasant. Additionally, injuries less than death required
a partial payment of the victim's wergildand were also dependent on the victim's
social status.141 Thus, whenever an Anglo-Saxon was killed or injured the courts,
or "folk-moots," merely had to determine the victim's social status, look in
Aethelbert's doom to find the victim's wergild and order its payment by the
wrongdoer (or his Maegth, if the wrongdoer had no money). No complicated
concepts of intent or liability had to be considered, nor did the folk-moots have to
determine the "value' of an injury. Everything was listed, by tariff, or mulct, in
the doom.
Thus, we see that Aethelbert's doom eliminated arbitrariness in the Anglo-Saxon
legal system and ensured that the king's peace would be maintained in two very
important ways. First, the king granted his peace to certain subjects when they
were in his presence or his employ; and, second, even if they were not so graced,
they still were protected by the payment of mulcts based upon their wergild.
Therefore, penalties for breaches of the peace were punishable by fine and had to
be paid regardless of whether they were considered direct breaches of the king's
peace142 or indirect breaches resulting from the death or injury of one of the king's
subjects. 143
A careful examination of the mulcts and wergilds listed in Aethelbert's dooms
reveals a highly complex social order made-up of persons afforded varying degrees
[Vol. 2

ANGLO.SAXON LAW
of deference. First in order of deference came the clergy. This category of persons
was further divided, in descending degrees of importance, into Bishops (Biscopes),
Priests (Pmostes), Deacons (Diacones), and Clerks (Cleroces). Next in order of
precedence came the King (Cyninges), then the noblemen (Eorls), followed by the
commoners (Ceoris), freedmen, of which there were three classes (i.e., Laet
categories one, two, and three), indentured servants (Esne)and slaves (Peow).
It is apparent from an even cursory reading of Aethelbert's doom that the newly
arrived Catholic clergy held a preeminent social and legal status in Kentish
Anglo-Saxon society. In fact, as has been previously discussed, it is probable that
the raison d'etrefor the code itself was the incorporation of the new religion into
that society.144 As such, we find in clause 1 of Aethelbert's doom that the theft of
church property would be compensated with a mulct twelve times the value of the
property stolen. Theft of a Bishop's property would be compensated with an
eleven-fold mulct: a deacon's property six-fold; a clerk's property three-fold.
Furthermore, in keeping with the tenuous position the Catholic church must have
found itself in early Anglo-Saxon England, we see that King Aethelbert ensured
the church'9 right and ability to exist by noting that a "[bIreach of the peace shall
be compensated doubly when it affects a church or a meeting place." 145 Thus, as
might be expected from a recent royal Anglo-Saxon convert to Christianity, the
position of the church stood preeminent in Aethelbert's doom.
Following the clergy, next in order of preeminence in Aethelbert's doom came
the protection of the king's majesty and the imposition of the king's peace upon
his Anglo-Saxon subjects. Clauses two through twelve of the doom, therefore,
related directly to the king's mundbyrd and imposed heavy penalties upon anyone
interfering with the king, his servants, or anyone under his direct protection. 146 In
addition to prohibiting the killing of anyone so situated, these clauses also punished
robbery (clauses 4 and 9) and imposed heavy mulcts for causing certain types of
personal injury, including "molestation" (clauses 2, 3 & 8). Finally, clauses 10
and 11 of the doom prohibited anyone from sleeping "with a maiden belonging to
the king," including his "grinding slave," and imposed heavy fines on anyone who
breached either of these clauses.
Next in order of prominence came two clauses directly related to the elevated
status of Borls in Kentish society. 147 From the evidence provided therein, it is
apparent that even at this very early date in Kentish history there existed a class
of individuals who were considered "noble" by right of their birth. More than
mere free-born Anglo-Saxons, however, these individuals constituted something
of a "royal retainer class;" a class that owed its social position to ancestral.blood
rather than to the vicissitudes of kingly passions. As a group these individuals were
known as the EorIcund and, together with the non-noble, but equally freeborn,
Ceorls, they constituted the entire domain of the king's free subjects. In relation
to the Ceorls,however, the Eorshad a "marked and manifest superiority by reason
of their status, quite without reference to their relations to the king." 1
48
It has been suggested that the position of the Eorls in Anglo-Saxon society
derived from the realistic need of early Anglo-Saxon kings to strengthen their
positions and holdings. Speculation as to how this may have come about includes
19911

the theory that once these Anglo-Saxon kings and their band of followers (i.e., the
comitatus) gained a toehold on British soil, free Germanic tribesmen from the
continent were invited to strengthen the new community. The "Chief' of the
Anglo-Saxon group (i.e., the king), finding his war band too few to settle what
they had won, may well have offered liberal terms to powerful noblemen (the Eorl
class) of his own tribe, as well as to entire families of common freemen (the Ceorl
class) if they would come to his aid in the new land. They, in turn, would have
stipulated to the king's "sovereignty" on the condition that he guarantee the
perpetuation of their old continental privileges. Thus, as the new state was being
formed, it would have taken on a character much less autocratic in constitution
than might otherwise have been expected. 1
49
Thus, in analyzing Aethelbert's dooms, we find that they provide considerable
evidence concerning the existence of a relatively complex social order composed
of a variety of social classes and protected interests. We also find that early
Anglo-Saxon society did not entirely revolve around the sovereign power of the
king. In fact, just the opposite was true. A careful reading of Aethelbert's doom
reveals that there were numerous spheres of authority in Anglo-Saxon society, of
which the king constituted but one. Furthermore, unlike his continental cousins,
the Anglo-Saxon king could not exercise sole sovereign authority within his own
kingdom. Instead, he appears to have played a role more on the order of a tribal
chieftain than of a continental sovereign king. In spite of this, however, the king
also seems to have enjoyed a certain elevated social stature within Anglo-Saxon
society, a position which probably owed to his continuing ability to provide some
degree of protection to the majority of his "subjects." However, even in this role,
the king was merely exercising his authority as a "first among equals."
As noted above, nowhere in Aethelbert's doom is it suggested that the king was
the sole source of power in the Anglo-Saxon realm, for while it is true that he held
an important place in the social order, his authority was not exclusive. For example,
nothing in Aethelbert's doom suggests that the killing of a king or interference
with his interests was considered a form of treason. Rather, by establishing a
wergildand a mundbyrd for the king, it is clear that the Anglo-Saxons considered
any interference with the king's life or interests to merely be an expensive form of
homicide or wrongdoing. Furthermore, there is clear evidence in the doom to
suggest that the king was not the only person in the social order who could extend
his protection to others. For example, clause 15 of the doom clearly noted that
even a Ceorl could extend his "peace/protection" to certain other individuals. 150
Additionally, clauses 13 and 14 of the doom provided that interference with certain
interests of an Eorl subjected the wrongdoer to a payment of 12 shillings.' 5
1 In
effect, then, this clause established the value of an Eor1'smundbyrd and created
the concept of an "Eor1'speace," a peace which could be breached just as easily
a king's. Therefore, considered in its entirety, we see that the king shared his
authority to preserve the peace and provide for the common good with at least two
other classes: the Eorls and the Ceorls.Each of these classes (King, EorI, Ceor)
had interests which were to b'e protected and each held the privilege (as well as the
[Vol. 2

ANGLO-SAXON LAW
duty) to maintain the social order within Anglo-Saxon society. Yet the evidence
provided by Aethelbert's doom also suggests that even though each of these three
classes held special positions of authority, their positions were not entirely equal.
Thus, while a king may have held his position somewhat at the sufferance of his
"subjects," it is also clear that his position was considered to be at the apex of the
social order.
If one accepts the ideathat there was a shared system ofauthority in Anglo-Saxon
society, much of Aethelbert's doom falls into a predictable organization. For
example, the exaulted status of the Catholic church in the first clause of the doom
wouldseem particularly explainable when analyzed in lightof themundbyrdsystem.
Under such an analysis one would expect to find that the fledgling Catholic church
had little inherent ability to protect itself in the rough and tumble of Anglo-Saxon
society. Thus, considering the fact that the church lacked the basic ability to protect
its own interests, let alone the interests of others, one would expect to find that the
church would have fallen prey to any one of the numerous dangers lurking in
Anglo-Saxon society. However, such was not the case. In fact, not only did the
church survive its entry intoAnglo-Saxon society, itprospered. The probable reason
for this was that the church found in King Aethelbert a powerful benefactor who
was willing to take it under his wing and extend his protection over it. Thus, being
a pious convert, we can understand how Aethelbert would have believed that it
was his duty to inject the newcomers into the existing order of social protection.
Furthermore, since the church represented an interest inherently important to the
king, one can reasonably understand why he afforded them such an exalted position
in his doom.
Considering the fact that the Catholic church was unable to protect itselfin early
seventh century England, it is indeed fortuitous that it was able find as powerful a
benefactor as it did. As we have seen, the ability to protect oneself was considered
a fundamental necessity at this stage in Anglo-Saxon development. Failing that,
one needed the protection of the Maegth. Since the church was both unable to
protect itself and, by definition, did notbelong to a Maegth, it is clear that it derived
its sole social position to the historical "accident" of Aethelbert's conversion.
That one can say this with any degree of certainty is based on the fact that while
Aethelbert may have been willing to convert and take the church under his wing,
it is far from clear whether any other segment of Anglo-Saxon society was, at that
time, so accepting. Nothing in the doom suggests that there was widespread
acceptance of the church. In fact, just the opposite was true. From the evidence
available it is as ifthe Anglo-Saxon social order said to Aethelbert, "You were the
one to convert, so it is your problem to protect your new interests. We, the Eoris
and Ceorlswill not overtly interfere with this protection so long as the church's
interests do not interfere with ours." As such, it is not surprising to find that the
church's interests were protected by a heavy royal mundbyrd for interference and
it is not surprising to find that the Catholic church had no social standing apart from
that which was granted it by the king.
Since the first sixteen clauses of Aethelbert's doom broadly defined the concept
of the Anglo-Saxon "social order" and since these same clauses also defined the
1991]

role played by the aristocracy in peacefully preserving and maintaining that order,
it should not be surprising to find that the remaining 74 clauses of the doom related
directly to specific offenses which the Anglo-Saxons felt upset the social good.
These 74 clauses provided a fairly comprehensive list of wrongs of which a person
could run afoul in Anglo-Saxon society and they established a specific compendium
of tariffs to be paid if one dared breach any ofthe specific prohibitions.
First in order of consideration for public approbation were those wrongdoings
committed by persons who "secondarily" participated in breaches of the social
peace. Comprising a class of individuals that, today, we would call "alders and
abettors," clauses 17-20 of Aethelbert's doom established the monetary penalties
to be paid by persons who assisted in the commission of certain crimes. 152 For
example, clauses 18-20 established the penalties to be paid by those persons who
provided weapons to the perpetrators of certain "wrongdoings." In so doing, these
three clauses noted that suppliers of weapons were to be held pecuniarily liable for
the wrongs committed with those weapons, regardless of whether they directly
engaged in any wrongdoing of their own. Additionally, these clauses also provided
that the greater the injury inflicted with the supplied weapon, the greater the
compensation to be paid to the victim. Clause 17 of the doom also dealt with the
concept of "aiding and abetting" and concentrated on the culpability of those
persons who assisted in the perpetration of certain instances of wrongdoing. For
example, helping someone break into an abode, or helping him to unlawfully
"enter" an abode, as well as aiding in the theft of personal property, all resulted
in the imposition of heavy "fines." Thus, we see that early Anglo-Saxon society
protected the social order and the public peace with the imposition of heavy
monetary penalties and that these penalties were used as a deterrent not only for
potential wrongdoers but also for those persons who might assist in the perpetration
of the wrong. In fact, these penalties established a comparatively sophisticated
system ofindividual responsibility by making an individual liable for the foreseeable
consequences ofhis actions.
Continuing with the concept of individual liability, clauses 21-26 and clause 30
of Aethelbert's doom dealt with the treatment ofhomicides in Anglo-Saxon society.
These seven clauses established the penalties to be paid for killing certain
individuals and concentrated on the details under which such penalties were to be
paid. Clause 21, for example, noted that the killing of any freeman (presumably
one not then afforded any additional protection by the king, an Eorl, or a Ceor)
subjected the killer to the payment of an ordinary wergildof 100 shillings. If the
victim was under the protection of either the king, an Eorl, or a Ceorl, at the time
of the killing, the law required. that an appropriate mundbyrd be added to the
ordinary wergild and also noted that the perpetrator was liable not only to the
victim's family, but also to the victim's protector. Additionally, clauses 25 and
26 of the doom extended the classes of individuals to be protected from homicide
by establishing ordinary wergilds for the dependents of Ceorls, as well as for Laets
(i.e., indentured servants) of the first through third classes. Thus, unlawfully killing
any of these persons resulted in the wrongdoer compensating not only the victim's
family but also the victim's protector.
(Vol. 2

ANGLO-SAXON LAW
The compensation to be paid for committing a homicide was established in the
doom and was unyielding in its specificity. Wergilds were based upon the victim's
position in society and murderers were required to pay them (as well as mundbyrds
if they applied) regardless of the degree of fault in which they may have engaged.
However, rather than creating a strictly criminal code based on concepts of social
punishment,153 clauses 21-26 of Aethelbert's doom established a liability scheme
under which wrongdoers directly compensated their victims, or their victims'
families, for the homicide regardless of the degree of culpability they may have'
exhibited. Additionally, payments for breaches of mundbyrd were also seen as
compensatory, rather than punitive, in nature. Therefore, based on this philosophy,
concepts such as blame and punishment were not considered the primary goals of
the doom. Instead, tort concepts of strict liability and compensatory, damages
prevailed over the criminal aspects, and these "civil law" concepts served to protect
the public good. On the other hand, while evidence elicited in the doom suggests
that the primary purpose of Anglo-Saxon customary law was compensation of
victims rather than punishment of wrongdoers, it is clear that the code also espoused
a general philosophy of personal deterrence. As such, one finds in clause 30 of the
doom, for example, that a killer "had to pay the wergidwith his own money and
property (i.e., livestock or other goods) which whatever its nature must [have been]
free from blemish or damage." 154 Thus, in keeping with general tenets of both
contemporary tort and criminal law, victims had to be fully compensated for their
injuries and wrongdoers were held to strict standards of personal liability.
Furthermore, wrongdoers could not escape liability by fleeing the country, for if
they did, according to clause 23 ofthe doom, their relatives (presumably from their
Maegths)would have to pay one-half of the wergild.
As may be seen, therefore, enforcement of the proscription against homicide was
a comparatively simple matter. Questions of evidence would have been minimal
since the gathering of facts revolved around the act itself and ignored issues of
intent. Thus, once it had been determined that a person had committed an act of
homicide there would have been no need to delve into the complexities of motive
or degrees ofculpability. Furthermore, the terms ofpayment for the homicide, being
based as they were on the victim's wergild,would also have been easily established.
Ability to pay the compensation would have been considered irrelevant and
compensatory "payment plans" were already established by clause 22 of the doom
when it specified, "[i]f one man slays another, he shall pay 20 shillings before the
grave is closed, and the whole of the weregeld within 40 days." 155 Thus, byfinding
the victim's wergild in the doom, adding perhaps the protector's mundbyrd, the
folk-moot had little else to do than impose the terms of clause 22. Furthermore,
as has already been noted, even if the perpetrator fled the country, the perpetrator's
family, under a theory of "joint and several Maegthliability," would have been held
liable for half the cost of the wergild, thus obviating the need for any sort of
"pre-trial confinement system." One may be certain that even if the individual
was undeterred by the system of mulcts imposed by the doom, his family could
have been counted upon to reinforce that deterrent potential, iffor no other reason
than the preservation of their own self-interest.
19911

In addition to the system of mulcts (i.e., wergildsand mundbyrds) established
in the doom and in addition to the system of personal and Maegth (i.e., family)
liability imposed by clauses 23 and 30, one other provision contained in the doom
insured the maintenance of the public order; that is, the provisions contained in
clause 24.156 The terms of clause 24 specified that, "[I]f a man lays bonds on a
freeman (presumably both Eors and CeorIs), he shall pay 20 shillings
compensation." 1
57 While this clause could easily have applied to "kidnapping"
situations, it is also probable that it applied in cases of what might be thought of
as "false imprisonment." Thus, were someone to wrongfully accuse another of
violating some proscription of the doom, thereby causing that person to be
apprehended and "confined" (say by an aggrieved Maegth), such wrongful act
would have been punishable under the terms of this clause. Therefore, combined
with the systems already discussed, we see that the maintenance of order in early
English society, and the enforcement of its legal proscriptions, were well provided
for in this first written Anglo-Saxon code.
The remaining clauses of Aethelbert's doom considered the plethora of
wrongdoing in which an Anglo-Saxon might engage and established set mulcts for
such legal violations based upon the degree of harm done to a victim. For example,
clauses 27-29 and clause 32, dealt with the compensation to be paid for breaking
and entering into another's abode, as well as for committing a theft of personal
property once inside that abode.' 58Additionally, clauses 33-72 of the doom dealt,
in some detail, with the problems associated with assaults, batteries, and
impositions of grievous bodily harm. Therefore, consistent with the jurisprudential
nature ofthe preceding clauses, clauses 33-72 of the doom established precise tariffs
of compensation to be paid for each different type of wrongdoing committed and
each different type of harm caused. Regarding the precise detail provided in these
forty clauses, Professor A. W. B. Simpson has noted:
[The arrangement within this section is basically anatomical. We begin at the top, with
pulling of hair in clause 33.159 The next clause is for harder pulls, involving an element of
scalping.160 With odd lapses we then move downthe Anglo-Saxon human anatomy, reaching
the fingernails by clause 55 and eventually the toenails by clause 72.161
Thus, in minute detail, the doom attempted the nearly impossible task of
establishing set tariffs for each possible infliction of bodily harm (grievous or
otherwise) an Anglo-Saxon might suffer and injected ambiguity into the system
only in cases involving the laming of a victim by the breaking of his thigh.
According to the doom, such cases were not handled by the folk-moots but were,
instead, referred to the non-codified customary Anglo-Saxon legal practice of
"arbitration." Apparently, the arbitration involved the victim's "friends," (i.e.,
perhaps the victim's Maegth)deciding the compensation due. 162
Subsequent to the compensation tariffs concerning instances of personal injury,
the doom next turned to an area of customary legal practice which might broadly
be referred to as "family or social law." For example, clauses 73-75 of the male
dominated doom discussed the subservient role of "freeborn" women in
Anglo-Saxon society and established controls over their behavior. Regarding the
expected social behavior of these individuals, Aethelbert's doom established a
(Vol. 2

Anglo-Saxon Law's Impact on the English Legal System

Anglo-Saxon Law's Impact on the English Legal System

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