Studies in Legal History

Essays in Honor of Samuel E. Thorne

Morris Arnold, Thomas A. Green, Sally A. Scully, Stephen D. White, Morris Arnold, Thomas A. Green, Sally A. Scully, Stephen D. White

• Publisher: The University of North Carolina Press
• Year: 2017
• ISBN:
  9781469610030
• Topic: Letteratura
• Subtopic: Saggi letterari

Investigating a wide range of problems in the development of English law, this collection of original essays honors the contributions of Samuel D. Thorne to the study of English legal history from the eleventh to the seventeenth century. The essays combine close study of legal texts and doctrines in their own setting with broader analysis of the interaction of legal and social change. Although each essay has its own historiographical context, a substantial unity is achieved. Originally published in 1981. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

1 The Laws of Ethelbert

A. W. B. Simpson

Professor S. E. Thorne from time to time used the opportunity provided by a public lecture to try out a new way of looking at a historical problem—one of these lectures, for example, delivered at Gray's Inn in 1959, and still unhappily difficult to obtain, revitalized the study of the early history of the Inns of Court.¹ I was myself privileged to hear one such lecture many years ago in Oxford. In this essay, which began as a lecture, I should like to follow his example by floating the idea that the laws of Ethelbert need to be looked at in a curious way to be understood, but I must disclaim at once anything more than the modest hope that I can raise problems which wiser heads may settle.

The earliest known event in Anglo-American legal history is naturally of some special interest to a law teacher at my university, for it was the promulgation of the laws of King Ethelbert of Kent and, if it is realistic to give the event a location, it may well have happened in Canterbury itself. It is there that lie the mortal remains of the king and of Bertha his queen, buried in the mausoleum of St. Peter and St. Paul, now familiar to tourists as St. Augustine's Abbey, which he started to build before his death to house the bodies of the kings of Kent and the archbishops of Canterbury. There was an element of compromise about the site, adjacent as it was to a pagan shrine; indeed, two cult objects from the shrine have survived, and were found in modern excavations beneath the Abbey church.² Ethelbert died on the twenty-fourth day of February in A.D. 616, almost exactly thirteen and a half centuries ago. He had ruled approximately fifty-six years, since about A.D. 560, and he belonged to only the third generation after the invasion. His reign is about as close to us as it is to the traditional date of the founding of Rome—753 B.C.; inevitably, King Ethelbert is a shadowy figure. What little we know of him has come down to us principally because he was the king to whom Pope Gregory sent Augustine's mission, a mission that was to some degree at least successful. As the Venerable Bede put it, Ethelbert was the first king of the English to enter the Kingdom of Heaven and, because Augustine brought salvation, that represented success.³ If Bede is correct on his entry (and it is hardly a historical question), it must, I think, have caused something of a stir, for Ethelbert, according to the genealogies, was a great-grandson of Hengist (who, with his brother Horsa, according to one view, was some sort of horse), and a direct descendant through only seven generations of the god Woden; descent from the god was standard in the genealogies of the Saxon monarchs. For Ethelbert was a king in a very different sense from the essentially secular sense understood today. He was a divine figure, part priest, part god, part ruler, part general; and he ruled a people, not a territory. Only because of their contemporary location did his dominion extend as far north as the Humber, and as far west as around Worcester. Furthermore, he was but one king amongst a number of Saxon kings; there may indeed have been more than one king in Kent. He was, however, a superior king, the third such to enjoy imperium over all the southern kingdoms. The Anglo-Saxon Chronicle calls such superior kings bretwaldan, though it is not at all clear in what their overlordship consisted. But in modern terminology, Ethelbert, our first lawgiver, is best, I think, described as a tribal chief, and a paramount chief as well.

King Ethelbert's place in history principally depends upon Bede's account of his conversion to Christianity, and his association with the establishment of the see of Canterbury. To legal historians, however, his fame has another basis; at some point after his conversion, traditionally in 597, but before the death of Augustine in ca. 605 (both dates, I fear, being irredeemably uncertain), he was responsible for the promulgation, perhaps in 602 or 603, of a set of laws that have, by the skin of their teeth, survived.⁴ Although it is possible to raise doubts about the precise state of our text, in the main in this essay I shall avoid discussion of the textual difficulties, and proceed generally on the assumption that they have survived in something closely resembling the original form. These laws have two special claims upon our attention. The first is that they are the earliest set of written laws of any Germanic people in Europe. The second is that they constitute the earliest text, so far as we know, ever written in the English language. Bede, in the history he wrote a century and a quarter later, extols the virtues of Ethelbert, and tells us that “Among other benefits which he conferred upon the race under his care he established with the advice of his counsellors a code of laws after the Roman manner. These are written in English and are still kept and observed by the people.”⁵ The laws have survived in a single manuscript, the Textus Roffensis, in the cathedral library at Rochester; at one point it was even dropped in the sea, and no doubt over the centuries it has had other near escapes. The manuscript dates from around 1120, and was probably copied from a Canterbury manuscript that has long been lost. The Textus Roffensis also contains the only text of the later Kentish laws of Hlothere and Eadric (ca. 670) and of Wihtred (ca. 695). Other collections of preconquest laws survive, such as the laws of Ine of Wessex (ca. 690); some laws, which we know once existed, such as the laws of Offa of Mercia, have been lost. But in English history the laws of Ethelbert have no rival in antiquity, and they possess the particular interest that must attach to the very first collection of all. There is indeed no reason to believe that there ever were any earlier English or Germanic laws.⁶ They provide us, then, with the first information we have on English law, which was to become one of the two great systems of legal thought produced in western Europe, the common-law system. It is a curious reflection that some seventy years earlier, at the other end of Europe, the Emperor Justinian in Byzantium had been responsible for producing the great codification of Roman law, the Corpus Iuris Civilis, which was to become the basis for the other great system—Roman or civil law. But as the common law was, as it were, just beginning in A.D. 600, Roman law already possessed an intellectual history stretching back to the early Roman code, the Twelve Tables, promulgated, so tradition has it, in 451 B.C.; the common-law system arrived late on the scene.

The text of the laws begins with a preamble, no doubt a later addition to the original text, which states that “These are the dooms which Aethelbert established in the lifetime of Augustine.” The word domas, commonly rendered as “dooms,” is almost untranslatable, and the same may be said for Bede's description or title—decreta iudiciorum. The nearest equivalent is “judgments,” and the difficulty we have in finding an equivalent for the 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; the nature of the two activities and the distinction between them provides endless amusement for legal philosophers. 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 Ethelbert, consisted in the eyes of contemporaries as a set of judgments pronounced by a king (and his council of elders)⁷ who did not think there was any critical difference between pronouncing abstract decisions of a general character for the future and giving particular decisions in concrete cases. The king and his counselors proceed to give judgments without waiting for any actual disputes to come before them. If this or that happens, this is the judgment. Ethelbert 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. For, since Ethelbert's time, legislation has become a major instrument of social control, though it took a very long time for its potentiality to be realized. For example, in one recent year, Acts of the British Parliament and statutory instruments covered nine thousand pages of print in the standard edition. The predominant function of modern government has come to be legislating. King Ethelbert, I fear, started it all.

His laws modestly comprise a mere ninety distinct clauses.⁸ Now the first problem that confronts anyone who compiles a collection of this kind is determining a suitable arrangement and, when the collection is the first ever, the problem is particularly acute. Though some have seen in the laws nothing more than a loose association of ideas, it seems to me that the arrangement is in the main quite systematic. The laws are largely concerned with prescribing money payments, as “compensation”⁹ (if that is the right concept, and it probably is not) for wrongs. We start with sixteen clauses dealing with situations where the compensation payable depends upon the status in society of the victim, and we start from the most important end—the church and churchmen.¹⁰ We then proceed down the social scale through the king¹¹ to noblemen¹² and finally to commoners.¹³ We then have four clauses (17-20), rather oddly inserted at this point, dealing with secondary participation in wrongdoing—the sort of thing we call aiding and abetting—and these fix appropriate levels of compensation. For example, clause 20 deals with liability for lending weapons that are used in homicide, a matter that still gives rise to legal problems in our time. I guess the compiler could not think where these clauses should come, but put them in early because they involved an element of general principle. The next six clauses (clauses 21-26) deal with killings, and the payment of the wergild, literally the “man-price” or “man-value,” which was payable to the kin of the dead person. The text, and we must remember that our manuscript was written five hundred years after Ethelbert's time, is somewhat disorderly between clauses 24 and 33. Thus, clause 24 seems out of place in the middle of the section on homicide because it deals with compensation for putting bonds on a freeman. But the text is defective at this point, and I suspect in any event that both clauses 24 and 25 may be corrupt. We move on in clauses 27-29 to deal with breaking and entering, and then again we have three clauses that seem to be in the wrong place. Clause 30 deals with the payment of wergild, and should come earlier with the other clauses on homicide. Clause 31 is in like case, though perhaps it would fit in later in the section on the family. Clause 32 is a mystery, for it deals with damage to a hamscyld, and nobody knows what this was with any degree of certainty, more particularly because the word occurs only here: “the enclosure of a dwelling,” Attenborough's translation, is a plausible conjecture.

We then proceed to deal with assault, battery, and grievous bodily harm, and this in minute detail. For clauses 33 to 72 contain an alarming list of possible acts of violence, and for each a precise sum by way of compensation is provided. The arrangement within this section is basically anatomical. We begin at the top, with pulling of hair in clause 33. The next clause is for harder pulls, involving an element of scalping. With odd lapses we then move down the Anglo-Saxon human anatomy, reaching the fingernails by clause 5 5 and eventually the toenails by clause 72. One cannot but admire the dogged determination with which the laws attempt (but of course fail) to cover every possible form of mayhem, and to fix with precision the appropriate sum of money. Only in one place, clause 65, is there any sign of flagging; here the legislation gave up, and left the assessment for laming to friends. “If a thigh is broken,” the clause says, “12 shillings shall be paid as compensation. If he becomes lame, the settlement of the matter may be left to friends.” After we have completed this gory catalogue we move on in clauses 73-84 to deal with aspects of what we now call family law, and finally, by a natural sequence of thought, we conclude with six clauses concerned with law relating to the family retainers, that is to say, servants and slaves. The dooms are, in the main, tidily arranged in a systematic way.

The money payments (to use a neutral term) referred to in the laws are presented in terms of three concepts—bot, geld, and wife. It is quite radically mistaken to think of the laws as dealing with crimes, a modern and wholly irrelevant conception. Bot is usually translated as compensation, and appears in the laws when damage has been caused or rights violated. Geld, which means value, is the concept involved whether there is something in the nature of total loss—death, a foot struck off, genitals destroyed—or where, as in the case of theft from the church, the sum payable is a multiple of the thing's value. Wite appears in only one clause, clause 9: “If a freeman robs a freeman, he shall pay threefold compensation [bot] and the king shall take the fine [wite]¹⁴ or [? and] all the man's goods.” In two other clauses (clauses 2, 84), payment is to be made to the king as well as to the immediately wronged person, but these clauses do not indicate under what description the money is payable. Clause 6 provides for a payment of fifty shillings to the king when a freeman is killed for infringement of his rights as lord (to drihtingbeage); this probably corresponds to the concept of manbot found in later laws (e.g., Ine, clauses 70, 76), a payment for the infringement of the lord's rights a...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction
• 1. The Laws of Ethelbert
• 2. Definitions of Feudal Military Obligations in Eleventh-Century Normandy
• 3. Inheritance by Women in the Twelfth and Early Thirteenth Centuries
• 4. Trial by Ordeal: The Key to Proof in the Early Common Law
• 5. Proof by Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law
• 6. Adding Insult to Iniuria: Affronts to Honor 159 and the Origins of Trespass
• 7. Legal Reasoning in the Fourteenth Century: 182 The Invention of “Color” in Pleading
• 8. Plucknett's “Lancastrian Constitution”
• 9. The Tudor Revival of Quo Warranto and 231 Local Contributions to State Building
• 10. Crime, Sanctuary, and Royal Authority under Henry VIII: 296 The Exemplary Sufferings of the Savage Family
• 11. Future Interests and Royal Revenues in the Sixteenth Century
• 12. Origins of the “Doctrine” of Consideration, 1535—1585
• 13. A Cheshire Seductress, Precedent, and a 359 “Sore Blow” to Star Chamber
• 14. “Of No Mean Authority”: Some Later Uses of Bracton
• Bibliography of Samuel E. Thorne
• Contributors
• Index of Persons and Places
• Index of Subjects