Seminar CXCV: more Anglo-Saxon feud and punishment

I’m not sure I’ve blogged two successive versions of one paper except inadvertantly, and I’ve certainly decided not to do so before now, but I will make an exception for Dr Tom Lambert and his paper, “Crime, Community and Kingship”, which I wrote about here when it was presented in Oxford but which on 12th February 2014 was also appearing, with modifications, at the Earlier Middle Ages Seminar at the Institute of Historical Research. You may remember from the earlier write-up that whereas the standard picture of Anglo-Saxon law has been that it develops from feud to royal enforcement, Tom argues for a two-part system from as far back as we can see up till the twelfth century at least, in which there was injury and crime.1 The former was to be compensated for or avenged and the latter, because it had no obvious worldly victim—things like sacrilege, failure to do public works, and so on where the victim is the whole community or no-one—falls to the king to prosecute. He sees the Anglo-Saxon period as a long process of increasing regulation and efficiency management of a system that basically fitted that description throughout. So, that was the Oxford pitch, what had changed by the time it came to London?

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester

The first page of the Laws of King Æthelberht as preserved in the Textus Roffensis at Rochester, image from Wikimedia Commons

I suppose that one point I hadn’t properly taken on board before is that when we see Anglo-Saxon law for the first time, in the Laws of Æthelberht, there is no sovereign paradox in them.2 The issue of the king’s right to make law or decided compensation isn’t really touched upon, but his rights are in the code, and they are of a different grade but not a different order; he is just a ‘big freeman’ with some extra duties. He is not outside the system as later royal legislators have to be in order to say what the system is or does; instead the code shows us a bigger system of which the king is also part. This includes feud, in as much as the king receives compensation for the death of a free man, perhaps (I considered) because he has lost the resource of that man’s military service or similar.

Wayland the Smith as depicted on the Franks Casket

What this men is about to do was messy but completely legal, OK?

Tom was also working a bit harder to make this argument fit with his earlier work arguing that theft was one of the most serious offences in the Anglo-Saxon world of misdeeds because of its secret nature, which more or less prevents people taking vengeance; how can you if you don’t know whodunnit? The whole village becomes suspect; the cohesion of the community is placed under threat until the matter is resolved.3 A good honest slaying is easy to settle by comparison! And it’s in the area of pursuing thieves and protecting the Church especially, Tom argued, that we see royal expansion, rather than in attempts to limit feud. The king’s business was the kind of offences that people can’t punish themselves, and so it remained right up to the Conquest and beyond. In questions, Susan Reynolds, with her typical insight, pointed out that what we are talking here is ‘punishment’ versus ‘damages’, that is, exactly the difference between criminal and civil law that England still maintains… Since homicide is now definitely criminal not civil, however, there’s a change to be explained still, and Tom puts it later than 1066.

London, British Library, MS Cotton Nero a.I, fo. 88v.

The opening of the Laws of Edmund in London, British Library, MS Cotton Nero a.I, fo. 88v.

As for the people’s action, even the royal legislation is full of references to assemblies and local courts; in fact, it tries to make them do more and make justice the affair of lower-level assemblies, moving prosecution of offences down from towns to hundreds! This is, you have to admit, not the kind of appropriation of right of court to royal justices we see under Edward I. What is is, however, Tom now conceded, is a universalisation of practice across a much wider area as the kings of Wessex brought the rest of what is now England under their control. There was some tension there, I thought, since Tom’s picture was being extrapolated from laws from several kingdoms in the first place, but it’s sort of got to be true anyway; the king decides which set of local customs he endorses, and to say anything at all that puts him in charge (which shows that I have not entirely left Wormald behind) he has to do something other than tell everyone to go on with what they were doing. Some communities must have experienced royal demands for how they did things as cancellations or abrogations of ‘their ways’. This is true of far more things than just crime and punishment, of course, but it does tend to be where my sympathies always go when the extension of royal power turns up in argument (as in Oxford it so often did). The thing about a big society is that it normalises all the little ones…

1. That standard picture is now canonically enshrined in Patrick Wormald, The Making of English Law: King Alfred to the twelfth century, 1. Legislation and its limits (Oxford 2003).

2. The sovereign paradox, that he who would change the law must be above it, is repeatedly explained by Kathleen Davis, Periodization and Sovereignty: how ideas of feudalism and secularization govern the politics of time, The Middle Ages (Philadelphia 2008), pp. 7, 34, 59, 73, 79-80 & 83, though once is really enough.

3. See T. Lambert, “Theft, Homicide and Crime in Late Anglo-Saxon Law” in Past and Present no. 214 (Oxford 2012), pp. 3-43.

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