251

The Lessons of Anglo-Saxon Justice

Daniel R. Coquillette

oday we face unprecedented prob-
lems in our system of justice and in
our legal profession. The experience
of the centuries is available to us, as it was to
the founders of our legal order in ages gone. It
is, as Felix Frankfurter said, only necessary to
reach out to make it part of our own strength.
Full of dark and stormy pages, as well as pages
of courage and compassion, it is part of what it
means to be an American lawyer today.
This essay is excerpted from a forthcoming
book whose purpose is to provide a road
map into this vast resource, covering the
diverse strands of what Maitland called the
web of the Anglo-American legal system. I
also include in the book numerous original
materials, since too often legal historians try to
get between their students and the lawyers of
the past.
1
In this essay, I discuss the Anglo-
1 Several of these are included here, immediately following the text of this essay.
Saxon period in our history, about which most
lawyers know far too little.

Primitive origins
In 410

a.d. the Roman Emperor Honorius
wrote his famous letter to the English civitates
telling them to look to their own defense.
2
True cultural darkness fell over England a
generation after the Roman departure. Savage
invasions wiped the remaining Romanized
peoples away. By the time St. Augustine
arrived as a Christian missionary in 597

a.d.,
he reported that Saxon tribes were literally liv-
ing in the Roman ruins at Canterbury and
elsewhere. True, there were romantic legends
of stout resistance by Romanized Britons.
These even may have been the foundation of
the tales of King Arthur. In cold reality, how-
2 Three ne paperback accounts of this period are Peter H. Blair,

Britain and Early England
(New York, 1963); J.A. Richmond,

Roman Britain (London, 2d ed., 1963); and Malcolm Todd,

Roman Britain (London, 1981).
T
Daniel R. Coquillette is J. Donald Monan, S.J., University Professor and former Dean at Boston College Law
School. This essay is a slightly modied version of a chapter from the authors forthcoming book, Daniel R.
Coquillette, The Anglo-American Legal Heritage: Introductory Materials (Carolina Academic
Press, forthcoming 1999), and is reprinted with permission. Copyright 1999 Daniel R. Coquillette.
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G r e e n B a g 2 d 2 5 1
ever, the land was divided among invading
tribes, who constantly warred with each other
and with new invaders. Except for the work of
a handful of Christian priests, who were in
frequent danger, there was almost no written
record. Indeed, the number of surviving
Anglo-Saxon records, even just before the
Norman invasion, remains minuscule com-
pared to all other historical periods, including
the Roman. This, in itself, makes it hard to
know enough about this period, which lasted
from Honorius abandoning the Romanized
Britons to the Norman Invasion of 1066

a.d., a
period of more than six centuries.
We do know some things. The rst invad-
ers were Angles and Saxons from Germany
who came, not as a united people, but as a
group of separate tribes. These tribes were
called kin and their leaders were called chief
kin or kings. Anglo-Saxon kingdoms
were little more than tribal territories, and
there were dozens of them.
During the period from 600 to 800

a.d.,
some of the more powerful kings were able
to consolidate their kingdoms into fairly big
units, such as the kingdom of Wessex in the
south, Mercia and East Anglia in the Mid-
lands, and Northumbia in the north. Chris-
tian missionaries, such as St. Germanus and
St. Augustine, also visited at this time, and
succeeded in converting most of the tribes to a
fairly rude form of Christianity, although
some evidence of paganism persisted for cen-
turies alongside the new religion. In the period
800

a.d. to 900

a.d. there were even more in-
vasions, this time by Vikings and Danes. The
Danes drove the Anglo-Saxons out of much of
the North and also settled down, creating a re-
gion still known as the Danelaw. Anglo-
Saxon kingdoms in the South united under
the leadership of Alfred, King of Wessex (878-
900

a.d.), Alfred the Great, who succeeded
in reaching a truce with the Danish in 879

a.d.
which included the conversion of the Danish
leaders to Christianity. Later, under King
Cnut (1016-1035

a.d.), large areas of England
were actually united with Norway and
Denmark, and many Scandinavian cultural
traditions took root. The word law itself is
of Danish origin.
From Alfreds death in 900

a.d. to the
Reign of Cnut in 1016-35

a.d., England was di-
vided into two customary areas, English and
Danish, and there was constant struggle
between the two regions. It is truly ironic that
a Dane, King Cnut, was the rst to unite the
country, following major military victories over
Wessex and Mercia, assisted by treason in the
English court. But Cnut recognized the integ-
rity of the English customs. A treaty at Oxford
in 1018

a.d. began a long period of peace
between the two groups, now under a national
king. When Cnut died in 1035

a.d., however,
warring nobles of his Court again divided the
country. Cnuts succession was disputed. Even-
tually the kingdom was inherited by Edward
the Confessor (1042-66

a.d.), son of the last
English King, Ethelread. Edward succeeded in
restoring unity, but his death in 1066

a.d. once
again left the country disorganized and di-
vided, ripe for the Norman Conquest.

Anglo-Saxon Law
The warring tribes of the English and the
Danes all had customs and traditions for
resolving disputes, but we know very little
about them because there were almost no
written records. Only as the English and
Danes were able to consolidate their tribes
into larger kingdoms, from about 880

a.d. to
the end of the period in 1066

a.d., do we get
better information.
Anglo-Saxon records fall into roughly three
categories: 1) dooms or laws of particular
kings; 2) customary oaths; and 3) bocs, or
grants of land. Almost all of these were writ-
ten by clerics, and many, particularly the bocs,
were kept in churches. Not surprisingly, many
of the surviving bocs involved grants of land to
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Spring 1999 253
the Church itself or to ecclesiastical founda-
tions. Each of these dierent types of records
tells us something about the evolution of law.
Dooms, or laws, were promulgated by
Anglo-Saxon and Danish kings. The earliest
surviving example is from Ethelbert of Kent
(c. 601-604

a.d.), but the most famous and
best preserved are those issued by the great
unifying kings, Alfred (between 890 and 900

a.d.) and Cnut (between 1016 and 1035

a.d.).
(Sections from the dooms of Alfred follow this
essay.) Doom referred to a judgment, hence our
current usage of Doomsday for Judgment
Day. Most of Alfreds dooms were formulas
for settling disputes, and they were often very
graphic and technical, i.e., 44. For a wound in
the head if both bones are pierced, 30 shillings
shall be given to the injured man. They also
focus almost exclusively on reimbursement to
victims, except for specic provisions relating
to the Church or the King himself.
There is a good reason for this. Most dis-
putes involved tribal squabbles between rival
kin groups. The King was often powerless
beyond the immediate vicinity of his own
stronghold, and there was no regular system of
police, jails, or professional judges. Most cases
involved direct injury and were resolved by
settlements negotiated between kin groups.
The Kings dooms were little more than guide-
lines for such settlements. But why would
tribal kin groups settle such disputes in the
absence of any ocial force? The answer lay in
the central role of the blood feud. Like many
primitive people i.e., peoples without
much formal government Anglo-Saxon
clans, or extended families, felt a strong moral
duty to retaliate for any wrong done to one of
their own. The revenge could be directly to the
perpetrator, or to a member of the perpetra-
tors clan who was equivalent in value to the
victim. Value was determined by custom,
and was expressed as the wergeld, or the man
price of an individual, usually in shillings (i.e.,
a 1200 shilling man).
Family members subject to blood revenge,
or required to administer such revenge, might
be less enthusiastic than say, the perpetrator. It
is one thing to seek revenge in your own quar-
rel, but what about having to ght because of a
stupid act by your dim nephew? In addition,
blood feuds could go on and on, and use up
time and energy. There was a clear incentive to
resolve them peacefully, by making the pay-
ments set out in the dooms.
The occasions for these negotiations were
the customary courts, which met regularly at
local sites, often a Law Rock. These were
called moots, and it was an obligation of all
freemen in a particular neighborhood to
attend (moot worthy). The most local of these
courts, the courts of the hundred or, in the
Danelaw, the wapentake, met every four weeks.
(A hundred or wapentake was a group of vil-
lages whether consisting of a hundred fami-
lies or a hundred hides of land remains
unclear. A hundred court was convened by a
deputy of the sheri.) There were also shire
moots, run by the Kings representative in the
shire, the shire-reeve or sheri, and at the
top moots convened by the King himself.
At these moots, the freemen attending the
so-called doomsmen (judgment men) would
discuss cases and suggest resolution of prob-
lems. In extreme cases, individuals would be
declared outlaws, and could be killed by any-
one without any duty by kin to retaliate. Usu-
ally, however, kin were able to control the
renegade relations and to hold them to settle-
ments reached with the victims kin.
While we are not sure exactly how these
sessions proceeded, the dooms of the kings do
give us some hints. In addition, there are de-
scriptions of Law Rock meetings in some
bocs, such as the boc written at Aegelnoths
Stone in 1036

a.d. and included at the end of
this essay. Finally, traditional moots persisted in
some remote parts of Scandanavia, particu-
larly Iceland, until after writing was more
common. Njals Saga, written by an unknown
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254

2

G r e e n B a g 2 d 2 5 1
Icelandic author in about 1280

a.d., contains
many descriptions of Law Rock negotia-
tions, and of blood feuds when such negotia-
tion failed. Although these Icelandic
proceedings occurred long after the Anglo-
Saxon period, they seem to t closely the evi-
dence left by the Dooms of Alfred and Cnut as
to how proceedings occurred in Anglo-Saxon
England.
3
Finally, we have written records of custom-
ary oaths, taken by accusers and by defen-
dants alike at the Law Rock (and excerpted
below). Moots were often attended by the local
priest and ordeals arranged by the priest were
sometimes used to establish the truth of a
statement. Indeed, there is some indication
that choice of ordeal was intended to obtain
confessions, when appropriate, and thus were
covertly rational. Certainly, fear of lying un-
der a holy oath was very real. Further, fear of
blood feud led to serious eorts to arrange vic-
tim compensation, even when oaths clashed,
as the passages in Njals Saga indicate.

Civilizing influences
Two factors gradually led to a change in this
rudimentary system of victim compensation
through fear of revenge. First, as the Kings
developed more power, there were oenses
which could not be discharged by paying a
blood price, or bot. These were originally
oenses against the Kings own peace, the
Kings Peace, or against the Church. They
were called botless oenses, and required pay-
ing a ne directly to the King or Church, as
well as paying victim compensation. For seri-
ous oenses, people could be executed. The
Kings Peace originally just extended to his
own hall, or to the market places or roads
under his protection. Later, the concept
3 Interested readers can nd

Njals Saga excerpted in the book.
expanded to include violent acts almost any-
where. This was, of course, the birth of our
criminal law.
The Church had no kin. It relied, therefore,
on the King for retaliation for harm to its
priests and nuns. The Church also was the
only institution where many people could read
and write. The Anglo-Saxon bocs (hence our
term book) were probably invented by the
Church to prove grants of land to itself and to
provide a record to gain royal support if some-
one tried to steal Church property or land.
Thus the growing power of the King and
the Church led to more botless crimes and
more written records. Still, the moot system
had no trained judges or lawyers. Much of its
eectiveness rested on local negotiations,
sometimes guided by the Kings dooms. This
was true right up to the Conquest, and even
afterward.

Was this a legal system

at all?
Assume that the so-called Anglo-Saxon law
consisted of customary norms that were fol-
lowed by tribal groups as an alternative to
blood feuds. Is this law properly so called?
4
Certainly there were no police, no institu-
tional jails, no professional lawyers or judges,
very little writing of any kind, and a high
degree of informality of process. Those writ-
ten laws that did exist dooms, customary
oaths, and bocs, or land grants were not really
rules backed by ocial sanctions, such as
modern criminal codes. They were more like
statements of customary norms, eective
because of voluntary acceptance.
Of course, the growing power of the King
led to nes and botless oenses that began to
resemble modern criminal rules. In addition,
4 For a good summary of the academic controversy around this question, see Robert Redeld,
Primitive Law, 33

U. Cinn. L. Rev. 1 (1964).
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the Church standing as it did outside the
protection of the kin gradually encouraged
centralized royal power and written records
for its own purposes. But were the negotia-
tions at the Law Rock really a legal process?
One thing is certain. The Anglo-Saxons
themselves called the customary system law.
That is the origin of our word. Secondly, we
can recognize in it incipient elements of a
formal legal system, including the regularly
scheduled moots and the oath process. Most
importantly, it was a system that dened and
protected the value of each person in an
increasingly formal way. It is, indeed, from the
Anglo-Saxon folc riht that we derive our notion
of rights, and the word itself.
As we have mentioned before, to an Anglo-
Saxon every person had a value, usually
dened by the wergeld or blood price. The
value might dier greatly from King to slave,
but even slaves had value recognized by the
law. Secondly, every person had a personal
space or peace. The Kings peace was
quite large, and was expanded to include roads
and markets, but even a slave or laboring coerl
had a dened space. The custom dening
this space and value was called the folc riht.
From this idea we get both the concept of per-
sonal rights and of freedom itself. Indeed,
these are all Anglo-Saxon words. If we owe to
the Romans the ideas and words for justice,
legal, codication, judge, equity, and
constitution, we owe to the Anglo-Saxon the
concepts of rights and freedom. In fact, the
folc riht of the Anglo-Saxons was so important
that the Norman conquerors, from William
on, swore to uphold it.
If we deny the title law to such a system,
we must do the same for much that we call
law, especially international law.
5
Interna-
tional law, like Anglo-Saxon law, is largely
consensual, and survives because the alterna-
tive is risk of combat. There are often no
genuinely eective international jails, or
police, but we perceive the system as at least
using the terminology and symbols of a legal
system. When international punishments are
administered for human rights violations, it
is usually when a state is overthrown, de-
feated, or coerced by other sanctions. Those
proceedings often are described as legal if
they follow the customary norms.
6
Of course, some elements of the Anglo-
Saxon system are also compatible with the
total vacuum of orderly government. Condi-
tions in Albania before World War I led to a
blood feud system.
7
Indeed, whenever there
is no credible police power, or where parties
cannot make use of a formal system of sanc-
tions, the same patterns emerge. Thus, even
today the families of organized crime nego-
tiate to avoid bloody retaliation in ways
sharply reminiscent of the dooms of Alfred!
Perhaps the best example is our own Wild
West, where the Anglo-Saxon sanction of
outlawry was also found, and where shire reeves
or sheris administered a rough justice. Even
the words were the same as in Anglo-Saxon
England! Whether called law or no law,
the dynamics of incipient legalism are very
much worth studying, because they reoccur
with regularity throughout time.

Anglo-Saxon issues
It has been said that legal history is merely a
specialized form of comparative law. Instead
of comparing dierent existing systems, i.e.,
5 As Redeld observed: The road to the right recognizes law to exist only where there are courts and
codes supported by the fully politically organized state. This road quickly becomes a blind alley, for
only a few preliterate societies have law in this sense. Id.
6 See Telford Taylor,

Nuremburg and Vietnam 76-94, 154-182 (New York, 1971).
7 See Margaret Hasluck, The Albanian Blood Feud, in Paul Bohannan, ed.,

Law and Warfare 381
(Natural History Press, 1967).
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G r e e n B a g 2 d 2 5 1
a horizontal comparison, legal historians
make vertical comparisons, i.e., between
systems separated by time, rather than by
space. Anthropologists, such as Margaret
Mead and A.S. Diamond, have made exten-
sive studies of primitive legal systems
existing today among remote peoples.
8
But
these systems, instructive as they may be,
can never tell us as much about ourselves as
the study of our own special primitive
system, the ancestral forebear of our present
legal science. Whether we discuss murder,
moots, shires, books, sheris, etc., we
are still using the language of the Anglo-
Saxon law, just as our system of county gov-
ernment in many states has many features in-
herited directly from the Anglo-Saxons.
The crucial questions with regard to the
Anglo-Saxon Period, however, are fundamen-
tally comparative, i.e., they concern dier-
ences and not similarities. How could a non-
compulsory criminal process work? How did
the early communism of the hundred, so
romanticized by Marxist writers, actually
operate and why did it disappear? What
lessons of eectiveness and justice can our
society learn from a system whose principle
sanctions were blood feud and outlawry? Are
all primitive systems inherently inferior, and
what do we mean by primitive anyway?
Given the great inherent problems facing
Anglo-Saxon society, a society without a
trained judiciary or any form of professional
law enforcement, there was a distinct utility,
and even eciency, to the legal institutions
that slowly evolved. Certainly, it seems doubt-
ful that either an Anglo-Saxon or a Roman
would be entirely impressed by the present
operation of our allegedly advanced, and very
costly, system of dispute resolution, whether it
8 See, e.g., Margaret Mead, ed.,

Cooperation and Competition Among Primitive Peoples
(Boston, 1961); A.S. Diamond,

The Comparative Study of Primitive Law (London, 1963).
be criminal or civil. In any event, should we
judge the operation of a legal system by its
eciency i.e., social ordering or its moral
legitimacy, i.e., justice? Study of Anglo-
Saxon law is fascinating in part because such
fundamental issues are always present, even in
this so-called primitive system.

Original Anglo-Saxon

Materials

9
Dooms

The Laws of Alfred (890 900 a.d.)
I, Alfred king of the West Saxons, showed the
following laws to all of my Witan and they de-
clared that all of them are satised that they be
observed.
4 If anyone plots against the life of the
king, either on his own account or by
harboring outlaws he shall forfeit
his life and all he possesses
7 If anyone ghts or draws his weapon
in the kings hall and is for this
arrested, it is for the king to decide on
his death or on his life in the event the
king wishes to grant him life
8 If anyone takes a nun from the cloister
without the permission of the king or
the bishop, he shall give 120 shillings,
half to the king and half to the bishop
or to the lord of the church in whose
charge the nun is
9 These come from C. Stephenson F.G. Marcham,

Sources of English Constitutional

History (Harper Brothers, 1937), with some additional editing by John P. Dawson.
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10 If anyone lies with the wife of a 1200
man [i.e., a man whose wergeld is 1200
shillings], he shall pay the man 120
shillings, to a 600 man he shall pay
100 shillings, to a common free man
40 shillings.
12 If a man burns or cuts down the trees
of another without permission, he
shall pay 5 shillings for each big tree
and 5 pence for each of the rest no
matter how many there may be; and
30 shillings as a ne.
13 If one kills another unintentionally
while they are engaged in common
work by a blow from a falling tree, the
tree shall be given to the dead mans
kindred and they shall remove it from
the land within 30 nights; otherwise
the owner of the wood shall take it.
19 If one lent to another his weapon, by
which he kills another, they may if
they wish combine to pay the wergeld.
1 If they do not combine, he who
lends the weapon shall pay one-
third of the wergeld and one-
third of the ne.
2 If he wishes to purge himself by
swearing that in lending he
knew nothing evil, he may do
so.
24 If a cow or bull injures a man, its
owner must hand it over to the
injured person or settle with him for
payment.
44 For a wound in the head if both bones
are pierced, 30 shillings shall be given
to the injured man.
1 If the outer bone [only] is
pierced, 15 shillings shall be
given.
45 If a wound an inch long is made under
the hair; one shilling shall be paid.
46 If an ear is cut o, 30 shillings shall be
paid.
47 If one knocks out anothers eye, he
shall pay 66 shillings, 6 pence.
1 If the eye is still in the head but
the injured person can see noth-
ing with it, one-third of the pay-
ment shall be withheld.
Customary Oaths

(A) Oath of a Man to His Lord
By the Lord before whom this holy thing is
holy, I will to N. be faithful and true,
loving all that he loves and shunning all
that he shuns, according to the law of God
and the custom of the world; and never by
will or by force, in word or in deed, will I
do anything that is hateful to him; on
condition that he will hold me as I deserve
and will furnish all that was agreed between
us when I bowed myself before him and
submitted to his will.

(B) Oath of an Accuser
By the Lord before whom this holy thing is
holy, I thus bring my charge with full
folkright, without deceit and without malice,
and without any guile whatsoever, that
stolen from me was this property, N., which
I claim and which I seized in the possession
of N.
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(C) Oath of One Thus Accused
By the Lord neither by counsel nor by deed
had I knowledge of or part in this, that the
property, N., was carried o. On the contrary,
I possess the property for this reason, that I
lawfully inherited it. that he, having the
lawful right to sell it, sold it to me. that it is
the ospring of my own animals, my private
property raised under my care.

(D) Oath of One Seizing Property
By the Lord I seize N. neither through hate
nor hostility, nor through unrighteous greed,
and I know nothing truer than what my
spokesman has said for me, and what I now
myself state as truth, that he was the thief of
my property.

(E) Oath in Reply to Such Seizure
By the Lord I am guiltless, both in thought
and in deed, of the accusation made against
me by N.

(F) Oath of an Oath-Helper
By the Lord the oath which N. has sworn is
clean and without falsehood.
Bocs

Canute: Grant to St. Pauls, London

(1036 a.d.)
I, King Canute, give friendly greetings to my
bishops, my earls, and all my thegns in the
shires where my priests of St. Pauls monastery
hold land. And I make known to you my will
that they shall enjoy their sac and soc, toll and
team, within tide and without tide, as fully and
continuously as they best had them in any
kings day, in all things, in borough and out of
borough. And I will not permit any man in
any way to do them wrong. And of this the
witnesses are Aegelnoth, archbishop; Aelfric,
archbishop; Aelwi, bishop; Aelwine, bishop;
Dudoc, bishop; Godwine, earl; Leofric, earl;
Osgod Clapa, Thored, and many others.
May God curse him who shall pervert this
[grant]!

Confirmation of a Title to Land in

the Shire Court of Hereford

(1036 a.d.)
Here, in this writing, it is made known that a
shire court sat at Aegelnoths Stone in the
time of King Canute. There sat Aethelstan,
bishop; Ranig, alderman; Edwin, [son] of the
alderman; Leofwine, son of Wulfsige; and
Thurcil the White (Hwita). And thither
came Tog the Proud (Pruda) on the kings
errand. And there were Bryning the sheri,
Aegelweard of Frome, Leofwine of Frome,
Godric of Stoke, and all the thegns of Here-
fordshire. Then came faring to the court
Edwin, son of Eanwen, and there claimed as
against his own mother a portion of land,
namely, Wellington and Cradley. Then the
bishop asked who would speak for his
mother. Then Thurcil the White answered,
saying that he would if he knew the defence
[that she cared to make]. Since he did not
know the defence, three thegns were chosen
from the court [to ride to the place] where she
was, and that was Fawley. These [thegns]
were Leofwine of Frome, Aegelsige the Red
(Reada), and Winsige Sceagthman. And
when they had come to her; they asked her
about the land which her son claimed. Then
she said that she had no land which in aught
belonged to him, and she burst into a noble
rage against her son. Then she called thither
her kinswoman Leoaed, Thurcils wife, and
before those [present] thus addressed her:
Here sits Leoaed, my kinswoman, to whom,
after my day, I give both my lands and my
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gold, both gear and garments, and all that I
possess. After which she said to the thegns:
Do nobly and well. Announce my message to
the court before all good men, telling them to
whom I have given my land and all my
belongings; and [that] to my own son [I
have] never [given] anything. And bid them
be witness of this [gift]. And they then did
so, riding to the court and declaring to all the
good men what she had directed them [to
say]. Then Thurcil the White stood up in the
court and prayed all the thegns to grant his
wife a clean title to all the lands which her
kinswoman had given her, and they did so.
And Thurcil then rode to St. Aethelberhts
monastery, with the leave and witness of all
folk, and caused this [grant] to be set forth in
a Christs book. B
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