The origins of our legal system (Part 2)

Last week we left off with the early course Anglo-Saxons who established a number of Kingdoms in England – Kent, Wessex, East Anglia, and Mercia – with overall ruler of England. Individual rulers established their own codes such King Aethelbert of Kent who issued his own codes between the years 597 and 602, being the oldest surviving written codes and was written in the vernacular so as to be accessible to all (who could read).

Aethelbert’s influence stretched across much of England, certainly as far North as the Humber giving him the status of a Bretwalda, a “chief King” who held supremacy over kingdoms other than his own. Having converted to Christianity following the arrival of Augustine in Canterbury he became the first Christian Anglo-Saxon King, and it was this influence and his relationship with Augustine which led to him establishing his codes most likely drafted by or with the help of Augustine himself. The codes were unlikely to be new and innovative but more likely old laws being set out in legislation which made then the King’s own laws, taking influence from the way Roman’s created law codes.

Monetary fines or payments where the prime penalty for feuds thus law enforcement was a major source of royal income. The aim of the early laws was largely to protect the church, religious values and establish and maintain stability. These fine or payments were based on a person’s monetary worth which varied according to status, with not just every person, but every part of a person having a financial worth – for example the loss of a big toe cost ten shillings; the severing of a foot fifty shillings; damaging genitalia was valued at 300 shillings or three ‘person prices, a ‘person price’ or leodgeld was the price paid for killing someone.

These financial penalties were set out in detail in Aethelbert’s code, listing injuries from top to toe. This was essentially Aethelbert legislating the ancient customs of the kingdom and the Anglo-Saxons. Injustices were brought by the injured party or their family not the Crown and this system of compensation rather than bloodshed was seen as a means of controlling feuds and restoring peace.

Such codes were not enacted alone, Aethelbert had a ‘council’ of influential and hist status men he consulted with including the Archbishop of Britain and the Bishop of Rochester.

Later Anglo-Saxon Kings of the C7th and C8th enacted their own codes in their own kingdoms. This increasing involvement of the Crown in the administration of justice the notion that crimes were against the King’s peace began to emerge bringing ever more severe penalties and the introduction of mutilation and execution as punishments.

Then in the late C8th and C9th came the Vikings, bringing with them Danelaw to their extensive settlements and the impact of Scandinavian law into the English Legal System. I the meantime Anglo-Saxon laws continued to evolve most notably in the late C9th by Alfred the Great.

King Alfred (‘The Great’) by George Vertue
Given by the daughter of compiler William Fleming MD, Mary Elizabeth Stopford (née Fleming), 1931
National Portraot Gallery NPG D23582

He had a reputation as a wise and just King. Having become a Bretwalda himself over Wessex, Mercia, and London his people looked to him for intervention in disputes and his judgements were highly praised and admired, however his judgment was in such demand he delegated to ealdormen and reeves who were required to be wise and rather than legal experts.

His expanding kingdom required a harmonisation of legal practice, and this was central to his ambition for his people. Late in his reign, most likely around 890, Alfred introduced his own immense and resonant code of law of dombac. At the heart of his code was mediation and compensation with punishment being reserved largely to second and subsequent offences save for treachery against one’s lord or king which remained a capital offence although those accused of such parties could seek to clear themselves by and oath equivalent the lord or king’s “wergild”, or compensation. It was thought that even traitors would not take such an oath lightly. Alfred was praised for his laws and legal enforcement which spread peace across his kingdoms.

It was suggested, by William of Malmesbury (the foremost English historian of the 12th century) that the system which later became known as “Frankpledge” was first instigate by Alfred the Great, creating hundreds and tithings and under which every man was responsible for the behaviour of his neighbour.

Alfred was succeeded by his eldest son, Edward, who in turn was succeeded by his son, Aethelstan, who after conquering he last remaining Vikings in York, became the first King of England in 927 and following a defeat over the combined Scots and Viking forces in 937 at Brunanburh he became the first King of “All Britain”.

Aethelstan was determined to eradicate criminality and proclaimed several law codes over his entire realm. These codes brought increasingly severe penalties and punishments such as: stoning for male thieves with later punishment introduced of death followed by a public display of their corpse; female thieves would be burned. Conscience did however succumb when it came to younger offenders. Capital punishment was initially limited to those over the age of 12 years later increased to 15 years of age.

The last major influence on the law before the Norman invasion was King Canute (aka Cnut or Knut) who was a Danish King ruling from 1016 to 1035.

Whilst Canute had invaded and conquered England, he did not change the landscape, displace Anglo-Saxon nobles, or divide society, legislating for his Danish and English citizens without distinction and acknowledged differences between Danelaw, Wessex, and Mercia.

Canute’s codes were created to provide protection for the forests, raise revenue, eradiate heathens, discourage crime and protect life and property. Compensation was the main penalty for victim with fines due to the King for most offences. Subsequent offences would attract increasingly severe punishments such as mutilation punish the body as well as the soul.

How were laws enforced in these times?

It as the Anglo-Saxons who developed a network of courts, from the Manor and Village courts or “Folk Moots” to the Burhs (Borough) Hundred and Shire courts or “Moots” and the Royal Court known as “Witan” or “Witanagemot” where the King (either alone or with his Ealdormen) gave judgement in person.

Folk moot – “moot” meaning meeting.

These were essentially tribal councils.

Hundred moot and Shire Moot

The hundred-moot, the court of the hundred, was gradually restricted to lords, stewards, priests, reeves, and four men from each township. It also contained a body of twelve men who heard arguments, which committee later emerged as our petit jury. This court also enforced tithings, group of ten or twelves men responsible for the good behaviour of each other.

The shire-moot was attended by ealdormen, bishops, lords, and shire-reeves. In these courts precedence was given to the pleas of the Church, or kings, and complaints involving individuals, pleas known as “common pleas”.

There were no law enforcement officers/police officers at this time. Legal proceedings were usually started in two ways: accusation – the victim orally accusing someone; or by the frankpledge system whereby members of a tithing would present names of suspected criminals. Much depended on accusation and admission to denial.

If they made a decision of guilty then the lord would decide upon a punishment. If the folkmoot could not reach a decision the accused would then have to take a trial by ordeal.

Trial by Ordeal

The trial by ordeal system essentially passed the judgement of innocence or guilt over to God. In the Saxon period there were four main ordeals that a person could be put through to allow God to either protect them (if innocent) or forsake them (if guilty). They were:

1. Trial by Fire (or hot iron) in which the accused would hold a red-hot iron bar and then have their wounds dressed. If after 3 days their wounds were healing it was considered that God had protected them and they were innocent, if their wounds were infected God had forsaken them.

2. Trial by Hot water in which the accused would retrieve an object from the bottom of a pot of boiling water. Their wounds were then bound and inspected 3 days later.

3. Trial by Cold water in which the accused was thrown into a local pond or lake. The water represented purity, therefore the guilty would be rejected and would float; unfortunately, the innocent would be accepted into the pure water and could well drown.

4. Trial by sacrament (or blessed bread) was mainly used for the clergy and involved the accused praying that if they were guilty, they would choke on a slice of bread, they would then eat the bread and if they survived, they were innocent.

There was no separation of law and ecclesiastical courts until the time of William, which meant that most of the court business was of an ecclesiastical nature. The church accepted the system of compensation and compurgation, assigning various values to its own ranks and priests.


Its primary function was to advise the king on subjects such as promulgation of laws, judicial judgments, approval of charters transferring land, settlement of disputes, election of archbishops and bishops and other matters of major national importance. The witan also had to elect and approve the appointment of a new king. Its membership was composed of the most important noblemen, including ealdormen, thegns, and senior clergy.

There was no separate ecclesiastical legal system. Most routine ecclesiastical disputes, for example over tithes, marriages etc were dealt with in the Hundred courts, whilst Synods would deal with Church litigation.

In cases concerning land, charters, deeds, documents, and local knowledge would be relied upon but if these were not available the methods of oath or trail ordeal (as discussed above) would be employed. The acceptance of an oath made by an accused to his innocence depended on the individual. If the accused was a person of good reputation, then the oath itself may suffice, if however, they were not, his oath would be tested by compurgation that is the accused would also need to find a requisite number of witnesses prepared to provide statements as to his innocence given under oath.

There was however still no law of all England. Despite the development of law codes, regional variations continued with local customs often trumping these central law codes. However, the ground was set for the incoming Normans and a more unified legal system which I will take a look at in my next blog in this series.

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