Early development of arrest as
a concept and process
By
"The
basic substratum of American law, as of American speech, is English.[1] That comment is as applicable to American
legal procedure as it is to substantive law since comparable English sources
influenced both. Those sources are,
principally, the traditions of orderly living brought with the early American
settlers; royal charters which decreed that the laws in the new lands must not
be discordant with those of England; the reading in the American colonies of
such legal treatises as Blackstone's Commentaries on the Laws of England;[2]
and state constitutions, reception statutes, and court decisions declaring that
various aspects of English law, particularly its common law, were considered in
full force by the respective ratifications, enactments, and rulings.[3]
It
is, thus, more or less possible to relate various processes and procedures
central to American justice to origins in English legal, social and political
history. To illustrate, the requirement
of "due process of law" in the Fifth Amendment prior to deprivation
of "life, liberty, or property" is traced to the wording in a treaty
between King John and his barons in 1215.
That treaty, the Magna Carta, while reflecting
the political rights of subjects and rule by the standards of law, was
motivated directly by a threat of civil war by barons who resented the
consequences of the king's misadventures in foreign wars.[4] Chapter 39 of the Charter was the formative
element for legal developments that culminated in the wording of the Fifth
Amendment. That chapter states "No
free man shall be taken or imprisoned or disseised or
outlawed or exiled or in any way ruined, nor will we go or send against him, except
by the lawful judgment of his peers or by the law of the land."[5]
It
is not possible to point to a seed or a root such as the Magna Carta in the case of the process of arrest. In the broadest terms, one can say that
arrest, as a process in English law, arose some time between the fifth century
when the Nordic invasions of
There
could of course be no concept like arrest when wrongs of all sorts called for
private vengeance, up to and including blood feuds. In contrast, one can find perhaps the
earliest use of a form of the French word arester
in reference to seizing a person for purposes of bringing that person to trial
in the year 1275.[7]
Accepting that one can not specify an event or a set of
contiguous events that provided the roots from which the legal concept
“arrest" grew, this article will summarize key phenomena and developments
during the early years of British legal history that led in a sequential manner
to the point where there were officials who seized people suspected of crimes
and took them into custody for later trials.
Those early years included the Anglo-Saxon (450-1066),
The Concept of Arrest as Defined by Constitutional Interpretation
While constitutionally based arguments form the bases for
protections against improper arrests, the term arrest does not appear in the
U.S. Constitution. Rather than referring
to arrest, the ultimate source of interpretation, the Fourth Amendment, uses
"seizure" of persons as follows:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized."[8]
Clearly, there are several levels of restriction on the
freedom of an individual that may be imposed in current society by an agent of
the state. There may be, at one end, a
stop leading to a citation for a motor vehicle violation, up to, at the other
end, a full panoply involving questioning; escort to a police facility, most likely
in handcuffs; incarceration in a police jail; and referral to the office of
prosecuting attorney preparatory to expected criminal trial. There is of course a vast difference in
intent and amount of restriction of liberty between those extremes, with several
steps of increasing restriction between those ends. Considering the steps in a sequence of
increasing restriction, is there any difference between a seizure and an
arrest?
A seizure, in the sense of the Fourth Amendment, has been
most clearly specified by the Supreme Court as follows:[9]
We conclude that a person has
been 'seized' within the meaning of the Fourth Amendment only if, in view of
all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.
Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled.
A seizure is, then, any restriction of freedom
under the coercive authority of an officer of the law. In the words of Florida v. Royer,[10]
law enforcement officers do not violate the Fourth Amendment [seize] by merely
approaching an individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting questions to him if
the person is willing to listen.... If there is no detention-no seizure within
the meaning of the Fourth Amendment then no constitutional rights have been
infringed."
Prior
to 1968, the Court did not provide a distinction between seizure and
arrest. To illustrate, in Henry v.
United States,[11]
the Court held "that the arrest took place when the federal agents stopped
the car." At that instant,
"the officers interrupted the two men and restricted their liberty of
movement," thus accomplishing the arrest.
Similarly, in Orozco v. Texas,[12]
the Court accepted that an arrest occurred, "[f]rom
the moment [the petitioner] gave his name" to police officers (who arrived
in his bedroom at about
Shortly
after that decision, the Court, in Terry v. Ohio, recognized seizures
that were not arrests; in the words of the decision,[13]
"It is quite plain that the Fourth Amendment governs 'seizures' of the
person which do not eventuate in a trip to the station house and prosecution for
crime--'arrests' in traditional terminology." A seizure has occurred[14]
"when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen." On the other hand,[15]
"An arrest is a wholly different kind of intrusion upon individual freedom
from a limited search for weapons [incident to an interrogatory stop], and the
interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal
prosecution."[16]
That
the precedent set by Terry has held up fully over the years may be seen
in a 1998 decision, Knowles v. Iowa.[17] In that case, the Court rejected the argument
that the search of a car following a simple traffic stop (that was not
considered an arrest) and issuance of a citation was justified on the basis
that a peace officer was permitted, under Iowa law, to arrest a person for
violation of a traffic law. In Knowles,[18]
the Court clearly differentiated between the "relatively brief
encounter" of a traffic stop and an arrest carrying the full possible
consequences of the criminal justice system, including taking "the person
before a magistrate."
After
acknowledging the differentiation between seizure and arrest provided by Terry,
LaFave[19]
emphasized two "important propositions" that emerged from the
distinction: "(i) a seizure need not be called
an arrest in order to subject it to the requirements of the Fourth Amendment;
and (ii) a seizure which is limited in its intrusiveness may be reasonable
under the Fourth Amendment even in the absence of the probable cause
traditionally required for arrest."
Thus,
it is clear that all arrests are seizures of the person in the sense of the
Fourth Amendment, but that, at least since Terry, there are seizures
that are not arrests. There is, at the
one end in the Terry sense, limited restraint as in an interrogatory
stop, which is a seizure but not an arrest, and, at the other end, an arrest
that eventuates "in a trip to the station house and prosecution for
crime." With several levels of
restraint between these extremes, where is the point of division when a seizure
becomes an arrest?
Courts
have, both before and after the Terry decision, avoided some of the
difficulty of anchoring the concept arrest by the use of several modifiers to
indicate that they mean, by arrest, custody with features preparatory to
criminal prosecution. The expressions
include "formal arrest,"[20]
"officially" and "formally" arrested,[21]
"full custody arrest,"[22]
and "custodial arrest."[23] But it should be emphasized that courts,
including the Supreme Court, have widely used arrest without modification to
imply the equivalent of formal or custodial arrest. In particular, the Terry decision
itself uses the term arrest repeatedly to imply, as stated above, that it
"is the initial stage of a criminal prosecution."[24]
And
that is the meaning of arrest for purposes of this article. Thus, arrest here means seizure of an
individual by a law enforcement officer for a suspected criminal offense, and
then bringing that suspect to a police facility for expected subsequent
referral to a prosecuting attorney for trial in an appropriate court. Clearly arrest in this sense "is the
initial stage of a criminal prosecution," as stipulated in Terry.
Given that definition of arrest, it is possible to specify certain conditions that anchor the concept. First and foremost, crime is considered an offense against the state rather than merely an issue of quarrel between victim or victims and the person or people accused of the crime. In addition, there are police with facilities for detention, and prosecutors who present arguments in courts. Finally, there is a sense of the importance of personal freedom and a feeling of loss of dignity or self-esteem when that freedom is impaired, and most especially when there is a trip to a police facility in handcuffs (It is perhaps worthy of note that the Supreme court has often referred, in its decisions, to the loss of dignity that goes with arrest.)
EARLY
ANGLO-SAXON METHODS OF DEALING WITH WRONGS
It may seem odd to
encounter a listing of cultural characteristics, as those just given, that are
so obvious and so seemingly trivial to frame the concept of arrest. But, as obvious as they seem in modern life,
they are among the end products of historical developments that started at
least as far back as the period of establishment of Nordic dominance of what
later became England. While the evidence
indicates that the Anglo-Saxon invaders of
That Nordic dominance, which was achieved in the sixth century A.D.
after almost two centuries of battles, was accomplished principally by three
groups of Germanic peoples: the Saxons,
the Angles, and the Jutes. At the time
of their invasions of
led by kings who claimed descent from ancient
gods. As Stenton[25]
pointed out, "Respect for such descent...survived even a migration across
the
by the year 600, consisting of scattered
villages, included areas that became known as
Beyond
their kings and their presumed divine origins, the Germans brought various
other cultural traditions with them to their conquered lands, several of which
are of particular relevance for understanding the development of English law
and procedures for dealing with criminals.[26]
First, there was the early tradition of
complete independence of the individual in enforcing personal rights. In the words of Laughlin,[27]
"In the most primitive period of German society, and when through the
doctrine of self-help, the individual himself exercised active judicial powers,
the punishment of crimes, as well, perhaps, as the civil procedure of distress,
lay without the jurisdiction of courts--which did not exist. The German was himself judge and warrior; he
levied execution and exacted blood for blood by the sovereign powers vested in
himself by the most democratic of all constitutions."
Long before the migrations to
and conquests in
The
central role of the family in matters of justice during the era of initial
conquests of
In
the extreme case, if a man were killed it was considered the duty of his
kindred to avenge the act by killing the slayer. But the kindred of the original slayer,
killed to avenge the first death, often saw it as and issue of right and honor
to avenge the second killing--thereby the situation could, and frequently did,
escalate into an extended blood feud.[33]
In
later Anglo-Saxon years, membership in the domain of a lord became more and
more of a substitute for kinship association in defining identity for the individual.[34] Protection came from the lord, the lord
provided surety and support for an oath, and under certain circumstances the
lord could engage in a feud for one of his men and pay or receive compensation.[35] The personal bond between lord and man
became, by the time of Edward the Confessor (1043-1066), associated with the
land and the "service required for the lord's protection...was economic,
the tilling of the soil and the harvesting of the crops."[36]
DEVELOPMENTAL CHANGES IN DEALING WITH WRONGS
Current
knowledge of the life, events, and procedures, including those for dealing with
wrongs, of the Anglo-Saxon period came from a broad array of written materials
and archaeological findings.[37]The
written materials include many of the laws promulgated by kings;[38]
the primary historical record of the period, the Anglo-Saxon Chronicle;[39]
accounts of Anglo-Saxon history by individuals who lived during the era;[40]
the lives of kings (as, e.g., the important Asser's Life
of King Alfred),[41]
records of law suits; and materials descriptive of Anglo-
Saxon days but written after the
Conquest--foremost among them being the Domesday
Book.[42]
Before turning to commentary on laws
and related procedures, a brief summary of territorial units and their administrative
responsibilities seems desirable because of the dependence of law and legal
procedures on these units. While there
were Britons (descended from Picts and Celts) and
Romans in
Despite
frequent wars among kingdoms, one of the kings became recognized as overlord or
Bretwalda (meaning ruler of
Early
in the ninth century, the king of
One
important result of that continuing dominance was the establishment of a
uniform system of local administration throughout most of
The
final administrative unit of consequence for this article is the borough; it
achieved prominence in the eleventh century.
The borough was a town, usually fortified, that had housing and active
trading in the center and agricultural fields further out.
Despite
the promulgation of sets of laws (often referred to as dooms) by several kings
of the Anglo-Saxon era, the larger base of customary law was passed on
orally. It was not until the Norman era
that one finds attempts at systematic ordering of English law. During the first half of the twelfth century,
Norman legal experts compiled a series of books that presented the old laws
purportedly as firm bases for the new law.[51] These compilations recognized three main
bodies of Anglo-Saxon custom
corresponding to three principal regions of the country: West Saxon law, Mercian law, and the Danelaw. According
to Holdsworth,[52]
"They all varied in their contents--indeed, if their provisions were the
same on any given point such agreement was thought worthy of note [in the
Norman books]; and within these three districts the customs of different
localities varied."
Starting
with the system for controlling crime that the Germanic invaders brought with
them to Britain, an important step in the developmental process leading from
justice in the form of vengeance under the control of individuals and their
families to justice administered by a multi-layered social system came in the
form of proclamations or laws that specified compositions, that is,
compensations for wrongs, and infangtheif. The compensations, referred to as bot in the general case, consisted of money or
property that could be accepted by victimized families without loss of honor or
need for further vengeance. That sort of
substitution was undoubtedly preferred by kings to the disruptiveness of cycles
of retribution in the form of blood feuds, but perhaps the most important
motivating element for the use of compensation stemmed from the conversion of
the Nordics to Christianity. The Church
opposed killings as acts of vengeance and encouraged settlements in the form of
compensation.[53]
In
infangtheif, people were "invested by law
with the right of inflicting summary punishment on wrongdoers whose offenses
injure them personally."[54] Recognition of the right to put an offender
to death--as in "If a thief is taken, he shall die the death..."[55]
may not seem much of a legal advancement over death on the basis of pure
vengeance. But, as Stephen[56]
has argued, there is the beginning of legal control when conditions and allowed
punishments are specified, and the path toward ending the matter is recognized.
A
significant factor in the spreading of Christian influence among the Nordics
was a party of churchmen, sent by Pope Gregory and led by Augustine, to
Starting
with the laws of Aethelberht, presumably under the
influence of his Christian visitors, the value of a man's life was set
according to his position in the social structure and specified as his wergeld or "man-price." Accordingly, that amount was paid to the
kindred if a man were killed.[61] For physical injury to a person short of
death, the laws specified amounts of compensation in surprising detail.[62] But the use of compensation to reduce the
threats of strife did not stop there; in addition there were specifications for
monetary recovery in cases of property offenses.[63]
Interestingly,
the king came into the payment picture modestly at the start, but progressed
rapidly as a recipient of funds. Thus,
while Aethelberht's set of laws decreed payment to
the king as part of the compensation process in the few cases when the king's
interests were more or less directly involved, the laws of Hlothere
and Eadric (promulgated about 85 years after those of
Aethelberht) required payment to the king for all
variety of offenses.[64]
The
laws of Wihtred, issued about 695 in
The first laws of
There is no evidence of any
other laws in
Alfred
died in 899 and was succeeded by his son, Edward the Elder, and then, in turn,
by his grandsons, Athelstan and Edmund.[69] Two sets of laws issued by Edward are extant,
as are six sets issued by Athelstan. A few of these laws have particular relevance
for the discussion of criminal procedure later in this article. One of Edward’s, to illustrate, specifies a
court proceeding and a right to be heard in that court, “It is my will that
every reeve shall hold a meeting every four weeks; and they shall see to it
that every man obtains the benefit of the public law, and that every suit shall
have a day assigned to it on which it shall be heard and decided.[70]
Three
laws of Athelstan, of about 930, present methods of
community responsibility for the control of misbehavior that have become known
by the expressions “tithing,” “hue and cry,” and “frankpledge,”[71]
Although these laws are part of a set directed chiefly at members of a gild of
London, they have greater significance in reflecting the thoughts regarding
mutual protection in the early tenth century.
The
final sets of known Anglo-Saxon laws are those of Aethelred
(who reigned 978 to 1016, with one interruption) and of Cnut
(who reigned 1016 to 1035).[72] While they were both kings of
Ten codes were promulgated under Aethelred, four of which deal with church and general
religious matters. Another of the ten
(concerned mainly with the Danelaw and probably
coming directly from the Scandinavian legal system) contains the earliest known
reference to the sworn jury of presentment, ancestor of the grand jury.[73] The law directs that there is to be a meeting
in each territorial district (the “wapentake”)
at which “the twelve leading thegns, and with them
the reeve, are to come forward and swear on the relics which are put into their
hands that they will accuse no innocent man nor conceal any guilty.”[74] Moreover, “they are…to seize the men who have
frequently been accused, against whom the reeve is taking proceedings,” and the
fates of those men “frequently accused” are to be determined by the ordeal or
they are required to “pay four-fold.”[75]
Cnut
issued by far the longest of the Old English codes between 1020 and 1023; it
has been described as “the chief memorial to his reign”[76]
A substantial portion of the code (perhaps one-third) was based directly on
earlier codes that remain extant and the remainder may have been based on codes
that are not longer available for comparison.[77] While the code generally applied throughout
the kingdom, there were specific provisions for
In the code, there is the clear
statement that certain crimes, or pleas, belong to the crown; in particular, Cnut asserted that “certain pleas, certain crimes, were
specially his own; that the cognizance and the profits of them belonged only to
him or those to whom he had granted an unusual favour.”[78] These “rights which the king possesses” in
the code—which were in later years called “pleas of the crown”—included breach
of the king’s protection, lying in wait or ambush, attack on a homestead
(encompassing burglary and injury to people in their houses), harboring
fugitives, and neglecting military service.[79]
The items in the code that have
produced the most subsequent commentary are the stipulations, first, that every
free male over two years of age is to be brought into a settlement area (a
hundred and a tithing) to obtain the legal rights of compensation and
exculpation by oath, and, second, that every male over 12 is to give an oath
that he will not misbehave. Stenton [80]
remarks that “On the surface he [Cnut] comes nearest to an innovation” with those stipulations.
Popular Assemblies and Courts
It is most likely that some form of popular assembly existed during Aethelberht’s era, because, while there was no mention of such in his laws, it did exist, as mentioned above, in pre-invasion Germany and was referred to in the Kentish laws of Hlothhere and Eadric.[81] But, even when used, the popular assembly served primarily as an arbitrator for disputes between people, whether on civil or criminal grounds.
amorphous state as a whole. Except for very small states, the rule was division of the state into
districts for purposes of administration; the district assembly dealt with everyday matters of law
and met often, perhaps once each month, while the state court met once or twice a year on
matters of common state business. As discussed in the preceding section, that was the structural
form evident in the laws of Alfred.
In contrast, three
types of English public court and their territorial districts are clearly
distinguished in laws promulgated from about 930 to about 963.[83] These are the borough, hundred, and shire
courts.[84] The following are illustrations from Edgar’s
Code at
5. And the hundred court is to be attended as it was previous established.
5.1 And the borough court is to be held thrice a year and the shire court twice.
5.2 And in the shire-meeting the bishop and the ealdorman are to be present, and there to expound both the ecclesiastical and the secular law.[85]
According to Windeyer,[86] “In the Shire Moot [court], which met twice a year, probably all the freemen of the shire originally attend as doomsmen [judges]. But, in practice, the doomsmen of the shire were usually only certain chosen representatives of the whole body of freemen.” The presiding officers were normally the ealdorman and the bishop with administrative assistance from the king’s reeve. As the responsibilities of the ealdorman increased to encompass more than one shire and such other domains as military command, the presiding function was taken over by the reeve.[87] The shire
court, as well as the hundred court, had jurisdiction over all
manner of suit with particular emphasis on the settlement of land disputes.
While Windeyer[88]
points out that “it seems that suitors did not approach the Shire Moot unless
they had failed to get their causes heard in the Hundred Moot,” that is not to
be interpreted as a right of appeal.
Indeed,
In a borough, where it existed, the court met three times a year under the presidency of a king’s reeve. Like the shire and hundred courts, it handled criminal as well as civil matters, but seems to have specialized emphasis on the latter because of he concentration of trading in the borough. In some cases, the court of the hundred in which a borough was located met in that borough.[92]
In addition to shire, county, and borough courts, there were the witenagemot, or king’s council, and private courts, presided over by major landowners. The king’s council consisted of earls and thegns, mostly with direct allegiance to the king, and of important church officials. While it was predominantly the arbitrator in cases of land dispute among noblemen, the witenagemot also dealt with such high level crimes as treason. But of vastly greater importance than its judicial responsibilities was its role as advisor to the king on all critical matters, ranging over the promulgation of legislation, the granting of land to noblemen, the imposition of taxes, and the negotiations of treaties. In Stenton’s[93] words, “Historically the witena gemot is important because it kept alive the principle that the king must govern under advice.”
The right to hold a private court was given the lords of manors, including church officials, by the king.[94] In widely used terminology, the lord was said to have been granted sake and soke by the king when he (or, in rare cases, she) had the right of private jurisdiction. Sake is the modern word for the Old English sacu which means “cause” or “plea” and soke is the modern form of socn which means suit or seeking a formal hearing. The jurisdiction granted encompassed cases varying from those concerning manorial land disputes and thieves who were caught with possession of the stolen goods to those involving offenders who committed such especially grave crimes as breach of the king’s peace (later referred to as pleas of the crown), forcible entry into a house, ambush and heinous manslaughter. Granting of sake and soke to a lord probably carried with it an immunity from the jurisdiction of public courts for the people under the lord’s jurisdiction.[95]
Finally, while according to Stenton[96] the village or township “formed the basis of social organization” in Anglo-Saxon ties, there was no court associated with that type of geographical unit.[97]
Procedure in the Courts
“The procedure [in court] was begun by the fore-oath of the plaintiff, who thus declared his bona fides in solemn form; but … it did not act as proof.”[98] It contained the chief allegations and was used in both civil and criminal cases. In response, the accused was required to confess or deny the allegations.[99] If the accused denied the charge, the doomsmen decided or judged which side bore the burden of establishing his case; most often that judgment was against the accused.[100] Thus, according to Laughlin,[101] “The German [and Anglo-Saxon derivatively] judgment [in contrast to Roman law] did not close the judicial procedure, but was given before the hearing of proof.”
For people of good repute, the oath, in a process called “compurgation,” was the primary means of providing proof. Oath-helpers as compurgators were used to swear to the trustworthiness of the person they supported, and the purity of his oath. The codes required these oath-helpers to be stalwart members of the community; moreover, a person of higher rank carried more weight as oath-helper than one of lesser rank. The number of oath-helpers required varied in accordance with such factors as the nature of the charge, the trustworthiness of the accused, and the type of property involved in the accusation. Since they swore regarding character, “the oath-helpers were naturally taken from his neighbors, peers, or kinsmen.”[102] If an accused person failed in the oath process, perhaps because of not having sufficient and honorable oath-helpers, he lost the case and, in criminal matters, was guilty.[103]
The procedure of ordeal was used where there were more serious criminal charges, where the accused was not considered oath-worthy, and, occasionally, as permitted by the doomsmen, where an accused person failed in compurgation.[104] In the ordeal, there was a most direct appeal to God. Holdsworth summarized the process as follows:[105]
The trial by ordeal rests upon the belief that God will intervene by a sign or miracle to determine a question at issue between two contending parties. This belief is almost universally found among primitive races. Without taking account of less important forms of the ordeal, we find that the person who can carry red-hot iron, who can plunge his hand or his arm into boiling water, who will sink when thrown in the water, is deemed to have right on his side.
The proceedings of the ordeal were under the control of the church, a state of affairs one might expect given the belief in direct divine intervention.[106]
When a person accused of a crime failed (and survived) the ordeal or in compurgation, punishment could be in any of the following forms: payment of compensation, fines, execution, flogging, imprisonment, or mutilation. The last of these, mutilation, was a particularly conspicuous feature of the laws of Cnut in the early eleventh century, but was in evidence as far back as the laws of Ine in the late seventh century.[107] For most offenses, a convicted first-time fines.[108] However, in the later laws, certain crimes, as for example arson, breaking into a house, offender was allowed to avoid more severe punishment by the payment of compensation and and aggravated homicide, were not considered “emendable” by monetary payment.[109] The most common form of execution was hanging, but there is evidence of the use of drowning, burning, breaking the neck, beheading, stoning, and casting off of a precipice. While imprisonment was used primarily for temporary security, imprisonment in the king’s estate as punishment is mentioned among the laws.
Finally, punishment could be administered directly and immediately if a criminal was caught with the equivalent of a smoking gun in hand. That was described as infangtheif earlier in this article. For example, law 12 of the Ine states, “If a thief is taken [in the act] he shall die the death, or his life shall be redeemed by the payment of his wergeld.”[110] That law, interestingly, was modified in the following law of Athelstan presented a bit over 200 years after the law of Ine. “First, no thief shall be spared, who is seized in the act, if he is over twelve years old and [if the value of the stolen goods is] more than 8 pence.”[111]
Overview of Development of the Process of Seizure
A royal official, the reeve, was mentioned in several contexts in preceding discussions. For example, it was pointed out that he presided over the district, later the hundred and borough, courts, and assisted the ealdorman who presided over the shire court. During later parts of the Anglo-Saxon era, moreover, reeves became presiding officers of shire courts.
Initial references to a reeve (gerefa in Old English), who is a royal administrative official in Anglo-Saxon documents occurs in about 800.[112] The administrative responsibilities of the reeve included management of royal properties and the collections of local assessments due the king. Approximately a century later, in the laws of Alfred, there is mention of the king’s reeve as an official figure in the folk-moot.[113] Shortly thereafter, in the laws of Athelstan of the first half of the tenth century, the following duties were specified for the reeve: arrange for the execution of a thief who steals again after being redeemed from multiple prior convictions for theft, “ride-out” with other officials against kin who are inappropriately defending a thief, with other reeves pursue “wrongdoers,” follow the trail of cattle thieves, and obtain pledges from men in his district “that they would all observe the decrees for the public security which King Aethelstan and his councilors had enacted.”[114]
Although there is indeed pursuit of offenders on the part of reeves in the above laws and also authority to act swiftly and vigorously (as, for example, in a law stating, “And we [reeves and accompanying men] shall all ride out against them, and avenge the wrong done to us, and slay the thief and those who support him and fight on his behalf—unless they are willing to forsake him”), the system for bringing men to justice during this era is not perfectly clear.[115] Initial impetus for an accused person to appear in court came with a charge made by the accuser.[116] However, various other people were directed in early laws to bring an offender to justice or to see to it that he so appeared, presumably if the offender was reluctant to do so, particularly in cases of repeated failures to appear in court for justice. These people were a man whose servant (perhaps slave) killed a nobleman or freeman (Hlothhere and Eadric 1,3),[117] a resident who entertained a stranger for at least three days after which the stranger harmed someone else (Hlothhere and Eadric 15),[118] the relatives of lordless men (II Athelstan 2),[119] the relative who entertains a landless man who has returned from service in another shire (II Athelstan 8), and the kinsmen or lord who stood surety for a thief (VI Athelstan 1.4).[120] The importance of those providing surety in bringing offenders to trial is even more strongly emphasized in later years.[121] In addition to the provisions for bringing people before assemblies, there were several laws that specified severe penalties for those who harbored accused individuals or criminals.[122]
Despite the profusion of people and procedures for bringing alleged criminals to justice, it is clear that the king’s reeve stands out in police authority. As Morris[123] argued,“…in Athelstan’s day…he [the king’s reeve] was not only the leader of the men of the scir in the pursuit of thieves but was also an authority on police questions.” Moreover, during the tenth and eleventh centuries, because of the frequent absence of the presiding ealdorman or earl, the reeve became the most prominent official in the shire court as he “acted in a judicial capacity for his superior.”[124] In that capacity, he was differentiated by the special name of shire-reeve, or sheriff. As head of a shire court, the reeve, as sheriff, had increased powers judicially, and simultaneously retained “ powers connected with the peace and police.”[125] Those latter powers increased substantially in subsequent centuries.
A set of laws of Athelstan, fashioned in association with the bishops and
reeves of the borough of
The police duties of members of a peace gild were
specified as pursuing thieves on foot or on horseback whenever they “heard a
summons.”[127] The pursuit was to be diligent, as reflected
in, “No quest shall be abandoned either on the northern or the southern
boundary [probably meaning “in all directions”], until every man who has a
horse has ridden out once.”[128] When the criminal is apprehended, trial and
the establishing of guilt could be done “on the spot”; otherwise trial and
possible conviction come later.[129] There are, thus, the beginning elements of
arrest as defined early in this article.
There are pursuit of a thief, capture, and producing him for trial,
although capture and bringing for trial were not necessarily associated. While the relevant ordinances for peace-gilds
applied to London and its immediate or more distant environs, another law of Athelstan, dealing with the administration of justice for most
of England does refer to “chief men” who “shall ride” to the house of “anyone
who fails to attend an assembly three times…” and remains a fugitive from
justice without paying an appropriate fine.[130] In addition, about 30 years after
promulgation of Athelstan’s laws, in the Hundred
Ordinance (often cited as I Edgar), there is reference to the organization of
men similar to that of the peace-gilds, with similar provision for pursuit,
capture, and a trial of a thief.[131] The grouping of ten men in the peace-gilds of
That remained the status of policing up to the time of the Norman conquest. The laws of Cnut issued about 40 years before that invasion, while comprehensive, are essentially reflections of previous laws and existing practices.
Imprisonment
The use of prisons for offenders is mentioned in several of the laws of the last quarter of the ninth century and first half of the tenth (from Alfred to Athelstan);[134] Moreover, Pugh.[135] has argued that imprisonment, in the form of placement in stocks, was used before the time of Alfred. It is clear in the wording that imprisonment was used for punishment as well as purely for custody. But it is not easy to find support for Langbein’s [136] that until the Middle Ages, imprisonment was used for sanctioning only for petty crime; in cases of serious crime it was used only for detention or custody.”[137]
Status of Factors in Concept of Arrest
at the Close of the Anglo-Saxon Period
Early in this article, the meaning of arrest was specified as “seizure of an individual by a law enforcement officer for a suspected criminal offense, and then bringing that suspect to a police facility for expected subsequent referral to a prosecuting attorney for trial in an appropriate court.” In terms of the Terry decision of the U.S. Supreme Court, arrest is, “the initial stage of a criminal prosecution.”
On the basis of that conception, several conditions were specified that anchored the concept in our culture. They are: 1. crime is considered an offense against the state, 2. there are law enforcement officials with authority to take individuals into custody and detain them, 3. there are prosecutors who present the state’s positions in courts, and 4. there is a feeling of loss of dignity associated with the actions of law enforcement and prosecution.
Given those conditions, it is clear that the processes of
seizure for criminal offenses by the end of the Anglo-Saxon period could not be
considered arrests. Indeed, there were,
in the operation of the peace gilds of
Moreover, while there were pursuit and capture of criminals, on the one hand, and officials assigned the duty of bringing accused criminals to court hearings (in later years these were men of the peace-associations, tithingmen, and reeves), there was no necessary association between initial seizure and bringing to trial. Finally, despite the existence of prisons, there was no systematic procedure for detaining the accused prior to trial.
The
The
The events that led to the formation of
The rulers of that land,
In the paragraph that follows the one containing the
above quote, Pollock and Maitland add, “To say that the law of
Each feudal lord held a court for the tenants in his
domain; the court of the duke encompassed the tenants-in-chief (the viscounts
and barons) and functioned much like the witenagemot in
Probably
the ordinary procedure of the courts was much the same in
Unlike Anglo-Saxon England, the church did
not participate in the operations of secular courts. However, there was a system of ecclesiastical
courts that heard charges of clerical misbehavior, settled religious disputes,
and decided on various moral matters. In
general, the dukes of
The
William, Duke of Normandy, claimed to the rightful successor to Edward the Confessor when the latter died. The justification for the position was based on arguments that Edward the Confessor had selected William as his heir; that Harold, who became king of England on the death of Edward, had sworn prior to that assumption (probably in 1064) to aid William to secure the English crown; and that the Pope supported William’s claim to the throne.[144] Stenton[145] accepts the general validity of those arguments based in part on the evidence coming from the story drawn on the Bayeux tapestry, but does acknowledge that, “The possibility that he [Duke William] might one day become king of England may have been in the background of his mind from the very beginning of his effective reign in Normandy.”
When King Edward died in January 1066, his council
decided that his successor would be Harold who was the earl of
William the Conqueror (also referred to as William I) died in 1087. He was succeeded by a son, William Rufus (or William II), who reigned until being killed in a hunting accident in 1100. The youngest son of William I then became king, as Henry I. Henry died in 1135 and was succeeded by a grandson of William I, Stephen. Henry did have one legitimate offspring, Matilda, but she was not designated queen for political reasons, challenges to her legitimacy (her mother and Henry’s wife had apparently taken the veil prior to the marriage), and gender preference. Stephen remained king until 1154 when the Angevin (or Plantagenet) era began with the accession of Henry II.[148]
Barlow[149]summarized much of Norman rule as follows:
With
the reign of Henry I, the youngest son of William [I],
William I claimed that he ruled as the proper successor to Edward, and that Harold was the usurper; therefore, he did not replace Anglo-Saxon law and custom with their Norman equivalents, as one who sees himself a conqueror might do. Pollock and Maitland comment,[150] “On the contrary [to a conqueror’s position], he decreed that all men were to have and hold the law of King Edward—that is to say, the old English law—but with certain additions which he, William, had made to it.” [151] In fact, he made few additions. Among them were: the introduction of trial by battle along with the usual trial processes of oaths and ordeals; establishing a special means of protecting the lives of a Frenchman whereby a substantial fine was assessed against the hundred when a Frenchman was killed and the slayer was not apprehended; forbidding church officials, bishops and archdeacons, from holding pleas in hundred courts—violations of ecclesiastical law were to be heard in places selected by the bishop; the substitution of mutilation for capital punishment; and mandating somewhat different procedures between these two situations: Frenchmen bringing an accusation against an Englishman versus Englishman bringing an accusation against a Frenchman. [152]
But perhaps more important in general terms, and certainly more important for purposes of this article is the introduction of the frankpledge.[153]
Frankpledge, according to Morris, is a creative blending
of peace suretyships and the police responsibilities
of tithings.[154] While it has its roots in the surety
requirements and gild-brethren or tithing responsibilities in Anglo-Saxon laws,
frankpledge is a uniquely
In frankpledge, there was “a system of communal responsibility for crime”; if one member of a tithing “committed an offense the other nine must secure his production in court or be fined for their failure to do so and make reparation in his place.” [157] Moreover, as the system developed, and at least from the reign of Henry I, there was “a view of frankpledge” where the sheriff, in a session of his hundred court, reviewed the system’s operation. Such reviews occurred twice each year, and focused on the composition of the tithings and the proper inclusion of all men who were required to be in frankpledge. According to Cross and Hall, “This special session of the hundred for the view of frankpledge, afterwards known as the sheriff’s tourn, came to play an important part of the administration of criminal justice in the Middle Ages.”[158]
It is easy to cover the legal contributions of William’s sons and successors, William II and Henry I; there were very few. In the chapter of Norman kings in their History of English Law, Pollock and Maitland devote one short paragraph to William II, and comment, “Whatever promises he made, he broke.”[159] During the reign of Henry I, there was apparently legislation in such matters as the restoration of capital punishment, the control of thieves, and the suppression of “false moneyers,” but the relevant information comes from sources that may be unreliable.[160]
A decree of Henry in about 1110 was aimed at strengthening the shire and hundred courts throughout the kingdom; they had been weakened considerably by the spread of manorial or seignorial courts that had increased under Norman feudalism. Under that feudalism, the lord generally had jurisdiction in cases of offenses committed on his land and he had the right to try a case in which one of his tenants was a defendant. The proliferation of these private courts came at the expense of the public courts which eventually met infrequently, irregularly, and with sparse attendance.[161] Henry’s decree stipulated: that the “county and hundred courts shall sit at those times and in those places” as stipulated in late Anglo-Saxon times, “that all those belonging to the county shall attend the county and hundred courts” as in those times, and that when a case is between “vassals of two lords” the case “shall be dealt with in the county court.”[162]
The last Norman king was Stephen. His reign has been described as “wretched”
when “
The Angevins
Henry became Duke of Anjou on the death of his father,
Geoffrey Plantagenet, in 1151. Through
inheritance, conquest, and his wife’s legacy, he controlled more than a third
of
According to
“The first great legal monument of the reign,” issued in 1164, is known as the “Constitutions of Clarendon.”[171] The document, prepared at a council of nobles and agreed to by the bishops, defined certain disputed boundaries between ecclesiastical and state legal practice and clarified the law of the realm in such matters. Two years later, another council of barons led to the issuance of the Assize of Clarendon which established juries of accusation or presentment to determine who were the “robbers, murderers, and thieves” in the hundreds and the counties. After investigations by the sheriff or the king’s itinerant justices, an accused or suspected criminal was to be seized and held in a jail.[172] The Assize, too, provided for the use of facilities in a borough or castle for imprisonment, and for construction using royal money and “wood” where there were no local jails.[173] Of final importance in the Assize is the specification that the men seized by the sheriff under its provisions were to be tried by the justices of the king’s court.[174] Trial for those accused and seized was ordeal in water, a practice that lasted for about another 50 years after Clarendon, when ordeals were abolished.
The Assize of Clarendon was reissued in revised form in
1176 as the Assize of Northampton. [175]
Another important legal accomplishment of Henry was strengthening the king’s court or curia regis at the expense of local public and private courts. In the words of Cross and Hall,[177] by the end of his reign:
All serious offences involving a breach of the peace are now Pleas of the Crown, and most Pleas of the Crown are now heard in the royal court. The more serious crimes—homicide, for instance, and the graver cases of theft—wherever committed, place life and limb in the king’s hands and are subject of prosecution at the suit of the king, and not merely at the suit of the injured party.
Under the
In the introductory sentence to her lectures on early English justice, Lady Stenton[181] commented, “The hundred and fifty years between the Norman Conquest and the Great Charter [1215] carried the English people from the blood feud and ordeal to trial by jury….” She traced the seeds of the jury system to the Anglo-Saxon era, emphasizing the law of Aethelred in 997 specifying that 12 thegns in each wapentake of the Danelaw were to go out but not accuse innocent men nor conceal guilty ones.[182] While the seeds were there, it was the Normans who started the growth process, and established the jury as a key element of English justice.[183] In certain civil pleas of the Norman era, she points out, the king, using the process of writ, assigned high officials to act as jurors, under oath. As jurors, they heard eyewitnesses before deciding on their verdicts.[184]
The next significant step in jury development occurred under the Angevins in the form of the Assize of Clarendon. As discussed previously, the Assize mandated juries of presentment to bring accused and suspected criminals to trial before royal justices, a procedure that has been widely assumed to have been the start of the grand jury with its process of indictment.[185]
While a preliminary form of the trial jury existed during the Norman era as initiated by a royal writ, it was limited to civil pleas. And, there was some advance in the such uses of trial juries in civil cases during the reign of Henry II. A decree of 1179, known as the grand assize, permitted a defendant being disseized (the “tenant”) to have his case decided by a jury of 12 knights in king’s court. While a trial jury, it was indeed not a petit jury as we know it since the knights acted on their own knowledge regarding the land in question in reaching their verdict. In general, Pollock and Maitland[186] argue, “…trial by jury, if we use this term in a large sense, and neglect some technical details, is introduced by the ordinances of Henry II, as part of the usual machinery of civil justice.” Again, the reference is to a process that is not distinctive as a petty jury. As a final development during the period in question, the jury of presentment or accusation, the predecessor of the grand jury, took on a prominent role under Henry II.
A marked impetus to the development of the trial jury came about in 1215, under the reign of John. It was a decision of the Pope, as influenced by the Fourth Lateran Council, to withdraw the support of the church in the assumption of divine intervention when trial is by ordeal; clergy were forbidden from performing the sacred rituals attending the ordeals. Without the authority of the church, it is not easy to argue that an outcome to a trial is an act of God. Given that difficulty, which led to the abolition of ordeals, together with the impossibility of a trial by battle in cases of criminal accusations by royal officials, another method was necessary to determine guilt or innocence. That led to the petit jury.[187]
Richard became king in 1189. He had interest neither in
In the words of Plucknett, “Conflict was inevitable between such statesmen and John, whose life had been spent in constant turbulence, intrigue and treachery, with complete indifference to ‘those principles of harmony in life and nature which underlay all the current belief in justice and responsibility.’”[191] In addition to that conflict, John had troubles with the Pope, with the archbishop forced on John by the Pope, and of course with the barons who threatened insurrection. Pressure from various factions in these troubles led to the extortion of a treaty in the form of the Magna Carta of 1215. Despite its historical importance in its critical important modifications and reinterpretations over subsequent years, the initial Magna Carta did not, generally, create a new approach to justice and, more specifically, did not establish the structure for trial by jury.[192]
CONCLUSION
It does seem reasonable to conclude that by 1216 the elements of arrest, as specified early in this article, were in place. Those specifications are: criminal behavior is considered an offense against the state, and there are officials responsible for taking suspected or accused offenders into custody; for detaining them, in locked facilities where necessary; and for initiating court action to determine guilt or innocence.
In summary of the developments to 1216 that would seem to
justify that conclusion, first, there was a marked strengthening of central or
royal authority starting with the Normans William I and Henry I. That authority was shown, over subsequent
years, particularly during the Angevin era, in
increased jurisdiction and power of the royal court, both the central curia regis and the operations of itinerant justices. Moreover, serious crimes, becoming known as
felonies, were, by the end of the twelfth century, breaches of the king’s peace
or pleas of the crown; they were, thus, offenses against the state as
represented by the king, rather than solely between families or individuals,
and were, with few exceptions, to be tried before justices of the royal court
who, along with their staffs, were assuming professional roles. Second, there was the beginning of
prosecution by the state of suspected criminal offenders in the form of juries
of presentment, as established by the assizes of Clarendon and
Despite the preceding arguments, the French word “arrester” or equivalent had not appeared in laws or legal documents by 1216. The reason: Latin was the language of the law from the time of the invasion, with the exception that English was used during the reign of William I to maintain the continuity that he espoused.[193] According to Pollock and Maitland,[194] “…in the thirteenth century French slowly supplanted Latin as the literary language of the law”; French became the language of statutes shortly thereafter.
[1]
[2]
William Blackstone, An Analysis of the
Laws of
[3]
See e.g. Colonial Justice in Western
Massachusetts, 1639-1702: The Pynchon Court
Record: An Original Judges Diary of the
Administration of Justice in the Springfield Courts in Massachusetts Bay Colony
157, 158 (Joseph H. Smith ed.,
1961); Edward Dumbauld,
Thomas Jefferson and the Law 31 (1905); Bernard Schwartz, main Currents in American Legal History 3-5
(1993); Kermit L. Hall, et al. American
Legal History. Cases and materials 77
(1991); William E. Nelson,
Americanization of the Common Law: The
Impact of Legal Change on Massachusetts Society, 1760-1830 8,9 (1975); The Compact with the Charter and Laws of the
Colony of New Plymouth 8 (Under the supervision of William Brigham,
Boston, Dutton and Wentworth, 1836); Morton J. Horwitz,
The Transformation of American law, 1780-1860, 4,5 (1977); Roscoe Pound, The Formative Era of American
Law 6-11 (1950); James Kent, Reception by the Judiciary, in The
Golden Age of American Law 432-433 (Charles M. Haar
ed., 1965).
[4]
See e.g. William S. McKechnie,
Magna Carta: A
Commentary on the Great Charter of King John 49-51 (2nd ed.,
B. Franklin 1960) (1905); William F.
Swindler, Magna Carta, Legend and Legacy 241
(1965); J.C. Holt, Magna Carta and Medieval Government 123, 124 (1985).
[5] J.C. Holt, magna Carta 461 (2d ed. 1992). The meaning of
the phrase “By the lawful judgment of his peers or by the law of the land” to
the barons and King John remains obscure, though there has been a rich
literature of interpretation over the years [see id. Chap I; Faith Thompson, Magna Carta. Its role in the Making of the English Constitution
1300-1629 Chap 1, 1948; W.J.V. Windeyer, Lectures on Legal History, 80 (1959)]. But, whatever the original intent (and
the related intent in later reissues and confirmation of the Charter), the
interpretations gave the phrase [William H. Dunham, Magna Carta and British Constitutionalism, in The Great Charter: Four Essays on magna
Carta and the history
of our Liberty 26 (Samuel E.
Thorne et al., eds, 1965]:
…an
exegesis of its own. By so doing [those
interpretations] served to clarify and to define, and above all to enrich the
meaning of the concept, lawful procedure.
They put broad constrictions upon the phrases “judgment of peers” and
“the law of the land” and they made them synonymous with the course of law and
the process of law.
It
was in the fourteenth Century that parliament passed statutes which used the
phrase “due process of law” in association with the inferred process
requirements of Chapter 39 (see, in particular, the relevant discussions in Thompson, this note at 90-93. But it was not until the Petition of Right,
enacted by Parliament in 1628, that the phrase “due process of law” became
firmly established as a basic principle of English rights. In particular, the Petition stated
[Constitutional Documents, Nos. 1-6 at 2 (Historical Association, G. Bell and
sons, Ltd., Petition of Right, 1914)]:
“And in the eighth-and-twentieth yeere of the raigne of King Edward the Third, it was declared and
enacted by authoriitie of Parliament, that no man of
what estate or condition that he be, should be put out of his lands or
tenements, nor taken, nor imprisoned, nor disherited,
nor put to death, without being brought to answere by
due process of law.”
Over
subsequent years, the Petition of Right itself became a critical element in
English constitutionalism and “superseded the Great Charter as a practical
sanction and a political slogan for procuring the Englishman’s rights and
liberties” (Dunham, this note, at 37).
[6]See
e.g. Robert Chambers, A Course of
Lectures on the English Law. Delivered at the
[7]
The Statute of
Purveu est ỡ tuz cōmunaumet seient prez & aparaillez, al maundemēt e a
la somonse des Viscontes, ou au cri del pays, de suire e de arrester les felōs
gant mester serra ausi bien
dedenz fraunchises cum debors (“It is provided that all generally be ready and apparelled, at the commandment and summons of Sheriffs, and
at the Cry of the Country, to [pursue] and arrest Felons, when any need is, as
well as within franchise as without”).
See also The Statutes, Revised Edition, Vol. I Henry III to James II. A.D. 1235-1685 15-25 (George Edward Eyre and William Spottiswoode, eds. 1879). William Stubbs, Select Charters and Other
illustrations of English Constitutional History From the Earliest Times 442-443
(9th ed. revised by J.W.C. Davis, 1913).
[8]
The language in the Fourth Amendment regarding warrants stemmed from the
unfortunate experiences with general warrants and warrants or writs of
assistance in
A
most informative summary of the relationship between general warrants and writs
of assistance, on the one hand, and the framing of the Fourth Amendment, on the
other, may be seen in Boyd v. United States (116 U.S. 616, 625-633,
1885). The decision also contains an
interesting discussion of the relationship between the Fourth and Fifth
Amendments (at 633).
[9]
[10]460
[11]361
[12]394
[13]392
[14]
[15]Id.at
26.
[16]The
influence of Terry v. Ohio on subsequent thinking is indicated in the
frequent use of the expression "Terry stop" by the Court in referring
to relatively brief detentions short of an arrest. (See e.g. Berkemer
v. McCarty, 468 U.S. 420, 439, 1983).
[17]No.
97-7597, 1998 U.S. Lexis 8068 (Dec. 8, 1998, amended Oct. 21, 1999).
[18]Id.at
2.
[19]
Wayne R. LaFave,
Search and Seizure: A Treatise on the
Fourth Amendment 19 (1996).
[20]Cupp
v. Murphy, 412
[21]United
v. Corral-Franco, 848 F2d 536, 539, 540 (5th Cir. 1988).
[22]
[23]Knowles
v.
[24]Terry
v.
[25]
F.M. Stenton,
Anglo-Saxon
[26]
There was Roman law and its attendant criminal procedures in
There
were, thus, about 350 years of Roman occupation of
[27]
J. Laurence Laughlin, The
Anglo-Saxon Legal Procedure, in Essays
in Anglo-Saxon Law 262 (no ed.
designated, 1905).
[28]David
A. Thomas, Part II: Anglo-Saxon
Antecedents of the Common Law, 1985 B.Y.U. L. Rev 453, 468 (1985).
[29]
(no ed. designated,
1905) presents the assembly in the following more detailed way:
There
is strong internal evidence in the Germanic laws to indicate that, whatever may
have been the previous social condition of the race, its earliest political and
legal creation was in the form of an association of small families, with or
without actual or theoretical relationship, but without a patriarchal chief; an
association whose able-bodied male members, uniting, not as families, but as
individuals equally entitled to a voice, formed one Council, which decided all
questions of war and peace, elected all officers, civil or military, that
circumstances required; provided for the security of property; arbitrated all
disputes that were regularly brought before them; and left to the families
themselves the exclusive control of all their private affairs, as belonging to
the domain of family custom...This popular assembly was the primitive law-court
of the Germanic race... At the time when German law and society were first
brought within the view of history the German popular assembly consisted, and
to all appearance had always consisted, of the free inhabitants of a fixed
geographical district...the people wherever assembled, were the state...the
free men of each geographical district met at a fixed spot within that
district, at fixed times, and formed the court of law.
[30]
[31]Ernest Young, The
Anglo-Saxon Family Law, in Essays
in Anglo-Saxon Law 122 (no ed. designated, 1905).
[32]Stenton,
supra note 25, at 316.
[33]See
e.g. Young, supra
note 31, at 122-124; Pollock and
Maitland supra note 26, at 31; Thomas,
supra note 28, at 468, 469.
[34]A
detailed discussion of the process whereby "a community composed
essentially of independent peasants developed into a community composed
essentially of serfs," may be found in Stenton (supra
note 25 at 472). Jolliffe
[J.E.A. Jolliffe,
The Constitutional History of Medieval
Basically [the pattern of reaction of the folk to its environment] had been informed by loyalty of blood-relationship, it was not to incorporate the motive of loyalty between lord and man, but it did so in its own fashion, by extending its own principles, not by abandoning them. There can, indeed, be no question of conscious conflict between the principle of kinship and the principle of lordship. Both were relationships natural to a community where economic life was non-competitive and action was governed by personal associations and loyalties. As such, lordship was accepted and even favoured and advanced by the impersonal reaction of law and the conscious policy of the crown. The manner of this was characteristic, though to us unfamiliar. It would, perhaps, be rash to say that the tie of lord and man was regarded by way of conscious fiction as analogous to blood-relationship, but it was treated in practice as if it were, and the man was in effect taken into his lord's familia. It was one of a group of relationships of which the more intimate blend imperceptibly into physical kinship, and which tend to find similar treatment in law...
The responsibility of protection of
the individual, thereby, shifted to the lord who became the mundbora
or guardian of that individual.
[35]See
e.g Jolliffe, supra
note 34, at 14-23.
[36]Bryce Lyon, A Constitutional and Legal History of
Medieval
[37]Archaeological
findings--in such forms as coins and masonry--are principal sources of
information for the period between the departure of Roman legions from
We know what was the condition of the
island in 410 [from Roman documents], and we
know what was its condition in the end of sixth century [when the
emissaries of Pope Gregory visited the king of
[38]There
has not been a direct transmission of laws as written for modern uses, no
official law books prepared by administrative staffs of the kings. Rather, the laws were put in written form by
members of the clergy and stored in religious settings. In the preservation and transmission process,
copies were made of copies over hundreds of years. Thus, for example, the Kentish laws
promulgated in the seventh century survive only in a manuscript, the Textus Roffensis. It dates from about 1120 and is stored even
to this day in a church library. All
earlier forms of the laws have been lost [see On
the Laws and Customs of
[39]Myres
summarizes the status of the record presented in the Anglo-Saxon Chronicle
as follows [J.N.L. Myres,
The English Settlements 4 (1986)].
When…the Anglo-Saxon Chronicle was compiled in its present form in the reign of King Alfred late in the ninth century, it incorporated three series of annals attached to dates in the fifth and sixth centuries which offer the outline of a traditional story covering the settlement of Kent, Sussex, and Wessex…[T]he annalistic format adopted for the Chronicle must have required the attachment of dates, which at best are traditional and at worst arbitrary, to incidents, and groups of incidents, culled from the sagas of kings and heroes, an art-form notoriously indifferent to precise chronology.
Here are examples of entries in the Chronicle
[J. Ingram, The Saxon Chronicle, with an
English Translation and Notes, Critical and Explanatory 21, 27-28, 125,
373 (London, Longman, Hurst, Rees, Orme and Brown,
1823)].
A.D. 514. This year came the West-Saxons into
A.D.
596. This year Pope Gregory sent
Augustine to
A.D.
902. This year was the great fight
between the men of
A.D.
1154. In this year died the King Stephen, and he was buried where his wife and
son were buried, at Faversham; which monastery they
founded.....
It is perhaps worth noting that there have been several textual variants of the Anglo-Saxon Chronicle. Seven of the compilations exist today, in more or less complete form. Up to the year 891 the manuscripts are in general agreement because, according to Stenton (supra note 25, at 688), they are all "ultimately derived from a set of annals written in English in King Alfred's reign." But, "[s}oon afterwards the manuscripts begin to diverge from one another, presumably because they represent continuations of this chronicle made in a number of different churches."
[40]The
principal sources by named writers who lived in Anglo-Saxon times are the
following:
1. De
Excidio et Conquestu Britanniae written by Gildas,
a British monk, in about 546. The book
was aimed at denouncing the sins of the Britons, principally those of five of
their kings, but sections contain information about sequences of events during
the invasions (which may or may not be accurate), but without names and
dates. In the words of Hodgkin (supra
note 26, at 76), "We see then that while Gildas
is our best source of information [about the early conquests], since he wrote
within about a century of the reputed 'Coming of the Saxons,' he is as vague as
can be."
2. Historia Brittonum
by the British scholar known as Nennius. Although written early in the ninth century,
the work discusses
3. Historia Ecclesiastica
by Bede is, as the title indicates, primarily a
history of the British church, but it also provides a substantial amount of
military, social, and political history.
It was written during the first half of the eighth century. In contrast to the general evaluations of Gildas and Nennius, Bede has been referred to as "illustrious" and
"the greatest scholar of his age and the best historian whom any European
country produced in the early Middle Ages" (Hodgkin, supra note 26, at 497). Since Bede spent
his mature life in a monastery, he depended on oral reports and previous
writings; because of the shortcoming of such works as those of Gildas, Historia Ecclesiastica is most valuable for its descriptions of
events during the seventh and early eighth centuries. The following passage illustrates Bede's writing; it points to the decrees of Aethelberht's grandson, Eorcenbehrt
(Whitelock, supra note 38, at 683, 684): "He was the first of the kings of the
English to order by his supreme authority that the idols over his whole kingdom
were to be abandoned and destroyed, and that the fast of forty days was to be
observed. And so that it could not
lightly be neglected by anyone, he appointed proper and adequate penalties for
the offenders."
[41]Asser's
Life of King Alfred (De Rebus Gestis Aelfredi) may be seen in the book so entitled by
Stevenson (William H. Stevenson, ed. --with introduction and commentary
1904). In addition to the personal
history of Alfred the Great, the treatise, written by a contemporary of Alfred,
contains some details regarding events during his reign.
[42]The
Domesday Book is the result of a survey commissioned
by William the Conqueror in 1085. It was
[V.H. Galbraith, The Making of Domesday Book 1 (1961)], "a minute and
searching inquiry into the extent and value, both of the royal demesne, and of
the lands held by the tenants-in-chief.
For this purpose the king sent his men into every shire, and the
information, extracted on oath from the inhabitants, was written down and
returned to the royal Treasury at
[43]Historians
seem to agree that the conquest of much of Britain by the Saxons, Angles, and
Jutes occurred in two phases, separated by a period of respite from foreign
invasions early in the sixth century (see e.g. Stenton, supra note 25,
at 30,31; Oman supra note
26 at 213). The relative peace followed
a major defeat of the German invaders by the Britons in the battle of the Mons Badonicus and
lasted, according to Gildas, over 40 years. By the end of the second phase, which resulted
in final conquest toward the end of the sixth century, the invaders had
established their separate kingdoms.
[44]Bede
has argued that there was an overlord long before 600 A.D. The first, according to him, was Aelle who was king of
[45]The
position of overlord for a given king came from such factors as the
following: victory in battle or battles,
annexation under threat of conquest, submission for protection, and acquisition
by conquest over a kingdom that dominated other lands. And the role of overlord varied with military
circumstances. For example, during the
earlier years of Anglo-Saxon settlement when "the possibility of an
overwhelming British revival becomes more remote, the overlord begins to appear
as the patron rather than the leader of his dependents, and the association of
the southern English peoples gradually assumes a political character" (Stenton, supra
note 25, at 35).
The position, however, was not
inherited nor was it maintained when the factors that led to the position were
no longer present. In the words of Stenton (at 36), “There was no convention that an
under-king must give his allegiance to his dead lord’s son, or adhere to a lord
whose luck has deserted him.”
[46]Egbert
of Wessex, beginning in about 822, became overlord by
conquering
.
[47]Peter H. Blair, An Introduction to anglo-saxon
[48]Stenton, supra
note 25, at 257.
[49]
The governing officials of shires during the early era of their existence were
the ealdarmen.
But by the end of the ninth century, the status of such officials had
been elevated to where they governed several shires. After the conquest of
[50] Stenton,
supra note 25, at 257.
[51] These books are: 1. Quadripartitus,
compiled during the second decade of he twelfth century. Only the first two of the four parts
projected are available; the last two were lost or never written. The first book contains a translation of Anglo-Saxon
laws (into Latin) and the second presents important state papers of the era,
and various polemics. 2. Leges Henrici Primi, compiled, as Quadripartitus, during the second decade of the
twelfth century and in Latin. Based primarily on the codes of the late
Anglo-Saxon kings, as amended by William I and Henry I, it also shows the
influence of other sets of laws. Some
have referred to the work as the first legal text-book for
[52]William Holdsworth, A
History of English Law, Vol. I, 3 (1956).
[53]See
e.g. Windeyer,
supra note 5, at 17.
[54]Stephen, supra
note 26, at 62.
[55]The Laws of the Earliest English Kings
41 (F.L. Attenborough ed. & trans., 1922).
[56]Stephen, supra note
26, at 62.
[57]In
the translated words of Bede, "There was near to
[the place of lodging for Augustine and the monks] a church built of old in honour of St. Martin, while yet the Romans inhabited
Britain, which the queen, who, as we have said, was a Christian, was wont to
pray. In this they all first began to
meet, to chart psalms, to pray, to celebrate mass, to preach and to baptise; until, after the king had been converted to the
faith, they received a wider permission to preach everywhere, and to build or
restore churches" (Whitelock, supra note
38, at 651.
[58]See
Attenborough, supra note 55, at 2,3; Stenton, supra note 25 at
106. On the other hand, others take a
contrary position [H.G. Richardson and
G.O. Sayles; Laws and Legislation from Aethelbehrt to
Magna Carta 1, 2, 163, (1966)]. In their words "... Aethelbehrt's
legislation was in no sense Christian but if an offensive word may be used
inoffensively, ‘pagan.’” They argue, accordingly, that the first in the set of
laws, containing references to God and the Church, was an interpolation
inserted in subsequent years. These laws
of
[59] See Thomas, supra
note 28, at 461-466 for summaries of these and other German laws over the
mid-centuries of the first millennium.
[60]See
Whitelock, supra note 38, at 361. An example of Bede's
reference to laws that no longer exist in any form may be seen in Historia Ecclesiastica
VIII. 3 [see supra note 40 (3) for a comment on that reference and see
Attenborough, supra note 55, at 2].
[61]Here
are examples of laws dealing with killings in Aethelberht's
code (Attenborough, supra note 55, at 7, 9):
21. If one man slays another, the ordinary [that
is a freeman's] wergeld to be paid as
compensation shall be 100 shillings.
23. If a homicide departs [escapes] from the
country, his relatives shall pay half the wergeld.
30. If a man slays another, he shall pay the wergeld with his own money and property (i.e., livestock or other goods) which whatever its nature must be free from blemish [or damage].
The relationship between social
position and wergeld is shown in the following
examples from the laws of Hlothere and Eadric (a single set bears both names) who were kings of
1. If a man's servant slays a nobleman, whose wergeld is 300 shillings, his owner shall surrender the homicide and pay the value of three men in addition.
3. If a man's servant slays a freeman whose wergeld is 100 shillings, his owner shall surrender
the homicide and [pay] the value of another man in addition.
[62]Here
are several examples from the laws of Aethelberht (id
at 9):
34. If a bone is laid bare, 3 shillings shall be
paid as compensation.
35. If a bone is damaged, 4 shilling shall be
paid as compensation.
36. If the outer covering of the skull is broken,
10 shillings shall be paid as compensation.
[63]Relevant
laws of Aethelberht are the following (id at
9):
27. If a freeman breaks the fence round [another
man's] enclosure, he shall pay 6 shillings compensation.
28. If any property be seized therein, the man shall pay a three fold compensation.
[64]In
the code of Aethelberht, there are the following (id
at 5):
2. If the king calls his lieges to him, and
anyone molests them there, he shall pay double compensation, and 50 shillings
to the king.
5. If one man slays another in the king's
premises, he shall pay [to the king] 50 shillings compensation.
In the next set of extant
laws--those of Hlothere and Eadric,
we have (id at 21):
11. If one man calls another a perjurer in a
third man's house, or accosts him abusively with insulting words, he shall pay
one shilling to him who owns the house, 6 shillings to him he has accosted, and
12 shillings to the king.
13. If, where men are drinking, a man draws his
weapon, but no harm is done there, he shall pay a shilling to him who owns the
house, and 12 shillings to the king.
By the time of Cnut
in the eleventh century (or more than 400 years after Aethelberht),
the protection (mund) of the king extended
over his entire domain, and he was thus entitled to compensation for its
violation anywhere as in the following law of Cnut (The Laws of the Kings of England from Edmund
to Henry I 181 (A. J. Robertson ed. & trans. 1925);
12. These are the dues [rights or profits of
jurisdictional authority] to which the king is entitled from all the men of
[65]The
prominence of protections for the Church in Wihtred's
laws illustrates the achievements of church leaders in converting people during
the almost 100 years since the arrival of Augustine in
1. The church shall enjoy immunity from taxation
2. The mundbyrd
[the amount to be paid for violation of protection] of the church shall be 50
shillings like the king's.
11. If a freeman works during the forbidden time [that is, Sunday] he shall forfeit his healsfang [an initial installment in payment of wergeld], and the man who informs against him shall have half the fine, and [the profits arising from] the labour.
12. If a husband, without his wife's knowledge, makes offerings to devils, he shall forfeit all his goods or his healsfang. If both [of them] make offerings to devils they shall forfeit their healsfangs or all their goods.
14. If a man gives meat to his household during a
fast, he shall redeem [each of them], both bond and free, by payment of his
[own] healsfang.
[66]The
following illustrate the laws dealing with procedure (id at 29):
19. A clerk shall clear himself with [the
support] of three of his own class, he alone [having] his hand on the
altar. The others shall attend for the
purpose of validating the oath.
22. If a servant of a bishop or of the king is
accused, he shall clear himself by the hand of the reeve. The reeve shall either exculpate him or
deliver him up to scourged.
26. If anyone catches a freeman in the act of
stealing, the king shall decide which of the following three courses shall be
adopted--whether he shall be put to death, or sold beyond the sea, or held to
ransom for his wergeld.
The use of the term
"reeve" in 22 above does not refer to the sheriff (shire reeve), an
office that was established much later.
The reeve in these early years of the Anglo-Saxon kingdoms was most
commonly a man who was charged with running the king's estate and collecting
farm income. See e.g., Irene Gladwin, The Sheriff: The Man and his Office 15,16
(1974).
[67]
See
[68]
That introduction reflected Alfred’s erudition—although he remained unable to
read until his thirteenth year, he translated various Latin works into English,
often expanding the ideas in the original books considerably, and gathered a
group of scholars about him to establish a foundation for English
learning. Stenton
(supra note 25, at 269, 270) described Alfred as follows:
No
other king of the Dark Ages ever set himself, like Alfred, to explore whatever
in the literature of Christian antiquity might explain the problems of fate and
free will, the divine purpose in the ordering of the world, and the ways by
which a man comes to knowledge.
His unique importance in the history of
English letters comes from his conviction that a life without knowledge or
reflection was unworthy of respect, and his determination to bring the thought
of the past within the range of his subjects’ understanding. The translations of ancient books by which he
tried to reach this end form the beginning of English prose literature.
[69]
Athelstan and Edmund were quite effective in military
matters, as were their immediate predecessors.
Thus, Alfred and Edward expanded West Saxon influence over lands to the
east, north, and west, defeating in the process Danes, Mercians,
Norsemen, Scots and others. The
conquests of Edward in 920, by way of illustration, are recorded in the Anglo-Saxon
Chronicle as follows (Whitelock supra note
38, at 217):
In this year, before midsummer, King
Edward went with the army to
Then he went from there into the Peak
district to Bakewell, and ordered a borough to be
built in the neighbourhood and manned. And then the king of the Scots and all the
people of the Scots, and Ragnald, and the sons of Eadwulf and all who live in
Subsequent
conquests, culminating in the annihilating defeat in 937 of a united force of
Norsemen and Scots at Brunanburh by the armies
of Athelstan and Edmund, led to the collapse of many
formerly independent kingdoms and the hegemony of one. The entry in the Anglo-Saxon Chronicle
for the year 937 shows the decisiveness of that victory in its concluding
sentence (Whitelock, supra note 38, at 220) “Never
yet in this island before this by what books tell us and our ancient sages, was
a greater slaughter of a host made by the edge of the sword, since the Angles
and Saxons came hither from the east, invading Britain over the broad seas, and
the proud assailants, warriors eager for glory, overcame the Britons and won a
country.” In the words of Stenton (supra note 25, at 343): “The battle [at Brunanburh has a distinctive place among the events
which made for the ultimate unity of
With
this ceremony which included not only the act of crowning, but also solemn
anointing and a form of coronation oath, the continuous history of the English
coronation service may be said to begin.
Prominent churchmen played the major part in the ceremony and, by their
investing a corporate body which would survive the deaths of individual kings
with certain rights and privileges, their action was not without importance in
securing the continuity of he monarchy.
[70]
Attenborough, supra note 55, at 121.
[71]
[72]
There was relative peace in
Aethelred initially sent his second wife and their sons to
Given
that context, it is noteworthy that the noblemen of
Stenton (supra note 25, at 386) refers to the
agreement as of great constitutional significance because it represents the
first pact between a king and the people of
Alone
among his contemporaries, he [Cnut] took his title
from the English land, ordered his edicts to be observed ‘over all England,’
and, in the spirit of [Aethelred], but more
explicitly, warned every man, Dane or Englishman, that, if he defied the law of
God or the king’s royal right, he would be driven from the realm.
[73]
See Theodore F.T. Plucknett,
A Concise History of the Common law 108 (5th ed. 1956); Whitelock, supra note 38, at 440.
[74]
Whitelock, supra note 38, at 440.
[75]
[76]
Stenton,
supra note 25, at 409.
[77]
[78]
Pollock and Maitland, supra note 6, at 453.
[79]
Whitelock, supra note 38, at 456.
[80] Stenton, supra note 25, at 410.
[81] To illustrate, law 8 in the code of Hlothhere and Eadric specifies, “If one man brings a charge against another, and if he meets the man [whom he accused], at an assembly or meeting, the latter shall always provide the former with a surety, and render him such satisfaction as the judges of Kent shall prescribe for them” (Attenborough, supra note 55, at 21).
[82]
[83] See the Laws of Athelstan, the Hundred Ordinance, and the Codes of Edgar in
Whitelock (supra note 38, at 417-437).
[84] Jolliffe (supra note 34, at 58) has discussed the formation of these courts in terms of the “territorializing” of the law and related institutions. At first, the kindred were central to such legal features as oath-worthiness and surety, but later “each of these functions was transferred from the kindred of the individual to his neighbours, at first to those who in a general way lived near and knew him, and later to organized neighbourhoods, townships, titheings, and hundreds, which arose in response to the new stress laid upon the tie of vicinity and the need to give it territorial definition.” The critical importance of the development is highlighted in his concluding sentence, “This revolution of the tenth and eleventh centuries, silent and unconscious, was perhaps the most deeply formative change of life that the English people ever experienced, for upon the community which it brought into being arose the national state.”
[85] Whitelock, supra note at 38, at 433.
[86] Windeyer, supra, note 5, at 11.
[87] See Rudolph Gneist,
The History of the English Constitution
53 (London, William Clowes and Sons 1891).
[88]Windeyer, supra note
5, at 11.
[89]
[I]t would be a mistake to suppose that any appeal, in
the modern legal sense, lay from one of these courts to another. There is nothing in the laws or the charters
to show that such right of appeal existed, or that it was ever claimed. The
decision of the court was final. It was
only when the court failed to decide, within the time prescribed, that the case
could be carried before a higher court…
To attribute a system of appeals to the Anglo-Saxon judicial
constitution is to transfer the conception of a civilized age to the rude
practice of a barbarous one.
Sources of confusion
in the matter to which
19. And no one is to distrain on
property either within the shire or outside it until he had demanded his rights
three times in the hundred.
19.1
If on the third occasion, he cannot obtain right, he
is then the fourth time to go to the shire-meeting, and the shire is to appoint
for him the fourth term [for settlement].
It is easy to agree that such laws allow intervention of a higher court
when the lower court “failed to decide within the time prescribed“ rather than
to imagine that a right of appeal was implied.
[90] Stenton, supra note 25, at 299.
[91] But Windeyer notes (supra note 5, at
10), “It is as well to say here—because the number twelve seems fatally
suggestive—that these doomsmen were not the ancestors
of the modern jury.” Rather, the jury
was continental in origin and came “among the baggage of the Norman invaders” (id.,
at 60).
[92] Stenton, supra note 25, at 534.
[93] Id.at 553, 554.
[94] The following
writ, from King Cnut in the year 1020, illustrates
the process by which the king granted private jurisdiction (Whitelock
supra note 28, at 602):
King Cnut
greets in friendship all my bishops and my earls and my reeves in every shire
in which Archbishop Ethelnoth and the community at
[95] See e.g. Stenton, supra note 25, at 494, 495; Pollock and Maitland, supra note
6, at 43; Cross and Hall, supra
note 26, at 10,11.
[96] Stenton, supra note 25, at 286.
[97] In the words of
[98] Laughlin, supra
note 27, at 287. Here is one form of an
oath of accusation that has been preserved (Stephen,
supra note 26, at 70):
By the Lord before whom this relic is holy, I my suit prosecute with full folk right, without fraud and without deceit, and without any guile as was stolen from me the cattle N that I claim, and that I have attached with N. By the Lord I accuse not N either for hatred, or for envy, or for unlawful lust of gain, nor know I anything so other, but as my informant to me said, and I myself in sooth believe that he was the thief of my property.
[99]
The denial oath was of such form as (Stephen,
supra note 26, at 70): “By the
Lord I am guiltless, both in deed and counsel of the charge of which N accuses
me.”
[100] See Laughlin, supra note 27, at 288; Windeyer, supra note 5, at 12.
[101] Laughlin, supra note 27, at 288.
[102]
[The process] looks like a
requirement of corroboration by witnesses.
But to suppose that is completely to misunderstand the character of the
compurgator or oath helper. He was not a
witness. He needed no first-hand
knowledge of the facts in dispute. His
duty was not to add his testimony as to the facts to that of the party. He had simply to support the party’s oath by
his oath. He did not swear that the
story which the party told was true.
Here is a form of the oath
of a compurgatory/oath-helper (Stephen, supra note 26,
at72):“By the Lord, the oath is clean and unperjured
which N has sworn.
[103] Windeyer (supra note 5, at 13) nicely summarizes the
requirements for success as follows:
“…if the party who had been awarded the proof [by the doomsmen] produced the proper number of compurgators, if
all solemnly swore in proper form, if no slip of the tongue, no forgetfulness
caused any necessary word or gesture to be omitted, then the party would have
made his proof and won the case.” Slips
of the tongue and omissions were assumed to be the results of intervention by
God.
[104] See e.g. id.
at 4,15; Laughlin, supra note 27, at 300, 301; Pollack and Maitland, supra note 6, at 39; Cross and Hall,
supra note 26, at 10; Plucknett,
supra note 73, at 114, 115; ROBERT BARTLETT, TRIAL BY FIRE AND WATER 13-33 (1986).
[105] Holdsworth,,
supra note 51, at 310. But see Trisha Olson, Of Enchantment:
The Passing of the Ordeals and the Rise of the Jury Trial, 50
[106] In the cases of the hot iron and boiling water, the miracle, indicating
divine intervention to establish innocence, was rapid healing of the burned
hand or arm which was carefully wrapped up.
The ordeal of cold water was more unique. Hands and legs of the accused were bound
together, then he was lowered into a body of water. If he sank, he was innocent; if he floated,
he was guilty. Interestingly Stephen (supra
note 26, at 73) has argued that sinking often occurred, establishing innocence
but leading to drowning.
[107] Two of Cnut’s laws illustrating mutilation
are the following (Whitelock, supra note 38,
at 459):
30.4 And on the second
occasion [of conviction] there is to be no other compensation…but that his
hands, or feet, or both, in proportion to the deed, are to be cut off.
30.5 And if, however,
he has committed still further crimes, his eyes are to be put out and his nose
and ears and upper lip cut off, or his scalp removed, which ever of these is
then decreed by those with whom the decision rests; thus one can punish and at
the same time preserve the soul.
That last clause seeks to
attempt creating benignity out of extraordinary cruelty. But the phrasing becomes more understandable
under the realization that the Church advocated avoidance of execution and the
substitution of mutilation, and that Cnut’s code was
apparently drafted by an archbishop.
Mutilation in the code of Ine is shown in law 37 (Attenborough, supra note 55, at 49): “If a commoner has often been accused of theft and is at last proved guilty, either in the ordeal or by being caught in the act of committing an offense, his hand or foot shall be struck off.”
[108]To illustrate,
law 30.3 of Cnut states (Whitelock,
supra note 38, at 459), “And if he is then convicted, on the first
occasion, he is to pay two-fold compensation to the accuser and his wergild to
the lord who is entitled to his fine, and to appoint trustworthy sureties that
he will afterwards cease from all evil-doing.”
[109] Cnut’s law 64 expresses that exclusion as follows (id.
at 464), “Housebreaking and arson and obvious theft and manifest murder and
betrayal of a lord are beyond compensation according to the secular law.”
[110] Attenborough, supra
note 55, at 41.
[111]Id.at 127. The difference between
those two laws reflects not only the two distinct eras, but also the remarkable
character of Athelstan. He was an ardent collector of relics, he gave
many books as gifts to churches, and had frequent dialogue with foreign
scholars and church intellectuals. But
even more unusual for a king, according to Stenton (supra
note 25, at 356), “is the touch of humanity shown in the pardon which he
granted to criminals willing to make amends, and in his revulsion against the
execution of young offenders. In
character and cast of mind he is the one West Saxon king who will bear
comparison with Alfred.”
Laws of Athelstan that reflect the humanity
to which Stenton refers are respectively
(Attenborough, supra note 55, at 145, 169):
3.
Thirdly, all humbly thank you, their most beloved
lord, for the favour you have granted to criminals;
namely that all criminals shall be pardoned for any crime whatsoever, which was
committed before the Council of Faversham, on the
condition that henceforth and forever they abstain from all evil doing, and
between now and August confess their crimes; and make amends for everything of
which they have been guilty.
Twelfth:
§1. Now again the king has been addressing his councilors at Whittlebury, and has sent word to the archbishop by Bishop Theodred, that he thinks it cruel to put to death such young people and for such slight offences, as he has learnt is the practice everywhere. He has declared now that both he himself and those with whom he has discussed the matter are of opinion that no one should be slain who is under fifteen years old, unless he is minded to defend himself, or tries to escape and refuses to give himself up. Then, he shall be shall be struck down whether his offence be great or small—whichever it may be. But if he will give himself up he shall be put in prison as was declared at Grately; and he shall be liberated on the same conditions [as were laid down there].
[112]William A. Morris, The Medieval English Sheriff to 1300 3 (1927).
[113] Law 34 of
Alfred, for example, states (Attenborough, supra note 55, at 79): “Further, with regard to traders, it is
decreed: they shall bring before the
king’s reeve, at a public meeting, the men they are taking with them up into
the country, and declare how many of them there are…”
[114] Laws 1.4, 8.2,
8.3, 8.4, 10 of VI Athelstan (Attenborough, supra note 55, at
157-158, 163, 165, 167). A most
comprehensive summary of the duties of reeves as shown in historical documents
may be seen in Whitelock, supra note 38,
63-65.
[115] Attenborough, supra
note 55, at 163, 164.
[116] See e.g. law 22
of Alfred in id. at 75.
[117]
[118]
[119]
[120]
[121] For example, Edgar’s
Code at
6.
And each man is to provide himself with a surety,
and the surety is to produce and hold him to every legal duty.
6.1
And if anyone then commits a crime and escapes, the
surety is to incur what he [the criminal] would have incurred.
6.2
And if it is theft, and if he can lay hold of him
within twelve months, he is to surrender him to justice and to be given back
what he previously paid.
[122] See, e.g. IV Athelstan 3.1, IV Athelstan 6.3, VI Athelstan 1.2,
and VI Athelstan 8.2, in Attenborough, supra
note 55, at 147, 149, 157, 163.
[123] Morris, supra note 112, at
9.
[124]
[125]
[126] Here is the statement establishing the gild’s
hierarchical structure (in law VI Athelstan Third,
see Attenborough, supra note 55, at 159):
We shall always count ten
men together, and the chief man shall see that the [other] nine shall discharge
all the duties which we have all agreed upon; and then [we shall count] them in
groups of a hundred, with one official for the hundred who will admonish those
ten [chief men] for the common benefit of us all.
[127]
[128] Attenborough, supra note
55, at 161.
[129]
[130] Id at 137, 139.
[131] Whitelock, supra note 38, at
429, 430. The wording of the law is as
follows: “If the need is urgent, one is to inform the man in charge of the
hundred, and he then the men of the tithings; and all
are to go forth, where God may guide them, that they may reach [the
thief]. Justice is to be done on the
thief as it was Edmund’s decree previously.”
[132] Morris, also emphasizes the relationship between the ordinances of
peace-gilds of London and the provisions in the Hundred Ordinance as
follows: “for not only does the word teothing mean a tenth, but the head of the tithing
was under the direction of the head of the hundred…” [William A Morris, the Frankpledge System 11, 12 (1910)].
[133] Id at 12. He argues, moreover,
that the tithing represented a territorial rather than a purely interpersonal
set of relationships as follows (at 13):
“it is clear enough that any system of policing based upon it [the
tithing] must have approached, roughly at least, a territorial basis; for it was
essential to the successful pursuit of a thief, not only that the tithing live
in the neighborhood of the crime, but that the members live near enough
together for co-operation.”
[134] For example, Alfred, 1.1, 1.2, 1.6 and Athelstan
6.1 state, respectively, (Attenborough, supra note 55 at 63, 65, 131):
1.1
If anyone is wrongfully constrained to promise
either of these: to betray his lord or to render aid in an unlawful
undertaking, then it is better to be false [to the promise] than to perform it.
1.2
If, however, he pledges himself to something which
it is lawful to carry out and proves false to his pledge, he shall humbly give
his weapons and possessions to his friends to keep, and remain 40 days in
prison at a royal manor, and undergo there whatever [sentence] the bishop
prescribes for him; and his relative shall feed him if he himself has no food.
1.6
If he runs away before the term [of imprisonment is
completed] and is recaptured, he shall remain in prison 40 days, as he ought to
have done at first.
6.1
If, however, he wishes to deny it [death resulting
from witchcraft, sorcery], and is found guilty in the threefold ordeal, he
shall remain in prison for 120 days….
[135] ralph B. Pugh, Imprisonment in medieval
[136] John H. Langbein. The Historical Origins of the Sanction of
Imprisonment for Serious Crimes. J. Legal Stud. 1976:5, at 35-60??
[137] For example, law 1.3 of II Athelstan
(Attenborough, supra note 55, at 127) allows putting a thief in prison
where an alternative is execution..
[138] See e,g, Louis Halphen, France, the Last Carolingians and the Accession of Hugh Capet (888-987), in The Cambridge Medieval History, Vol. III, Germany