By Carol Symes, University of Illinois Urbana-Champaign
For most of human history, societies have had classes of people distinguished by their privilege—private or personal laws which held them to a different code of conduct altogether. And again, while we reject this idea in theory today, in practice we all know that the rule of law does not work in the same ways for the privileged as it does for the disenfranchised or the poor.
Germanic Tribes of Europe
The earliest extant medieval law codes are often a blend of barbarian custom and Roman legal principles—an inevitable blending, since most of these codes were redacted in Latin.
But a look at the oldest such code in the vernacular, the Old English laws ascribed to King Aethelberht of Kent around 600, and preserved in a manuscript from around 1100, give us the most unvarnished look at how the Germanic tribes of Europe distinguished among the rights of different groups of people. For one thing, the original text did not mention the rights of the fledgling Roman Church at all, even though the peoples of England were being taught by Christian missionaries on how to write using Roman characters.
Instead, the code begins with the special rights of the king, which extend to those under his mundbyrd, or ‘protection’. For example, if one of the king’s thanes (his household retainers) is in his company, any injury to the thane’s person is fined at double the normal compensation that the man would receive if molested in his own home. That is, the presence of the king makes the crime worse.
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The Doom Book
At the end of the 9th century, Alfred the Great, the first ruler to unify all the early English tribal kingdoms into one political entity, issued a Doom Book—or ‘Law book’ that built upon older codes like Aethelberht’s. This refreshed code reflects Alfred’s awareness that his new and fragile political coalition needed to be held together by shared legal processes and norms.
In his prologue to this work, which he caused to be disseminated throughout the realm, he represents himself as the collector and publisher of the laws—not as the maker of them. Indeed, he says explicitly that, “I have not dared to presume to set down in writing many laws of my own, for I cannot tell what will meet with the approval of our successors”.
Instead, he endorses the tried-and-true legislative programs of the kings who had ruled in various parts of England before him. And while he does not position himself as subject to the law, he notes that his book has been approved by the members of his witan, his council, and that these men were, therefore, involved in its authorization. Moreover, Alfred makes it clear that no legal system can function unless all who are subject to it participate in good faith.
Institutions and the Administrative Units of England
The collective commitment to live by the law in early medieval England was further reinforced by a number of durable institutions that were unique to that region and that endure today in all countries governed by the English common law. These institutions were unusual in being proactive as well as reactive—they were designed to keep the peace as well as to punish wrongdoing after the fact.
By the end of the 7th century, all of England had been divided into manageable units of land known as hides, whose inhabitants formed a sort of neighborhood watch with a collective responsibility to one another. (A hide of land was about 30 acres in modern terms.) Larger groupings of hides, known as hundreds, were overseen by an appointed official called a reeve.
Still larger groupings were the main administrative units of the kingdom, the shires, each with a shire-reeve, the sheriff. Within towns—boroughs in Old English—elected or appointed officials were known as burgesses and performed some of the same functions.
Both Germanic and Roman legal customs had long relied on established or ad hoc tribunals of citizens to adjudicate at trials. These men were jurors because they swore to uphold the law (jus). Their public witness was required even in cases when supernatural forces were called upon to resolve disputes or establish guilt, through trial by combat or various ordeals—walking on hot coals, grasping a hot iron, surviving a plunge into deep water, even swallowing a hunk of cheese without choking.
Although God was the ultimate arbiter of justice in these cases, the results of any such procedure could be ambiguous, and hence jurors often had to consider the extent to which a defendant had emerged, scathed or unscathed, from an ordeal, either establishing guilt or innocence.
But in early medieval England, juries were increasingly convened to make such determinations on their own, by examining evidence and taking testimony from witnesses. By the 11th century, prior to the Norman Conquest, it was an established practice to convene 12 of the leading men in each district to preside at trials or to engage in fact-finding missions in order to resolve property disputes or capture criminals. It was also being established that the king could call for the convening of a jury by sending a written order to the sheriff.
Thus, the entire system was so effective that it was not abolished by the Normans, even though they brutally disenfranchised their English subjects and replaced almost all secular and ecclesiastical elites with continental substitutes.
Common Questions about the Rule of Law in Medieval England
Alfred the Great, the first ruler to unify all the early English tribal kingdoms into one political entity, issued the Doom Book or ‘Law book’.
By the end of the 7th century, all of England had been divided into manageable units of land known as hides, whose inhabitants formed a sort of neighborhood watch with a collective responsibility to one another.
By the 11th century, prior to the Norman Conquest, it was an established practice to convene 12 of the leading men in each district to preside at trials or to engage in fact-finding missions in order to resolve property disputes or capture criminals.