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Sanctuary, House-Peace, and the Traditionalism of Alfred's Laws

2010; Routledge; Volume: 31; Issue: 2 Linguagem: Inglês

10.1080/01440365.2010.496928

1744-0564

Stefan Jurasinski,

Historical and Religious Studies of Rome

Abstract Prior to the reign of Alfred the Great, sanctuary protections appear to have been offered only by ecclesiastical buildings and restricted to those hoping to avoid punishment. Alfred's laws extend these protections even to private dwellings as well as to persons threatened with non-official forms of violence (such as feuds). They would thus seem to be innovative, yet scholarship has resisted the notion that these laws constitute reforms; some have been assumed to depend on much older Germanic folk-laws on feuding. The present article suggests that these laws show the king attempting to give the rituals and expectations of penance a more pronounced place in England's secular law, an aim more explicitly evident in other clauses of his code. The protection that these laws afford, it is argued, inheres not in the buildings in which the violence takes place but is instead contingent on the behaviour of disputants. Notes 1 For discussions of these see Norman Maclaren Trenholme, The Right of Sanctuary in England: a study in institutional history (University of Missouri Studies 1), Columbia, 1903; John Charles Cox, The Sanctuaries and Sanctuary Seekers of Mediaeval England, London, 1911; Shannon McSheffrey, ‘Sanctuary and the Legal Topography of Pre-Reformation London’, 27 Law and History Review (2009), 483; Karl Blaine Shoemaker, Sanctuary and Crime in the Middle Ages, 400–1500 (forthcoming); T.B. Lambert, ‘Protection, Feud, and Royal Power: Violence and Its Regulation in English Law c.850–c.1250’, dissertation submitted for the degree of Doctor of Philosophy, University of Durham, 2009. 2Alfred's is the royal code most amply attested in Old English manuscripts, and it is the only code to have been cited as an apparently binding authority in subsequent Anglo-Saxon legislation. Along with the twelfth-century Latin translation of the Anglo-Saxon laws known as Quadripartitus, the manuscript witnesses (along with Liebermann's abbreviations) are as follows: ‘E’ Cambridge, Corpus Christi College (CCCC) 173 (s. xmed); ‘Ot’ BL (British Library) Cotton Otho B.xi (1001x1015 [Wormald]); ‘G’ BL Cotton Nero A.i (s. xiin); ‘Bu’ BL Burney MS 277 (s. xi2); ‘B’ CCCC 383 (s. xi/xii); ‘H’ Textus Roffensis (1123–24 [Wormald]). A reference to Alfred's domboc is probably made in Edward the Elder's ‘Exeter’ laws; see Patrick Wormald, The Making of English Law, part 1, Legislation and its Limits, Oxford, 1999, 268, where II Edgar 5 is also attributed to Ine 4.3. See also Simon Keynes and Michael Lapidge, eds., Alfred the Great, London, 1983, 311 n.34. An edition of Alfred's laws (as well as the appended laws of Ine) by this author and Professor Lisi Oliver is currently in progress under the auspices of the Early English Laws Project of the University of London's Institute of Historical Research. 3Felix Liebermann, ed., Die Gesetze der Angelsachsen, 3 vols., Halle, 1903–16, vol.1, 46. This and subsequent quotations from Alfred's domboc are from Liebermann's text of the earliest manuscript witness, CCCC 173 (‘The Parker Manuscript’). All translations are my own unless otherwise indicated, though this one owes something to Wormald's in Making, 277. 4Liebermann, ed., Gesetze, vol.3, 38; David Pratt, The Political Thought of King Alfred the Great, Cambridge, 2007, 218–219. 5‘Wir müssen uns bescheiden, nach dem auf uns gekommenen Material eine einigermaßen sichere Antwort auf diese Frage geben zu können, nur müssen wir darauf aufmerksam machen, daß die Annahme am nächsten liegt, Aelfred habe gar keine Publication der beibehaltenen ältern Gesetze für nothwendig erachtet, sondern nur in sein Gesetz aufgenommen, was er ändern oder neu hinzufügen wollte’ (‘From the material that survives we cannot presume to give a reasonably certain answer to this question; we may only point out on this matter that the most natural conclusion [is the following]: Alfred probably did not view as necessary [to his project] any of the traditional older laws, but selected for his code only what he wished to alter or make new additions to’), Rheinhold Schmid, Die Gesetze der Angelsachsen, 2nd ed., Leipzig, 1832, repr. 1858, xl. 6Carole Hough, ‘Alfred's domboc and the Language of Rape’, 66 Medium Ævum (1997), 1–27, at 2; Pratt, Political Thought, 218–219; Wormald, Making, 279: ‘Leaving aside the question of Offa's alleged code … no single law of Alfred's was an unaltered rehearsal of one of Æthelberht's or Ine's.’ 7See, for example, Patrick Wormald, ‘Lex Scripta and Verbum Regis: Legislation and Germanic Kingship, from Euric to Cnut’, in Patrick Wormald, Legal Culture in the Early Medieval West: law as text, image and experience, London, 1999, 11: ‘Several barbarian legislators, including Alfred, introduced their codes with a paraphrase of the Emperor Justinian's seventh novel to the effect that they were renovating and amending existing law, adding what was lacking and renovating what was superfluous. We can now see that this is almost exactly what they did.’ Of course, the task Alfred outlines for himself in the passage quoted above is somewhat different from this; in other publications (see below, n.8), Wormald would state more forcefully his view that Alfred resisted amendments of traditional folk law. 8Claims about the nature of Alfred's legislative work and the place of his domboc in the trajectory of early English legal development typically do not venture beyond the judgment of Charles Plummer that the domboc is characterized above all by Alfred's ‘wise conservatism’ (Life and Times of Alfred the Great, Oxford, 1906, 126), a conclusion that Felix Liebermann, the pre-eminent editor of early English legislation, would subsequently endorse in what remains the standard edition of pre- and immediately post-conquest legislation (see Liebermann, ed., Gesetze, vol.3, 38). Patrick Wormald's discussion likewise rests on the assumption that ‘Alfred was often the traditionalist, in style or substance, where Ine [the only prior king of Wessex whose legislation survives] looked more the reformer’ (Wormald, Making, 285). Wormald resists the view that Alfred altered in any appreciable way earlier West Saxon laws: ‘The best way to reconcile what Alfred seems to have done with what he claimed to owe Offa and Æthelberht is to suppose that when he found Mercian and Kentish laws with no counterpart in Ine, he wrote down his own laws on the topics concerned. It is unlikely that so “traditionalist” a text thereby changed West Saxon law or anyone else's’, Wormald, Making, 281. 9See Wormald, Making, 277–278 (who notes that the remark contains a topos of early legislation); Pratt, Political Thought, 218–219. 10For a statement of the current consensus on the legislative consequences of the Benedictine reform movement, see Pauline Stafford, ‘The Laws of Cnut and the History of Anglo-Saxon Royal Promises’, 10 Anglo-Saxon England (1981), 173–190, at 173. 11On the ‘Mosaic Prologue’ see Felix Liebermann, ‘King Alfred and Mosaic Law’, 6 Transactions of the Jewish Historical Society (1912), 21–31; Michael Treschow, ‘The Prologue to Alfred's Law Code: Instruction in the Spirit of Mercy’, 13 Florilegium (1994), 79–110; Wormald, Making, 416–429; Pratt, Political Thought, 214–238; Stefan Jurasinski, ‘Slavery, Violence and Secular Law in Alfred's Mosaic Prologue’ (forthcoming, Anglo-Saxon [vol. 2]). 12Wormald, ‘Lex Scripta and Verbum Regis’, 11 and 34. 13Mary Frances Giandrea, Episcopal Culture in Late Anglo-Saxon England (Anglo-Saxon Studies 7), Woodbridge, 2007, 50. 14Lisi Oliver, ‘Lex Talionis and Barbarian Law’, 52 Journal of Indo-European Studies (2006), 197–218. The subject is explored at greater length in chapter 8 of the same author's The Body Legal in Barbarian Law (forthcoming). I am indebted to Oliver for sharing with me the entirety of the manuscript prior to its publication. 15Lisi Oliver, ‘Sick-Maintenance in Anglo-Saxon Law’, 107 Journal of English and Germanic Philology (2008), 303–326, at 325. 16William Henry Stevenson, ed., Asser's Life of King Alfred, Oxford, 1959, caps.77–79. 17The correspondence appears in Dorothy Whitelock et al., eds., Councils and Synods with other Documents relating to the English Church, 2 vols., Oxford, 1981, vol.1, 4–13. 18Pratt, Political Thought, 226–227. For a somewhat more receptive view, see Daniela Fruscione, Das Asyl bei den germanischen Stämmen im frühen Mittelalter, Cologne, 2003, 146. 19Carole Hough, ‘Penitential Literature and Secular Law in Anglo-Saxon England’, 11 Anglo-Saxon Studies in Archaeology and History (2000), 133–141, at 134. 20This is a conclusion slightly different from that of Thomas P. Oakley, though Hough's account is more reliable; see Thomas P. Oakley, English Penitential Discipline and Anglo-Saxon Law in their Joint Influence, New York, 1923, 136–166. 21Hough, ‘Penitential Literature and Secular Law’, 134 and 136. 22A.J. Frantzen, ‘The Tradition of Penitentials in Anglo-Saxon England’, 11 Anglo-Saxon England (1983), 23–56, at 50. 23See Audrey Meaney, ‘The Ides of the Cotton Gnomic Poem’, in Helen Damico and Alexandra Hennessey Olsen, eds., New Readings on Women in Old English Literature, Bloomington, 1990, 158–175, at 161; Audrey L. Meaney, ‘Old English Legal and Penitential Penalties for “Heathenism”’, in Simon Keynes et al., eds., Anglo-Saxons: studies presented to Cyril Roy Hart, Dublin, 2006, 127-158, at 131-133; Jurasinski, ‘Slavery’. 24In a list of manuscripts giving an ‘indication of the sort of books which were imported into England in the years following King Alfred's revival of ecclesiastical life in the 890s’ (p.167), Michael Lapidge includes Oxford, Bodleian Library, Bodleian 572 (dating to the first half of the ninth century) which contains the penitential of Cummean and other manuals for confessors. See Michael Lapidge, The Anglo-Saxon Library, London, 2006, 171. 25Previous discussions include Charles H. Riggs, Jr, Criminal Asylum in Anglo-Saxon Law (University of Florida Monographs 18), Gainesville, 1963, 28–38; Patrick Wormald, ‘Giving God and King Their Due: Conflict and its Regulation in the Early English State’, 44 Settimana di Studio del Centro Italiano di Studi sull' alto Medioevo (1997), 549–590, repr. in Wormald, Legal Culture in the Early Medieval West, 333-358; Paul Hyams, Rancor and Reconciliation in Medieval England, Ithaca, NY, 2003, 80; Fruscione, Das Asyl, 145–152. 26See Fruscione, Das Asyl, 152 n.550. 27Wormald argues for the authenticity of Ine's laws in spite of their survival only in manuscripts containing Alfred's; see Wormald, Making, 278. 28Liebermann, ed., Gesetze, vol.1, 90–91; Frederick Levi Attenborough, ed. and trans., The Laws of the Earliest English Kings, New York, 1922, repr. 1963, 39. In spite of their often interpretive nature, reproduction of Attenborough's translations has seemed preferable, for the language of Anglo-Saxon law is often so terse as to make an approach such as Attenborough's unavoidable. Attenborough's translations also rely heavily on Liebermann's and thus conveniently make available the scholarly consensus on the meaning of various laws. 29Liebermann, ed., Gesetze, vol.1, 52; Attenborough, trans., Laws, 66–67 (cap.5.3). 30‘Eac we beodað; se mon se ðe his gefan hamsittendne wite, þæt he ne feohte, ær ðam he him ryhtes bidde. Gif he mægnes hæbbe, þæt he his gefán beride ond inne besitte, gehealde hine VII niht inne ond hine ón ne feohte, gif he inne geðolian wille; ond þonne ymb VII niht, gif he wille on hand gan ond [his] wæpenu sellan, gehealde hine XXX nihta gesundne ond hine his mægum gebodie ond his friondum’ (‘Also we enjoin, that a man who knows his adversary to be residing at home, shall not have recourse to violence before demanding justice of him. If he has power enough to surround his adversary and besiege him in his house, he shall keep him therein seven days, but he shall not fight against him if he [his adversary] will consent to remain inside [his residence]. And if, after seven days, he will submit and hand over his weapons, he shall keep him unscathed and send formal notice of his position to his kinsmen and friends’), Liebermann, ed., Gesetze, vol.1, 74–75; Attenborough, trans., Laws, 83. 31The most recently published and, in my view, most reliable translation, is that in Dorothy Whitelock, ed. and trans., English Historical Documents, vol.1, c. 500–1042, New York, 1955, 380. I have provided it here in place of Attenborough's. 32For a synopsis of the problem (which has rightly seemed superfluous to subsequent commentators) see Attenborough, trans., Laws, 198. 33See, for example, Julia Barrow, ‘Demonstrative Behaviour and Political Communication in Later Anglo-Saxon England’, 36 Anglo-Saxon England (2007), 127–150. 34For a recent treatment of sanctuary emphasizing its inherent variability see T.B. Lambert, ‘Spiritual Protection and Secular Power: The Evolution of Sanctuary and Legal Privilege in Ripon and Beverley 900–1300’, in David Rollason and T.B. Lambert, eds., Peace and Protection in the Middle Ages, Toronto, 2009, 121–140. 35Trisha Olson, ‘Of the Worshipful Warrior: Sanctuary and Punishment in the Middle Ages’, 16 Saint Thomas Law Review (2004), 473–549, at 476. 36In the partial translation of Exodus that precedes his own laws, Alfred substantially rewrites two clauses (21:12–14) concerned with remedies for homicide (‘Qui percusserit hominem volens occidere, morte moriatur. Qui autem non est insidiatus, sed Deus illum tradidit in manus ejus, constituam tibi locum in quem fugere debeat’). Alfred's additions are considerable: ‘Se mon se ðe his gewealdes monnan ófslea, swelte se deaðe. Se ðe hine ðonne nedes ófsloge oððe unwillum oððe ungewealdes, swelce hine god swa sende on his honda, 7 he hine ne ymbsyrede, sie he feores wyrðe 7 folcryhtre bote, gif he friðstowe gesece’ (‘He who kills a man intentionally, let him die the death. However, he who slays a man under compulsion (command?) or unwillingly or unintentionally, as God has put it in his hands, and he did not lie in wait [for his victim], let him be worthy of life and the remedies afforded by folk-law if he should seek a place of protection’). It is plain that the Alfredian version shows a greater concern than its source with the motives that prompted the slaying. It has been elsewhere noted that the three categories of unintentional homicide added by Alfred to the language of his source are conventional in the penitentials that circulated in Francia in the years prior to Alfred's reign: see Jurasinski, ‘Slavery’; also Fruscione, Das Asyl, 146–148. 37Frederick Pollock, ‘The King's Peace’, 1 Law Quarterly Review (1885), 37–50, 39–40. 38Ibid., 39 n.1. 39‘Alfred's ninth-century code which protected the sanctuary rights of private dwellings as well as churches and monasteries, points to a determination to build communal security on the foundations of peace-loving homesteads as settlements became more stabilized.’ Colman's discussion of these clauses goes into no greater detail than this. See Rebecca V. Colman, ‘Hamsocn: Its Meaning and Significance in Early English Law’, 25 American Journal of Legal History (1981), 95–110, at 110. 40Pratt, Political Thought, 227. 41C.F. von Schwerin, ed., Lex Saxonum (Monumenta Germaniae Historica Leges 4), Hanover, 1918, 25 (cap.27). 42L.J. Downer, ed. and trans., Leges Henrici Primi, Oxford, 1972, 252–253 (cap.80.11a). 43Agnes Jane Robertson, ed. and trans., The Laws of the Kings of England from Edmund to Henry I, Cambridge, 1925, 74–75 (IV Æthelred c.4): ‘Et diximus: homo qui hamsocnam faciet intra portum sine licentia et summam infracturam aget de placito ungebendeo … iaceat in ungildan aekere’ (‘And we have decreed that he who performs hamsocn within the town and commits a breach of the peace of the worst kind … shall lie in an unhonoured grave’). 44Robertson, ed. and trans., Laws of the Kings of England, 204–205: ‘Gyf hwa hamsocne gewyrce, gebete ðæt mid v pundum ðam kynincge on Engla lage, [7 on Dena] lage swa hit ær stod. 7 gif hine man ðær afylle, licge ægylde’ (‘If a man makes forcible entry into another man's house, he shall pay £5 to the king as compensation for so doing in districts under English law, and in the Danelaw the amount fixed by existing regulations. And if he is slain in such a case, no compensation shall be paid for his death’). 45Fruscione (Das Asyl, 150) finds in Alfred's tolerance for weapons within churches a further departure from attitudes prevailing on the continent: ‘Im Unterschied zum Festland bedeutete es also noch nicht Asylbruch, wenn Waffen in die Kirche mitgebracht wurden, sondern erst, wenn mit denselben aus der Kirche herausgefochten wurde.’ 46Liebermann, ed., Gesetze, vol.3, 290 s.v. ‘Asyl’; also ibid., vol.3, 504 s.v. ‘Heimsuchung’. 47F.M. Stenton, Anglo-Saxon England, 2nd ed., Oxford, 1947, repr. 1962, 273. 48Wormald, ‘Giving God and King Their Due’, 336–337. 49Wormald, Making, 283. Although its reading of the Alfredian clauses discussed here largely agrees with the scholarly tendency I have outlined, chapter 5 of Karl Blaine Shoemaker's forthcoming Sanctuary and Crime is also more attuned to Alfred's interest in penance and canon law than is the case in prior studies. My conclusions about Alfred's laws on ‘house-peace’ differ somewhat from Shoemaker's, but his study illuminates the context of Alfred's judgments more than earlier treatments and is an important contribution to the history of medieval sanctuary. I am grateful to Professor Shoemaker for allowing me to see the manuscript before publication. 50See II Æthelstan 1.3. 51Fruscione, Das Asyl, 70. It was customary in later English law for sanctuary-seekers to abjure the realm after forty days. 52Heinrich Brunner, Deutsche Rechtsgeschichte, 2 vols., Leipzig, 1892, 477. Liebermann assumes the right of masters in Germanic Europe to kill their slaves on the basis of remarks in chapter 25 of Tacitus's Germania: see Liebermann, ed., Gesetze, vol.2, 693 s.v. ‘Unfrei’ (sec.13); also Jakob Grimm, Deutsche Rechtsalterthümer, 4th ed., Leipzig, 1899, 344. 53Liebermann, ed., Gesetze, vol.1, 62; Attenborough, trans., Laws, 75. 54Benjamin Thorpe, Ancient Laws and Institutes of England, London, 1840, 34. 55Liebermann, ed., Gesetze, vol.2, 432 s.v. ‘Geistliche’: ‘Ein Totschlages überführter Priester werde [dem Rächer] samt allem, womit er sich hames bohte (Pfründenstelle kaufte) durch die Kirche ausgeliefert und degradiert’ (‘A priest condemned for homicide is abandoned by the church to the avenger, along with all [of the money] with which he bought for himself his benefice, and is demoted’). 56The Penitential of Theodore (I.IX.8) mandates that members of the secular clergy be expelled from orders if guilty of homicide: see F.W.H. Wasserschleben, ed., Die Bußordnungen der abendländischen Kirche, Halle, 1851, 194. 57Liebermann, ed., Gesetze, vol.1, 56. This clause was adduced somewhat absurdly by Brunner as evidence that his law of vengeance was to be applied even to inanimate objects: see his ‘Über absichtslose Missethat im altdeutschen Strafrechte’, in Forschungen zur Geschichte des deutschen und französischen Rechte, Stuttgart, 1890, repr. 1894, 487–523, at 522. This seems, however, a very different thing from the deodand or even the Norwegian law he refers to earlier; the tree was of value, and the receipt of it by the kin is presumably a way to make up for the loss of their kinsman. 58Ludwig Bieler and D.A. Binchy, ed. and trans., The Irish Penitentials (Scriptores Latini Hiberniae 5), Dublin, 1975, 80–83. 59See Fergus Kelly, A Guide to Early Irish Law, Dublin, 1998, 43. 60Bieler and Binchy, eds., Irish Penitentials, 243 n.10. 61Bieler's statement is repeated in Kelly, Guide, 43. 62Merseburg, Archiv des Domkapitels, MS. 103 (s.ix1); Vatican, Bibl. Apostolica Vaticana, Vat. Lat. 5751 (s.ix). Raymund Kottje assumes for the Poenitentiale Merseburgense a a Frankish (possibly Carolingian) ancestry and a date of assembly as early as the second quarter of the eighth century: see Raymund Kottje, ed., Paenitentialia minora franciae et italie saeculi VIII–IX, Turnhout, 1997, xxvi–xxvii, 63, 126 (cap.1 in both Burgundense and Merserburgense a). 63See J.E. Cross and Andrew Hamer, eds., Wulfstan's Canon Law Collection, Cambridge, 1999, 108–110. The clause in question (cap.102), a synthesis of a variety of penitential judgments on clerical homicide including that of Columbanus, does not reproduce explicitly the requirement of its source that the cleric guilty of homicide serve the parents of those he has wronged. But comparison of its language with that of the passage from the penitential of Uinniau quoted above shows Cross and Hamer's translation to be somewhat tendentious: satisfaciat parentibus eius quem occidit need not mean ‘he is to pay reparation to the parents of him he has killed’ (p.110) and indeed is not translated as such by Bieler. 64On mund see Rudolph Huebner, History of Germanic Private Law, trans. Francis S. Philbrick (Continental Legal History Series 4), London, 1918, repr. New York, 1968, 585–586. 65Liebermann, ed., Gesetze, vol.2 s.v. ‘hand’. 66Einar Ólafur Sveinsson, Vatnsdœla saga (Íslenzk Fornrit 8), Reykjavík, 1939, 15 n.2. I am grateful to Elizabeth Ashman Rowe for checking my translation from Modern Icelandic. 67Sveinsson, ed., Vatnsdœla saga, 12. 68Ibid., 15. 69Ibid. 70Ibid., 15. 71D. Slay, ed., Hrólfs saga kraka, Copenhagen, 1960, 77. The antiquity of the bone-throwing episode is established by its inclusion in the Gesta Danorum of Saxo Grammaticus, though the author of the vernacular saga is evidently working from a separate tradition. See Saxo Grammaticus, History of the Danes, eds. and trans. Hilda Ellis Davidson and Peter Fisher, 2 vols., Cambridge, 1979–80, repr., one volume, 1996, 54–55. 72See Einar Ólafur Sveinsson, ed., Brennu-Njáls saga (Íslenzk Fornrit 12), Reykjavík, 1954, cap.153. This is perhaps not the best example of the principle argued for here, for the lives of Flosi and his men are spared by Earl Sigurð Hloðvisson only after one of the latter's retainers argues on behalf of Flosi and offers his own wealth in order to purchase their lives. (Such an episode may well have suggested Liebermann's reading of the Alfredian clauses discussed above, though evidence that the great editor had this or any other saga literature in mind is, as far as I know, wholly absent.) The examples previously discussed, however, seem to demonstrate adequately that this example, perhaps unsurprisingly given the extremity of the violence involved, is atypical, and that willing submission to the aggrieved was often seen as of itself sufficient to prevent further violence, without the payment of ransom or any other settlement. 73Cap. II, 3 of the Lex Romana Burgundionum (itself derived from the Codex Theodosianus) stipulates that even a slave guilty of homicide who seeks sanctuary be instructed to serve in safety the kin of those he had slain (indulta vita, pro eo quem occidit, ipse serviat). L.R. von Salis, ed., Lex Romana Burgundionum (MGH Leges 2), Hanover, 1892, 126; Fruscione, Das Asyl, 51 n.206. 74This is very much a concern to Pratt, who sees Alfred as implicitly defending native English law from the charge of Fulk of Rheims that it has strayed from canonical observances. 75 Penitential of Theodore, vol.1, iv, 4–5: ‘Si laicus alterum occiderit odii meditatione si non vult arma relinquere peniteat VII annos sine carne et vino III annos. Si quis monachum vel clericum occiderit, arma relinquat et Deo serviat vel VII annos poeniteat’ (‘Should a layman kill another out of malice, if he does not wish to abandon his arms, let him fast for seven years without meat and without wine for three years. If someone kills a monk or a cleric, let him give up his arms and serve God, or fast for seven years’), Wasserschleben, ed., Bußordnungen, 188. See also Barrow, ‘Demonstrative Behaviour’, 139 n.69. 76On this see especially Josef Raith, ed., Die altenglische Version des halitgar'schen Bussbuches, Hamburg, 1933, repr. 1964, 33–34. Additional informationNotes on contributorsStefan Jurasinski I am grateful to Lisi Oliver, Karl Blaine Shoemaker, and the anonymous reviewer for their comments on an earlier version of this essay.