Outlaws and 'The Royal Peace' in Anglo-Saxon England

The commentaries on the laws by Frederick Pollock and Frederic William Maitland are somewhat general and do not reach to an exhaustive depth but they do stretch to cover in broad strokes the general boundary of law in the Anglo Saxon imagination.

The first note to make is that what we mean by 'law' is caught up in our imagination of this rarefied form of custom and behaviour we have expected to be written down and held in public. This is possible in our modern age, but in a pre-literate era where travel was dangerous and expensive, local custom was often indistinguishable from law.

That doesn't mean to say that it was unstructured but it does mean the structure of law could only ever push against the infrastructural boundaries of the society in which it governed.

So whereas now we expect law in some part to shape behaviour, to modify it and control it, by stating some or such thing is punishable by this term in prison or this fine. It was not fully the case in Anglo Saxon England and similarly in many other societies. The 'law' as it could be considered was simply a record of custom, a cultural reference that established in an otherwise murky framework some relevant punishments or recompenses to be made to resolve a feud as had been done in the past.

What is starkly different to our own time is that these laws were not enforceable in their recommendations. The defendant or the plaintiff could accept or reject any proposed remedy of the law or judgement of a court.

For example, if person A killed person B, by way of swearing oaths in a court the kindred of person B (a technical term for family or relations which assumed collective responsibility for each of their members) could seek the payment of a fine by the person they accused of the murder. It was encouraged for both parties to accept the settlement to avoid conflict but they did not have to.

If the kindred of person B did not want a settlement, or the kindred of person A did not accept it then it was deemed that they would enter a state of feud where they would be able to exact revenge on each other likewise and legally.

The role of the law in this traditional Germanic sense was intended for the regulation of feuds, to provide a means for them to end by way of past example and not to expound a set of definite weights and measures to assess common modern criminal notions like culpability, degree of a crime, intention etc. To this end, almost exhaustive lists of crimes (i.e. the cutting of a thumb, the gouging of an eye) has associated fines and penalties so that any cause for a long lasting blood feud had an 'off-ramp' to end the cycle before it began with a generally agreed upon compensation framework.

Where a settlement would be reached it was usually a payment corresponding to the standing of the person who offended. So the murderer of a rich man could expect to pay 10x than the murderer of a poorer man etc. with a large number of gradations extending from slaves to the men surround the king's person.

The conversion of England to Christianity brought in an expectation, in imitation of Rome, of writing down some laws. So over time the gradation of these social classes and the generic wergeld (man-money) or fine for certain deeds against others became more established. In addition, the social pressure of the Church exerted itself in trying to seek more peaceable settlements and to end feuds through oaths and resolutions in court.

The lowest form of court was the hundred which was an area nominally comprising of 100 families but generally just referred to the smallest administrative unit of the realm. There the highest status clan in that land administered settlements and oaths largely independently, the owners of these lands did not hold them as tenants of the king but held them as 'folkland' or land held under the laws of folk custom.

Escalation out of one's local courts to the shire court presided over by a bishop or to the king's court could only happen if a person felt they were subject to corruption in the creation of a case (i.e. false oaths etc.). However in practice this was rarely practical, and often used as a method for people to escape their crimes by claiming corruption to deny judgements.

The attempts to try and control these people who looked to put themselves outside of the judgement of their local law was a crucial development in the way we view law today. Some ordinances existed that people who had fled courts thrice were to be assumed guilty and if they refused to submit to a court then they were to become 'outlaws'.

Outlaw as the name suggests meant someone who existed outside of the protection of the law, meaning they were not able to appeal to a court for any crime committed against them and this extended also to their kindred. Furthermore, any crime against an outlaw was not an offence because they were not subject to any legal protections.

Therefore to be an outlaw was precarious, not just for a criminal but also for their family as it would put all their property and lives in a state of jeopardy. Therefore outlawship became a common means by which to compel criminals or suspected criminals to obey the court. So although originally the settlements the law provided were largely optional and deemed to be so, the abuse of this honour based system incurred a kind of penalty that rendered recourse to the law more and more compulsory.

Financial incentives also helped solidify the gradual consolidation of legal authority. As royal power expanded, kings and their agents increasingly claimed rights over the forfeited property of outlaws, who by definition stood outside local jurisdictions and legal protection. These forfeitures, along with growing royal claims over public fines and breaches of the king's peace, created a material incentive for the more vigorous prosecution of outlawry. As the ability to evade local courts narrowed and the consequences of non-submission became more severe, participation in the legal process became, in practice, increasingly compulsory.

With law reflecting recommended practices and custom it's easy to see its static nature and why early law shows little development as we'd expect in the modern sense with new laws not being regularly promulgated. After all if you were unhappy with a given settlement you could take the matter into your own hands and enter a state of feud. However, as people were forced more and more to engage with a defined legal process to whose resolution they were bound, efforts to make the law itself more just, applicable and wide ranging seemed natural. If you risked becoming an outlaw by refusing a court's judgement then it was in your interest to ensure if a court offence was to be levied against you that it was as fair, reasonable and appropriate as possible.

In our world where we see law as inevitable and universal it's interesting to look back to a world where it was anything but.