II Aethelstan; or, the Grately Code

Explanation and Analysis of the Document

It is impossible to date precisely the initial promulgation of the law code II Aethelstan. The conventional dates of 924–939 given to the law code simply mean that the code was produced at some point during the reign of Aethelstan. However, II Aethelstan must be relatively earlier than most of the five other law codes attributed to Aethelstan, as most refer back to the council at Grately and the laws established there.

Although the law was originally promulgated in the early tenth century, the earliest surviving versions date to the late eleventh century or the first half of the twelfth century. The earliest surviving version written in Old English is in the manuscript “Cambridge, Corpus Christi College 383.” However, this version is a fragment, and only the first fifty-four lines remain (up to clause 6). The rest has been lost since at least the sixteenth century. The other Old English version, from slightly later in the twelfth century, is in the manuscript “Rochester Cathedral Library, MS A.3.5,” also known as the Textus Roffensis.

In addition to these two surviving Old English versions of the law code, there is also a twelfth-century Latin translation in the legal collection known as the Quadripartitus, which survives in a number of medieval manuscripts. It is in the epilogue added only to the Latin version (following on from clause 26.1) that much of the essential information regarding the context of the law code's production and promulgation is included.

Compiling the Law Code

From the comprehensive scope of the law code, it is tempting to think of II Aethelstan as a complete and independent piece. After all, the law code provided regulations for a large range of social concerns. However, the law code is dependent on a broader literate and legal context. In the law code itself there are echoes of a previous document that has been incorporated into the main body of II Aethelstan. In particular, clauses 13.1 through 18 are numbered as “secondly” through “seventhly” in the law code.

It is possible that the initial part of the law code, from the prologue through to the end of clause 13, was originally intended to be the first section. The second section could have begun at the word “secondly” in clause 13.1, the third in clause 14, and so forth. As, following the title “Concerning thieves,” clause 1 begins with the word first, this argument is just plausible. However, the laws in the initial block cover a wide array of legal concerns, beginning with theft but then moving rapidly through treachery (clause 4), witchcraft and murder (clause 6), and the “ordeal” (clause 7) as well as trade and exchange (clauses 10 and 12). Conversely, the section from clauses 13 to 18 changes its numbering with each change of subject. In addition, clause 13.1, which states that all trade must take place in a town, repeats the subject of clause 12, which states that all goods with a value of more than twenty pence must be bought in a town. This evidence suggests that most likely the block from clauses 13 to 18 represents the integration of a different law code into II Aethelstan. Whether this blending occurred at the council meeting in Grately or later is impossible to tell for certain. However, given that this section is found in all three versions of the law code, it likely occurred early on and probably when the law code was first produced.

II Aethelstan and the Laws of Previous Kings

In addition to the reuse of former law promulgated by Aethelstan, the law code also forms connections with the law codes of previous kings. There is sometimes a temptation to imagine that only the laws of a given king were valid during his reign and that the laws of previous kings were either amended and reissued under a new name or else abandoned. Instead, however, Anglo-Saxon law was generally cumulative, with additions and alterations being added by individual kings to the body of customary practice. In addition, direct references to previous law codes are prevalent throughout Anglo-Saxon law codes, particularly with reference to the Domboc, the law book of King Alfred the Great. In particular, clause 5 of II Aethelstan, which outlines the punishment for breaking into a church, states that the accused is “to pay according to what the law-book says.” This statement refers specifically to clause 6 of the Domboc, which stipulates the extent of the fine to be paid as well as the perpetrator's physical punishment—having his or her hand cut off.

Wergild

The extent of a fine was determined by the wergild of the person committing the offense. The term wergild literally means “man money” and was the value given to each member of society, excluding slaves. The higher a person's social rank, the higher the wergild. Initially this was the price that had to be paid to the family if a person was killed. Throughout II Aethelstan and other Anglo-Saxon law codes, however, the use of wergild is expanded to include the price for various other infringements. References to a person's wergild appear throughout II Aethelstan as the cost and value of a sworn oath and the amount of the fine for committing criminal actions or otherwise failing to uphold the law.

Concerning Thieves

Among the main concerns of II Aethelstan are the restriction of theft and the punishment of thieves. In the manuscript “Cambridge, Corpus Christi College 383,” the law code was originally copied without any manner of heading or introduction. However, the heading “Concerning thieves” was added at some point in the fifty years after the manuscript was first produced. The emphasis on the prevention of theft in the law code, rather than on identifying the king in whose name the laws were published, is immediately apparent. The law code sought to prevent and to punish theft in a variety of ways. It begins by dictating that thieves were not to be spared if they were caught with the stolen goods. This directive, however, was initially tempered by allowing thieves under the age of twelve to be spared unless, as detailed in clause 1.2, they attempted to defend themselves or to flee. The following subclauses, 1.3 to 1.5, mandated a forty-day prison sentence, coupled with oaths that the individual desist from future wrongdoing, as well as greater financial punishment equal to the full wergild for any future transgressions.

Furthermore, to ensure the punishment of the thief, in clause 1.1 the law code establishes a fine for a person who spares a thief. As this fine was equal to the person's wergild, allowing a thief to go unpunished was reprimanded at the same value as a repeat offense by a thief. However, to prevent the punishment of theft from becoming a personal vendetta, II Aethelstan also discouraged ordinary people from avenging a theft in person. Clause 6.3 awarded a hefty fine of 120 shillings to be paid to the king if a person sought revenge against a thief but failed actually to wound the thief. If the avenger wounded the victim, then the punishment was the same as for committing secret killings (which is to say murder by treacherous or dishonorable means, as opposed to open killing, where the perpetrator did not try to conceal the homicide), performing witchcraft, or committing arson, as shown in clauses 6 to 6.2. In addition to paying the 120-shilling fine, the avenger also had to pay compensation, equal to the victim's wergild, to the victim's family.

The clauses demanding that all trade occur within a town were also intended to prevent theft by limiting the opportunity for the sale of stolen goods. Limiting sales to within a town meant that trade had to be open and public. If someone traded in stolen goods, the original owners would have had more opportunity to identify their property. Conversely, any trade occurring outside a town could therefore be assumed to be in stolen goods. The injunction that all trade must occur in a town was further refined by the presence of official witnesses who were deemed to be trustworthy. Thus clause 10 declares that livestock should be exchanged only if the transaction was witnessed by either a reeve (an official administrator) or “the priest or the lord of the estate or the treasurer or other trustworthy man.” The law code set a fine of thirty shillings in clause 10.1 and ordered that the goods, which were assumed to have been stolen, as they had not been traded using the official channel, be given into the ownership of the lord of the estate.

The Swearing of Oaths

The accusation of an individual, the witnessing of transactions, and the declaration of innocence were all supported primarily by the sworn oath of the individual. Clause 6, regarding witchcraft and secret killing, punished transgressors with death if they could not deny, by oath, having killed their victims. However, the specific detail included in clause 1.1 sheds a little more light on the process of the oath in Anglo-Saxon law. The clause states that a person who spared a thief had to clear himself or herself with an oath of the same value as his or her wergild. On one hand, this clause shows the greater value attached to people of higher social standing in Anglo-Saxon culture. Those people who were of higher social status were expected to be more honest and were given more credit, and obligations, accordingly. On the other hand, putting a price to an oath shows awareness that false oaths could be sworn, and it established financial punishment accordingly.

The swearing of false oaths and the giving of false witness are specifically discussed twice in II Aethelstan. First, in clause 10.1, a fine of thirty shillings was established—although the law code does not state to whom it would be paid—and the individual's oath was never considered valid again. The second mention of false oaths occurs in clause 26, which imposed a religious injunction against the perpetrator. A person who swore a false oath was not permitted burial in consecrated ground—a severe threat in the highly Christian society of Anglo-Saxon England. If an offender undertook the penance prescribed by a confessor and procured the witness of the bishop of the diocese, the injunction against Christian burial was lifted. However, even if an offender undertook the penance, he or she still remained unable to swear oaths in the future. From the punishments outlined for giving false witness, the significance of the oath in Anglo-Saxon society speaks for itself.

The Ordeal

The sworn oath, then, formed a central part of the legal structure and society in general and was important in the establishment of guilt and innocence. However, the recognition that false oaths could be sworn suggested that additional means were necessary to determine guilt or innocence. The main method used in Anglo-Saxon law and society was the ordeal. In most of II Aethelstan, this process is mentioned almost casually. For example, clause 14.1 refers to “[the ordeal of] hot iron.” Similarly clauses 4, 5, and 6.1 mention the “three-fold ordeal,” and clause 7 refers to the “simple ordeal.” The sheer number of times that the term ordeal is used and the lack of actual details emphasize that the process must have been well established in Anglo-Saxon society. After all, if specific details were not necessary, then they were likely already well known.

Two clauses in II Aethelstan do outline specific details of the process. In particular, clause 23 describes the oath of the accused and the ordeal he or she would have undertaken in a religious framework involving fasting and attending Mass for three days preceding the ordeal, on the final day taking Communion and then swearing the oath before undergoing the ordeal itself. These religious elements suggest that it was understood to be supernatural, divine judgment that determined the outcome. The fact that these details are outlined so clearly in II Aethelstan implies that the supernatural basis of the ordeal had previously been less connected to the church, though it had probably always been Christian, rather than pre-Christian, in context.

The following clause, 23.1, adds further details to the process of the ordeal. The ordeal of water ordered the accused “to sink to one and a half ells on the rope.” (An ell is the distance from one shoulder to the fingertips of the hand opposite.) The ordeal of hot iron mandated that “it is to be three days before the hand is unbound.” Neither stipulation is fully informative in its own right, suggesting that the underlying principle of the ordeal was already known. Indeed, this can be seen from the laws of King Ine (688–694), included in the later Domboc of King Alfred (871–899), where clause 62 refers to a man who “is driven to the ordeal” as a way of proving his innocence (Whitelock, p. 406). However, the laws of Ine do not specifically detail how the ordeal was to be performed or judged. From the somewhat later, anonymous law code now known simply as Ordeal (first promulgated between 936 and 1000), the majority of information on the ordeal is known. For the ordeal of water, the person was bound hand and foot and submerged in water. If the person sank to the appropriate depth, he or she was declared innocent; if not, he or she was declared guilty. In the ordeal of hot iron, the accused had to hold a piece of red-hot iron in the palm of one hand and carry it for a set distance. Afterward the hand was bandaged for three days, and then the bandage was removed. If the wound was healing cleanly, the accused was declared innocent; if the wound festered, the accused was deemed guilty. The difference between the simple ordeal and the threefold ordeal was in the duration of time given to sink in the water and the weight of the heated iron and the distance it had to be carried.

To a modern audience, the ordeal may seem to be an uncertain way of determining innocence, truth, or guilt. However, for Anglo-Saxon society it shows a movement away from basing guilt only on accusation to including a way of testing that guilt. Another movement in the law that can be identified is the injunction, in clause 23.2, that the ordeal was invalid if the accused had more than twelve supporters present, unless some should agree to leave. If the accused was found guilty by the ordeal, the number of available combatants would have been limited if they resorted to violence to support their case, having first failed with law. In this way and in numerous others, II Aethelstan sought to regulate and control Anglo-Saxon society.