MurUEJL 28
of King Alfred
||Manuel Calzada BA LLB Dip Int|
||Volume 5, Number 4 (December 1998)|
Over the past decade we have witnessed apparently increasing demands, at
least from some sectors of the community, for harsher and longer sentences,
for " truth in sentencing " provisions, and renewed calls for corporal
and capital punishments to be re-introduced. The response of Governments
Australia wide has been to introduce tougher punitive measures centred
on imprisonment as punishment and deterrence. In Western Australia a "
three strikes and you are in " compulsory custodial sentence aimed at juveniles
has been legislated as have other measures which increasingly reduce judicial
discretion in sentencing and are aimed at increasing the length of custodial
Yet there seems to be little evidence that these provisions are working
to provide a deterrent to anti-social behaviour. The most obvious result
is the current overcrowding of our penal institutions with recent reports
that, for example in Casuarina Jail, Western Australia's maximum security
jail built in 1991 to house 360 prisoners, is currently housing in excess
of 560 inmates.
Despite the increasingly punitive legislative provisions, the demands for
tougher (read lengthier) sentences continues unabated. During a recent
(October 1998) Western Australian Law Reform Commission meeting held at
Murdoch University to seek submissions from the public on ways to improve
the criminal justice system, a number of speakers time and time again raised
demands for " tougher " jail sentences and a return to the values of the
past. It was apparent that many speakers held as a self-evident truth the
fact that modern society had grown " weak " and that " do-gooders " were
intent on letting the criminals " get away ". To these people, the answer
to our 'escalating crime wave' was longer compulsory jail terms and generally
stronger punitive measures. This reflects a philosophy of " locking them
up and throwing away the key ", similar to that which we have done in the
One of the many questions which arise is whether, in fact, that was always
the case in the past. There is a popular public perception that there was
a time when sentencing was brutal but effective in maintaining public order,
but over the centuries western society has grown increasingly soft with
a corresponding decrease in respect for others and their property resulting
in ever increasing levels of personal and property crime. It would surprise
many to find that within English law the jailing of offenders has not always
been the natural result of a criminal conviction.
Deeply ingrained in popular culture is the knowledge that during the 17
to 19th century the death penalty, and in lieu transportation to the colonies,
and corporal punishment were applied with gay abandon, sometimes for menial
crimes, and that in prior centuries sentencing was even harsher, conjuring
images of prisoners languishing in dungeons and, like Braveheart, being
tortured, castrated, decapitated, quartered and their remains scattered
all over the country.
While such punishment might have been the fate awaiting those who challenged
the supremacy of the English Crown, it is a different story to assume that
proportionally similar fates were meted out for lesser offences.
The origins of English common law are often traced to the Norman invasion
of 1066. This is of course an over-simplification because the Normans did
not bring with them a developed and sophisticated concept of law. In reality
the Norman kings were responsible for the establishment of a system of
royal courts administering justice across the whole country according to
a common body of laws.
The laws themselves were sourced, largely, from pre Norman times. Norman
administration unified, and no doubt amended, the local customs of Wessex,
Mercia, the Danelaw and the dooms of prior Saxon English kings under one
system of law which we know as the common law. Those laws were themselves
the result of customary laws dating back to the original Britons and influenced
and amended by subsequent waves of invaders including the Romans, Picts,
Jutes, Angles, Saxons and Danes.
Unfortunately there is little recorded history of pre Saxon laws and it
was not until the arrival of St Augustine in 597 to spread Christianity
in England that written law begins. By then King AEthelberht had married
a Frankish Christian princess and it is with his conversion and the subsequent
influence of the Church that we can trace the development of English law.
King AEthelberht's laws, the earliest documents written in
the English language, dealt almost exclusively with monetary compensation
payable to victims of crime and injury, with the Church ahead of the list
as potential recipients of compensation. " [Theft of] God's property
and the Church shall be compensated twelve fold; a bishop's property eleven
fold; a priest's property nine fold, a deacon's property six fold; a clerk's
property three fold. Breach of the peace shall be compensated doubly when
it affects a church or a meeting place "
Compensation for theft of King's property was a modest nine fold, equivalent
to a humble priest.
The Status of the Church as a tax free institution is another of the earliest
provisions of English law. The codes of Wihtred, King of Kent, issued in
695 and Ine, King of Wessex, between 688 and 695 both start with the principle
that " The Church shall enjoy immunity from taxation "
In return the clergy were commanded that " The king shall be prayed
for, and they shall honour him freely and without compulsion "
The special status of the Church is not surprising given the prologue to
his law code: " I Ine, by the grace of God king of Wessex, with the
advice and instruction of Cenred, my father, of Hedde, my bishop, and of
Erconwald, my bishop, ...and with a great concourse of the servants of
God as well, have been taking counsel for the salvation of our souls and
the security of our realm..."
On the other hand, AEthelberht made his influences obvious when he wrote
" For a Christian king is Christ's deputy among the Christians people,
and he must avenge with the utmost diligence offences against Christ .
It is with King Alfred's code that the Church's influence is most obvious.
Its long introduction is in fact an English translation of the Ten Commandments
[Ex 20:3-20:23], the Book of the Covenant, [Ex 21:1-13], the Golden Rule
[Mt. 7:12], and a brief account of apostolic history. Nevertheless the
code is not a wholly Christian text, as Alfred himself said " I, King
Alfred, have collected these laws and have given orders for copies to be
made of many of those which our predecessors observed and which I myself
approved...." and these included
laws from the Old Testament dealing with the conduct of slaves and traditional
pre Christian Saxon customs such as the wergeld .
Alfred's text is apparently Christian with strong emphasis in the laws
of the Old Testament. It prescribed for some strong methods of justice,
ie death is provided for in the following terms " He who smiteth his
father or his mother "[Clause 14, Ex 21:15] or " He who stealeth
a freeman, and selleth him " [Clause 15, Ex. 21:17-17]. Nevertheless
there remains a question as to what extent the prologue was paying lip
service to its Biblical inspirations. It seems that it was the remaining
77 clauses, the recollection from pre Christian Saxon customary law, that
were observed in preference to the Christian clauses when a conflict arose.
Although clause 13 of the code provided that " Let the man who slaeth
another wilfully perish by death " [Ex 21:12-14] in reality the death
penalty was applied only when the wergeld wasn't paid by the offender.
Similarly, clause 19 stated [as per Ex 21:24-25] " If any one thrust
out another's eye, let him give his own for it, tooth for tooth, hand for
hand, foot for foot, burning for burning, wound for wound, stripe for stripe
" however compensatory clauses providing for bot
to be paid by the offender allowed him to save his own eye, foot or hand
as the case may be.
As with AEthelberht's code, Alfred's code is essentially about financial
compensation for wrongs, which is justified by reference to the Christian
principles of mercy, ie " After this, then happened it that many nations
received the faith of Christ; ..... and also among the English race, after
they had received the faith of Christ, of holy bishops, and also of other
exalted witan. They then ordained, out of that mercy which Christ had taught,
that secular lords, with their leave, might, without sin, take for almost
every misdeed, for the first offence, the money bot which they then ordained....".
That is, the Old Testament might have provided for amputation of a limb
but the newly found Mercy of Jesus Christ allowed for the old Saxon laws
to substitute criminal and civil compensation payments in lieu of an offender's
Perhaps surprisingly the Dooms make almost no provision for imprisonment
of offenders. An exception is found in clause 1 of Alfred's code, which
deals with the importance of keeping one's pledge and the requirement to
submit oneself to 40 days imprisonment for inability to keep one's covenant.
While in prison the bishop would deliver an appropriate penitence as the
offence, in essence, was one against God for pledges were made in His name.
Punishment for escaping custody included excommunication and forfeiture
of bail moneys for the breach
of surety as well as whatever
religious punishment the confessor
Breaching of the protection of Holy places, under clause 2 of the code,
was punishable by the payment of a man's wer
and the payment of the King's wite
as well as compensation to the church of 120 shillings for the breach.
Similarly, provisions in clause 3 provided for the punishment of breaches
of the King's protection and required
payment of 3 pounds or 2 pounds in the case of bishops or ealdormen respectively.
Treason against the King could be expiated by one's life or in its place
payment of the King's wer. Attempts against the King's life made
one liable " in his life to him and in all that he has ". Anyone
escaping the consequences of a blood feud that found refuge in a Holy place
could count on seven days safety and if anyone breached this protection
he was liable to pay compensation to the church and the King. The refugee
would be denied food but if he delivered his weapons to his foes he could
count on a further 30 days sanctuary.
Stealing on Holy days of obligation doubled the bot, the payment
required from the offender, and stealing from a Church required, in addition
to restitution, the payment of
wite to the King, and that the hand that did the deed be struck
off. However the hand could be spared if the thief was allowed to pay "
as may belong to his wer ". Stealing nuns was cheaper, their price
being set at 120 shillings if any one carried off a nun from a monastery
without leave from the King or the Bishop. The King received 60 shillings
and the other 60 went to the bishop or to the church's hlaford
who owned the nun.
Killing of a pregnant woman required the payment of her wer in full as
well as half of the child's father's wer. In addition the wite
payable to the King was set at 60 shillings provided that the value of
the woman was below 30 shillings. Once the angylde reached 30 shillings
the King's wite rose to 120 shillings. An adulterous relationship
was punished with payment to the woman's husband according to his social
standing. Adultery with the wife of a ceorlish
was punishable by payment of 40 shillings, rising to 100 and 120 shillings
for higher classes.
Payments for sexual assaults were also regulated. Holding the breast of
a ceorlish woman was 5 shillings; 'throwing her down' without intercourse
was 10 shillings; intercourse was priced at 15 shillings but it was discounted
by half if the woman wasn't a virgin at the time of the offence. The payments
rose according to the woman's social standing. Seizing a nun with libidinous
intent without her consent doubled the price as it applied to ceorlish
women. Adultery with a betrothed woman required the payment of 60 shillings
in stock. Slave women were cheaper.
Raping a ceorl's female slave required payment to the ceorl
of 5 shillings and wite of 60 to the King. If a male theow
raped a female slave he was required to make bot with his testicles,
under the same rationale that many of today's Judges will sentence a bankrupt
to jail in lieu of a fine due to the prisoner's 'obvious' inability to
pay any fine.
A priest who killed another man was required to forfeit all his slaves
and further, the Bishop had to secularise him. The current Dog Act had
its precursor in clause 23 of the code which provided that for a first
biting offence by a dog its owner was required to pay 6 shillings, for
the second biting, 12 shillings and 30 for the third.
Clauses 27 to 31 of the code provided for the payments required in cases
of homicide. Bots depended on the number and types of relatives
that the murdered had. Want of paternal relatives by the murdered individual
discounted the wer of the victim by a third with one third being
paid by the maternal relatives and the remaining third by the man's guild-brethren.
In the absence of maternal relatives as well, the wer was half the
usual with the total amount being paid by the guild-brethren. Murder in
company required the payment of
wer and wite by the actual offender as well as 30 shillings
as hlot-bot by each member of the band.
Provision for common assaults are found in clause 35. Binding an unoffending
ceorlish man required compensation of 10 shillings. False imprisonment
was compensated with 30 shillings and shaving the head of a freeman
with 10 shillings. The bot for shaving a man's beard was 20 shillings.
Shaving the head of a priest [instead of homola] attracted compensation
of 60 shillings, perhaps indicating that mocking a priest was a greater
offence than mocking a fool.
Accidental or negligent bodily harm was also compensated. Accidentally
hurting a man with a spear required payment of wer [to the man]
but not payment of wite [to the King]. Changing one's Lord without
the permission of the current one also attracted compensation of 120 shillings
with half going to the old King and half to the new King.
Even disturbing the peace required compensation. Fighting in the presence
of an ealdorman or distracting a town meeting by drawing one's sword
attracted 120 shillings in wite to the ealdorman. The wite
was less, only 30 shillings, if this took place before the ealdorman's
junior or the king's priest. Fighting inside a ceorlish man's
flet attracted 6 shillings
bot to the ceorl and drawing a weapon without fighting only
For head-wounds 'if the bones be both pierced' 30 shillings or 15 shillings
if only the outer bone be pierced. An inch long wound within the hair attracted
1 shilling as bot and 2 shillings if 'before the hair'. An ear was
worth 30 shillings and deafness 60 shillings. The bot for a tongue
or an eye was 66 shillings and 6 and 1/3 pennies with a 1/3 discount if
the eye remained in the socket. A nose was worth 60 shillings, a front
tooth 8 shillings, a canine 4 shillings and a grinder was 15 shillings.
A broken cheek was 15 shillings, a chin-bone 12 shillings, the same for
piercing a windpipe. The bot for a shoulder wound where 'the joint-oil
flow out' was 30 shillings whilst a broken arm was only 15. Amputation
of the thumb was 30 shillings but only 5 for the nail; the forefinger was
15 and its nail 4, the middle finger 12 and its nail 2. The ring finger
was 17 shillings and four for its nail whilst the little finger was only
worth 9 shillings with 1 shillings for its nail.
A belly wound meant 30 shillings or 40 if " through-wounded " [20 for each
orifice]. Piercing or breaking a thigh was 30 shillings, piercing below
the knee was 12 but breaking below the knee was 20 shillings. The toes
were also enumerated; 20 shillings for the great toe, 15 for the second,
9 for the middle, 6 for the fourth and 5 for the little toe.
A man so severally wounded in the genitals that was rendered unable to
beget children received 80 shillings. This was also the price of completely
losing an arm before the elbow. Maiming a hand was 20 shillings if it could
be healed but 40 if " it half fly off ".
A broken rib 'within the skin' was 10 shillings or 15 if the skin was broken
and the bone " be taken out ". A shank below the knee meant 80 shillings.
A curable rupture of the great sinew was 12 shillings or 30 if it could
not be cured.
Finally clause 77 of the code provided that " If a man rupture the tendons
on another's neck, and wound them so severally that he has no power of
them, and nevertheless live so maltreated; let 100 shillings be given him
as bot, unless the witan shall decree to him one juster, and greater ",
which in itself is also an early indication of granted judicial discretion.
The Dooms are, with the exception of the remand provision for failure to
keep one's word, free of imprisonment provisions as punitive tools for
either criminal or civil wrongs, corporal punishment in the form of lashes
does not even rate a mention, amputations could be avoided by financial
compensation and capital punishment was reserved for crimes of treason
against the monarch which could be expiated by appropriate payments. What
emerges from reading Alfred's Doom are Statutes remarkable for their pragmatism
and durability rather than, as popular culture would have it, cruelty and
 From Old English, meaning 'Statutes'.
 'The West Australian' 14 January
 F.L Attenborough, ed. and trans.,
The Laws of the Earliest English Kings (Cambridge, 1922), p.5.
 Ibid, p.25.
 Ibid, p 27.
 A.J. Baker, An Introduction
to English Legal History (London: Butterworths, 1971), p.5.
 Attenborough, op cit., p.63.
 "blood money" compensation for
victims of crime in lieu of capital punishment.
 " borh " .
 " borh - bryce ".
 " wed - bryce ".
 the price for his life.
 the price of the King's life.
 known as " frith ".
 " bohr " or " mund
 " angylde ".
 a freeman.
 " bof ".
 " theow ".
 " hloth ", crowd or
band of robbers.
 homola, a punishment
usually imposed on slaves which was also the mark of a madman or fool.