Calzada, Manuel --- "The Dooms of King Alfred" [1998] MurdochUeJlLaw 28; (1998) 5(4) Murdoch University Electronic Journal of Law

The Dooms[1] of King Alfred

Author:	Manuel Calzada BA LLB Dip Int
Issue:	Volume 5, Number 4 (December 1998)

1. 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 sentences.


2. 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[2].


3. 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 past.


4. 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.


5. 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.


6. 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.


7. 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.


8. 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.


9. 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.


10. 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 "[3] Compensation for theft of King's property was a modest nine fold, equivalent to a humble priest.


11. 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 "[4] In return the clergy were commanded that " The king shall be prayed for, and they shall honour him freely and without compulsion "[5] 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..."[6] 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 . "[7]


12. 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...."[8] and these included laws from the Old Testament dealing with the conduct of slaves and traditional pre Christian Saxon customs such as the wergeld .[9]


13. 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[10] to be paid by the offender allowed him to save his own eye, foot or hand as the case may be.


14. 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....".


15. 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 limb.


16. 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[11] for the breach of surety[12] as well as whatever religious punishment[13] the confessor prescribed.


17. Breaching of the protection of Holy places, under clause 2 of the code, was punishable by the payment of a man's wer[14] and the payment of the King's wite[15] as well as compensation to the church of 120 shillings for the breach[16]. Similarly, provisions in clause 3 provided for the punishment of breaches of the King's protection[17] and required payment of 3 pounds or 2 pounds in the case of bishops or ealdormen respectively.


18. 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.


19. 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[18], 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[19] who owned the nun.


20. 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[20] was punishable by payment of 40 shillings, rising to 100 and 120 shillings for higher classes.


21. 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[21] 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[22] 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.


22. 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.


23. 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[23] 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.


24. 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[24] 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.


25. 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.


26. 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[25] attracted 6 shillings bot to the ceorl and drawing a weapon without fighting only 3 shillings.


27. 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.


28. 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.


29. 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 ".


30. 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.


31. 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.


32. 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 punitiveness.

Notes

[1] From Old English, meaning 'Statutes'.

[2] 'The West Australian' 14 January 1999.

[3] F.L Attenborough, ed. and trans., The Laws of the Earliest English Kings (Cambridge, 1922), p.5.

[4] Ibid, p.25.

[5] Ibid.

[6] Ibid, p 27.

[7] A.J. Baker, An Introduction to English Legal History (London: Butterworths, 1971), p.5.

[8] Attenborough, op cit., p.63.

[9] "blood money" compensation for victims of crime in lieu of capital punishment.

[10] compensation.

[11] " borh " .

[12] " borh - bryce ".

[13] " wed - bryce ".

[14] the price for his life.

[15] the price of the King's life.

[16] known as " frith ".

[17] " bohr " or " mund ".

[18] " angylde ".

[19] master.

[20] a freeman.

[21] " bof ".

[22] " theow ".

[23] " hloth ", crowd or band of robbers.

[24] homola, a punishment usually imposed on slaves which was also the mark of a madman or fool.

[25] house.