¹ Laughlin, J. Laurence, “The Anglo-Saxon Legal Procedure,” in Essays in Anglo-Saxon Law, by Adams, Henry, Lodge, Henry Cabot, Young, Ernest, and Laughlin, J. Laurence (London, 1876), pp. 183–305Google Scholar.

² The best guide remains Campbell, James, John, Eric, and Wormald, Patrick, The Anglo-Saxons (London, 1982)Google Scholar; any newcomer to the field will find in Campbell, James, Essays in Anglo-Saxon History (London and Ronceverte, Va., 1986)Google Scholar, samples of the scholarship that has reset the paradigms.

³ I say leges, because these were neither official statutory codes nor mere private law books. On all such questions, the authority to check is now Wormald, Patrick, The Making of English Law: King Alfred to the Twelfth Century, vol. 1, Legislation and Its Limits (Oxford and Maiden, Mass., 1999)Google Scholar, which was unfortunately not available to me until this article was in draft.

⁴ The currently received view of these procedures is that of Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (Toronto and London, 1981), pp. 283–87, 407–9Google Scholar. Plucknett, T. F. T., Concise History of the Common Law, 5th ed. (London, 1956), pp. 369–72Google Scholar, may still be useful.

⁵ The title of Campbell, James, “The Late Anglo-Saxon State: A Maximum View,” Proceedings of the British Academy 87 (1995): 39–65Google Scholar, strongly suggests that he for one would wear the label with pride!

⁶ These scholars are well aware of the need to distinguish aspirations from achievements; cf. Wormald, , The Making of English Law, pp. 300, 430–31, 449, 477, 482Google Scholar, and especially p. 308, which promises proof of the “actual efficacity of tenth-century government” in the forthcoming part 3 of his work.

⁷ In thinking about matters of state definition, I have found helpful the critical survey of major theorists by Axtmann, Roland, “The Formation of the Modern State: The Debate in the Social Sciences,” in National Histories and European History, ed. Fulbrook, Mary (Boulder, Colo., and San Francisco, 1993), pp. 21–45Google Scholar, chap. 2.

⁸ Hyams, Paul, “Feud in Medieval England,” Haskins Society Journal 3 (1991): 6–7Google Scholar, offered some definitions, which I shall develop in my forthcoming book, Rancor and Reconciliation in Medieval England, chap. 2. But Zmora, Hillay, State and Nobility in Early Modern Germany (Cambridge, 1997), p. 15Google Scholar, shows that I am not alone in my feelings that definitions prejudice the questions at issue here.

⁹ Wormald, C. P., “The Uses of Literacy in Anglo-Saxon England and Its Neighbours,” Transactions of the Royal Historical Society, 5th ser., 27 (1977): 95–114Google Scholar; Clanchy, M. T., From Memory to Written Record: England, 1066–1307, 2d ed. (Oxford, 1993)Google Scholar, chap. 1.

¹⁰ Compare Hyams, “Feud in Medieval England,” p. 7Google Scholar. Bessinger, Jess B. Jr., A Concordance to the Anglo-Saxon Poetic Records (Ithaca, N.Y., 1978)Google Scholar; and Bosworth, Joseph and Toller, T. Northcote, An Anglo-Saxon Dictionary (Oxford, 1973)Google Scholar, s.v. “faehða,” collect texts and establish the general point.

¹¹ In Beowulf, e.g., see (I) God versus Cain for killing of Abel, lines 106–14; (II) Grendel (and his mother) versus Hrothgar, lines 151–58 ff.; (III) Beowulf versus the enemies of the Geats, lines 422–24; (IV) Ecgtheow versus Wylfings, lines 459–72; (V) Unferth versus his brother, lines 587–89; (VI) Sigemund f. Waels versus various enemies, lines 877–79; (VII) Finn and his Frisians versus Hengest and his Danes, Finn Episode and Finnsburgh Fragment; (VIII) Geats versus Frisians, lines 1206–14; (IX) Heathobards versus Danes, Episode of Freawaru; (X) Dragon versus Hrothgar and Geats, lines 2280 ff.; (XI) Onela versus Ohthere, his brother, for the Swedish throne, lines 2379–2400; (XII) Haethcyn versus Herebeald, lines 2435 ff.; (XIII) Swedes versus Geats, lines 2946–98, 3000–3. I have used the edition of Klaeber, Friedrich, ed., Beowulf and the Fight at Finnsburg, 3d ed. (Boston, 1941)Google Scholar.

¹² Beowulf lines 1187–90, 1997–98.

¹³ Beowulf feud nos. III–V, VII, XI, and XIII are digressions, but the references in feud nos. I, VI–VII, IX, and XII are to characters in the main plot.

¹⁴ Compare Beowulf's gibe at Unferth (feud no. V) as well as feud nos. XI–XII. Thomas Hill pointed out to me the importance of the fact that Beowulf and Unferth do not come to blows.

¹⁵ Beowulf lines 2737–43.

¹⁶ Compare, for money, Beowulf feud no. IV, and lines 2093–94, 2435 ff.; and for marriage alliances, feud no. IX and lines 1942–44. Sklute, L. John, “Freothuwebbe in Old English Poetry,” in New Readings on Women in Old English Literature, ed. Damico, Helen and Olsen, Alexandra Hennessey (Bloomington, Ind., 1990), pp. 204–10Google Scholar, demonstrates the obscurity of the notion of peace weaving; but see also for some possible implications of the whole image, Leach, E., Rethinking Anthropology (London, 1961), pp. 131–32Google Scholar.

¹⁷ Beowulf feud nos. III, VIII–IX, XIII, and perhaps VII.

¹⁸ I follow here White, S. D., “Kinship and Lordship in Early Medieval England: The Story of Sigeberht, Cynewulf, and Cyneheard,” Traditio 50 (1989): 1–18Google Scholar. He retells the tale itself on pp. 1–4. I shall offer my own narrative and detailed analysis at the end of my book, Rancor and Reconciliation, in an appendix devoted to cases; a draft is currently available on the World Wide Web at http://falcon.arts.cornell.edu/prh3/bktales.html.

¹⁹ The German princes are said to have justified their refusal to fight for Henry IV against the Saxons in 1082 on the ground that “they would on no account fight against innocent men, Christians and their own kin”; see Leyser, K. J., Rule and Conflict in an Early Medieval Saxony: Ottoman Saxony (Bloomington, Ind., 1979), p. 46Google Scholar.

²⁰ Our sources are all to be found in Arnold, T., ed., Symeonis monachi opera omnia, Rerum Britannicarum medii aevi scriptores no. 75 (London, 1882–1885), 1:215–20, 2:148, 2:197–200, 2:382–84Google Scholar. For further commentary see Morris, Christopher J., Marriage and Murder in Eleventh-Century Northumbria: A Study of the “De Obsesssione Dunelmi,” Borthwick Paper, no. 82 (York, 1992)Google Scholar, which has full references to earlier literature. Again, my own reading will appear in the appendix to Rancor and Reconciliation and can be consulted in draft at http://falcon.arts.cornell.edu/prh3/bktales.html.

²¹ It is striking that two of the killings in Uhtred's feud took off from hall hospitality. If saga-like stories of ancient resentments sometimes figured as after-dinner entertainment, as one must assume, then we must also expect that equally saga-like gestures sometimes led to fresh violence. Feudlike assaults around 1200 commonly seem to have deliberately targeted families at dinnertime; one good example is Cusin (Monachus) v. Fitzjohn (Somerset 1199, 1201), in Rotuli Curiae Regis (London 1835), 2:245Google Scholar; Curia Regis Rolls (London, 1922), 1:194, 395Google Scholar; The Great Roll of the Pipe for the Third Year of the Reign of King John, Michaelmas 1201, Pipe Roll Society, n.s., no. 14 (London, 1936), pp. 31–32Google Scholar; Rotuli de Oblatis et finibus in Turri londinensi asservati tempore regis Johannis, ed. Hardy, Thomas D. (London, 1835), pp. 126–27Google Scholar.

²² Wormald, Patrick, “Giving God and the King Their Due: Conflict and Its Regulation in the Early English State,” in Settimane di studio del centro italiano di studi sull'alto medioevo (Spoleto, 1997), 44:560Google Scholar, is one who dismisses this feud as atypical. Kapelle, William E., The Norman Conquest of the North (London, 1979), p. 23Google Scholar, defends northern manners.

²³ For the data, see Campbell, , John, , and Wormald, , The Anglo-Saxons, pp. 56, 114 ff.Google Scholar, 138; Rollason, D.W., “The Cults of Murdered Royal Saints in Anglo-Saxon England,” Anglo Saxon England 11 (1983): 1–22Google Scholar, esp. 4, 5–9, and 20, which is touched on below. Compare the comments of Gillingham, J., “1066 and the Introduction of Chivalry into England,” in Law and Government in Medieval England and Normandy: Essays in Honour of Sir James Holt, ed. Garnett, George and Hudson, John (Cambridge, 1994), pp. 31–55Google Scholar, esp. pp. 38–39.

²⁴ I know of no general study of exile, the theme of the Old English poem “The Husband's Message.” Grocock, C. W., ed., The Ruodlieb (Chicago, 1985), pp. 32Google Scholar, etc., offers an apposite Continental analog from eleventh-century Germany.

²⁵ See Colgrave, Bertram and Mynors, R. A. B., eds., Bede's Ecclesiastical History of the English People, (Oxford, 1969), 1:400Google Scholar (iv, 21), for Theodore's mediation between the Mercians and Northumbrians, ca. 679; see Anglo-Saxon Chronicle, s.a. 687, 694, in Two Saxon Chronicles Parallel, ed. Earle, John and Plummer, Charles, 2 vols. (Oxford, 1892–1899)Google Scholar, for the somewhat similar negotiation of a vast sum in compensation for the Kentish burning of a royal West Saxon invader; and Haddan, Arthur West and Stubbs, William S., eds., Councils and Ecclesiastical Documents Relating to Great Britain and Ireland, 3 vols. (Oxford, 1869–1878), 3:274–75Google Scholar, for the bishop of London's appeal to Canterbury over unsuccessful peace settlement activities ca. 705.

²⁶ All quotations in the paragraph are from Rollason, (“The Cults of Murdered Royal Saints,” pp. 14, 16, 19)Google Scholar, who assembles the evidence in a most suggestive manner. For the wergild image, see Cockayne, Thomas Oswald, ed., Leechdoms, Wortcunning and Starcraft in Early England, Rerum Britannicarum medii aevi scriptores no. 35 (London, 1864–1866), 3:426Google Scholar. On the considerable modern discussion of the cult of Edward the Martyr, see, e.g., Keynes, Simon, The Diplomas of King Æthelred the Unready, 978–1016: A Study in Their Use as Historical Evidence (Cambridge, 1980), pp. 163 ff.Google Scholar

²⁷ Wormald has most fruitfully followed the lead here of J. M. Wallace-Hadrill. See briefly Wallace-Hadrill, , Early Germanic Kingship in England and on the Continent (Oxford, 1971), pp. 148–49Google Scholar; then see Wormald, Patrick, “Lex Scripta and Verbum Regis: Legislation and Germanic Kingship from Euric to Cnut,” in Early Medieval Kingship, ed. Sawyer, P. H. and Wood, I. N. (Leeds, 1977), pp. 105–38Google Scholar, and The Making of English Law.

²⁸ Hall, J. R. Clark, A Concise Anglo-Saxon Dictionary, 4th ed. (Cambridge, 1960)Google Scholar, s.v. “betan, bot”; cf. Liebermann, F., Gesetze der Angelsächsen, 3 vols. (Halle, 1903–1916), 2:336Google Scholar.

²⁹ II Cn., 42, 49 is quite explicit on injuries to churchmen. I follow here the conventional sigla for the leges established by Liebermann, , Gesetze der Angelsächsen, 1:ix–xiGoogle Scholar, with the exception of his “Hn,” for which I substitute LHP, to indicate that I have used Downer, L. J., ed., The Leges Henrici Primi (Oxford, 1972)Google Scholar. Recent challenges to simple deductions about social status made from the laws, e.g., James, Edward, “Burial and Status in the Early Medieval West,” Transactions of the Royal Historical Society, 5th ser., 39 (1989): 36–37Google Scholar, do not affect their contemporary use as indications of honor gradations.

³⁰ Compare Colgrave, and Mynors, , eds., Bede's Ecclesiastical History, p. 150Google Scholar (ii, 5); on which, see Wallace-Hadrill, J. M., Bede's Ecclesiastical History of the English People: A Historical Commentary (Oxford, 1988), pp. 60–61Google Scholar; Wormald, , The Making of English Law, pp. 29–30Google Scholar.

³¹ So Wormald, in Campbell, , John, , and Wormald, , The Anglo-Saxons, pp. 98–99Google Scholar, on the pre-Alfredian period.

³² Af., 1. 1 is quite general in language and not obviously restricted in scope to royal lordship. I am not quite convinced that Alfred intended anything more than a general requirement that men should be loyal to their lords and carry out their commitments as made. The whole code is characterized by a persistent emphasis on the duties of men to their lords, a theme of special value to the king, who had many men but no lord.

³³ Af., 10–39, 44–77; cf. E Gu., 2 for the importance of the establishment of compensation.

³⁴ Af., 5, 42.

³⁵ Compare LHP, 83. 6–6a.

³⁶ Wormald, Patrick, “A Handlist of Anglo-Saxon Lawsuits,” Anglo-Saxon England 17 (1988): 278–79CrossRefGoogle Scholar, and The Making of English Law, pp. 149, 160, 306–7.

³⁷ II As., 26.

³⁸ III As., 6; cf. IV As., 3–3. 2; and II Em., 1. 1. 3 (discussed below). This enactment is a strong candidate for listing among cases where the king takes on and adapts to his own ends an existing, perhaps more casually enforced customary norm. See n. 45 for parallels from other societies.

³⁹ II As., 11 (compensation for dead thieves), 20. 7 treats vengeance against one convicted of oferhyrnesse, contempt of the moot summons. See also II As., 11. Compare App AGu., 2. 1 and III Atr., 7, which, though to the same effect as II As. 11, has significantly different procedural details, and E.Cf., 36–36. 5. Ine, 21. 1 confirms that the problem was far from new. Hurnard, Naomi M., The King's Pardon for Homicide before A.D. 1307 (Oxford, 1969), pp. 88–92Google Scholar, shows that thirteenth-century men still sought vengeance or compensation for the “justifiable homicide” of legal executions.

⁴⁰ VI As. It is very suggestive, as Wormald pointed out to me, that the 30 d. fine for noncooperation here (clause 2) and in Edgar's Hundred Ordinance (I Eg.) coincides with the property qualification for gild membership; cf. Wormald, , The Making of English Law, p. 369Google Scholar.

⁴¹ Councils and Synods, ed. Whitelock, D., Brett, M., and Brooke, C. N. L., vol. 1, pt. 1 (Oxford, 1981), p. 73Google Scholar (for chap. 8 of Archbishop Oda's “Constitutions”), cited by Wormald, , “Giving God and the King Their Due,” p. 555Google Scholar.

⁴² Wallace-Hadrill, , Early Germanic Kingship, pp. 107–8Google Scholar, singles out Charlemagne's Admonitio Generalis of 789 as “the earliest piece of legislation against feud.”

⁴³ This kind of close association of property disputes and violent enmities was certainly evident in the better documented days of the thirteenth century.

⁴⁴ See The Laws of the Kings of England from Edmund to Henry I, ed. and trans., Robertson, A. J. (Cambridge, 1925), pp. 8–11Google Scholar.

⁴⁵ The data adduced by Moore, Sally Falk, Law as Process: An Anthropological Approach (London, 1978), pp. 122–26Google Scholar, make II Em., 1. 1 look rather less “drastic” than Wormald thought; see his “Giving God and the King Their Due,” pp. 555–56, 558. II Ew., 6 is a precedent; cf. also II Ew., 3. 1; and As., 20. 5.

⁴⁶ Compare below at n. 52 for Quadripartitus's apparent introduction of a mediator to his translation of Wer, 6 on restoration of the parties to royal mund.

⁴⁷ Our extant penitentials may distort the realities, but Frantzen, Allen J., The Literature of Penance in Medieval England (New Brunswick, N.J., 1983)Google Scholar, argues for taking their general message seriously.

⁴⁸ Wormald, Patrick, “‘Quadripartitus,’” in Garnett, and Hudson, , eds., Law and Government, pp. 124–25Google Scholar, virtually proves that readers received Wer and similar unofficial treatises alongside I–III Em. He further suggests that the final part of II Em., with the details of settlement procedure, may have been added to the genuine code from Wer, itself written to fill gaps in the code (The Making of English Law, 1:310–11, 374–78Google Scholar).

⁴⁹ Wer, 6 (Gesetze der Angelsächsen, 1:392–94Google Scholar).

⁵⁰ Ibid.: “witan graedan”; cf. Quadripartitus: “sapientes instituent.”

⁵¹ Ibid. The Quadripartitus translation has “liceat per amorem procedere, si perfectam velit amicorum consocietatem habere.”

⁵² Quadripartitus translates: “Sapientium est sedare factionem.” Liebermann, (Gesetze, 3:128)Google Scholar recognized the possibility that “witan” here might mean arbitrators but preferred a rather more official rendering: “Notable sollen Fehde beilegen” (1:189). Arbitrators may have some kind of official standing; cf. Robertson, , ed., Laws, p. 297Google Scholar, for comment on this and Old Norse saetta, with which she associates this unique Old English “sectan.” Thomas Hill advises me that “sectan” should probably not be considered an Old English word at all, unless it is an error for “settan,” meaning settle or something similar. It might even be a loanword from Latin (sectare), with a cutting image and perhaps carrying the implication of a suppression (cutting down) from above. He also stressed the law's sapiential tone, with its implication that the reconciliation of feuding parties was the kind of thing that wise counsellors (witan) were expected to do when acting properly.

⁵³ Laws lay on these tyhtbysig a heavier burden of exculpatory proof; see, e.g., my King, Lords and Peasants in Medieval England (Oxford, 1981), p. 107Google Scholar. This concept of public reputation within public justice surely must have influenced twelfth-century arrangements.

⁵⁴ I Eg., 7; cf. III Eg., 1. 1; and below n. 125. For pursuit of rustlers, compare I Eg. (Hundred Ordinance), 2–3. 1, 7 with II Ed., 4–5. 1.

⁵⁵ Stubbs, W., ed., Select Charters, and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First, 9th ed. (Oxford, 1957), p. 69Google Scholar.

⁵⁶ VI Atr., 51.

⁵⁷ II Cn., 12–15. There is still no general agreement whether these lists were intended to be comprehensive or not.

⁵⁸ See on this Hurnard, Pardon for Homicide, chap. 1.

⁵⁹ Wormald, , “Giving God and the King Their Due,” pp. 561–62Google Scholar, presents the stages of central royal control in a nicely nuanced manner differing in some respects from the schema argued here.

⁶⁰ Fichtenau, Heinrich, The Carolingian Empire (Oxford, 1957)Google Scholar, taught this lesson to a whole generation of Anglophone historians.

⁶¹ Keynes, S., “Crime and Punishment in the Reign of King Æthelred the Unready,” in People and Places in Northern Europe, 500–1600, ed. Wood, Ian N. and Lund, Niels (Woodbridge, Suffolk, 1991), pp. 67–81Google Scholar, quote at p. 69. I was much encouraged by Keynes's kindness in letting me see this article before its publication.

⁶² The plight of the lordless man is well documented. In my King, Lords and Peasants, pp. 235–36, I cite texts that show both the lord's responsibility for his men's offenses and some countervailing implications.

⁶³ Keynes, , “Crime and Punishment,” pp. 70–71, 78–80Google Scholar.

⁶⁴ Wormald, , “Quadripartitus,” pp. 122, 124–25Google Scholar, shows, e.g., that I–III Em. usually appear with Swerian, Wif, and very significantly, Wer. He also observes (“Giving God and the King Their Due,” p. 558) that II Em. is a notable absentee from the otherwise comprehensive legislative sources of I and II Cn. Compare Wormald, , The Making of English Law, pp. 374–78, 383–84Google Scholar.

⁶⁵ Wormald, , “The Uses of Literacy,” pp. 112–13Google Scholar.

⁶⁶ Much must have gone unrecorded in writing. Fleming, R., “Oral Testimony and the Domesday Inquest,” Anglo-Norman Studies 17 (1994): 103–5, 106, 118Google Scholar, stressed the importance of “combined courts” in the late Old English period and on to the Domesday Inquest and beyond; yet the laws carry no hint of them.

⁶⁷ See, in addition to the previous note, Wormald, Patrick, “Leges Eadwardi: The Textus Roffensis and Its Content,” Anglo-Norman Studies 17 (1995): 243–66Google Scholar.

⁶⁸ Brooke, Z. N., The English Church and the Papacy (Cambridge, 1931)Google Scholar, long ago revealed in detail the highly selective manner in which Archbishop Lanfranc abstracted his canonical collection from his pseudo-Isidorian sources.

⁶⁹ The compiler of the Leges Henrici Primi arguably did something of this kind in providing ample material from which a resistant twelfth-century reader might, if he chose, justify feud along Anglo-Saxon lines.

⁷⁰ Gluckman, Max, Custom and Conflict in Africa (Oxford, 1955)Google Scholar, chap. 1, gave wide currency to an idea that perhaps originated with Evans-Pritchard, E. E., The Nuer (Oxford, 1940)Google Scholar. I am well aware of the succeeding debate that has refined the notion almost out of existence and will assess the approach in more detail in my Rancor and Reconciliation, chap. 2. I use here Gluckman's notion more as license to speculate than as any kind of authority and now realize that I might have got similar encouragement from Brunner, Otto, Land and Lordship, trans. Kaminsky, Howard and Melton, James Van Horn (Philadelphia, 1992)Google Scholar.

⁷¹ Wallace-Hadrill, J. M., The Long-Haired Kings (London, 1962; reprint, Toronto, 1982)Google Scholar, chap. 6, distinguishes nicely between intra- and interkin feuding. The penitentials are significantly more merciful to vengeance killings for close kin than to parricide or fratricide (e.g., Frantzen, , The Literature of Penance, pp. 7–8, 67, 75–76Google Scholar).

⁷² The plea for redress made to a lord or another powerful man by one dependant against another lies behind the later common-law action of trespass. This behavior pattern is found very widely in the early Middle Ages.

⁷³ The basic facts of the matter were already circulating by the early eighth century and were still being retailed long after. Rollason, , “The Cults of Murdered Royal Saints,” pp. 1, 5Google Scholar, assembles the basic materials. For a more exhaustive examination of the Mildrith cult and its development, see Rollason, D.W., The Mildrith Legend: A Study in Early Medieval Hagiography in England (Leicester, 1982)Google Scholar. I have used only the texts in Cockayne, , ed., Leechdoms, Wortcunning and Starcraft in Early England, 3:426–28Google Scholar; and Arnold, ed., 2:3 ff.

⁷⁴ Quantum of compensation is an obvious sticking point. Rollason, (The Mildrith Legend, pp. 49–51)Google Scholar considers the possibility that the island's eighty sulungs of land can be interpreted as two princely forty-hide wergilds. The killer protested the amount, and the earth duly opened up to swallow him, and the spot was thereafter known by his name, Thunor's Low!

⁷⁵ Loyn, H. R., “Anglo-Saxon Kinship,” Anglo Saxon England 3 (1974): 197–209CrossRefGoogle Scholar, with cited references, is an adequate guide to these.

⁷⁶ This is perhaps best illustrated from novels. Kadare, Ismail, Broken April (New York, 1990)Google Scholar, is a wonderfully troubling evocation of the fear experienced by an Albanian feud killer in very recent times awaiting the inevitable counterattempt on his life.

⁷⁷ II Em., 3, 7. 3; Wer, 6; VIII Atr., 3; and I Cn., 2. 5 all call for the enforcement of manbot alongside other payments. Ine, 70 may suggest that Alfred, too, was sympathetic.

⁷⁸ All quotations in this paragraph are from Thorpe, B., Diplomatarium Anglici Aevi Saxonici (London, 1865), pp. 610–13Google Scholar; this was translated in Whitelock, Dorothy, ed., English Historical Documents, 2d ed., vol. 1 (London, 1979)Google Scholar, no. 136.

⁷⁹ I speculated about ecclesiastical peacemaking in my “Feud in Medieval England,” pp. 17–20. Despite the lack of direct evidence, I still suspect its importance. Churchmen were promising candidates to perform the mediations implied by laws like those discussed above, especially when the taking of sanctuary intervened. See also above at n. 25. There is some suggestive evidence from later periods as well. For secular (including royal) peacemaking, see below at pp. 40–41.

⁸⁰ Cf. VI As., 7: “We have declared,” spoke Athelstan in his peace ordinance aimed at London, “whoever it be whose hands avenge wrongs done to us all [a key phrase], we shall all stand together, both in friendship (freondscype) and in enmity (feondscype)—whichever may result. And he who is before others in killing the thief shall be the better off for his action and initiative by twelve pence taken from our common property.” The translation is slightly amended from Attenborough, F. L., The Laws of the Earliest English Kings (Cambridge, 1922), p. 163Google Scholar.

⁸¹ Helmstan's Case looks like an illustration. See Keynes, Simon, “The Fonthill Letter,” in Words, Texts and Manuscripts, ed. Korhammer, Michael (Cambridge, 1992), pp. 53–97Google Scholar. This is directly relevant to that “drift to subordination,” which Sir Frank Stenton once signaled as a dominant trend of the late Old English period.

⁸² See Keynes, , “The Fonthill Letter,” p. 67Google Scholar. The anthropology of plain vanilla friendship is comparatively undeveloped.

⁸³ Bartlett, Robert, Trial by Fire and Water (Oxford, 1986), p. 31Google Scholar, thinks that the law was in later Anglo-Saxon England distinctively sensitive to reputation.

⁸⁴ Morris, W. A., The Frankpledge System (New York, 1910)Google Scholar, chap. 5, still remains the standard account.

⁸⁵ Laws from III Eg., 2 to II Cn., 17 and across the Norman Conquest struggle to enforce the rule that men should always start their suits in the hundred. This may be the context in which to view such “over-hasty resort to the king” (Wormald, , “Giving God and the King Their Due,” p. 573Google Scholar).

⁸⁶ The main Bible references are Num. 35:9–29; Deut. 4:41–42, 19:2–13. They distinguish between accidental, unknowing acts, which merited protection within cities of refuge, and willed acts motivated by enmity, which did not. See further Exod. 21:12–14; Josh. 20:2–6.

⁸⁷ For the equation of fines with confirmation, see Hall, David, “The Sanctuary of St. Cuthbert,” in Saint Cuthbert, His Cult and His Community to AD 1200, ed. Bonner, Gerald., Stancliffe, Claire, and Rollason, David (Woodbridge, Suffolk, 1989), pp. 428–29Google Scholar. This may be the implication of II Eg., 3.

⁸⁸ Cox, J. C., The Sanctuaries and Sanctuary Seekers of Medieval England (London, 1911)Google Scholar, presents much of the evidence in picturesque fashion. Hall, , “Sanctuary of St. Cuthbert,” p. 426 ff.Google Scholar, argues for the notion of a general scheme.

⁸⁹ VIII Atr., 1. It is probably to breaches here that Wulfstan, , Sermo Lupi ad Anglos, ed. Whitelock, Dorothy (Exeter, 1976)Google Scholar, lines 39–40, refers.

⁹⁰ Hall, , “Sanctuary of St. Cuthbert,” pp. 431–32Google Scholar. For those incapable of buying off the claims against them, one possible option was enserfment to the saint in whose power they found themselves, to become his grithmen. Riggs, Charles H. Jr., Criminal Asylum in Anglo-Saxon Law (Gainesville, Fla., 1963), pp. 14–16Google Scholar; Hall, , “Sanctuary of St. Cuthbert,” p. 433Google Scholar. Scholars have yet to make the obvious comparison with the sanctuarii and tributarii on the continent. See also Hyams, P.R., “The Strange Case of Thomas of Elderfield,” History Today 36 (1986): 9–15Google Scholar; I wonder if Thomas's eventual fate owes anything to this conceptualization.

⁹¹ Af., 2: “for hwelcere scylde”; cf. Symeonis monachi opera omnia, 1:203Google Scholar (“Historia Sancti Cuthberti,” chap. 13); Leis Wmi., 1; Cox, , Sanctuaries, 130–34Google Scholar (twelfth-century Beverley); The Chronicle of Battle Abbey, ed. Searle, Eleanor (Oxford, 1980), pp. 68–70Google Scholar; Hart, William H. and Lyons, Ponsonby A., eds., Cartularium Monasterii de Rameseia, Rerum Britannicarum medii aevi scriptores no. 79, 3 vols. (1884–1893), 1:57Google Scholar.

⁹² Af., 5. Where E.Cf., 5. 2a gives a strong hint in the same direction, the later recension of E.Cf. retr. uses “wrong” language and specifies the entitled recipient as “cui damnum intulit.” Hunnisett, R. F., The Medieval Coroner (Cambridge, 1961), pp. 37, 45, 75Google Scholar, gives some thirteenth-century references to flight for fear of reprisals and also to forcible rescue and extraction.

⁹³ Riggs, Criminal Asylum, established the basic point here, with arguments that I largely follow below.

⁹⁴ Riggs, , Criminal Asylum, pp. 4Google Scholar (“they bring to a temporary halt the hostilities … and provide for a temporary truce during which attempts are made to work out a temporary settlement”), 34.

⁹⁵ Riggs, (Criminal Asylum, pp. 36–37)Google Scholar explicates Af., 5. 4 in this way.

⁹⁶ Riggs, , Criminal Asylum, pp. 21–22Google Scholar.

⁹⁷ Laws from Ine, 5 onward define these duties. Compare Riggs, , Criminal Asylum, pp. 10–13, 19Google Scholar.

⁹⁸ Executions easily provoked the thief's friends to seek vengeance for his death. Compare above at n. 39.

⁹⁹ Riggs, , Criminal Asylum, pp. 41 ff.Google Scholar, cites II As., 1. 2; VI As., 12. 1; VIII Atr., 2. 1.

¹⁰⁰ These bootless cases resemble the later institution of the approver, in which a convicted felon's life was spared on condition that he accused and convicted his former associates by duel. Although they might live a while at the king's expense, almost all approvers were eventually hanged. This is thought to have been a twelfth-century innovation; see Röhrkasten, J., Die Englischen Kronzeugen, 1130–1330, Berliner Historische Studien, vol. 16 (Berlin, 1990)Google Scholar. For those who could reach the king, VIII Atr., 3; I Cn., 2. 5 provide for the payment of wer to the king as a kind of ransom in addition to the traditional wite and the bot due to lord and kin. There may be some connection between this limited facility and the later option of ritual abjurations of the realm. Compare Hunnisett, The Medieval Coroner, chap. 3, on thirteenth-century procedure with Riggs, , Criminal Asylum, pp. 47–48, 61Google Scholar.

¹⁰¹ The plethora of local regulations as to how to shout the hue suggest its voluntary and popular origins; see Pollock, Frederick and Maitland, Frederic William, History of English Law, 2d ed., 2 vols. (Cambridge, 1898), 2:578–79Google Scholar; II Cn., 29–29. 1 seems to be the first clear reference to a public duty enforced by the fine for oferhryrnesse. VI As., 4, 8. 3–4 includes an obligation to pursue among London Peace-Gild regulations. It is not clear whether III Em., 2 is mandatory, and E Gu., 6. 6 and the virtually identical II Cn., 48. 2 (“mid hearme”), which some twelfth-century readers (“cum clamore”) equated with the hue, is for a special case. See for brief discussion Liebermann, , Gesetze der Angelsächsen, 2:65–66Google Scholar.

¹⁰² Campbell, from whom one hesitates to differ, does not mince words in his “Maximum View.” “England was an elaborately organized state, using and developing the resources of a developed economy” (p. 40) also “of a certainty … a nation state … an entity with an effective central authority, uniformly organized institutions … and, above all, a strong sense of national identity” (p. 47). He sees no paradox in the currency of the “idea that there was something especially free about England” within a “state … in which … crime [was] severely punished” (p. 49).

¹⁰³ The following summary of one possible maximalist position is not taken from Wormald's fine The Making of English Law, which appeared after this article had been submitted, and which all interested must clearly read with attention. I do, however, rely heavily on early drafts of the book, which Wormald kindly made available to me (to my great gain), and on his preliminary studies previously published. The exact nuances of his position will in any case only become fully apparent with the imminent publication of his second volume. Campbell's version inevitably differs from this, most importantly in his greater stress on the state system's very ancient roots rather than Alfredian innovation (“Maximum View,” pp. 43–45).

¹⁰⁴ Wormald, Patrick, “A Handlist of Anglo-Saxon Lawsuits,” Anglo Saxon England 17 (1988): 280Google Scholar, estimates a proportion of four “crimes” to every five other suits. See Wormald, Patrick, “Domesday Lawsuits: A Provisional List and Preliminary Comment,” in England in the Eleventh Century, ed. Hicks, Carola (Stamford, 1992), p. 62Google Scholar; he notes from Domesday Book thirty-seven forfeitures “for what passed as crime” alongside only twenty-nine other cases from the twenty years separating the Domesday Inquest from the Norman Conquest. These calculations are made from his own deliberately rigorous minimalist criteria of inclusion, explained in Wormald, “Handlist,” pp. 250–55, and “Domesday Lawsuits,” p. 62 ff. My own preference for less stringent criteria would slightly lower the percentage but not materially change the picture.

¹⁰⁵ Wormald, (“Handlist,” pp. 278–79)Google Scholar summarizes the evidence for what he calls in The Making of English Law, “a new approach to crime” (pp. 306–7). That these forfeitures went in the first instance to the king may surprise historians of later periods. This was not the eventual common-law solution, which accorded forfeitures (in due course) to the lords from whom the offender had previously held his lands. Even if kings swiftly regranted all such lands, as often appears, in the manner of the later German custom of Leihezwang, the arrangements attest to their judicial authority and control.

¹⁰⁶ The text of the oath is in Stubbs, , ed., Select Charters, p. 73Google Scholar, and echoed in III Em., 1 (Stubbs, , ed., Select Charters, pp. 77–78)Google Scholar. The term “fealty” favored in older accounts carries too much late medieval baggage for my taste; I might prefer “loyalty,” as Wormald does in The Making of English Law, but follow the usage of Susan Reynolds.

¹⁰⁷ The attempted royal takeover of sanctuary (see above at pp. 26–27) may be added to the evidence.

¹⁰⁸ Cowdrey, H. E. J., “The Peace and Truce of God in the Eleventh Century,” Past and Present, no. 46 (1970): 42–67Google Scholar, remains a useful summary conveniently constructed from an English viewpoint. See further Head, Thomas and Landes, Richard, eds., The Peace of God: Social Violence and Religious Response in France around the Year 1000 (Ithaca, N.Y., 1992)Google Scholar.

¹⁰⁹ Af., 1. 1. The translation is Whitelock's from English Historical Documents.

¹¹⁰ Wormald, , The Making of English Law, p. 283Google Scholar, signals an argument reserved for his forthcoming vol. 2, chap. 9. Campbell, , ed., The Anglo-Saxons, p. 162Google Scholar; and Keynes, Simon and Lapidge, Michael, Alfred the Great: Asser's “Life of King Alfred” and Other Contemporary Sources (Harmondsworth, 1983), p. 306Google Scholar, already convey the documentary bones of the case.

¹¹¹ Elton, G. R., Policy and Police: The Enforcement of the Reformation in the Age of Thomas Cromwell (Cambridge, 1972)Google Scholar.

¹¹² Karl, Leyser, “Ottoman Government,” in his Medieval Germany and Its Neighbours (London, 1982)Google Scholar, chap. 4, considers this point but goes on to argue a somewhat maximalist case for tenth-century Germany. Old English knows a fyrdwite (for default of military obligation) but no mot-wite for court default. Scholars say little of the circumstances in which fyrd default brought about property forfeiture or worse. Compare Hollister, C. Warren, Anglo-Saxon Military Institutions on the Eve of the Norman Conquest (Oxford, 1962), pp. 22–23, 29, 66 ff.Google Scholar, 96; John, Eric, Orbis Britanniae (Leicester, 1966), pp. 139–40Google Scholar, etc.; Abels, Richard P., Lordship and Military Obligation in Anglo-Saxon England (London, 1988), pp. 19, 114, 124–27Google Scholar. The literature on contumacy and contempt of royal commands in general is still thinner. See Keynes, , Diplomas of King Æthelred, pp. 136–37Google Scholar; and cites from Pope, John Collins, The Homilies of Ælfric: A Supplementary Collection, Early English Text Society no. 260 (London, 1968), 2:659Google Scholar, a most suggestive exemplum concerning a thegn's refusal of a royal gewrit. There are whole groups of texts in the leges on oferhyrnes and on the king's grants of hand-given peace, etc., but no obvious Old English sources for the much clearer LHP, 10. 1; 13. 1; 79. 2.

¹¹³ Keynes, , “Crime and Punishment,” pp. 78–80Google Scholar, gives details of two cases of thegnly resistance to royal commands, which he does not see as “instances of problems peculiar to Æthelred's reign.”

¹¹⁴ He should; cf. n. 85 above.

¹¹⁵ II As., 3 tried to deal with the “dominus qui rectum difforciabit et malum hominem suum manutenebit” (who will oppose right and maintain his evil man).

¹¹⁶ Anglo-Saxon Charters, ed. and trans. Robertson, A. J., 2d ed. (Cambridge, 1956), no. 66, p. 136Google Scholar

¹¹⁷ Keynes, , “The Fonthill Letter,” p. 96Google Scholar.

¹¹⁸ Wormald, “Handlist,” lawsuit nos. 154, 171, 173.

¹¹⁹ II Em., 4; V Atr., 29; VI Atr., 36.

¹²⁰ Compare for illustration Nelson, Janet, “‘A King across the Sea’: Alfred in Continental Perspective,” Transactions of the Royal Historical Society, 5th ser., 36 (1986): 45–68CrossRefGoogle Scholar.

¹²¹ The contrast between old-style English politics in the eleventh century (“a much rougher game than contemporary Norman politics”) and the gradual chivalrization of Normandy is the main theme of Gillingham, “1066 and the Introduction of Chivalry into England,” pp. 31–55. He takes as a given the persistence of open feud before the Norman Conquest while conceding that there may have been an earlier move toward a more humane politics now reversed.

¹²² What follows is very much indebted to Kaye, J. M., “The Sacrabar,” English Historical Review 83 (1968): 744–58CrossRefGoogle Scholar, and to drafts of material that will doubtless reappear in the second volume of Wormald's The Making of English Law.

¹²³ For this summary procedure involving no trial, see Goebel, Julius Jr., Felony and Misdemeanor (1937; reprint, Philadelphia, 1976), pp. 347 ff.CrossRefGoogle Scholar, 357, 360, 367.

¹²⁴ A relatively clear example is Wormald, “Handlist,” lawsuit no. 54, recorded on a royal diploma of 992/5.

¹²⁵ The unofficial treatise Swerian (Gesetze der Angelsächsen, 1:396–99)Google Scholar, 2, 4, 6–7, together with II Cn., 22. la-2 and its many precursors, specifies the oath forms. The fact that some of these forms committed irate complainants full of patent enmity to swear that they were not motivated by either hatred or friendship (“hete 7 hole” is a characteristic piece of WulfStan's alliterative phrasing) raises some paradoxical questions and suggests one possible origin of the common-law writ De Odio et Athia. For these sins of the tongue, cf. Af., 32; III Eg., 4; II Cn., 16, and the echoes in LHP, 34. 7; 59. 14.

¹²⁶ For the special rules of the leges, see IV Atr., 23–25; I Cn., 5. 2b–c; II Cn., 39, texts which strongly suggest that feud by and for the kin of priests and monks (and a fortiori laymen) was not that unusual. LHP, 64 makes the same basic case. For all its lack of a clear Old English source and its evident care to insist that customs varied a great deal (LHP, 64. 1a, 1c), it illustrates well the need to ensure that those accused were not put to their defense without proper suit (LHP, 64. 1f ff.; 7 ff.), as explained below. It is equally abundantly clear that Latin compello and associated words, like Old English tihtan, tihtle, which they translate, denote “appeal” as in the later appeal “of felony”; cf. LHP, 9. 1b ff.; 44. 2; 45. 1a; 59. 16a; 64. 1, 2a, 6b; 66. 8; 71. 1b; 92. 14, 19a. One should exclude from consideration here those passages (LHP, 49. 7; 59. 15–16a) that envision trial by battle, as reflecting the situation of the author's post-Norman Conquest day.

¹²⁷ Compare II Cn., 30 for the situation where three men “ætgaðere” accuse a tyhtbysig, someone of established evil reputation. Was this perhaps three separate accusations (in the manner that can be found in later appeals “of felony”) rather than a communal prosecution supported by three cocomplainants? It is absolutely normal in the thirteenth century for royal justices to order a jury to inquire for the king into allegations brought to the court's attention by a failed appeal.

¹²⁸ Stenton, Doris M., English Justice between the Conquest and Magna Carta (Philadelphia, 1964), pp. 55–56, 124–37Google Scholar, expounds the fictional “pre-feudal… public prosecutor” of the local courts of eastern England first posited by her husband in 1927. Kaye, “The Sacrabar,” exploded the notion.

¹²⁹ I sketch the distant origins of the Confrontation Clause in the Fifth Amendment of the U.S. Constitution in Hyams, P. R., “Due Process versus the Maintenance of Order in European Law: The Contribution of the ‘Ius Commune,’” in The Moral World of the Law, ed. Coss, Peter (Cambridge, 2000)Google Scholar, chap. 5.

¹³⁰ See above at n. 53.

¹³¹ It is not inconceivable that thefts might have been regarded as party-and-party matters (equals tort) on some occasions but at other times as matters of public moment, hence, “crimes.” Such dual perspective options have been a feature of the common law from the thirteenth century to the present day.

¹³² This is Wormald's discovery. He noticed that Old English reaflac, generally translated as theft in some aggravated sense such as rapine or rapacity, could denote land seizures (“Giving God and the King Their Due,” pp. 576–77, 588). Writers had in mind the serious kind of misbehavior that a king swore to prevent at his coronation and from which a judge must keep his ministers; see Iudex, 10; Sacr. Cor., 1. 2 (Gesetze der Angelsächsen, 1:216, 475Google Scholar). Most instances of the word are general and unspecific, much like the kind of serious offenses in Continental lists of vicarial jurisdiction; cf. VIII Atr., 4, repeated as I Cn., 3, and II Cn., 47, where it is associated with wiflac, probably meaning the same as Latin raptus; and more generally Gesetze der Angelsächsen, 2:181Google Scholar. Robertson, Anglo-Saxon Charters, no. 24, a manuscript anathema, nicely illustrates the level of disapproval. But LHP, 57. 7a, 7c patently includes land seizures, as do Robertson, Anglo-Saxon Charters, nos. 59 (p. 122, line 24), 63 (p. 130, line 6 and cf. p. 128, line 16), while no. 66 (p. 136, line 28) is only slightly less clear. The implications of this conceptualization for the theory of a “criminal” origin to the assize of novel disseisin need serious consideration.

¹³³ See above n. 101.

¹³⁴ See above n. 39.

¹³⁵ For the owner's satisfying privilege of acting as sacrabar-executioner, see Pollock, and Maitland, , History of English Law, 2:160, 496Google Scholar. The precise date at which morð took this meaning of secret killing is problematic; see further Kaye, J.M., “The Early History of Murder and Manslaughter: Part I,” Law Quarterly Review 83 (1967): 366–67Google Scholar. Note that in “open morð” (which I take to mean secret killing come to light) the king's role was less than the bishop's; cf. II Cn., 56, and also for ordeals, II Cn., 53, 53. 1. Kaye, , Placita Corone, Supplemental Series, Selden Society, vol. 4 (London, 1966), p. xxviiGoogle Scholar, takes it for granted that the individual appeal minus trial by battle already existed before 1066.

¹³⁶ The esteemed lawgiver, Cnut, certainly acted thus in Earl Uhtred's Feud.

¹³⁷ See above n. 79. Peacemaking can be shown to have been a significant part of the Angevin Chief Justiciar's task.

¹³⁸ Compare Leis Wm, 26; Pollock, and Maitland, , History of English Law, 1:464Google Scholar.

¹³⁹ For text of oath of fidelity, see n. 106.

¹⁴⁰ Wormald, , “Giving God and the King Their Due,” pp. 562–63, 572Google Scholar, accepts that “lawsuits are not peaceful antithesis to feud, but an alternative … way of pursuing similar objectives … concerned with upholding a party's sense of its place in society, its honour,” but he finds “few instances of … informal or ad hoc adjudication.” The highly exclusive criteria he adopted in his “Handlist,” pp. 250, 255 (and cf. Wormald, , “Domesday Lawsuits,” p. 62Google Scholar) are perhaps again unfortunate. It is precisely the excluded borderline cases that are most likely to be of value in a study that seeks the political interests behind “legal” activity. So much depends on the way the story is recounted. Often a major value of these “unilateral memoranda” is that they present the point of view of one gloating or resentful party. Our reading needs to keep in mind both the very different opposition views and the crucial choices of when to start and stop the “story.”

¹⁴¹ To see this one only has to glance at more convincing models of autocracy. John Hudson once suggested to me Kapuscinzki's, Ryszard novel, The Emperor: Downfall of an Autocrat (San Diego, 1983)Google Scholar as one such, obviously way beyond anything the Middle Ages can offer.