In common usage the term ‘Danelaw’ refers to those areas of England conquered by viking armies, most famously the Micel Here ‘Great Army’ of c. 865–78, which were subsequently settled by Scandinavians, likely in multiple waves.Footnote 1 As seen above, this article will attempt to selectively use ‘viking’ only as a designation for ship-based raiders and warriors like those of the Micel Here, not as a blanket term for Scandinavians in the period.Footnote 2 The Danelaw region was a vast and heavily populated territory, here defined as encompassing East Anglia, eastern Mercia (including the ‘Five Boroughs’) and parts of Northumbria.Footnote 3 The exact magnitude of the Scandinavian settlement has been heavily debated within the historiography, with the influential historian Peter Sawyer envisioning limited numbers of male viking warriors supplanting the Anglo-Saxon ruling class and leaving an overall minimal impact on the native population, while other scholars back Frank Stenton’s premise of a mass migration involving many thousands of settlers.Footnote 4 This debate about scale continues to a degree, but has also evolved as increased attention is directed towards the nuanced social dynamics and fluid concepts of identity among Danelaw inhabitants.Footnote 5 The diverse and politically disunified communities of the Danelaw retained a distinct Scandinavian character for the next century and a half, including a pattern of dense Norse place-naming, an impact on spoken language and their own legal system, to which the Old English term Dena lage refers.Footnote 6 According to the Anglo-Saxon Chronicle, by the time of his death in 899 Alfred the Great held sway over all Angelcynn who were not ‘under Dena onwalde’; he had previously defined a border with parts of the Danelaw in the 886 × 890 Treaty of Alfred and Guthrum.Footnote 7 West Saxon expansion began in earnest with Edward the Elder’s conquest of Scandinavian England, except for Lincolnshire and Yorkshire, completed in 924, with many seemingly autonomous Danelaw boroughs submitting to him peacefully.Footnote 8 In c. 959 the Cerdicing dynasty of Wessex had united almost all of modern England under their banner.Footnote 9 Edgar inherited control over these territories and made significant advances in consolidating kingdom-wide administration.Footnote 10 Setting an important precedent in his ‘Whitbordesstan code’, Edgar also explicitly respected legal autonomy ‘among the Danes’, who retained ‘good laws as they can best decide on’.Footnote 11
The term ‘Danelaw’ first appears after the turn of the millennium, within the legal writings of Archbishop Wulfstan II of York where he makes Dena lage the equivalent to Ængla lage ‘law of the English’.Footnote 12 From this point on, forms of the word ‘Danelaw’ are frequently invoked in English royal law-codes, usually to describe minor legal differences for areas that adhere to alternative practices. This continues even after the Norman Conquest, at which point the Danelaw is explicitly delineated as a legal region within the kingdom.Footnote 13 Most commonly, these legal differences are in the form of a distinctive fine payment in the Danelaw called lahslit, which equates to the punitive wergild forfeitures and wite of West Saxon districts.Footnote 14 Despite these references, little is known about actual legal notions or practices in Anglo-Scandinavian society, particularly during the political independence of the territories concerned in the tenth century, on which this article will centre.Footnote 15 This is exacerbated by the lack of earlier legal records in the Danelaw areas, making it difficult to evaluate the impact of the pre-existing Anglo-Saxon kingdoms of the region on later laws.Footnote 16
Given the dearth of contemporaneous written records from the region, archaeology has been critical in evolving our overall impression of the Scandinavian settlement of England and life in the Danelaw.Footnote 17 Recent findings have increasingly challenged Sawyer’s previously dominant ‘minimalist view’. Historians are now much more receptive to the possibility of large-scale Scandinavian settlement in England, likely carried out in multiple waves following the first land-sharing of the viking armies in the late ninth century.Footnote 18 Not only have these armies been reassessed as having been of significant size, in line with the claims of contemporary chroniclers, there is also growing evidence for the disruption of traditional landholding patterns and the settling of large numbers of Norse-speaking non-elites, including women.Footnote 19 Convincing arguments have been made that some homestead sites encapsulate distinct periods of viking raiding, destruction and resettlement as Anglo-Scandinavian farms.Footnote 20 Partnerships with metal-detectorists since the 1997 Portable Antiquities Scheme have swelled the amount of confirmed Scandinavian finds, allowing for new studies on population density in the Danelaw, patterns of exchange and gender.Footnote 21 Studies reliant upon emerging technologies, such as DNA and isotopic analyses, have already shown their exciting potential to further illuminate our picture of Scandinavian England.Footnote 22
In congruence with contemporary reassessments necessitated by all of this ground-breaking work, it is time to attempt a similar project for law in the Danelaw, especially since Dena lage is the basis by which our sources differentiate the region. If as Glanville Jones says, ‘a predominantly Danish aristocracy administered Danish laws’, as seems to be the case, what can be revealed about law in the Danelaw, and how it contrasted with West Saxon law, will yield valuable insights into this ruling elite and Danelaw society more generally.Footnote 23 There is a sprinkling of stand-alone legal texts that seem to represent Danelaw practices; by far the most extensive and promising is a royal code of Æthelred II known as III Æthelred, the ‘Wantage Code’. This document, typically under-valued by modern scholarship, is full of untapped potential; this article will draw on Wantage’s deviations from English law in order to build insights into Danelaw legal culture.Footnote 24
The text was most likely written and enacted at a council meeting in Wantage (Berkshire, now Oxfordshire) in c. 997 and seems to be a counterpart to another Æthelredian code, I Æthelred, the ‘Woodstock Code’.Footnote 25 Several passages of the two works closely parallel each other. The preamble of I Æthelred declares that it is to be in effect ‘wherever English law prevails’ (æfter Engla lage), explicitly limiting its application to non-Danelaw areas.Footnote 26 The opening clauses of the Wantage Code soon suggest its own parallel jurisdiction with a provision regarding peace in a meeting of the Five Boroughs, a core section of the Danelaw.Footnote 27 Wantage also distinguishes itself by addressing a wide-ranging compilation of legal questions compared to the focused purpose of Woodstock.Footnote 28 Many of these provisions contrast strongly with English legal norms, only Scandinavian currencies are used, and there is a littering of Norse-derived vocabulary (many making their first appearance in Old English).Footnote 29 Not only do we see a divergent set of legal practices, the evidence suggests that these have a clear Scandinavian bent.Footnote 30 Wantage seems to have been written for the areas of England where Scandinavian legal customs were being practised and which came to be known as the Danelaw, likely specifically the Five Boroughs region.Footnote 31 But with this being the case, scholarly opinion varies widely in how to interpret the code’s context and intent. One camp argues that Æthelred is here overruling the laissez-faire approach of Edgar by asserting his authority over the Danelaw’s legal practices, forcefully bringing it into the fold of West Saxon law through the issuance of a royal code.Footnote 32 Niels Lund takes this further and sees the king (with a famously tumultuous reign) committing ‘flagrant encroachment’ over a previously independent legal system, with the text even showing Æthelred making punishments much harsher on the Danelaw, likely as retribution for the rebellious tendencies of the region.Footnote 33 By contrast, the dissenting camp, including Stenton and Simon Keynes, envisions III Æthelred as the royal recognition of legal customs that originated in the Danelaw.Footnote 34 This approach is strengthened by the observation that significant parts of the code clearly diverge from West Saxon law to the degree that they must have developed independently.Footnote 35 The text as a whole rings true as a fusion of West Saxon and Scandinavian-derived legal practices of the Danelaw.Footnote 36
This article favours the view that significant sections of the Wantage Code are reflective of Danelaw legal practices that are here being preserved in a West Saxon royal text, not buried. If Æthelred wanted to impose English law upon the Danelaw, he would have written a cross-jurisdictional code that explicitly included both regions. Instead, in separate councils, he made one code ‘under English law’ and another under what seems to be the law of the Danelaw.Footnote 37 Wantage’s c. 997 dating, long after the submission of the Five Boroughs to Cerdicing rule, casts great doubt on a retributory aspect to the code; the region had been incorporated into the English kingdom for decades and any resident ‘Danes’ were likely deeply intertwined with the Anglo-Saxon population.Footnote 38 Lastly, if this was a top-down assertion of royal legal authority, the apparent concern and sensitivity for local custom would not be present. The Scandinavian legal terms alone, many of which are first attested here and overlap with English meanings, were most likely incorporated by consulting someone with knowledge of Danelaw legal vocabulary.Footnote 39 The code’s content, especially these terms, reveals the hands of Danelaw elites in some stage in the composition of a text that was promulgated by the king’s court in Wantage in 997.Footnote 40 Significant numbers of nobles from throughout the kingdom (including Danelaw Anglo-Scandinavians) attended royal assemblies by this period, especially when their own interests were concerned, so men from the Five Boroughs were very likely present at Wantage.Footnote 41
This work will argue not only that Anglo-Scandinavian elites influenced the Wantage Code, but that they were the initiators of at least some of its sections, thus gaining royal codification of legal practices that helped maintain a Danelaw status quo benefitting those at the top of the social hierarchy.Footnote 42 The complexities of III Æthelred do not simply represent procedural differences that formed side notes in later English codes, they are clues to fundamental differences in how the law was construed by the inhabitants of the Danelaw.Footnote 43 The following sections will illuminate this through three areas of focus: the code’s protection clauses and their implications on divergent Danelaw understandings of liability, references to ‘buying law’ and how law was accessed, and Wantage’s use of proof in legal cases. Threads of the Danelaw’s viking-army context, a proposed Scandinavian emphasis on private settlement and the self-interested agenda of Anglo-Scandinavian aristocrats will be critically woven into these discussions. This integrated approach will make comparisons to and analogies with Scandinavian and Icelandic laws but will recognize the later dating of these texts and the limited conclusions that can be drawn from them.
PEACE-BREACH AND COLLECTIVE LIABILITY
A means of decreasing and controlling violent confrontations is a central concern of Anglo-Saxon royal legislation and the legal corpus is full of provisions for the establishment of ‘peace’. At the core of this is the protective power that can be offered to individuals and the ability to punish breaches.Footnote 44 An examination of the protection clauses at the beginning of the Wantage Code soon reveals that they stand out from the norms of this tradition. The code’s very first clause, in a manner to be expected from an English royal law-code, establishes that it is botleas (‘unpardonable’) to breach peace that was personally granted by the king and it cannot be compensated for.Footnote 45 The term for peace here is grið, a Scandinavian loanword, where elsewhere we would expect the native Old English term mund or as Woodstock uses, frið. Footnote 46 The next two subclauses of Wantage are focused on peace in cases of less severity than the king’s, here to prevent the violent disruption of assemblies. Clause 1:1 states, ‘And [for breach of] the peace (grið) which the ealdorman and the king’s reeve give in the meeting of the Five Boroughs, that is to be atoned for with twelve hundred’.Footnote 47 The next subclause specifies protections down to increasingly local levels of administrative meetings. There is establishment of grið in the gathering of one borough (burhgaþinðe), in a wapentake (wæpentake) assembly and in an alehouse (ealahuse).Footnote 48 These meetings were likely open-air affairs at a local landmark and are more aptly termed assemblies rather than courts.Footnote 49
This final location given peace protection is one of Wantage’s most anomalous inclusions: ‘that [peace] which is given in an alehouse, is to be atoned for, if a man is killed, with six half-marks, and if no one is killed, with twelve ores’.Footnote 50 For men of several rural villages that together form an administrative unit like a wapentake or smaller, an alehouse would be a logical place to hold meetings.Footnote 51 David Rollason suggests a general early medieval northern European connection between drinking/feasting and the handling of legal affairs.Footnote 52 We even see a sprinkling of evidence to suggest this strand within a few other English legal sources. An early Kentish law delineates extra breach-payment for fighting ‘where men are drinking’ while the post-Conquest Leges Henrici Primi includes peace established in a ‘drinking assembly’ where men can bring charges against each other.Footnote 53 Since the Wantage alehouse provision is textually placed after the establishment of peace protections in larger assemblies and the payment amounts decrease accordingly, the administrative unit referenced here is more local than that of the hundred/wapentake.Footnote 54 Possibly related is what seems to be a significant connection between sub-hundred administration and elite drinking practice in a brief snippet of VI Æthelstan, written by the bishops and reeves of London. These local leaders hold their monthly meetings whenever they can: ‘whether it be when the butts [i.e. barrels of ale] are being filled, or on any other occasion that may be convenient for us’.Footnote 55 Given III Æthelred’s context, it is also worth considering the Scandinavian connotations of drinking and legal work, such as ale-feasts that gather participants for a legal event and celebrate an outcome.Footnote 56 We certainly see heightened penalties (here doubled) for ‘quarrels in an alehouse’ in the later Norwegian Gulaþingslǫg to a similar degree as other protected spaces, such as a legal assembly (thing).Footnote 57
With no solid indication of specialized taverns or pubs in this period, the ealahuse referenced in Wantage is most likely the private hall of a local notable who would host other elites.Footnote 58 In relevance to this, there are a number of standard Anglo-Saxon protections for homes, such as that against fighting in a house (flettegefeohte) and the royal penalty on hamsocn (‘house-breaking’).Footnote 59 While broadly comparable to these protections, the alehouse peace is a different assembly-oriented grið, nor is it simply prevention of drunken brawling. The ‘house’ concerned gains a level of protection in addition to what it already has, presumably only when there are administrative duties being carried out. Protection need not be mutually exclusive and ‘was clearly a complex concept, and the hall may have benefited from different levels of it in different circumstances’.Footnote 60 These observations raise the possibility that the alehouse in this provision represents a sparsely attested level of local administration smaller than that of a hundred or wapentake, a theory that will be developed below.Footnote 61
The specific payments laid out in 1:1 and 1:2 further deepen this discussion. They are outlined solely in Scandinavian currency: 12 ‘hundreds’ for breaking peace of ealdorman or king’s reeve, 6 hundreds in the court of a borough, 1 hundred in a wapentake, 6 half-marks for killing in an alehouse and 12 ores for an alehouse disturbance that leaves none slain.Footnote 62 Taking these hundreds as the ‘long hundred’ of 120 ores of silver, 12 hundreds for breach of ealdorman or reeve’s peace equates to £96 or 4608 West Saxon shillings.Footnote 63 Likewise, 6 hundreds in a borough court comes to £48 or 2304 shillings and the single hundred for a wapentake is £8 or 384 shillings.Footnote 64 These fines stand out from the rest of English law because of how strikingly expensive they are, significantly higher than the Anglo-Saxon norm for similar peace-breaches. From Alfred’s Domboc onward, a standard fine of £5 for breaches of the king’s peace (griðbryce) in English lands appears.Footnote 65 Of course, there is no ability to make up for breaches of king’s peace in Wantage while in other codes from Æthelred’s reign, the £5 fine for king’s peace-breach is specified.Footnote 66 This serious royal offence is hence cheaper in West Saxon districts than the fine for breaking a lower peace, such as that of a wapentake meeting, in the Danelaw.Footnote 67 In another example, the 120 shilling fine for fighting at a meeting in the presence of an ealdorman in Alfred’s laws is dwarfed by the 4608 charged for the corresponding crime in III Æthelred.Footnote 68
The extraordinarily large fines of Wantage have left historians speculating as to their origin and purpose in the Five Boroughs. They could bolster the top-down interpretation of the text as a royal imposition, with the fines as a harsh policy enforcing order in a tumultuous area.Footnote 69 Alternatively, perhaps the peace of meetings was highly regarded by Scandinavians and there was traditionally heavy enforcement against breaches. While either of these suggestions could explain relatively minor differences in currency and amounts, neither can sufficiently justify the tremendous disparity of fines, at many times the English amount paid for the same crime. Though neglected in recent scholarship, the most convincing explanation for the massive fines may be that offered by Frederic Maitland over a century ago: they were intended to be paid collectively by those within a unit of land.Footnote 70 He likened this to the ‘frank-pledge’ enacted after the Norman Conquest wherein certain instances an entire district paid for the transgressions of one of its inhabitants, especially when a Frank/Norman was harmed.Footnote 71 If some fines were intended to be paid collectively in the Wantage Code, then this would be the earliest example in English law of involuntary and territory-based collective liability. Most eminent English legal scholars rejected the possibility of a pre-Norman influence on collective punishment policies, hence its contemporary obscurity.Footnote 72 But there is some evidence that complicates this generalization, as Frederick Hamil pointed to and which Bruce O’Brien took up much more recently in his theory of a pre-Conquest English origin for the murdrum fine.Footnote 73 Building on the Anglo-Saxon precedent of lords compensating for crimes committed by men in their military retinues, O’Brien suggests that a type of murdrum fine ‘with corporate liability’ existed in the reign of Cnut in connection with geld payment.Footnote 74 This could have led to a shift whereby even a unit of local administration could be looked upon for compensation payment in certain situations.Footnote 75
Critical support for Maitland’s theory of pre-Norman collective fines in the Danelaw comes to us from the Domesday Book. There are three entries in near-identical language that state: ‘If peace, given by the hand of the king or by his seal, be broken, a fine is paid to the king alone by 12 hundreds, each hundred £8’.Footnote 76 The ‘hundreds’ here seem not to be a currency paid to the king, but are instead collectives from whom the king is being paid ‘by’ (per). Even more suggestive, the £8 paid by each of the twelve comes to £96, the same amount for the same crime (breaking peace granted by a king’s agent) in Wantage. These entries only appear in the core Danelaw districts of Yorkshire (quoted above), Lincolnshire and Nottinghamshire/Derbyshire.Footnote 77 Just like the Wantage peace-fines, these penalties are many times higher than that paid for identical peace-breaking in English districts as attested in Domesday, where only 100 shillings is demanded.Footnote 78 J. Horace Round in the 1890s was one of the first to identify the ‘hundreds’ in these entries as a Danelaw unit of land division below the level of wapentake, which we shall refer to as a ‘small hundred’.Footnote 79 By charting the use of the term in Danelaw sections of Domesday, particularly in Lincolnshire, it becomes clear that these hundreds were standardized units of twelve carucates (a land parcel ploughed by one team of oxen).Footnote 80
David Roffe argues for the small hundred as a subdivision of the Danelaw wapentake, detailing its thirty-nine appearances in the Lincolnshire folios of Domesday and its consistent description in the Lindsey Survey of 1115–18.Footnote 81 There is a consistent system of twelve carucates per small hundred, although the number of these hundreds per wapentake can vary.Footnote 82 The primary purpose of the small hundred was for the collection of geld, a tax for military expenditures that had become a key royal revenue by this period.Footnote 83 For example, one of the Five Boroughs, Stamford, paid geld ‘for 12½ hundreds for military service by land and sea and for danegeld’.Footnote 84 Accordingly, the small hundreds were the lowest level of royal administration but nevertheless very important, likely performing other unattested functions akin to those of a township.Footnote 85 Most pertinent to our discussion, there is good reason to see these hundreds as constituting a local administrative body that collected taxes as stated in Domesday, but also maintained law and order within its bounds.Footnote 86 This could include organizing the payment by hundreds of communal fines sent down by the king or earl, as the three Domesday references to peace-breaking suggest.Footnote 87 It seems probable that these hundreds making payments are the same small hundreds of land division and local governance found throughout the Danelaw folios. The next step in this logic is to connect these Domesday peace provisions explicitly to what is likely their earlier iteration: the first clauses of the Wantage Code, particularly the ‘twelve hundreds’ (XII hund) for earl or reeve’s peace.Footnote 88 If there is a linkage here, we are presented with a unique practice of payment by those within a jurisdiction rather than a colossal cash payment made by an individual.Footnote 89 O’Brien sees the long hundred of silver in use here but notes that ‘the structure of the fine implies a district that would be responsible for paying those 120 oras’.Footnote 90 This explanation carries greater weight than its alternatives because rather than a scholarly shrug of the shoulders regarding these fines, it leads us towards corporate liability as a workable and probable solution to the puzzle.
There are other surviving attestations that depict the continuous presence of payments with or by hundreds in the Danelaw. Possibly predating the Wantage Code is the Historia de Sancto Cuthberto. Footnote 91 The Historia records that in the 930s, the army of Æthelstan donated ‘XII. hundred, et eo amplius’ to the shrine of St Cuthbert.Footnote 92 In his own Historia, Symeon of Durham copies this section and renders the amount as £96, reflecting our Wantage and Domesday amounts.Footnote 93 This at least supports the existence of tenth-century payments in hundreds (each equal to £8) in the northern Danelaw and possibly implies communal donation by the men of this army.Footnote 94 Also from north of the Humber we see fines paid in hundreds for the violation of sanctuary in Northumbrian churches, such as ‘þreo [hundr]ed’ in the Wulfstanian text Norðhymbra Cyricgrið and ‘xii. Hundredth’ in a twelfth-century list of immunities of York Cathedral.Footnote 95 But the hundred may have even been a somewhat standard denomination for fine payment in Danelaw territories more generally. As Dorothy Whitelock points out, the same amount is implied when the Cambridge Thegns’ guild of c. 1000 records that only eight pounds (eahta pund) will be accepted as compensation for the killing of a member.Footnote 96 A similar reckoning occurs in the Leis Willeme where £8 is accepted to clear a thief ‘in lieu of the head’ in the Danelaw.Footnote 97 Likewise, the Leges Edwardi Confessoris’ quotations of earlier laws include three provisions for peace-breach payments made by ‘hundreda in Denelahge’ with each paying £8, just as in the Domesday instances.Footnote 98
This wider textual evidence may only corroborate the hundred as a unit of currency, but it encourages an interpretation that recognizes the hybrid nature of the Danelaw hundred as both an amount and an administrative unit. The small hundred land unit could have arisen as a means of gathering communal payments made in hundreds of silver. By the time of the Domesday Survey, this feature was used explicitly for the collection of geld but likely also for fine payments. Over almost two centuries of their existence in the Danelaw, the concepts could have become conflated to the degree that the name of the land unit was intertwined with the denominations of accumulated cash. Such fluctuation is feasible since the small hundred evolved considerably over the period; from its occasional Domesday appearances in the northern Danelaw, by the thirteenth century the term has nearly completely disappeared in the face of expanding manorialization and is only sparsely present in the Lincolnshire fens.Footnote 99 The ealahuse reference in III Æthelred is a central piece within this investigation. There is a strong indication of some kind of sub-wapentake administrative context to the protection granted here: a small-scale assembly.Footnote 100 The alehouse may be a reference, directly or indirectly, to the meeting of a Danelaw small hundred, a unit whose existence is substantiated by the Domesday evidence.Footnote 101 While we find this unit referred to as a ‘hundred’ in Domesday, for one reason or another it was recorded as Old English ealahuse in Wantage which may better reflect how tenth-century Anglo-Scandinavians referenced this administrative level, possibly because its number of members was small enough to be accommodated within the drinking hall of one individual.Footnote 102 While the exact nature of the relationship between hundred payments, small hundreds and alehouses will always remain obscure to us, the implications for communal liability deserve recognition. As will be discussed, this is especially enticing due to how local assembly-based collective liability may fit logically into the context of settled viking armies.
Group responsibility was not uncommon in early medieval Europe generally and existed in Anglo-Saxon law through suretyship and in wergild-brotherhoods.Footnote 103 But III Æthelred’s communal payments for peace-breaking diverge sharply from voluntary traditions based on kinship or pseudo-kinship. Instead, the Wantage provisions are closer in practice to the involuntary and territorial collective penalties imposed by the Normans. Although the motivations and contexts were vastly different, both of these practices are focused on holding all of those within a certain area responsible, guilty or not, for the actions of an individual.Footnote 104 This gives us a fascinating glimpse of Dena lage by highlighting a fundamental difference in how Anglo-Scandinavians envisioned the payment of fines, and who bore responsibility.
BUYING INTO LAW
The third clause of the Wantage Code compiles five unique legal terms and declares that they shall not be interfered with.Footnote 105 These seem to represent legal processes that were being carried out in the tenth-century Danelaw and three of them are novel to Anglo-Saxon law and the Old English language: the Scandinavian loanwords lahcop, landcop and witword. Footnote 106 This entire provision is closely replicated in a later Wulfstanian text, the Northumbrian Priests’ Law, where these three concepts are declared ‘to endure valid and legitimate’, suggesting some level of continued relevance in the northern Danelaw.Footnote 107 All of the highlighted terms within this clause are rare and deserve exploration, but this section will pinpoint one of these, lahcop/lahceap, which scholars often attempt to define as ‘payment made for re-entry into legal rights which have been lost’.Footnote 108 This word merits focused attention because it is an identifiable Scandinavian legal feature which not only appears in the code of a West Saxon king, but as will be argued, plays a significant but silent role in later clauses of the Wantage Code.
As a combination of two Old Norse words adopted into Old English in the period, lahcop/lahceap, is literally ‘law-purchase’.Footnote 109 Both the wording and the act of purchasing law stand out in an English context; the concept almost certainly originates from a Scandinavian tradition, related to terms such as Old Icelandic lǫgkaup ‘lawful bargain’.Footnote 110 This is further suggested by a later code from Jutland, the ‘Town Law of Schleswig’ of c. 1200, where the custom of laghkøp refers to the process for one who abandons the town for over a year to buy back law (emerat lagh) and his rights of property.Footnote 111 This same language is in use in the 1443 ‘Newer Copenhagen Town Law’ where a man who leaves the settlement for an extended period loses his bylagh ‘town-law’ and byræt ‘town-right’, and must ‘buy it to himself again’.Footnote 112 Based on much later evidence like this, legal historians since Paul Vinogradoff have glossed Wantage’s lahcop as ‘the Danish word for reintegration to one’s lawful standing by the payment of a fine’.Footnote 113
This characterization may not capture the word’s full complexity because although not explicitly stated, lahcop seems to be in action in a later subclause of Wantage. This appears soon after clause three, within the context of proceedings brought by the reeve and twelve thegns against ‘tihtbysian men’, literally ‘litigation/accusation-busy men’, which is often translated as ‘men of bad repute’ or ‘untrustworthy men’.Footnote 114 There is a specific reference in a later subclause to the need to swear that these men have never paid ‘thief-gild’, so stealing is very probably the crime they are frequently accused of.Footnote 115 After being arrested, the men pay a cash security pledge of six half-marks, half going to the lord and half to the wapentake.Footnote 116 This is followed by the strange provision that: ‘And each of them shall buy for himself [the benefit of the] law (ælc bicge him lage) with twelve ores, half to the lord of the estate, half to the wapentake’.Footnote 117 While Robertson translated paying ‘in order to obtain the benefit of the law’, a literal rendering is to simply ‘buy law’, bicge lage. This recalls the earlier lahcop ‘law-purchase’ and they ought to be seen as one and the same, especially given the later Scandinavian practices of ‘buying law’ under this name.Footnote 118 The other ‘buying law’ in Wantage occurs in a provision offering accused counterfeiters this option, a very similar circumstance of criminals buying some kind of legal benefit.Footnote 119
What does this ‘buying law’ payment represent? It is distinct from the refundable security of six half-marks by accused persons, which is handled in 3:2; the payment of twelve ores is in addition to this.Footnote 120 The lahcop seems to be an extra fee necessary to access legal proceedings. The concept of buying rights of any kind is unprecedented in the Anglo-Saxon legal corpus and greatly contrasts with a core value that all free Englishmen by this period had an (inalienable) right to the ‘benefit of the law’.Footnote 121 In another Æthelredian code, it is declared that ‘all men, whether poor or rich’, are worthy of ‘public law’; this sentiment appears throughout the corpus, even in older West Saxon codes.Footnote 122 Within the specific scenario outlined in 3:3 of the Wantage Code, assumed access to legal rights does not seem to be the case. Since Wulfstan especially espouses ideals of universal access to law and its protective power in the secular and ecclesiastical realms, might he object to the lahcop in the way that it serves as a barrier to accessing legal proceedings?Footnote 123 He certainly omits the term when he seemingly replicates III Æthelred 3 in a clause listing practices that ‘shall always remain inviolate’ in his code II Cnut.Footnote 124 In the Northumbrian Priests’ Law section that combines both the Wantage and Wulfstan clauses, it includes all of the original terms.Footnote 125 Since this text was likely written by one of Wulfstan’s two successors in the York archbishopric, one of whom is confirmed as a Danelaw native, the replication of all of these terms including lahceap may have been an effort to conserve Danelaw legal tenets that Wulfstan glossed over.Footnote 126
Because an extra payment to access law would be alien in an Anglo-Saxon legal context, it has been suggested that this was a royally imposed fee for Danes to pay in order to be heard in English courts, a ‘payment for rights of citizenship’.Footnote 127 But given no precedent for this elsewhere, and that there is little sense behind an identity-based fee in the ethnically mixed Danelaw which had been conquered decades earlier, this explanation holds little water.Footnote 128 Additionally, it seems clear that both of the Wantage instances of ‘buying law’ are concerned with specific criminal procedures for untrustworthy men accused of crimes, not a blanket levy against Danelaw inhabitants. Because this protocol for ‘litigation-busy’ men is laid out in parallel in both the Woodstock code and in Wantage, we are now able to closely dissect the procedure in these texts in search of what law is being bought.
The very first clause of I Æthelred establishes that ‘every freeman shall have a trustworthy surety (borh)’, an oath-swearing person who can guarantee that another fulfils their legal obligation, which often helps to settle tensions.Footnote 129 By this period it seems that surety was required for all free men and it could even be forced upon someone.Footnote 130 Immediately after this default assumption in Woodstock comes ‘If, however (gyf), he is of bad reputation (tyhtbysig sy)…’, implying an alternative procedure for these untrustworthy men, for whom surety does not apply.Footnote 131 I Æthelred 1:1 specifies that these men should be sent to the severe triple ordeal.Footnote 132 Without mentioning surety at all, III Æthelred likewise comes to this point, after assembling a group of twelve thegns with the reeve, who swear on relics not to accuse innocent men nor protect guilty ones.Footnote 133 These thegns then arrest the ‘men of bad repute’, who pay security.Footnote 134 Next in 3:3, comes the ‘buying law’ at half the price of the security.Footnote 135 In 3:4 comes the stipulation that ‘each/every (ælc) man of bad repute (tihtbysig man) shall go to the triple ordeal or pay fourfold [the value of the goods involved]’.Footnote 136 Even if he pays security and the lahcop penalty, this only earns the accused the opportunity to face the arduous triple ordeal or expensive quadruple-forfeiture. In both texts these men are sent to the ordeal without surety or oath-swearing, but the Danelaw inhabitants must make two payments to access this proof system, while those in English districts pay nothing. By this period in English law the ordeal seems to have been the standard final decisive judgement for the often-accused or a last resort for those who are strongly suspected of being guilty.Footnote 137 This can also be seen in Cnut’s protocol for ungetreowe ‘untrue’ men and in the Leges Henrici for those deemed untrustworthy.Footnote 138 The ordeal comes into consistent and mandatory use in English law in the 1166 Assize of Clarendon’s application to those ‘of evil repute’ who are ‘notoriously suspect’.Footnote 139 But the lahcop payment to access the ordeal seems outside of these English standards.
Following this setup, both of our Æthelredian texts next describe a near-identical final recourse for these unfortunate men. The accused can be cleared if their lord swears an oath along with two ‘good thegns’ declaring that since the council at Bromdune (at an unknown pre-997 date), the man has not been convicted of theft.Footnote 140 If this is done, then the untrustworthy man of the English district may choose the simple ordeal or an oath of one pound, less severe options than previously faced.Footnote 141 For a Danelaw inhabitant, if he is cleared, he may proceed either to the simple ordeal or to paying threefold.Footnote 142 In Wantage, this is immediately followed by the caveat that if he is proven guilty in that ordeal, ‘he is to be struck so that his neck is broken’.Footnote 143 This capital punishment only occurs in Woodstock if a man, after being refused by his lord, fails at the triple ordeal twice.Footnote 144 The more liberal use of the death penalty in Wantage has raised speculation on the harshness of Dena lage, especially within nineteenth-century historiography.Footnote 145
The intricacy of the protocol for prosecuting a tihtbysig man adds nuance to the scholarly effort to define lahcop as payment for readmission of legal rights to an outlaw or payment to re-enter society. Within the full context and in conversation with the sections of Woodstock, the only ‘benefit of the law’ being obtained seems to be the ability to enter the ordeal or pay a significantly multiplied forfeiture. Presumably if one could not pay lahcop, they had no hope of access to the clearing ability and return to good legal standing that the ordeal could afford.Footnote 146 But lahcop here is not a standalone fee that cleanly readmits one into society like the laghkøp of Schleswig, it is only one part of a broader protocol for men of bad repute.Footnote 147 Wantage’s other instance of ‘buying law’, being applied to accused counterfeiters, likely directs these men (in a similar circumstance) to the same procedure centred around the ordeal.Footnote 148 It is logical to connect counterfeiting to the institution of the ordeal since in other English codes those accused of this crime are routinely subjected to it.Footnote 149 It is unlikely a coincidence that in our two lahcop instances, both concern specific proceedings that are independently associated with the ordeal.
It is tempting to associate the lahcop procedure of III Æthelred with the laghkøp in later Danish law. The very similar and strange language of ‘buying law’ appears in Wantage’s bicge lage, in Schleswig’s emerat lagh and in Copenhagen’s købe bylagh mentioned above.Footnote 150 All of these conceptions of ‘buying law’ suggest a deeper departure from English legal culture in the way that legal rights can be gained and lost by free men. In fact, Old English utlaga/utlah ‘outlaw’ itself is Norse-derived and implies some of this divergence. The word gains popularity in English writing of the tenth century, logically in parallel with the Scandinavian lagu ‘law’ from which it derives.Footnote 151 We see utlaga/utlah appear in a number of tenth-century Anglo-Saxon legal records, first with codes of Edgar, in charters and especially in works penned by Wulfstan.Footnote 152 The use of the term contrasts with earlier English legislation that used flyma, literally ‘fleeing one’, with a meaning more closely rendered as ‘fugitive’ than ‘outlaw’.Footnote 153 Flyma and utlah became equated to mean outlaw in tenth-century law, suggesting that the incorporation of the Scandinavian word stretched the native term to more clearly represent being ‘outside of the law’.Footnote 154 Scandinavian influence may account for the increased presence of the concept of outlawry in later Anglo-Saxon England in general.Footnote 155 This trend ought to be viewed as conceptually linked to ‘buying law’ in the Wantage Code since the idea of buying back into a legal system is inherently connected to the ability to tangibly be cast out of that system, and both ideas are appearing in English sources in this period, likely via the Danelaw. Additionally, the fact that some portion of the ability to return from outlawry depends on ‘buying’ suggests alternative understandings are at play in Danelaw legal culture.
Part of this may be clarified by Wantage demonstrating ‘a greater emphasis than in English districts on the payment of money to ensure compliance with the law’.Footnote 156 In addition to the hefty silver penalties for peace-breach, the existence of ‘law-purchase’ connotes the heavy monetary nature of Danelaw legal practice.Footnote 157 Evidence of the area’s high levels of personal movable wealth and overall economic prosperity offers critical context. Kershaw has used recent archaeological finds to outline a Danelaw dual-currency system where both coinage and Scandinavian-style bullion were used in parallel until the mid-tenth century.Footnote 158 The quantities involved suggest extensive trading and a heightened presence of cash in daily life.Footnote 159 Remarkable amounts of precious gold rings and ingots represent a need for a high-value currency, indicating ‘very substantial sums of wealth passing hands in Scandinavian contexts’.Footnote 160 Sawyer credits this overwhelming quantity of stimulus-cash with being the prime reason for the Danelaw’s tenth-century economic boom.Footnote 161 The boroughs of the Danelaw became hubs of trade and particularly of manufacturing, making them some of the wealthiest towns in England.Footnote 162 Likewise, urban archaeology has revealed that towns like Lincoln, Norwich, Stamford, Thetford and York were some of the largest in England by 1066 and that their economic expansion and urban growth likely began under Scandinavian rule.Footnote 163
Considering this emphasis on cash and that wealth was likely especially concentrated in the hands of those near the top of the Danelaw social hierarchy, the legal system in these areas could have been designed to privilege these elites, creating cash-heavy criminal justice practices like lahcop. Overall, the entire ordeal-focused protocol for ‘accusation-busy men’ in the Wantage Code, including arrangements for counterfeiters, seems to be a West Saxon concept, now being extended from Bromdune-enactment to the Danelaw.Footnote 164 Since III Æthelred seems to largely codify pre-existing provisions of Danelaw origin, this procedure as a top-down royal application may be an exception. This recalls Edgar’s request for his strong stance against thieves to be multi-jurisdictional, a specifically noted exception to otherwise leaving the Danes to their own ‘godum lagum’ in his legislation.Footnote 165 In order to square the untrustworthy men procedure with their own customs, Danelaw elites may have added ‘buying law’ to Wantage, also collecting an extra payment for themselves in the process.
PROOF AND TRUTH
The Wantage Code almost immediately presents itself as much harsher than the Anglo-Saxon penal norm, which nineteenth-century historians labelled ‘soft’ in comparison.Footnote 166 In addition to the massive peace-breach fines and the stringent treatment of ‘untrustworthy men’, the text seems to generally stack the odds against the one being prosecuted to an unexpected degree, especially in the determination of guilt. Some have seen this heavy-handed approach as a punitive act by the English monarchy.Footnote 167 But the provisions in question are punitive in the way that they target criminals within society, which should not be conflated with harsh laws meant to suppress political dissent or rebellion. As such, these aspects may well reflect practices that originated within the Danelaw communities. The way that III Æthelred handles measures of proof and truth forms a lense through which we can compare the encapsulated legal culture with that of the wider English corpus.
In Anglo-Saxon law, proof procedure tends to be weighted in the favour of the defendant, particularly because free men, if they have not been deemed untrustworthy, may clear themselves with an oath, possibly along with other swearers if necessary.Footnote 168 In Wantage this is clearly not the case, even for those who are not ‘litigation-busy’. To be accused puts one in a precarious position, with clearing-oaths not on display. Cnut’s codes state that exculpation is a right that can be removed for certain acts; perhaps there was no parallel concept of a clearing-oath in the Danelaw in the first place.Footnote 169 The one occasion where III Æthelred does invoke an oath to deny a charge shores up the fact that oaths were not the default as in English districts. Here, if one is accused of feeding someone who has broken ‘our lord’s [the king’s] peace’, he must clear himself with thirty-six compurgators nominated by the reeve.Footnote 170 Not only is this number of oath-helpers well beyond the English figure for a comparable crime, the chances of all of the thirty-six helpers speaking in his favour seem quite low.Footnote 171 This is further reinforced by the fragmentary one-line text Walreaf, which is likely a lost clause of Wantage, where forty-eight ‘full-born thegns’ (fulborenra þegena) need to take oaths in order to clear one of the shameful (niðing) crime of corpse robbery (walreaf).Footnote 172 If oaths are not given a primary position as a means of proof, what else is serving this role?
Wantage heavily relies on the ordeal as evidence instead of oaths. We can look to the ‘accusation-busy men’ who are swiftly exposed to this after making payments.Footnote 173 They are put to death if they fail the ordeal, as are accused counterfeiters, well beyond the protocol of multiple chances in the parallel English passages.Footnote 174 In another clause there is a notable additional use of the ordeal. If a man wishes to clear one of his relatives who was executed for theft and buried in unconsecrated ground, he must pay a large security (‘a hundred [of silver]’) in order to be allowed to face the triple ordeal.Footnote 175 If he succeeds at this ordeal, the deceased kinsman may be removed, but if the relative fails, the thief stays and the security is kept.Footnote 176 Subjecting an innocent man to the ordeal is beyond the Anglo-Saxon norm in such a scenario and seems to be the only occurrence of its particular kind.Footnote 177 In English law, to clear a dead man who is said to have been unjustly killed for theft, an oath by a relative (or several) would suffice.Footnote 178 In a seemingly quite stringent procedure recorded in a later compilation, a large amount of swearing kin-members (eighteen) is required, but there is still no suggestion of the ordeal.Footnote 179 These instances from Wantage do not represent the indiscriminate replacement of oath-based proceedings with the ordeal, but they do suggest an increased tendency towards this painful measurement of truth.
Wantage also gives greater prominence to witness testimony and the attestation of facts, rather than reliance on oaths of character. This is demonstrated several times in quick succession, first in clause two, explicitly that ‘declarations made with the support of witnesses (gewitnesse) shall be incontrovertible’ whether those concerned are alive or dead.Footnote 180 The following subclause adds that each man should only give witness if he will swear on holy relics, increasing the spiritual stakes.Footnote 181 This invocation of witnessing is distinct from mandatory observations of transactions, begun during Edward’s anti-theft campaign and developed by Edgar’s institution of standing groups of transaction-witnesses in each hundred.Footnote 182 Soon after, in clause three’s compilation of terms, the native Old English gewitnes appears again but so does the Scandinavian witword. Footnote 183 A literal translation of this as ‘wisdom/witness-word’ could represent a kind of witness testimony, the sense it is typically translated with.Footnote 184 If this is the case, how witword differs from gewitnes is unclear, but the outlining of these two distinct concepts for witnessing along with their ‘incontrovertible’ nature suggests the importance of this type of proof.Footnote 185 A final reliance on eye-witnesses can be gleaned from the extra requirement that a cow/sheep may only be killed with ‘two trustworthy men as witnesses’, which appears in a separate clause in addition to the expected English provision regarding proof at the point of sale of cattle.Footnote 186
Exactly how accusations are made remains a gap within our understanding of Wantage’s protocols. Given the de-emphasis on oaths, we might posit that there would be an alternative starting point other than the ‘fore-oath’, the English standard for beginning an accusation.Footnote 187 Accusations themselves seem to hold more potential to condemn in Wantage, as demonstrated by the case of the ‘accusation-busy men’. If a lord is stepping in to clear the accused, in the Woodstock Code he and two thegns assert that the accused’s oath has never failed nor has he ever paid thief-compensation (ðeofgyld) that is, been convicted for theft, in the time since the assembly at Bromdune. Footnote 188 In III Æthelred, the lord and thegns similarly swear that he has never paid thief-gild, but instead of one’s oath, they also swear that he has not been accused of theft (ne he betihlod nære) since Bromdune. Footnote 189 There is no concern for the validity of the man’s oath; attention is instead directed to the question of previous accusations, regardless of if he had been found guilty or not.Footnote 190 Heightened accusatory power is further reinforced by the unique additional measure that an accuser may select the type of ordeal for the accused, either of water or iron.Footnote 191 It also seems that the accuser has the authoritative ability to partially outlaw someone who they publicly declare robbed them in daylight. The incriminated robber will not be eligible for any kind of protection (he ne beo nanes friðes weorðe), suggesting a measure of outlawry.Footnote 192 Possibly responding to measures like these, a Wulfstanian code calls for ending the unjust practice ‘in the north’ (i.e. Northumbria) of murder accusations brought against guiltless (unsacne) men being upheld if they were brought on the same day as the killing.Footnote 193 The meaning here is obscure, but it could be an explicit condemnation of a Danelaw region’s over-emphasis on the evidential power of accusations, as attested in Wantage. In these instances there seems to be greater credence given to accusations, reducing the presumption of innocence. Accusers are empowered and perhaps the accused are thereby encouraged to face their deeds and give compensation before authorities become involved. As this article will go on to propose, maybe private settlement is much preferred because, when notables in these Scandinavian-settled lands do oversee criminal justice, punishment is expensive and punitive.
The most high-profile and contentious aspect of criminal proceedings in Wantage is the involvement of a ‘jury’ of thegns. These elites form a group of twelve that accuse and seize ‘untrustworthy men’ while later in the text another group of thegns votes on issues.Footnote 194 Scholars of the last two centuries have argued extensively about the Wantage thegns, particularly to prove or disprove theories of a pre-Norman, possibly Scandinavian, origin to the jury of presentment (the accusing jury of twelve) that became standard in English common law, first seen in the Assize of Clarendon.Footnote 195 These ‘twelve leading thegns’ (yldestan XII þegnas) take on much more decisive tasks than simply carrying out the enforcement of a legal ruling, as the yldestan men of earlier codes do.Footnote 196 Their active role in decision-making is underlined by their swearing not to accuse an innocent (sacleasan) man nor protect a guilty (sacne) one.Footnote 197 Of those whom the king’s reeve wishes to charge with theft, the thegns seem to help determine who is tihtbysig or not, and arrest accordingly.Footnote 198 Similarly, twelfth-century juries of presentment could clear the accused, and while they could not technically convict someone, an accusation from them was a substantial condemnation that significantly impacted the outcome of a case and could bring penalties regardless of the ordeal’s result.Footnote 199 In the tenth-century Danelaw, the reeve may have lacked localized knowledge and depended upon the thegns from the community to know who had a bad reputation.Footnote 200 Collaboration with Anglo-Scandinavian notables could have been a necessary measure in an area being gradually integrated into a consolidated English legal system after its conquest.Footnote 201 The thegns may also have served as a structural check against the interfering jurisdiction of the royal reeve, and by extension the Cerdicing king who was now influencing the Danelaw criminal justice system.Footnote 202 This could help to explain the enlarged role of thegns in the legal process described in Wantage when compared to earlier appearances of thegns in English laws.Footnote 203 Here we see limits imposed on the arbitrary power of reeves and the empowerment of the local elite, certainly not consistent with a view of Wantage as Æthelred’s tyrannical overreach. Within the legal logic of the text, the advice of a local aristocratic council could also be helping to balance the strong authority given to accusers; accusations held such weight because they were subject to approval by an additional body. Below, this article will pursue the other company of thegns who appear in Wantage and whose purpose is quite different, revealing this group’s grasp on power within the tenth-century Danelaw.Footnote 204
CONCLUSIONS
In parallel to the upsurge of information about Danelaw material culture that twenty-first-century archaeology has provided, the ‘law’ of Danelaw requires further exposition, and the present inquiry has breached only the tip of this iceberg. By incorporating the historical context of Scandinavian-settled England in around 1000, as well as what can be reconstructed about Danelaw society, this article will now propose a possible coherent structure that rationalizes the distinctive legal points of the Wantage Code described above.
Our critical backdrop is the Danelaw as an area conquered and settled by viking armies, beginning in the late ninth century. Very recent archaeological work points towards both large-scale Scandinavian settlement in the Danelaw and significant disruption to pre-existing land-holding, the ‘shared out’ land of the Anglo-Saxon Chronicle. Footnote 205 This is in addition to the linguistic evidence, particularly naming patterns of settlements and geographic features, which suggest local majorities of Norse-speakers.Footnote 206 Even Sawyer’s ‘minimalist approach’ accepts that elites of Scandinavian origin, many of whom were descendants of viking war-leaders, became part of the ruling class of the Danelaw.Footnote 207 Modern evidence also illuminates the Scandinavian nature of the other end of the social hierarchy. In particular, large numbers of Scandinavian settlers may have formed a population of common freeholders, giving the Danelaw a model of land distribution distinct from the rest of England. In a post-viking conquest environment, there was likely land forceably seized from natives and ‘shared out’ among even common members of warbands, whom Anne Kristensen compares to ‘soldier-colonists’ from the earlier history of the Frankish kingdoms.Footnote 208 Stenton, following a long antiquarian tradition, argued for a ‘peasant aristocracy’ of Anglo-Scandinavians in the Danelaw who enjoyed a less exacting relationship with their lord and retained significant political rights in comparison to increasingly manorialized Anglo-Saxon England.Footnote 209 This can be put into conversation with the generally high level of autonomy of Scandinavian peasants and a less cemented social hierarchy as seen in eleventh-century Iceland and Norway.Footnote 210 A strong Anglo-Scandinavian freeholding peasantry has been argued to be connected to the unspecified sokemen who appear throughout Domesday, and in especially high proportions in the Danelaw sections.Footnote 211 Such a social dynamic could have led to especially local strata of political organization for these freeholders.Footnote 212 This is in addition to the autonomy of Danelaw settlements at some points in the tenth century, with the Chronicle reporting the ‘armies’ of boroughs negotiating independently with West Saxon conquerors.Footnote 213 In this socio-political context of a freeholding peasantry and devolved political control, there may have been increased emphasis on small-scale assembly, a role that could have been filled by the Wantage alehouses and the Domesday ‘small hundreds’.Footnote 214
Viking raiding armies were the points of origin for many of the first Danelaw settlers and it is in the makeup of these military groupings that we can better understand the society that was founded in their wake. Large hosts like the Micel Here of c. 865–78 were likely ethnically diverse and composed of collections of smaller, loosely aligned warbands.Footnote 215 As very recent DNA studies suggest, these sub-groups could be from throughout the North Sea world, and each was often made up of men from within a relatively small geographic area, who were sometimes even close kin.Footnote 216 There would need to be a great emphasis on the cohesion of a large heterogenous armed force like the Great Armies; a common religion is one means of doing this but strict military discipline is another possible method.Footnote 217 It has been suggested that Danelaw laws developed out of a need for martial harshness and retained some of these elements even in a post-settlement civilian context.Footnote 218 A concern for maintaining stability within an army could manifest in less tolerance for certain offences, especially those which eroded mutual trust within the ‘army community’, like violating the peace of a meeting. After all, the Danelaw term wæpentake for a land unit and its affiliated assembly is from Old Norse vápnatak (‘a taking of weapons’) and may have originated from the requirement to leave one’s weapons aside when entering an assembly to avoid the possibility of bloodshed.Footnote 219 If a member of a certain warband broke the peace within a viking army’s meeting, possibly he and his associates from his sub-group (who may have been especially linked along ethnic or kin lines) would be expected to pay a heightened penalty together, not unlike the massive communal fine payments in Wantage.Footnote 220
A helpful comparison for III Æthelred is an examination of how medieval Scandinavian peoples settled disputes and when they invoked the law. In one of its often-referenced clauses, Wantage implies that those in the Danelaw heavily emphasized informal negotiation and settlement (lufu, ‘love’) instead of reliance on formal legal proceedings (lagu).Footnote 221 Here the legitimacy of settlements made out of court is strengthened since if love is chosen, ‘that is to be as binding as a legal sentence’.Footnote 222 From this demonstration of Anglo-Scandinavian procedure reinforcing private mitigation, we can see parallels in later Norse texts, particularly from Iceland. Private settlement was likely standard procedure for most cases in Iceland since there was no executive arm of government to enforce the ruling of a court.Footnote 223 This would be handled privately, implying the continued opportunity for mitigation between parties, given the strict hypothetical punishments for certain crimes that we see in the earliest recorded Icelandic law-code, the Grágás. Footnote 224 Punitive punishments as prescribed in law act as a deterrent, with mutual settlement between disputants as the likeliest outcome, resulting in communities self-regulating. This paradigm seems often at play in the very law-centred Njáls Saga. Footnote 225 This may also be the sense behind Wantage’s provision that a man can bring semi-outlaw status on another by vocalizing the accusation in three villages.Footnote 226 This surprising degree of judicial power in the hands of individuals is akin to the Icelandic emphasis on ‘publishing’ when a crime is committed.Footnote 227 Taking this to the extreme, even a private settlement can prescribe outlawry through mutual agreement and there is no need for a formal judgment.Footnote 228
Fees like the Danelaw lahcop could act as further deterrents against invoking formal legal proceedings for the sake of expediency.Footnote 229 Practicality did not allow for frequent formal law courts; in rural and dispersed Iceland, assembling a large thing was a major undertaking that could only happen a few times a year.Footnote 230 If the great majority of dispute settlement would have occurred informally, any bad conduct during the rare instance that an assembly was occurring was a serious offence. This is demonstrated by the strict punishments for even minor missteps in the intricate procedures surrounding things in the Grágás. Footnote 231 The penalty for breaching the peace of a meeting was very high, from three-year exile to permanent outlawry and a price on one’s head.Footnote 232 There is also an indication that purposeful violent disruption of a legal proceeding (by one side when a case was developing unfavourably for them) could have been somewhat common in Icelandic culture and was legislated against.Footnote 233 The large fines for the peace-breaking of assemblies in Wantage could echo this Scandinavian regard for formal meetings, which is heightened because assemblies were likely not the default daily legal practice even if they existed at quite local levels.Footnote 234 Likewise, the Norwegian Gulaþingslǫg prescribes the severest outlaw status for breaching grið, temporary peace that often accompanied an assembly, fitting well with III Æthelred’s protections of various assemblies in the Five Boroughs and even using the same word.Footnote 235 Grið was also likely a common part of daily life for Viking Age Scandinavian traders and was critical for commercial activity between groups of strangers.Footnote 236
These Scandinavian analogies, although problematically late and in very different contexts, are some of the best tools at our disposal in reconstructing Danelaw legal culture. Given Iceland’s settlement by Scandinavians at around the same time as the Danelaw (late ninth and early tenth centuries), as well as its status as a commonwealth without monarchical centralization until much later, its records may be able to offer us a general impression of the legal world from which ninth-century vikings emerged.Footnote 237 In this context, where informal negotiation is central, formal law (lagu) is called upon rarely and with reluctance. This could be the lense through which to read the Wantage provisions for untrustworthy men. The section seems to represent English royal legislation being freshly applied to the Five Boroughs through negotiation with Danelaw elites.Footnote 238 The III Æthelred version is significantly condensed from Woodstock’s and there is an additional fee for the accused to ‘buy law’, lahcop. Footnote 239 After all, if a new legal process was being extended by the English king into Danelaw territory, and formal litigation was rare in the daily lives of these folk, they may have demanded an additional payment for its invocation and passed that cost on to the accused.
As suggested above, some sections of Wantage seem to articulate the interests of Danelaw elites and may have been included at their request, such as the lahcop concept.Footnote 240 Also pertinent in this regard are the provisions regarding thegns, who form the ‘jury’ of robust scholarly debate.Footnote 241 The meaning of Old English thegn shifted in the period from a king or lord’s servant, towards representing a dynamic role with shire-level administrative duties.Footnote 242 By the tenth and eleventh centuries, thegns were minor nobles who held land and some of whom had military obligations.Footnote 243 But there is fluidity here; some thegns are large-scale landlords with vast royal grants, while others seem to be well-to-do free men with comparatively humble holdings.Footnote 244 They seem to occupy the same general class, sharing a high wergild valuation, and it seems likely that a key factor determining eligibility was a land minimum.Footnote 245 The Wulfstanian Norðleoda laga gives the indication that movable wealth was not enough, but if a commoner ‘prospers so that he possesses five hides of land for his obligations to the king’, then he gains thegn status.Footnote 246 If thegn status existed and could be this flexible, with a land minimum as a decisive factor, how did such a system incorporate the landholding patterns of the Danelaw? A possible answer is that since members of viking armies and other Scandinavian newcomers became a part of the ruling elite, their descendants during and after the English conquest of the region (particularly those who acquiesced to the West Saxon regime) were allowed to call themselves thegns and were tacitly accepted as such.Footnote 247 This is further suggested by what could be the bestowing of noble (thegn) wergilds on any free Danish warrior in Alfred’s Treaty with Guthrum, even commoners.Footnote 248 As a social role that is not well understood even in non-Danelaw England, perhaps thegn was simply used as a legal term for any landowner of a certain social and possibly military calibre, even relatively poor individuals.Footnote 249 This could help to explain the appearance of groups labelled ‘thegns’ in our sources on the Danelaw, particularly the twelve of Wantage, those of the Cambridge Guild and politically active thegns in the Chronicle. Footnote 250
In a later section of Wantage, another group of thegns of unknown number form a ‘jury’ that votes on judgments.Footnote 251 This provision comes behind guidelines for a man accused of harbouring an outlaw, but what the thegns are actually voting on in this instance is not specified and is likely unconnected.Footnote 252 In fact, this and the clauses immediately following it give some impression that they are together intended to preserve the status quo among the thegnly elite, especially land ownership. Their voting might be on any decision that would be handled by local notables, with land disputes likely a common issue. The clause immediately after states that for a þegen, agreements either made through love or law will be binding.Footnote 253 Following this comes another clause that adds further weight by establishing a fine for those who neglect such agreements.Footnote 254 Finally, next comes a provision that is quite notable in the English legal corpus: that for estates held without claims on them in a man’s lifetime, ‘no one is to bring an action against his heirs after his death’.Footnote 255 All of these points could be helping to cement the systems of land ownership that had developed along with the Scandinavian settlement and accompanying property redistribution, here securing holdings from being newly shaken up by integration into the English legal system.Footnote 256 This is hinted at the most within the action-against-landowners clause. It is quite telling that the first place in Anglo-Saxon legal records where such a provision exists is in the viking-conquered Five Boroughs; doubtlessly landholding nobles anywhere would appreciate the protection that was secured here.Footnote 257 Efforts by the elite could also help to explain the anomalous Norse-derived terms from clause three, landcop ‘land-purchase agreement’ and witword ‘wisdom/witness-word’.Footnote 258 In line with the other clauses, these terms could represent contracts and agreements regarding land ownership. This seems like an obvious fit for landcop while witword could represent testimony from a sort of ‘expert witness’ with contextual knowledge of a specific land tract’s characteristics and ownership (a ‘word of knowledge’), a process reflected by the related Old Swedish legal term vitu orþ. Footnote 259 Wantage is possibly demonstrating a concerted effort to keep existing ownership valid and make sure that previous arrangements that do not have bocland documentation are honoured, a critical measure for the Anglo-Scandinavian landed elite who were holding property gained during the upheaval of the past century and a half.Footnote 260 With III Æthelred seeming to reflect the process of the Danelaw’s legal system being increasingly formally incorporated into the English kingdom, there may have been concern by these elites for their property, which they had potentially unsteady legal claims over. In response, the Danelaw aristocracy could have pushed for these land-focused measures in Wantage, an important aspect of their ‘good laws’ which were given protection in IV Edgar and which are here having their details royally recognized.Footnote 261
Through analyses of various legal issues raised by the Wantage Code, this work has sought to demonstrate that where the encapsulated legal culture diverges from English norms, this is not just minor and procedural. The inhabitants of the Danelaw, at least those Anglo-Scandinavian elites who helped draft III Æthelred, held fundamentally different understandings of the law, whether it was regarding the communal payment of fines by those in a land unit, the need to ‘buy law’ and pay additional fees to access proceedings, or a penal code that harshly pressured the accused towards settlement. Because archaeology has increasingly delineated the Danelaw’s distinctiveness from the rest of England as a direct result of its viking-settled past, it should be no surprise that a legal system developed here that was not so similar to that of the West Saxons. Only by acknowledging this reality and pursuing further serious inquiries into the Wantage Code and the legal culture of the Danelaw, possibly through further analogies with Scandinavian traditions, will we deepen our understanding of Dena lage. Footnote 262
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