Widows' Rights in Anglo-Saxon Law

Temple University

Widows' Rights in Anglo-Saxon LawAuthor(s): Theodore John RiversSource: The American Journal of Legal History, Vol. 19, No. 3 (Jul., 1975), pp. 208-215Published by: Temple UniversityStable URL: http://www.jstor.org/stable/844882 .Accessed: 29/08/2013 20:10

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

Temple University is collaborating with JSTOR to digitize, preserve and extend access to The AmericanJournal of Legal History.

http://www.jstor.org

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PMAll use subject to JSTOR Terms and Conditions

Widows' Rights in Anglo-Saxon Law By THEODORE JOHN RIVERS

Women's legal status in England improved appreciably as the Anglo-Saxon period drew to a close. Although this development was characteristic of all women in early English society, widows at- tained more independence than any other marital class in Anglo- Saxon England.' For this reason, it can be said that the most favored women in England were not wives or unmarried daughters, but widows.2

Of all the laws which concern women in Anglo-Saxon legislation, several were concerned with a woman's most basic rights: the right to social and sexual protection. Since all women in medieval society were under the protection (mundium) of men, either fathers, husbands, brothers, or other male guardians, women in many cases were not legally responsible for their own affairs, save for adultery, incest, homicide, or sorcery. Moreover, if a woman fell victim to a crime, recompense (usually given in the form of monetary compensation) was paid to her guardian, unless the guardian was her

1. There are few introductory studies of women in Anglo-Saxon society. In general, see Doris Mary Stenton, The English Woman in History (1957), ch. I: "The Anglo-Saxon Woman," pp. 1-28, and Evelyn Acworth, The New Matriarchy (1965), ch. III: "The Anglo-Saxon Period," pp. 49-65. A notable example of the political ability of noble English women is evident in the career of King Alfred's eldest child, his daughter Aethelflaed, who, upon her husband's death, ruled Mercia from 911-918. See F. T. Wainwright, "Aethelflaed Lady of the Mercians," in The Anglo- Saxons: Studies in some Aspects of their History and Culture presented to Bruce Dickins, ed. Peter Clemoes (1959), pp. 53-69.

2. There are no studies of widows' rights in Anglo-Saxon law. Occa- sional legal references to widows can be had in: Florence G. Buckstaff, "Married woman's property in Anglo-Saxon and Anglo-Norman law and origin of the common-law dower," Annals of the American Academy of Political and Social Science, v. 4, (1894), 233-264; Ernst Young, "The Anglo-Saxon Family Law," in Essays in Anglo-Saxon Law, ed. Henry Adams (Boston, 1876), pp. 121-182; Harold Dexter Hazeltine, Zur Ges- chichte der Eheschliessung nach angelsiichsische Recht (Berlin, 1905), which was reprinted from the Festgabe fiur Dr. Bernhard Hiibner (Berlin, 1905); and Fritz Roeder, Die Familie bei den Angelsachsen, Studien zur englischen Philologie, IV (Halle, 1899). Also see legal references in Lorraine Lancaster, "Kinship in Anglo-Saxon Society," Brit. J. Sociology, v. 9,230-250, 359-377 (1958), reprinted, in part, in Early Medi- eval Society, ed. Sylvia L. Thrupp (1967), pp. 17-41.

208


1975 WIDOWS' RIGHTS 209

husband. In the latter case, payment for any injustice to her was paid to her kindred, since obligations to the kindred were not broken upon marriage. In the early Anglo-Saxon period, monetary compensation for widows likewise went to their kindred. However, in late Anglo-Saxon times women obtained new guardians-the church and the state and with these new guardians, the legal posi- tion of women was transformed.

Male protection, of course, is a relative thing, and there must have been Anglo-Saxon families in which the wife was more asser- tive than her husband, and therefore, less in need of direct control. Yet, no matter how authoritarian a wife may be, Anglo-Saxon wives were potentially under the legal jurisdiction of their husbands. Widows, however, gained more rights than married women or women who never married. The reason is that, since wives and maidens were under male protection of husband, father, or other guardian, their tutelage was immediate. Such was not the case for widows; instead, they were placed under the protection of the church and the state, which in most cases, became a far more dis- tant type of protection.3

Fundamentally, widows were nonetheless tieated like all other women in Anglo-Saxon law; that is, they were protected from ex- ploitation because women were viewed as socially inferior.4 This view of social inferiority is not surprising, since it is men who make this distinction. Yet the absence of direct male control enabled widows to develop more rights than single women or wives.

The majority of laws which concern widows appear late in Anglo-Saxon law, coming mostly from V-VI Aethelred and I-II Cnut. Besides these late laws, there are only four laws from Aethelberht's code and one each from Hlothhere and Eadric's and Ine's which also concern widows. Surprisingly, widows are not discussed in Alfred's code.5 Anglo-Saxon laws which concern widows protect

3. Protection by church and state should not be thought of as a univer- sal type of tutelage which makes widows continually subject no matter where they travel within Anglo-Saxon England. Rather, the authority of the church and crown is too fragmented to give any real substance to this legislated protection. Wives and unmarried daughters live with their husbands and fathers, but widows often live alone (unless they remarry), being supported by their late husband's morning-gift and inherited property.

4. There is no distinction in Anglo-Saxon law for widowers. Unlike women, men are not classified maritally.

5. The relative dates when these laws were promulgated are: Aethelberht ante 597 V Aethelred 1008 Hlothhere & Eadric 685-6 VI Aethelred 1008-11 Ine 688-95 I-II Cnut 1027-34

All references to these laws are taken from the best edition of the


210 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XIX

them from violation of the mundium, defend their inheritance rights, stress their financial obligations to the king, or emphasize their social obligations to the Christian community. A detailed description follows.

Widows most basic right was the mundium. The Anglo-Saxon laws which describe this right were primarily concerned that widows be not sexually assaulted. The mundium made its first appearance in Aethelberht 75, which protected widows of the nobility; this protection was also extended to widows of the next three classes." If a widow was not only assaulted but also abducted, double the mundium was required.7 This two-fold payment was probably required in order to compensate the widow's guardian, especially if the abductor wished to keep the woman as a wife. Sur- prisingly, the law just described (Aethelberht 76) did not require that the woman be returned, only that the crime be paid for mone- tarily. Although this law may not contain every pertinent detail for this offense in early Anglo-Saxon society, its lack of concern that the woman be returned is a good indication of the pre-Christian (that is, totally Germanic) origins of Aethelberht's code.8

Anglo-Saxon laws: Felix Liebermann, Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903-1916, reprinted, Aalen, 1960). (The only exception here is the date from Aethelberht's code. Although Liebermann gives 601-4, this is much too late. See n. 8 below.) Citations to individual laws referred to in this study are supplied in the first volume of Liebermann's edition. Volumes II and III contain a glossary and commentary re- spectively. English translations of Anglo-Saxon laws are supplied in F. L. Attenborough, The Laws of the Earliest English Kings (1922), and A. J. Robertson, The Laws of the Kings of England from Edmund to Henry I (1925).

6. Aethelberht 75,1. See H. Munro Chadwick, Studies on Anglo-Saxon Institutions (Cambridge, 1905), pp. 76-102, for a description of classes in Anglo-Saxon England.

7. Aethelberht 76. Cf. Hazeltine, Eheschliessung, pp. 19-20. 8. A great deal has been said about the influence of Christianity on

Aethelberht's code. The greatest influence that the Church could bring to England with St. Augustine's arrival in 597 is the "Roman tradition" (the written word), but it does not explain many predominantly pagan institutions preserved in Aethelberht's code. The only part of Aethel- berht's code which is Christian is its preface, which is now thought to have been appended considerably later than the time the code itself was written down. See Henry G. Richardson and George O. Sayles, Law and Legislation from Aethelberht to Magna Carta, Edinburgh University Publications, History, Philosophy and Economics, XX (1966), pp. 1-9. Also see Hans Wiirdinger, "Einwirkungen des Christentums auf das angel- saichsische Recht," Zeitschrift der Savigny-Stiftung fiir Rechtsges- chichte, Germ. Abt., v. 55 (1935), 105-130. It is reasonable to assume that the influence of the Church on Kentish law occured gradually, but this



The next law regarding widows' mundium appeared 400 years later. This law was VI Aethelred 39 (A.D. 1008-11), and it indicated that widows were by then placed under the sponsorship of church and state. Although this law does not specify what the payment was if the mundium of widows was violated; nevertheless, II Cnut 52 (A.D. 1027-34) indicates that for this crime the offender must render the wergeld of the violated woman.9 How this payment was divided between the church and the state was not discussed. The assumption of widows' protection by the state had occurred, however, in the reign of Aethelred, not Cnut,"' while the guardianship that the church gave to widows first appeared in Edgar's reign (959-975)."1 The acceptance of widows' mundium by church and state is described below. Suffice it to say here that widows became increasingly significant in late Anglo-Saxon England due to their economic independence, aided by the absence of direct male control.

A widow received financial assistance upon her husband's de- mise if children had been born from their marriage. In Aethelberht's code, law 78 indicates that this financial assistance equaled one- half of the late husband's property.12 In Aethelberht's time, the property conferred was rarely landed estates. Property inherited by widows and children was usually movable, either in the form of

does not explain the unusual compensation bishops received if their property was stolen as expressed by Aethelberht's code, although the latter view is upheld in J. M. Wallace-Hadrill, Early Germanic Kingship in England and on the Continent (Oxford, 1971), pp. 39-41. That the preface to Aethelberht's code is, indeed, a later addition is also supported by William A. Chaney, "Aethelberht's Code and the King's Number," Amer. J. Leg. Hist., v. 6, 153, n. 9 (1962).

9. Robertson, Laws, p. 203, supplies "his" wergeld rather than "the" wergeld. His wergeld would make little sense, since monetary compensation is given according to the class of the victim, not of the criminal. Liebermann, Gesetze, I, p. 346, also renders the wergeld.

10. Cf. Stuart A. Queen and Robert W. Habenstein, The Family in Various Cultures, 3rd ed. (1967), p. 219.

11. See A. J. Robertson, ed. and trans., Anglo-Saxon Charters, Cam- bridge Studies in English Legal History, 2nd ed. (1956), pp. 90-93 (#44). Robertson calls this charter: "History of the Estates of Sunbury and Send." Although Robertson does not attempt to date this document more specifically than late tenth century, it is dated ca. 950-968 in P. H. Saw- yer, Anglo-Saxon Charters: An Annotated List and Bibliography, Royal Historical Society Guides and Handbooks, v. 8, (1968), p. 406 (# 1447). Contrary to Sawyer (ibid), however, the estates of Sunbury and Send were not purchased by Archbishop Dunstan, but only placed under his tutelage for the represented widow and child.

12. The other half of the property reverts to the paternal kindred.



money or livestock.'3 That the paternal inheritance could be be- stowed gradually over a period of years was described by a later law, Ine 38, which provided that six shillings be given every year for support of the late father's child. The law indicated that these six shillings annually were equal to a cow in summer and an ox in winter. An annual supply of a cow and an ox seems extremely ex- travagant in the light of England's simple economy. What this law may mean is that a cow was milked and an ox harnessed to furnish the family's subsistence at the yearly value of six shillings.'4 It can hardly be assumed that the widow's child was supplied every year with a cow and an ox, since this would have amounted to a considerable sum of money, particularly when the widow had more than one young child, as would usually have been the case.

In addition to these benefits, Aethelberht 78 also obligated the widow's kindred to maintain the late husband's house for widow and children until each individual child reached maturity, which occurred at age ten. Although the widow's kindred maintained the family's residence, the tutelage of the children fell to the late father's kindred, not to the surviving mother. This important fact is given in Hlothhere and Eadric 6. The benefits supplied by Aethel- berht 78 also make their appearance in II Cnut 70,1. Here, too, widows and their children inherited from the husbands' estates, with the remaining portion reverting, as in Aethelberht 78, to the paternal kindred. These laws indicated quite clearly that the paternal inheritance destined for widows was more a provision for the children than for the widows, since widows were not entitled to inherit from their late husbands if they had no children.15

The inheritance of the husband's property had no bearing on what personal property the wife (widow) could have in her own

13. Eric John, Land Tenure in Early England: A Discussion of Some Problems, Studies in Early English History, v. 1, (1960), p. 59. See feoh (movable property) in Liebermann, Gesetze, v. 2, p. 69.

14. Attenborough, Laws, p. 189, believes a cow is given in summer if the husband dies in that season, and an ox in winter similarly. The six shillings itself is derived from the late husband's estate. See Lancas- ter, Brit. J. Sociology, v. 9, p. 360 (1958), (Early Medieval Society, ed. Thrupp, p. 32).

15. In early Anglo-Saxon England, the provision for a married woman is slightly different, since she is entitled to one-third of her husband's estate if she wishes to leave her husband. This is supported by Ine 57 in which a wife may leave her spouse if she is innocent of the latter's crime of theft. See Courtney Stanhope Kenny, The History of the Law of Eng- land as to the Effects of Marriage on Property and on the Wife's Legal Capacity (1879), p. 24. It appears reasonable to conclude that from Ine's time (late seventh century), the wife's inheritance becomes standardized at one-third.



right, nor do any of the laws described here pertain to the morning- gift, the property which the newly-married husband gave to his bride the morning after their wedding night.

All remaining Anglo-Saxon laws which concern widows appear either in V-VI Aethelred or I-II Cnut. It is not surprising that the majority of these laws concern widow's obligations; increased rights might be expected to bring increased responsibilities. There are eight laws indicating the state's prohibition of remarriage by widows within one year of their husbands' death, a requirement which made its first appearance in the Poenitentiale Theodori (A.D. 668-690), the penitential of Bishop Theodore of Canterbury.'6 A widow who married within this allotted time was to lose her morning-gift and all property which she inherited from her deceased husband,'7 even if she was married against her will.'8 The severity of this violation was extended to the husband the bereaved wife married, since he must forfeit his wergeld to the king.'9 Nor were widows to be consecrated as nuns too hastily after their husbands' deaths.20 The reason for all this frowning on urgency is a simple one. If widows married or entered the convent within the first year of their husbands' death, the king lost the heriot tax, a principal source of revenue. Even if a widow paid the heriot within the first year of her husband's death, she still could not remarry within the same length of time.21 After the tax was paid and a year had elapsed since her husband's decease, however, the widow could remarry or become a nun if she chose.22 The remarriage of a widow removed her from the church-state mundium, and placed her once again under the mundium of her husband. When this happened, her privileged status of a widow ceased, and her duties as a wife began once again.

Widows also had social obligations to the Christian community 16. Poenitentiale Theodori, book II, ch. 12, ?9. Arthur West Hadden

and William Stubbs, ed., Councils and Ecclesiastical Documents relat- ing to Great Britain and Ireland, 3 vols. in 4 parts (Oxford, 1869-1878, III (1878), p. 199. Also translated in John T. McNeill and Helena Gamer, Medieval Handbooks of Penance: A translation of the principal 'libri poenitentiales' and selections from related documents, Columbia Uni- versity Records of Civilization, v. 29, (1938), p. 209. Here the translation appears as book II, ch. 12, ? 10.

17. II Cnut 73a. Cf. V Aethelred 21,1; VI Aethelred 26,1; and II Cnut 73.

18. II Cnut 73,2. 19. II Cnut 73,1. 20. II Cnut 73,3. 21. II Cnut 73. 22. II Cnut 73,4.



in which they lived. All widows who did not live adulterously received protection from the church, usually the local bishop, and state.23 As long as they did this, the financial independence which widows obtained in late Anglo-Saxon times allowed them to sue or be sued in court,2" to will, sell, or inherit property,25 and to direct their affairs generally as they saw fit. That widows could will, sell, or inherit landed property in late Anglo-Saxon England is proof of the development of widows' rights, since widows were not allowed to inherit other than movable property in Aethel- berht's time. A brief look at Anglo-Saxon charters will substantiate this point.. Ecclesiastical and monarchical protection could also apply to the disadvantage of widows, however, since they could be exploited by the king's dues"2 or even lose their protection if they violated the law, as for example if they were found guilty of living in adultery. In addition, widows like everyone else in Anglo-Saxon England, were not permitted to marry within the sixth degree of consanguinity.27

Widows and widows' rights were continually significant in Anglo-Saxon society. The earliest Anglo-Saxon laws were concerned

23. V Aethelred 21 (identical with VI Aethelred 26). 24. Buckstaff, Annals of the American Academy of Political and

Social Science, v. 4, p. 250 (1894). Although widows could plead their own cases in court in late Anglo-Saxon times, they still remain under the tutelage of church and state. As described above, it is the distance of this form of mundium that enables widows to be more independent.

25. For example, see the will of Aethelstan Mannesune (A.D. 986), given in Chronicon Abbatiae Rameseiensis, ed. W. Dunn Macray, Rolls Series, v. 83, (1886), pp. 59-61. This will is summarized in C. R. Hart, The Early Charters of Eastern England, Studies in Early English History, v. 5 (Leicester, 1966), p. 29 (#21). Also see the will of Aescwen of Stonea: Liber Eliensis, ed. E. O. Blake, Royal Historical Society, Camden Third Series, v. 92 (1962), book II, ch. 18 (pp. 93-94). Widows selling land are also illustrated in ibid., ch. 10 (p. 84) and ch. 20 (pp. 95-96). All of the wills cited here date from the second half of the tenth century; they are the earliest examples I have found which show widows' independence regarding their own property, particularly in regard to the sale of land. For widows' rights concerning inheriting and selling land from the late ninth to the early eleventh century, see the innumerable charters in H.P.R. Finberg, The Early Charters of Wessex, Studies in Early English History, v. 3, (1964), and his Early Charters of the West Mid- lands, 2nd ed., Studies in Early English History, v. 2, (1972). Also see the general comments in Willystine Goodsell, A History of Marriage and the Family, rev. ed. (1934), pp. 208-209. (The first edition of this work is entitled: A History of the Family as a Social and Educational Institu- tion [1930].

26. H. R. Loyn, Anglo-Saxon England and the Norman Conquest (1962), p. 185.

27. VI Aethelred 12 (identical in principle with I Cnut 7).



with the more rudimentary aspects of widows' rights, that is, protection of the mundium and defense of the paternal inheritance. Later laws extended these basic rights to obligations as well. The increasing equality of widows with men in England occurred late in the Anglo-Saxon period, and this is supported by the later laws, particularly Aethelred's and Cnut's, and by charters dating from as early as the tenth century. The principal reason for the improved legal status of widows in Anglo-Saxon society was the absence of direct male control.2' Widows did not lose all of their favored status with the introduction of Norman feudalism in the mid- eleventh century, yet the true flowering of widows' rights appeared within the context of Anglo-Saxon England.

28. The marriage of a succeeding king to the late king's widow was practiced in Anglo-Saxon England, although both Bede and Asser are shocked by this custom. The first reference to this practice is the marriage of Eadbald, Aethelberht of Kent's son, to the latter's second wife in 616. It is repeated by Aethelbald of Wessex who married Judith, the widow of his father Aethelwulf in 858, as well as by Cnut who married Aethelred's widow, Emma, in 1016. Modern authorities question whether or not this was acceptable custom. It was acceptable only insofar that it strengthened the already existing bonds of kingship. Outside of its utilitarianism, it was not common practice in England. The latter view is supported by William A. Chaney, The Cult of Kingship in Anglo-Saxon England: The Transition from Paganism to Christianity (1970), pp. 26-27, and by F. G. Frazer, Lectures on the Early History of the [sic] Kingship (1905), p. 244. Cf. Lancaster, 9 Brit. J. Sociology, (1958), 241 (Early Medieval Society, ed. Thrupp, p. 25).


Article Contentsp. 208p. 209p. 210p. 211p. 212p. 213p. 214p. 215

Issue Table of ContentsThe American Journal of Legal History, Vol. 19, No. 3 (Jul., 1975), pp. 173-250Front MatterThe Effectiveness of Law Enforcement in Eighteenth-Century New York [pp. 173-207]Widows' Rights in Anglo-Saxon Law [pp. 208-215]Contract Stability in Wartime: The Example of the Confederacy [pp. 216-231]Book ReviewsReview: untitled [pp. 232-235]Review: untitled [pp. 235-239]Review: untitled [pp. 240-246]Review: untitled [pp. 246-250]

Back Matter