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The Earliest Expression for Outlawry in Anglo-Saxon Law

  • Bryan Carella (a1)

Abstract

In this article, I seek to define the difficult legal phrase utroque iure caruerunt (“and they have been deprived of both laws”), which appears in capitulum XII of the Legatine Capitulary of 786 (a collection of canons promulgated ostensibly by a papal legation sent to England in order to address unspecified abuses), describing a punitive sanction for malefactors who have committed or conspired to commit the crime of regicide. I have been able to identify no parallel occurrence of this phrase in any culturally similar or temporally proximate documents, leaving me with little beyond the text itself to seek evidence for its precise meaning. Since it has been demonstrated recently that Alcuin — a native-born Anglo-Saxon and a Northumbrian — was intimately involved in drafting the Legatine Capitulary (if, indeed, he was not the sole author), and moreover, since this phrase appears in a text composed in the first instance for a Northumbrian audience, I argue that this phrase is deeply rooted in Anglo-Saxon legal precedents. I conclude that the phrase signifies that those guilty of regicide should be deprived of both secular and ecclesiastical law, that is, that they should be both outlawed and excommunicated. As such, this phrase represents the first reference to the legal sanction of outlawry in Anglo-Saxon law by more than a century. Additionally, this phrase would appear to take for granted the close cooperation between ecclesiastical and secular jurisprudence specifically to punish crime, a feature of Anglo-Saxon law likewise not formally described (according to current thought) until more than a century later. I finish by considering the implications of my argument for the history of Anglo-Saxon law, suggesting in particular that we must revise currently held opinions about the pace of its development, particularly in the Anglian North, where — due most likely to the loss of evidence resulting from the Viking invasions — very little primary-text evidence has survived.

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1 From the outset, one must acknowledge the difficulty of defining the term “outlawry.” For my present purpose, I define “outlawry” as a formal penalty, imposed by secular authority, that deprives an offender of legal protection(s) for some period of time (which may be permanent) and that may or may not be limited to a certain geographical area or jurisdiction. Further, I take the existence of a legal expression describing such a punishment as an indicator of its status as a formal, established legal practice. It is important to acknowledge that similar punishments existed in the laws of various Indo-European cultures (and beyond) and, most pertinent for the present argument, in earlier Germanic and Roman law. Surprisingly, the practice of outlawry in Anglo-Saxon England, particularly early Anglo-Saxon England, has received little treatment in recent scholarship. For an important discussion of the matter, seePollack, Frederick and Maitland, Frederic William, The History of English Law before the Time of Edward I, 2nd ed. (Cambridge, 1898), 1:43; Liebermann, Felix, “Die Friedlosigkeit bei den Angelsachsen,” in Festschrift Heinrich Brunner zum siebzigsten Geburtstag dargebracht von Schülern und Verehrern (Weimar, 1910), 17–37; idem, Die Gesetze der Angelsachsen, 3 vols. (Halle, 1903–16; repr., Aalen, 1960; repr., Clark, NJ, 2007), headwords fliema (2:73 and the closely related term afliemed, 2:9), utlaga (and the closely related terms utlagare, utlagaria, utlagatio, utlagium, and utlah, 2:231); Goebel, Julius, Felony and Misdemeanor: A Study in the History of Criminal Law (Oxford, 1937; repr., Philadelphia, 1976; repr., Clark, NJ, 2005), 44–61 and especially 419–20n289, where he distinguishes between “three distinct legal concepts which cannot be lumped together as manifestations of outlawry: 1) the process upon flight … 2) exile, i.e., not process, since flight is not involved but punishment … 3) loss of the king's grace.” More recently, seevan Houts, Elisabeth, “The Vocabulary of Exile and Outlawry in the North Sea Area around the First Millennium,” in Exile in the Middle Ages: Selected Proceedings from the International Medieval Congress, University of Leeds, 8–11 July 2002, ed. Napran, Laura and van Houts, Elisabeth(Turnhout, 2004), 13–28. Finally, a discussion that raises some important questions about the history of outlawry inside (and outside) the Germanic (and, more broadly, the Indo-European) sphere of influence appears inRobinson, Fred C., “Germanic *uargaz (OE wearh) and the Finnish Evidence,” in Inside Old English: Essays in Honour of Bruce Mitchell, ed. Walmsley, John(Malden, MA, 2006), 242–47.

2 There are vernacular royal codes attributed to Æthelberht, r. 560–616; Earconbehrt, r. 640–64 (which does not survive; rather, its existence has been inferred from a reference inBede, , Historica Ecclesiastica Gentis Anglorum III.8); Hlotthere, r. 674/5–85; Eadric, r. 685–86; and Wihtred, r. 691/2–725.

3 Alfred, , r. 871–99, and Ine, r. 688–726; the latter preserved only as an appendix to Alfred's laws.

4 A useful list of Northumbrian synods held between ca. 650 and ca. 850 can be found inCubitt, Catherine, Anglo-Saxon Church Councils c. 650–c. 850 (London, 1995), 289–95. A large number of the records, however, are reported only second hand, for example in the Anglo-Saxon Chronicle, or in Bede's Historica Ecclesiastica Gentis Anglorum. An important and understudied exception is the Dialogus ecclesiasticae Outlawry in Anglo-Saxon Law institutionis by Archbishop Ecgbert of York (ca. 732–66), a legal code treating clerical affairs edited in Councils and Ecclesiastical Documents Related to Great Britain and Ireland, ed. Haddan, A. W., Stubbs, W., and Wilkins, D. (Oxford, 1869) 3:403–13. On this document, see alsoMayr-Harting, Henry, The Coming of Christianity to Anglo-Saxon England, 3rd ed. (University Park, PA, 1991), 251–52.

5 As Barbara Yorke points out, “the Viking raids and subsequent settlements have meant the loss of most of the monastic archives of the pre-Viking Northumbrian church. One result is that no Northumbrian charters survive in their entirety, although it is clear from Bede and other writers that they once existed.”Kings and Kingdoms of Early Anglo-Saxon England (London, 1990; repr., 1992 and 1997), 74. On this point, too, the dearth of Northumbrian evidence in Patrick Wormald's “Handlist of Anglo-Saxon Lawsuits” is revealing: idem, “A Handlist of Anglo-Saxon Lawsuits,” Anglo-Saxon England 17 (1988): 247–81; repr. and revised in idem, Legal Culture in the Early Medieval West (London, 1999), 253–75. All citations hereafter are from Legal Culture.

6 The standard edition of the text (which I cite here) isDümmler, Ernst, Alcuini Epistolae, MGH (Berlin, 1895), Epistola 3, 19–29 (hereafter cited as MGH Epp. IV, Alcuini ep. 3, + line numbers). Dümmler's edition is based on both the manuscript fragments in Wolfenbüttel, Herzog-August Bibliothek, Codex Guelf. 454 Helmstedt and the edition by the Magdeburg Centuriators (n. 21 below). As Patrick Wormald pointed out, the text edited by Haddan, Arthur West, Stubbs, William, and Wilkins, David, Councils and Ecclesiastical Documents Relating to Britain and Ireland (Oxford, 1869–78; repr., 1964), 3:447–61, was reprinted solely from the text of the Magdeburg Centuriators despite Herrmann Wasserschleben's discovery of the Wolfenbüttel manuscript and is therefore inferior to Dümmler's text: “In Search of King Offa's Law Code,” in People and Places in Northern Europe: Essays in Honour of Peter Sawyer, ed. Wood, Ian and Lund, Neils(Woodbridge, 1991), 25–45; repr. and revised inWormald, , Legal Culture, 201–23, at 205n11 (all citations hereafter are from Legal Culture).

7 In fact, Patrick Wormald argued that the Legatine Capitulary was one and the same with Offa's “lost code,” the existence of which he inferred from Alfred's reference to it in the prologue to his own laws:Wormald, , Legal Culture, 201–23. See alsoWormald, Patrick, The Making of English Law (Oxford, 1999), 106–7.

8 With the designation “Anglo-Saxon law,” I mean to signify both secular and ecclesiastical legislation, to the extent this distinction has any practical meaning during the early period, i.e., before 900 (if not for some time thereafter). As I have pointed out, “the relationship between secular and ecclesiastical law presents a special problem in Anglo-Saxon England. Unlike most of early medieval Europe, the Anglo-Saxons had neither a separate body of canon law nor an independent system of ecclesiastical courts to deal with matters of particular concern to the Church. As a result, ecclesiastical interests figure prominently in the secular laws, and, to a certain degree, vice versa.”Carella, Bryan, “Alcuin and Alfred: Two Anglo-Saxon Legal Reformers” (PhD Diss., University of North Carolina, 2007), 7. See also Elliot, Michael, “New Evidence for the Influence of Gallic Canon Law in Anglo-Saxon England,” Journal of Ecclesiastical History 64 (2013): 700–730, at 701–2 and n4. Note also his important conclusion at 729–30.

9 MGH Epp. IV, Alcuini ep. 3, 24, line 29. Wormald translated this passage in Legal Culture, 20, as stating that criminals guilty of slaying their lords have “lost both divine and earthly rights [utroque iure caruerunt]” (the text in brackets is supplied by Wormald). Here, Wormald seems tacitly to acknowledge his difficulty determining what exactly this expression signified. His apparent lack of certainty, I suspect, motivated his choices to (1) translate this passage closely (as opposed to merely summarizing its content, as was his practice for most of the Legatine Capitulary) and even more significantly, (2) to include the Latin text in brackets following his translation. Unfortunately, neither his translation nor the text itself does much to elucidate the phrase's precise, technical meaning in eighth-century Northumbria, nor Anglo-Saxon England generally.

10 All translations, unless otherwise stated, are my own.

11 To be sure, ius, which I here translate as “law,” has a wide range of meaning, which is often very technical in nature pertaining to a particular time, place, and context. Besides “law,” it can signify “right,” “possession,” etc. Since these alternative — and perhaps more precise — definitions are matters determined by law in one form or another, and since this particular context is legal in nature prima facie, I have chosen to translate ius most basically as “law,” while acknowledging that some finer, now irrecoverable definition might have been the author's intention. In any case, “law” seems to provide a serviceable point of departure for my present purposes.

12 That said, the Legatine Capitulary was read out loud in councils held both in Northumbria (MGH Epp. IV, Alcuini ep. 3, 21, lines 1–5) and Mercia (28, lines 10–14), so it is reasonable to infer that the legal expression utroque iure caruerunt (and the rest of the content of the Legatine Capitulary) was intended to be understood not only in Northumbria, but south of the Humber as well.

13 The political situation in eighth-century Northumbria was rife with political intrigue, and would certainly have provided many examples of the sort the author of the Legatine Capitulary invokes here. As Barbara Yorke, after briefly summarizing the succession of kings during this period, notes: “This bald summary does not do justice to the details of the many conspiracies of the period nor give the full flavour of the violence of the times. Violent attacks were not only made against reigning kings, but also against æthelings, the sons of kings who were potential candidates for the throne…. There were fourteen between those of Osred [I, r.705/6–16] and Eardwulf [r. 796–806, i.e., from 705 until a decade after the Legatine Capitulary was composed]. The fate of two rulers, Cenred and Osric, is obscure but their reigns are suspiciously short; six rulers were deposed and forced into exile or into religious houses; four were murdered; and two apparently resigned voluntarily.”Kings and Kingdoms of Early Anglo-Saxon England (London, 1990; repr., 1992 and 1997), 89.

14 MGH Epp. IV, Alcuini ep. 3, 20, line 30: “Britannię partes,” i.e., Wales, Cornwall, and/or the British areas of Cumbria and southern Scotland, and/or possibly, though less likely, Brittany.

15 MGH Epp. IV, Alcuini ep. 3, 28, line 11.

16 MGH Epp. IV, Alcuini ep. 3, 21, lines 1–5: “audientibus nobis relatum est, quod reliqua uicia non minima ibi necessaria erant ad corrigendum, quia, ut scitis, a tempore sancti Agustini pontificis sacerdos romanus nullus illuc missus est nisi nos. Scripsimus namque capitulare de singulis rebus et per ordinem cuncta disserentes auribus illorum protulimus” (“It was related to us in our hearing that other not trivial vices were in need of correction there, since, as you know, from the time of the holy bishop St. Augustine, no Roman priest has been sent there except ourselves. We wrote a capitulary concerning the individual matters and, treating everything in order, made them known in their hearing”).

17 MGH Epp. IV, Alcuini ep. 3, 28, lines 10–14.

18 This word appears in the Latin adverb (theodiscę), MGH Epp. IV, Alcuini ep. 3, 28, lines 14–16: “Et in conspectu concilii clara voce singula capitula perlecta sunt et tam latine quam theodiscę; quo omnes intellegere potuissent” (“In the presence of the council, the individual capitula were read through in a clear voice and explained clearly both in Latin and in the vernacular, so that all were able to understand”). Bold is mine. The use of the Latinized form of the OE word “þeodisc” is surely significant. Bosworth-Toller defines it as “Belonging to a people, gentile,”Bosworth, Joseph and Northcote Toller, T., An Anglo-Saxon Dictionary: Based on the Manuscript Collections of the Late Joseph Bosworth (Oxford, 1898), 1049. In this context, however, it more likely signifies something more specific and should be translated as “the vernacular,” perhaps even “Old English,” or “the Northumbrian dialect of Old English.” For a full discussion of this point, seeCarella, Bryan, “Alcuin and the Legatine Capitulary of 786: The Evidence of Scriptural Citations,” Journal of Medieval Latin 22 (2012): 224n13.

19 Though none of the signatories bear these titles, the report asserts that (MGH Epp. IV, Alcuini ep. 3, 28, lines 4–5): “His quoque saluberrimis admonitionibus presbiteri, diaconi ecclesiarum et abates monasteriorum, iudices, optimates et nobiles uno ore consentimus et subscripsimus” (“To these most wholesome admonitions we too, priests, deacons of churches and abbots of monasteries, judges, magnates, and nobles, consent with one voice and subscribe”). It would seem, thus, that supporters of the document included those of lower rank who were not called upon to affix their imprimatur. Unsurprisingly, none of the legates were signatories, presumably because, as outsiders, their endorsement of the document would have been irrelevant from the perspective of local authority.

20 Recently, it has been demonstrated convincingly that Alcuin was deeply involved in drafting this document based on a thoroughgoing comparison of the variant and otherwise idiosyncratic scriptural citations in the Legatine Capitulary and all citations of the same verse in the entire corpus of Alcuin's writings. SeeCarella, , “Alcuin and the Legatine Capitulary of 786,” 221–56.

21 Wolfenbüttel, Herzog August Bibliothek, Cod. Guelf. 454, Helmstedt, fols. 113v–127v, preserves the Legatine Capitulary in two fragments, the first part including the full text up to the middle of capitulum VI and the second from the middle of capitulum XX to the end. The entire text, however, was reproduced by the Magdeburg Centuriators in Ecclesiastica Historia, integram Ecclesiae Christi ideam, quantum ad Locum, Propagationem, Persecutionem, Tranquillitatem, Doctrinam, Hæreses, Ceremonias, Gubernationem, Schismata, Synodos, Personas, Miracula, Martyria, Religiones extra Ecclesiam, Sc statum Imperii politicum attinet, secundum singulas Centurias, perspicuo ordine complectens: singulari diligentia & fide ex vetustissimis & optimis historicis, patribus, Sc aliis scriptoribus congesta: Per aliquot studiosos & pios viros in urbe Magdeburgica, 13 vols. (Basel, 1561–74), 8–9:575–81. Bullough, Donald A., citing an unpublished lecture of H. J. Schuffels, argued that the manuscript was associated with Hildesheim and dated from ca. 1000: “Albinus deliciosus Caroli Regis,” in Institutionen, Kultur und Gesellschaft im Mittelalter: Festschrift für Josef Fleckenstein zu seinem 65. Geburtstag, ed. Fenske, Lutz, Rösener, Werner, and Zotz, Thomas(Sigmaringen, 1984): 73–92, at 80n24. See alsoLevison, Wilhelm, England and the Continent in the Eighth Century (Oxford, 1949; repr., 1998), 128n9, who attributed the preservation of the document to abbot Wigbod; and seeSdralek, Max, Wolfenbüttler Fragmente: Analekten zur Kirchengeschichte des Mittelalters aus Wolfenbüttler Handschriften (Münster, 1891) I.2:87–89.

22 Of the fifteen folios that the text filled in Wolfenbüttel, Herzog-August Bibliothek, Codex Guelf. 454 Helmstedt, i.e., folios 113v–127v, folios 116 through 125 have been lost. Thus, in Dümmler's edition (MGH Epp. IV, Alcuini ep. 3), the portion of the text between 22, line 36, and 27, line 23, survives only in the sixteenth-century edition made by the Magdeburg Centuriators.

23 To be clear, let me emphasize that the loss of the middle portion of the document is not the result of a folio falling out. A portion of the text was physically cut out (with incisions running at roughly ninety degrees to the binding) for reasons I am unable to explain satisfactorily based on my examination of the manuscript in situ.

24 On this account, Dümmler's apparatus could be misleading, since he includes not only the variations between the medieval witness (W) and the edition made by the Magdeburg Centuriators (Cent.) but other variations between early editions of the text. Here, I list only those differences between (W) and (Cent.).

25 MGH Epp. IV, Alcuini ep. 3, 20, line 18.

26 MGH Epp. IV, Alcuini ep. 3, 21, line 8.

27 MGH Epp. IV, Alcuini ep. 3, 22, line 27.

28 MGH Epp. IV, Alcuini ep. 3, 27, line 20.

29 The MS reads as follows, minus the word curam, which I have bolded in both the quotation and the translation (MGH Epp. IV, Alcuini ep. 3, 22, lines 24–27): “V. Quintum caput admonet, ut si, quod sepe evenire solet, abbas aut abatissa de hac luce migraverint, tunc cum consilio episcopi, cuius in parroechia ipsum monasterium situm est, probatae vitę, et religiosi secundum Deum ex ipsis eligantur pastores, qui sollicite animarum sibi commissarum curam gerant” (“The fifth chapter admonishes that if, as often happens, an abbot or abbess passes from this light [i.e., dies], then, with the advice of the bishop in whose parish the monastery is situated, let religious pastors of approved life according to God be elected from among themselves who may eagerly take on the care of the souls committed to them”). As is clear, the syntax seems to require an object for the verb gerant, which the (apparent) emendatory inclusion of curam provides.

30 SeeCarella, , “Alcuin and the Legatine Capitulary of 786,” 221–56, where I argue that Alcuin was the primary author of the document based on a close analysis of the idiosyncratic scriptural citations in the Legatine Capitulary compared with similar idiosyncratic citations of the same verses elsewhere in the corpus of Alcuin's writings.

31 “Do not detract the king, no not in your thought; and do not speak evil of the rich man in your private chamber: because even a bird of the air will carry your voice, and he who has wings will tell what you have said.” All translations from the Vulgate are from the Douay-Rheims version. I have updated obvious archaisms, though sparingly.

32 “Do not detract the king, no not in your mouth; and do not speak evil of the prince in your heart: because even the birds of the air will carry your voice, and he who has wings will tell the word.” This translation is based on the Douay-Rheims version, though I have altered it to reflect the idiosyncratic readings in the Legatine Capitulary (which I have put in bold).

33 My claims about the relative frequency of a given scriptural reading in Patristic writings rely on my use of the following databases: The Patrologia Latina Database (Alexandria, VA, 1995) [electronic resource] and the Library of Latin Texts (using the Cross Database Searchtool, which includes searches of the Archive of Celtic Latin Literature, Aristoteles Latinus Database, the Digital Monumenta Germaniae Historica, and the Library of Latin Texts Texts A and B), (Turnhout, 2005–) [electronic resource].

34 For a full discussion of this verse in the Legatine Capitulary, seeCarella, , “Alcuin and the Legatine Capitulary of 786,” 250–52 and nn. 92, 93. This claim is based on my searches of the Digital Monumenta Germaniae Historica (Munich, 2010–) [electronic resource: http://www.dmgh.de] and my own inventory of the standard editions in print. The connection with Alcuin is noteworthy because, as the text of the Legatine Capitulary explains, he joined the mission when it arrived in Northumbria. While the question of Alcuin's authorship of the Legatine Capitulary does not bear on my argument that the Magdeburg Centuriators’ edition is reliable, it is not superfluous to the larger issue of the text's authenticity. Whether or not their edition of the manuscript is reliable, I can see no easy means of assessing whether the tenth-century scribe who preserved our sole surviving witness (in the Wolfenbüttel manuscript) was faithful to his own late eighth-century exemplar (which, admittedly, he may have known via one or more intermediaries). It is possible that a late tenth-century scribe might have substituted a contemporary legal expression which he thought was apropos for some phrase he regarded as archaic or less clear (or simply misunderstood) in the older text. Here is where the question of Alcuin's authorship of (or close participation in drafting) the capitula bears significantly on the present discussion. As my evidence demonstrates, the Magdeburg Centuriators preserved markedly idiosyncratic versions of scripture. Since these idiosyncratic readings strongly parallel citations of the same verses elsewhere in the corpus of Alcuin's writings (as I have argued elsewhere), it seems likely — if one accepts the argument that he was the author — that these readings originated with Alcuin in the late eighth century, when the Legatine Capitulary was drafted, and that they were later preserved faithfully intact by the late tenth-century scribe who copied the text. If the scribe preserved scripture reliably, it seems reasonable to postulate that his faithfulness would extend to other parts of his exemplar as well. While this evidence falls short of proof, it provides credible circumstantial evidence in favor of the text's genuineness.

35 Carella, , “Alcuin and the Legatine Capitulary of 786,” 221–56.

36 See, for example, Levison, , England and the Continent (n. 21 above), 127–31; Stenton, Frank M., Anglo-Saxon England, 3rd ed. (Oxford, 1971), 215–17. A more recent and significantly more well-rounded discussion is to be found inVollrath, Hanna, Die Synoden Englands bis 1066, Series A, Darstellungen (Paderborn, 1985), 162–79.

37 Cubitt, , Church Councils (n. 4 above). For responses to Cubitt's argument, seeBullough, Donald A., Alcuin: Achievement and Reputation (Leiden, 2004), 350–56, andStory, Joanna, Carolingian Connections, Anglo-Saxon England and Carolingian Francia, c. 750–870 (Aldershot, UK, 2003), 55–92. Story's inclusion of images of several leaves of the MS (113v, 114r, and 126r–127r) in support of her arguments is a particularly welcome contribution (70–74). These authors (and alsoVollrath, , Die Synoden Englands bis 1066) provide historical background, manuscript and textual history, and a history of previous scholarship on the Legatine Capitulary far more thoroughly than anything I can hope to recount here.

38 For a discussion of the scholarship relating to Alcuin's authorship of the Admonitio Generalis, seeCubitt, , Church Councils, 161–65. Additionally, see two articles byScheibe, F.-C., “Alcuin und die Admonitio Generalis,” Deutsches Archiv für Erforschung des Mittelalters 14 (1958): 221–29, and “Alcuin und die Briefe Karls des Großen,”

Deutsches Archiv für Erforschung des Mittelalters 15 (1959): 181–93; McKitterick, Rosamond, The Frankish Church and the Carolingian Reforms 789–895 (London, 1977), 1–2 and n2; Wallach, Luitpold, Alcuin and Charlemagne: Studies in Carolingian History and Literature (Ithaca, NY, 1959), 147–68; Bullough, Donald A., “Alcuin and the Kingdom of Heaven: Liturgy, Theology, and the Carolingian Age,” in Carolingian Renewal: Sources and Heritage, ed. Bullough, Donald A.(Manchester, 1991), 22 and n44;Mordek, Hubert, “Karolingische Kapitularien,” in Überlieferung und Geltung normativer Texte des frühen und hohen Mittelalters, ed. Mordek, Hubert, Quellen und Forschungen zum Recht im Mittelalter 4 (Sigmaringen, 1986), 41 and n88;Bullough, , Alcuin: Achievement and Reputation, 379–84; Mordek, Hubert et al., Die Admonitio Generalis Karls des Grossen (Hanover, 2012), 1–17, 47–63; Wormald, Patrick, Legal Culture, 219–20; idem, The Making of English Law (n. 7 above), 50, 106–7; Noble, Thomas F. X., “From Brigandage to Justice: Charlemagne, 785–794,” in Literacy, Politics and Artistic Innovation in the Early Medieval West, ed. Chazelle, Celia M.(Lanham, MD, 1992), 49–75, at 57–60; Buck, Thomas Martin, Admonitio und Praedicatio: Zur religiös-pastoralen Dimension von Kapitularien und Kapitulariennahen Texten (507–814), Freiburger Beiträge zur mittelalterlichen Geschichte 9 (Frankfurt am Main, 1997), 80n59, 85–86, 100–101, 112n280. I also address this question in “Alcuin and the Legatine Capitulary of 786,” 231–38.

39 Story, , Carolingian Connections, 77 and n65. One possible exception is the Dialogus ecclesiasticae institutionis by Archbishop Ecgbert of York (n. 4 above).

40 MGH Epp. IV, Alcuini ep. 3, p. 27 line 35 to p. 28 line 9 and p. 28 line 22 to p. 29 line 18.

41 Story, , Carolingian Connections, 7576.

42 Ibid., 78. In support of this claim, she cites conclusions byWormald, Patrick, Legal Culture, 219–20, and Cubitt, Catherine, Church Councils, 160.

43 MGH Epp. IV, Alcuini ep. 3, 24, lines 27–9.

44 I have searched for analogues to this expression with or without the enclitic (hence “± -que“), since it seems likely that this connective was used to suit this particular grammatical context in the Legatine Capitulary and is therefore probably not an essential element of the phrase.

45 Although rare, I have identified in the relevant electronic corpora (see nn. 33 and 34 above) a relatively small number of instances of the phrase including iure + a form of carere, signifying the deprivation of law. In all cases, the sense of the phrase seems clearly to mean that the individual so deprived would enjoy no legal protections whatsoever, or no protections within a certain body of law, e.g., ius rationis or ius liberorum. I have found no cases, however, where an individual is deprived of “both” laws, that is, modified by a form of utrum with or without further clarification. This latter qualification is important since, as I shall discuss below, it implies that the author felt confident that the audience would know which two laws he intended to signify. Since use of this phrase relies on shared knowledge between the author and the audience, I take it to be a well-established legal expression.

46 For a list of these databases, see n. 33 above.

47 In addition to the standard lexicographical resources, e.g., Glare, P. G. W., Oxford Latin Dictionary (Oxford, 1982) andLewis, Charlton Thomas and Short, Charles, A Latin Dictionary Founded on Andrews’ Edition of Freund's Latin Dictionary: Revised, Enlarged, and in Great Part Rewritten (Oxford, 1879), specialized lexicons provide little guidance. The phrase utroque iure caruerunt, in any of its potential morphological realizations, receives no treatment in Du Cange: Du Fresne Du Cange, Charles, sieur, et al., Glossarium mediae et infimae latinitatis (Paris, 1840–50); Niermeyer, Jan Frederik, Mediae Latinitatis Lexicon Minus (Leiden, 1976); Souter, Alexander, A Glossary of Later Latin to 600 A.D. (Leiden, 1976); Latham, Ronald E. and Howlett, David R., A Dictionary of Medieval Latin from British Sources (Oxford, 1975–); orBlaise, Albert and Tombeur, Paul, eds., Dictionnaire latin-français des auteurs chrétiens (Turnhout, 2005).

48 MGH Epp. IV, Alcuini ep. 3, 24, line 28: “have come to the end of life in a very short space of time.”

49 For a discussion of these technical distinctions in Anglo-Saxon and Frankish law and a brief account of scholarship on the topic, seeGoebel, , Felony and Misdemeanor (n. 1 above), 41920n289.

50 Goebel, , Felony and Misdemeanor, 419n289, states: “Early Anglo-Saxon law uses the expression fliema = profugus, i.e., person in flight. The word utlah with which it is later equated is a Scandinavian word not used in England earlier than 922…. The earliest use of outlawry as a judicial process is Aelfred [sic] 1,7 [i.e., after 871]. Apart from excommunication, there is no indication of the formalities.”

51 Houts, Van, “The Vocabulary of Exile and Outlawry” (n. 2 above), 15. In this article, van Houts provides a thorough study of the history of outlawry in Anglo-Saxon and early Scandinavian law, as well as a thoroughly narrated history of scholarship on the topic, which is beyond the scope of my present argument to recount here. Major voices in the discussion pertaining to the history of outlawry in early Anglo-Saxon law before ca. 1000 include: Pollack, and Maitland, , The History of English Law (n. 1 above), 1:43;Liebermann, , “Die Friedlosigkeit” (n. 1 above), 17–37; andGoebel, , Felony and Misdemeanor, 57–58n132. Very little has been written on the subject since Goebel. While practices similar to outlawry almost certainly existed in one form or another in Anglo-Saxon law during earlier periods, no legal statement before the tenth century — that is, other than the phrase utroque iure caruerunt in the Legatine Capitulary — attests to that practice as a formal penalty in Anglo-Saxon law.

52 I base this claim on searches of the Antonette diHealey, Paolo, Wilkin, John Price, and Xiang, Xin, eds., Dictionary of Old English Web Corpus (Toronto, 2009) [electronic resource]. I am tempted to add to this list OE wearg/wearh, based on the evidence discussed inRobinson, , “Germanic *uargaz” (n. 2 above). Since, however, OE wearg/wearh is not attested as a technical legal term in any Old English law code proper, nor in any diplomatic text before the middle of the tenth century (a claim also based on my search of Healey et al., eds., Dictionary of Old English), I have not included it in the list of technical legal vocabulary signifying outlawry.

53 Wormald, , “Handlist” (n. 5 above), 253–75.

54 Ibid., nos. 50 and 51, p. 267. Of the cases included in Wormald's “Handlist,” 265–75, in addition to Helmstan's case (ca. 900×924, no. 25), I count nine cases including references to outlawry [nos. 50 (966×92), 51 (966×92), 56 (995), 71 (1007), 75 (1012), 160 (1020), 163 (1052), 164 (1055), 165 (1065)] and two including references to exile [63 (999), 162 (1051)]. Admittedly, my count is limited by Wormald's rather strict criteria for inclusion in the “Handlist.” For Wormald's explanation of his criteria, see 254–61.

55 Dictionary of Old English: A to G Online, ed. di Paolo Healey, Antonette et al. (Toronto, 2007) [electronic resource], headword: flyma.

56 One possible exception is the use of the term in the Laws of Ine, §30 (Liebermann, , Die Gesetze [n. 1 above], 1:102). It is important to remember, however, that the Laws of Ine survive only as an appendix to the Laws of Alfred.

57 Treharne, Elaine M., “A Unique Old English Formula for Excommunication,” Anglo-Saxon England 24 (1995): 185211, at 198–99.

58 By “secular and ecclesiastical law,” I do not mean “civil and canon law,” which would imply a far greater degree of jurisprudential sophistication than conceivably might have existed in late eighth-century Anglo-Saxon England. By “secular law,” thus, I mean law promulgated by primarily non-ecclesiastical authority and, likewise, primarily for non-ecclesiastical purposes. Such institutions were far less developed than what might accurately be described as “civil law.”

59 MGH Epp. IV, Alcuini ep. 3, 23, lines 6–7: “Since, given that we know this was prohibited in the Law [of Moses], it ought to be observed now all the more diligently in the sacrament of Christ.”

60 MGH Epp. IV, Alcuini ep. 3, 27, lines 11–12: “And many among you also eat horseflesh, which is not done by Christians in the East [that is, the rest of Christendom]. Shun that also.”

61 One possible exception appears in capitulum 14, MGH Epp. IV, Alcuini ep. 3, 25, lines 1–5: “Fraus, violentia et rapina vetatur et ne iniusta vel maiora tributa ecclesiis Dei imponantur, quam lex Romana et antiqua consuetudo priorum imperatorum, regum et principum habeat, omninoque qui sanctae Romanae ecclesiae et beato Petro principi apostolorum communicare cupit, ab hoc vitio violentiae immunem se servare studeat” (“Let deception, violence, and robbery be forbidden, and let no unjust taxes be imposed on the Church of God greater than [is permitted in] Roman law; and upheld by the ancient custom of emperors, kings, and princes; and let him who desires to remain in communion with the Holy Roman Church and with the Blessed Peter, the Prince of Apostles, endeavor to keep himself free from this vice of violence”). In this case, however, the reference to Roman law is quite vague, citing no particular statute, and eliding it with “the ancient custom of emperors, kings, and princes.” This allusion hardly qualifies as a clear invocation of Roman law.

62 While the point that an increased, cooperative relationship between secular and ecclesiastical law was a feature of King Alfred's reign is not in dispute, the reasons motivating this development are not entirely clear. See, for example, Thomas Pollock Oakley's theory about the importance of the penitentials for this process inEnglish Penitential Discipline and Anglo-Saxon Law in Their Joint Influence (New York, 1923; repr., Clark, NJ, 2003), 141, 145, 146n4; Oakley, Thomas Pollock, “The Cooperation of Medieval Penance and Secular Law,” Speculum 7 (1932): 517; and Frantzen, Allen, King Alfred (Boston, 1986), 15–17; but note Stefan Jurasinski's criticism in The Anglo-Saxon Penitentials and Old English Law (Cambridge, 2015), 30–35. See also David Pratt's claim about the significance of Archbishop Hincmar of Reims's political philosophy for King Alfred's legal thinking on this point in The Political Thought of King Alfred the Great (Cambridge, 2007), 222–32; but note my skepticism about Hincmar's influence in “Evidence for Hiberno-Latin Thought in the Prologue to the Laws of Alfred,” Studies in Philology 108 (2011): 1–26.

63 MGH Capit. Regum Francorum I, Pactus Legis Salicae, ed. Boretius, Karl Alfredus (Hanover, 1883), 16.

64 I.e., the courts associated with the post-Roman territorial unit known as the pagus, overseen by a comes (Germanic gaugraf).

65 I have translated the accusative absolute collectum solatium “after gathering armed supporters.” Also possible, however, is the translation “after having collected compensation,” presumably on behalf of the family of the rapta.

66 This translation is my own, although I am grateful to Andrew Rabin for his help with this difficult passage. All mistakes, of course, are entirely mine. The highly technical nature of this passage makes it very difficult to translate portions of it with confidence. Note that my version differs from the rendering in Katherine Fisher Drew (whose version I consulted closely), The Laws of the Salian Franks (Philadelphia, 1991), 157: “Whoever presumes to commit raptus, a most grievous crime, shall suffer the loss of his life; and none of our optimates may entreat on behalf of that one, but each one will pursue him as an enemy of God. Whoever presumes to disobey our edict shall first be sent to the judge in whose district it is; that judge having collected aid shall kill the ravisher or outlaw him…. If he has sought refuge in a church, let him be given up by the bishop without a prayer and be sent into exile [if they have sought refuge in a church]; and if they are captured outside a church they shall both be killed.”

67 “To be an outlaw from God and men.”

68 SeeTreharne, , “A Unique Old English Formula” (n. 57 above), 193, 197. As she notes, variations of this legal phrase appear in II Cnut, ch. 4.1 and ch. 39.

69 MGH Epp. IV, Alcuini ep. 3, 28, lines 15–6: “both in Latin and in the vernacular, so that all were able to understand.”

70 Of course, the end result of outlawry — i.e., of depriving a criminal of the protections of law — would almost certainly be death in most cases, although the exact cause of that death, by the very nature of the penalty, would be uncertain.

71 For OE and bearing a sense of causality, seeMitchell, Bruce, Old English Syntax, 2 vols. (Oxford, 1985; repr. with corrections, 1987), 2:604–5 (§§3169–71), 1:715–16 (§§1735–37). See alsoHealey, et al., eds., Dictionary of Old English (n. 52 above), headword and/ond senses B.4.a “copulative and joining two clauses to suggest not merely contemporaneity but a causal relationship” and B.5.a “the relationship seems causal.”

72 The text explains that the capitula were read out in Latin and the vernacular (theodisc) “so that all might understand” (n. 18 above). If this legal expression is in fact a well-established legal expression, as I have argued, then one might reasonably expect that the paratactic style of Old English typical of this period might influence the syntax of this portion of the Latin text.

73 MGH Epp. IV, Alcuini ep. 3, 24, lines 27–29.

The Earliest Expression for Outlawry in Anglo-Saxon Law

  • Bryan Carella (a1)

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