Alfred’s Doombook: The Anglo-Saxon Foundations of Magna Carta
- December 2nd, 2019
- by specialcollections
- in Guest Contributors, Uncategorized
From time to time we like to post historical essays written by recent Law School graduates. Today’s post is a work of intellectual history by Christopher Collins, a 2019 graduate of the University of Alabama School of Law who is currently a graduate student in the UA College of Communication and Information Sciences. Chris is working on his MLIS. The title of his essay is “Alfred’s Doombook: The Anglo-Saxon Foundations of Magna Carta.”
Alfred’s Doombook: The Anglo-Saxon Foundations of Magna Carta
Magna Carta might often be misunderstood, but far worse is that King Alfred’s Doombook[1] is so neglected. A.E. Dick Howard wrote that Magna Carta “became and remains today one of the great birthrights of men who love liberty.”[2] But on June 15, 1215, it had nowhere near the significance it has assumed in recent years––its force of law actually declined over the next several centuries.[3] J.C. Holt even opened his magnum opus on the Charter with the statement that “Magna Carta was a failure.”[4] And yet we know it as Magna Carta––the Great Charter; but it was less an act of greatness than a preservation of the status quo[5] and perhaps even a bad-faith baronial power grab.[6]
Much of Magna Carta’s influence derives from the fact that it was thought for many centuries to be the oldest extant consolidated written statement of English law.[7] Even after the rediscovery of the old Anglo-Saxon laws, Magna Carta continued to be worshipped as “a sacred text, the nearest approach to an irrepealable ‘fundamental statute’ that England has ever had.”[8] King Alfred’s Doombook, however, is the oldest extant consolidated written statement of English law, and it is time to rediscover it as the true founding document of Anglo-American legal heritage.[9]
This paper aims to show that while Magna Carta is rightfully revered as “a foundation stone of English and American legal rights,”[10] it is not the origin of our liberty-loving rights. Magna Carta is rather a later stone placed upon an Anglo-Saxon legal foundation started by Alfred’s compilation of laws, the Doombook. King Alfred compiled these laws toward the end of the ninth century.[11] He consolidated longstanding customs and practices from the Anglo-Saxon kingdoms and added Biblical authority.[12] Alfred’s goal in promulgating his Doombook aimed at uniting the English amid existential threats posed by large-scale Viking invasions. And the English kings seemed to base their authority partly on continuity with their predecessors––the legitimate king preserved the traditions of his predecessors, and this is the topic of Part I of this paper.
Kings Alfred and John actually had a great deal in common, as will be discussed in Part II, though history has been kind to the former and critical of the latter. Both were unlikely kings, favored by their fathers and dutiful to their brothers. But Alfred inherited a kingdom on the verge of annihilation whereas John would be crowned king of an efficient and almost automated governing apparatus.[13] This apparatus owed much to the reforms of John’s father, Henry II, but the system itself was built on the works of Alfred and the laws of his Doombook.
Parts III and IV will discuss Magna Carta and the Doombook. Part III will mention two fields that show no Anglo-Saxon precedent: the Charter’s “immediate use” provisions and the introduction of environmental law into the realm of English legislation. Part IV will discuss four common threads that show a continuum between Magna Carta and Alfred’s Doombook. These threads involve the regulation of customs and immigration; the rights of widows and the freedom of marriage; the idea that the king is not above the law and his need to seek counsel from his subjects; and the idea of due process and the equal application of the law of the land.
Every influence English law encountered, including Norman influence, has left an imprint on its character, but the Conquest merely wove itself into the established Anglo-Saxon fabric.[14] England did not begin anew when William and his Normans conquered the island.[15] The Anglo-Saxon system persisted and continued to provide the matrix within which English law would grow.[16] Magna Carta, like many famous tapestries from the Norman and Angevin era, is made of intricate stitching. But the first stitches to Magna Carta were not Norman or Angevin––they were Alfred’s.[17]
- Legitimacy Through Continuity with Earlier Law
Magna Carta was reactive, as opposed to proactive, in the sense that it aimed to address acute grievances with King John’s rule––kingly abuses that had led to full-blown civil war between John and some forty-odd of his barons by the spring of 1215.[18] Among these grievances were “arbitrary judgment[;] abuses of relief, wardship, and marriage[;] testamentary disposition[;] liability for service abroad[;] scutage [;][19] forestation[;] debts to the Jews[;] and security of life and limb for killing game[;]” as well as the destructive presence of foreign mercenaries during a civil war currently being fought between the barons and King John.[20]
Like other English law codes before it, Magna Carta reached backward in time for legitimacy. King Henry I’s Coronation Oath adopted and restored the old Anglo-Saxon laws of King Edward the Confessor. [21] Before him, Henry’s father, William the Conqueror, adopted Edward the Confessor’s laws as those of his newly-conquered realm.[22] For Edward the Confessor’s part, his legislation was itself a revival of King Alfred’s laws.[23] Even King Alfred’s Doombook was a reach backward in time. The Doombook drew from the Bible and from the dooms of the kings Ine, Æthelberht, and Offa of Wessex, Kent, and Mercia, respectively.[24] But Alfred’s Doombook was the first consolidated and comprehensive law code in the continuum between the Anglo-Saxon era and the present day.
Alfred’s Doombook was, of course, a reaction to the ills of his day, but it was also part of the vehicle by which he would keep order in his kingdom. It would always have been a struggle to end blood feuds.[25] And as Asser describes, Alfred struggled with frequent and violent disagreements at the lower court assemblies presided over by Alfred’s reeves and ealdormen.[26] But Alfred was trying to build order in a kingdom nearly ruined by war and invasion.
England had been under constant Viking attack since 835.[27] When Alfred became king in 871, uniting a disheartened populace, many of whom had never known peace, was a formidable task.[28] And he must have struggled his whole life to keep the kingdom together in the face of invasions that would outlive his nearly thirty-year reign.[29]
Alfred’s Doombook may have drawn from past law codes, but his code was designed to cause enduring peace and stability in his realm––“to rebuild,” as Blackstone put it, “on a plan that should endure for ages… to form one uniform and well-connected whole.”[30] And his laws marked “the beginning of a continuous era of legislation” that would maintain its continuity all the way through Magna Carta and beyond.[31] Alfred’s laws reflect his struggle. With Alfred’s Doombook he did something that had not been done before in England. He took the various laws of his struggling kingdom and taped them together as carefully as he could to keep the whole apparatus from falling apart long enough to rebuild.[32] And because of his efforts, succeeding generations were able to return to his laws in times of need. Kings would reissue them. Subjects would demand them. They became a powerful tool, and those who put forward Alfred’s laws were rewarded with stability. John, however, waited until it was too late to legislate, and Alfred’s laws became a tool used against him.[33]
- A Brief Word on the Two Kings and Their Times
It is important to know a bit about the two kings who issued these laws. One, Alfred, issued his Doombook proactively and, undoubtedly, enthusiastically. The other, John, had fought hard against the barons’ demands, and only by force agreed to sign the Charter. At the same time, there was much in common between the two kings. Notably, each was the youngest son of a king and would never have expected (or have been expected) to become king himself.[34] Alfred’s father was King Æthelwulf and John’s was King Henry II. Both princes got special treatment from their fathers. John was his father’s favorite son.[35] Alfred got to go twice to Rome, once with his father for an entire year while his brothers stayed behind tending to the serious affairs of government and defending the realm against Vikings.[36]
Both Alfred and John had older brothers who conspired and rebelled to overthrow their fathers. Alfred’s older brother, Æthelbald, barred their father, Æthelwulf, from returning from Rome to Wessex as king, retaining the kingdom for himself.[37] Henry II’s sons rose up against him in open rebellion and warfare––with some prodding from their mother, Eleonor of Aquitaine.[38] In both cases, the brothers were essentially forgiven. Æthelbald was allowed to remain king of Wessex until his death several years later.[39] And nearly all of Henry II’s sons and co-rebels were spared prison and pardoned, though their mother, Eleonor of Aquitaine, spent most of the rest of Henry II’s life locked up.[40]
After their fathers died, both helped their king brothers defend and keep order in their new kingdoms. Alfred, if the records do not misguide, was a faithful sibling and fought many battles against Viking marauders alongside his brother Æthelred.[41]
John did not act with quite the same good faith to his brother, Richard, that Alfred did to his. John did wield considerable power while Richard was off crusading as an absentee king. Prince John had six counties in which he was the de facto ruler, and also acted as “lord of Ireland.”[42] Prince John also played a part in securing his brother’s freedom by raising a formidable ransom to extract his brother from Holy Roman Emperor Henry VI’s clutches.[43] But John was conspiring with Phillip II of France against his brother at the same time, though in the end they reconciled.[44]
Princes and Kings Alfred and John, cradle to grave, lived their lives through times of constant warring. But their similarities largely end there. While there was never another king named Alfred or John, Alfred lives on as “The Great” while John’s name as royalty has gone down the toilet.[45]
How could it be that Alfred the Great’s laws have faded into obscurity while Magna Carta lives on as The Great Charter––foundation of the common law systems? Alfred’s Doombook had a far greater influence as a foundational document than did Magna Carta. And, excepting the few exceptionally wise professors who teach the Doombook, American legal and historical education has unwisely omitted it from our legal pantheon.
III. Parts of Magna Carta Without Anglo-Saxon Precedent
a. The “Immediate Use” Provisions
In a fairly narrow sense, Magna Carta was a single-use document regarding many of its provisions––it was “restorative.”[46] The disposable magic-wand provisions were several. There were those causing the release of any English and Welsh hostages that had been taken over the course of the struggles between the barons and King John.[47] Another provision pardoned the “ill-will, wrath, and malice” that had been brought against the king throughout the rebellion.[48] Other provisions purported to return any lands that had been taken by either side in the hostilities in both England and Wales.[49] One section promised to remove certain undesirable functionaries associated with Gerard de Athyes whom the barons were fed up with.[50] And lastly the king promised to expel of all of the mercenaries who had come to England from abroad to fight in the conflict between John and the barons.[51]
b. A New Field of Regulation: Environmental Law
One new facet of law that did arise after the Conquest involved the much-hated forest laws.[52] Prior to the Conquest, any landowner could hunt game on his own land.[53] But the Norman and Angevin kings considered all game animals their own, and as such prohibited any game hunting without their permission, punishable by death.[54] Norman and Angevin kings could also punish, by blinding and castration, offenders who hunted in royal forests.[55] While this had no pre-Conquest antecedent, the Norman and Angevin kings tried to justify the change with appeals to “apocryphal” laws of credible predecessor kings like Cnut.[56] Magna Carta’s reference to the forest laws’ “cruel and insupportable hardships”[57] show that the English would not tolerate such extreme divergence from their pre-Conquest laws and rights. With King John in a poor bargaining position, the barons took the opportunity to revoke the “evil customs” of the forest laws that had been foisted upon them in the prior post-Conquest generations.[58]
In a way, the forest laws were some of the earliest forms of environmental regulation. The Normans and Angevins had established an entire forest jurisdiction, which, before Magna Carta, seemed to have expanded to the point that it could exercise jurisdiction over people who did not actually live in the forests.[59] And like the modern ability to create protected forest lands, the Angevin kings seem to have expanded royal forests liberally enough throughout England to the point that the barons saw fit to revoke all new royal forests created during John’s reign.[60]
Related is the regulation of fish trapping in England’s rivers.[61] John had either expressly allowed fishweirs in rivers or, upon signing Magna Carta, was compelled to exercise a latent power to prohibit those bulky fish traps from the rivers.[62] Either way, we see a king using his powers to regulate the use of rivers in conjunction with the power to regulate rights-of-way and commerce, something not often seen before the Norman Conquest––at least not since England had been part of Rome’s Empire.[63]
And likewise we see that the sovereign had been exercising power to take natural resources like wood from his subjects.[64] The Anglo-Saxon kings likely could have taken timber from a subject if they really needed it. The impressive part here, and with all of what we call “environmental” laws of the era, is that they are fairly original and not seen in prior Anglo-Saxon codes unless to give a murderous fallen tree that had killed a man over to his surviving family or to the king.[65]
But these new Norman laws were the exception that proved the rule. They were so unacceptable that they had to be thoroughly and immediately purged. What remains of the rest of Magna Carta’s sections is largely a return to old Anglo-Saxon law and practice. The common threads that connect Alfred’s laws with Magna Carta are not fine, delicate threads that could have broken easily. They are sturdy threads that withstood William’s Conquest of the island, and 150 years later those threads still had force enough to restrain King John and force him into submission. Those threads even steady Anglo-American law to this day, keeping it from being swept from its foundation by new technology and a rapidly-changing culture.
- Common Threads of Continuity from the Doombook to Magna Carta
a. Customs and Immigration
Related to the consequences of blocked rivers and restricted trade, Magna Carta’s proto-immigration provisions have threads tied back to Alfred’s dooms. Section 40 of Magna Carta allows for free movement of merchants.[66] Over 300 years earlier, Alfred’s Doombook had ordered the English not to “harass visitors from abroad.”[67] While not harassing visitors is a vague exhortation, Alfred actually had a fairly comprehensive customs and immigration procedure in place.
When merchants would come in from abroad to engage in commerce, they would check in with the king’s reeve wherever they might land.[68] They would notify the reeve of who they were and what they came to do.[69] Merchants were not allowed to bring more help inland than was absolutely needed, and even then they would have to provide surety that they would cause no trouble.[70]
Alfred’s treaty with Guthrum (c. 886-890 A.D.) shows a similar regulation of trade, immigration, and the border.[71] Section 5 of the treaty shows that, after they negotiated their peace, the two sides decided to allow their subjects to cross the borders (with permission) and engage in commerce, provided hostages were left as surety.[72] Like Alfred’s other laws, these trade, transit, and proto-immigration sections were essential to preventing order and stability from slipping from his grasp.
England would have desperately needed commerce during the Viking invasions, and war is bad for business. Alfred needed a way to maintain the flow of trade without putting his kingdom at risk of further invasion by opening his doors to marauders. His customs and immigration protocol allowed him to accomplish both of those objectives.
The barons forced John to promise to let merchants come and go, so it must be the case that he had restricted, or at least threatened, their freedom of movement during his reign.[73] Naturally, the barons would have buckled under such a hindrance on their ability to acquire resources from abroad. But John’s efforts to choke the rebel barons’ finances and manpower (and possibly to counter his other rivals: the French and the papacy) obviously did not end up working. And it was not only foreign merchants who must have been restricted, because the barons also felt the need to demand a broader freedom-of-movement provision. Section 42 stated that “in the future it shall be lawful… for anyone to leave and return to Our kingdom safely and securely by land and water, saving his fealty to Us.”[74] John must have closed his borders to many of his subjects to provoke such a wording.
b. On Widows and the Freedom to Marry
Likewise, Magna Carta’s protections of widows didn’t just pop out of the ether either. Magna Carta’s seventh section allowed widows unconditionally to have their dowers, and quickly.[75] Compare this with Henry I’s Coronation Oath whereby the widow “shall have her dower and marriage gift.”[76]
Magna Carta’s eighth section states that “no widow shall be compelled to marry.”[77] Compare this with Henry I’s promise that he “shall not give [a widow] except in accordance with her wish.”[78] Alfred, too, emphatically legislated the protection of widows. “Do not harm widows,” his Doombook commands, “[or] I will ensure that your wives shall be widows.”[79]
At first glance, these provisions might seem like an early example of women’s freedom to marry. It seems, though, that the earlier precedent might come from practices among Germanic women where they tended not to marry at all after the death of their husbands.
Tacitus wrote of Germanic tribes where women took “one husband only, just as one body and one life.”[80] This custom may have led over the centuries to an established practice of not forcing widows to get married again. And if they were not expected to remarry after a husband’s death, the Norman overlords would have caused considerable outrage by forcing Anglo-Saxon women to marry after they had done their time, as it were. It was this safety to stay unmarried, rather than the freedom to choose whom to marry, that Alfred sought to protect when he commanded widows not to be mistreated.[81
c. Rule from Below the Law
It is Magna Carta’s more structural aspects that have left the lasting impression. But even those were not necessarily new expressions of law. Take, for example the impressive declaration that Magna Carta established that the king was not to be above the law, but instead “forced to agree to this declaration of rights and liberties[,] set[ting] an example that could never be erased.”[82] But English kings already had ancient checks on their powers, and that had been the case in England for a long time before the Conquest.[83]
Even over a thousand years before Magna Carta, centuries before the Angles and the Saxons migrated from the continent to England, Tacitus wrote that the Germanic kings’ powers were “not unlimited or arbitrary.”[84] While the kings and chiefs could take charge unilaterally of smaller decisions, more important issues had to be taken by the community at large.[85] We can see this limitation conjured in Magna Carta in the provisions calling for the common counsel of the kingdom when undertaking important issues.[86] And, arguably, John had actually consulted his barons on important issues––their gripe was that he merely had not done so when raising taxes.[87] Magna Carta’s common counsel sections were thus absolutely not new or novel. Instead, they demonstrate what had been the steadily and severely waning power of the common counsel of the realm, which would only begin to regain its strength with the growth of Parliament after John’s death.[88] This longstanding Germanic tradition was found among the Anglo-Saxons in the form of the witan.[89]
In Anglo-Saxon times, a king would not normally be recognized, crowned, or obeyed without the consent of “the great council of the realm, the witena gemot.”[90] This tradition “kept alive the principle that the king must govern under advice.”[91] The Normans were of Germanic stock too, but they spoke a dialect of French and had adopted many of the French customs and governing practices.[92] So while the descendants of Hrolf and his band of Northmen[93] were not entirely French, the Norman dukes still managed to avoid much of the Germanic tradition of rule by consent.[94] To their English subjects, it must have seemed a gross injustice to dispose of the practice. But the English absolute monarch was a fiction in 1215, as it had been for centuries, though John clearly thought otherwise when he mused “Why do not the barons, with these unjust exactions, ask my kingdom?”[95]
d. Due Process and the Law of the Land
Furthermore, the idea that all are to be protected by the due process of law was not spontaneously spawned in 1215 either. Magna Carta had three important sections concerning the rights of men to justice. No trial would be brought without at least some credible accusation by a witness.[96] No detention or punishment would be permitted on any “free man” except “by the law of the land.”[97] And there should be no selling, denying, or delaying of justice to anyone.[98]
Compare this with Alfred’s Doombook, which states that the law should be the same for rich or poor, friend or foe.[99] Alfred’s laws also prohibit that any innocent man be held or punished.[100] There is continuity between these Magna Carta sections and Alfred’s laws. Equally so, it must be emphasized again that the point is to raise Alfred’s Doombook, rather than lower Magna Carta. The equal and just application of law is essential to a free society, and Magna Carta deserves every bit of respect and honor it gets. But the important takeaway is that so much of Magna Carta is a reincorporation (though reincarnation may be a more apt description) of Alfred’s laws that persisted over the centuries and continue to persist today.
This was not a situation where the barons were suddenly the first in England to conceive of the idea that the law should be predictable and fairly applied. Alfred used that very same idea as the glue that kept his kingdom together when the world was falling apart around and within it. In this context, Magna Carta becomes “of far greater political interest than of legal interest.”[101] Magna Carta created very little new law. It was, however, a powerful use of the existing ancient custom that the king was to rule by consent.
In England, the practice of a king’s subjects subjugating him to their will tended not to be tested because rival kings were the ones to overthrow neighboring kings. And uprisings from within were crushed or settled. So it is a shame history never got to see the aftermath of making King John submit to the common counsel of the realm. With the Pope’s annulment of the Charter, John would surely have rebelled against his barons. Would the barons have made him submit again? Would they have installed their own king by the old ways of electing him? We must be content that John’s successors went on to reissue many of the same ancient laws he had [begrudgingly] signed, just as Henry I, William I, Edward the Confessor, Cnut, and all the way back to Alfred had done before him.
Conclusion
Magna Carta, like Alfred’s dooms, cannot really be said to contain many new, groundbreakingly original expressions of law.[102] It was rather only one part of a continuity with our past and a reflection of the conflicts that raged throughout those periods, a stitch in a greater tapestry that we continue to weave today. But its pattern was set in place by Alfred to provide stability in a kingdom crumbling under invasion, deprived of knowledge and learning, and wary of trusting and uniting. Alfred himself did not create much in the way of new law either. Instead of wiping the slate clean, Alfred reached back in time and grasped for anything that could normalize life in Wessex and in England in lawless times.
To do so, Alfred took what had worked to unite prior groups of Angles and Saxons and many other Germanic tribes over the centuries. He took their ancient customs and he established them as rights and responsibilities belonging to all in common. Several of these customs were noted by Tacitus, but more had probably gone unnoticed for time immemorial. But Alfred established that they would continue.
Next, he took the Bible’s laws as that of his kingdom, giving spiritual and moral credibility to his Doombook and preventing his Christian subjects from feeling torn between what is law and what is moral. This was a wise way to stitch together a demoralized Christian society beset by never-ending waves of pagan invaders, poverty, and violence.
Finally, Alfred took the laws of the great Anglo-Saxon kingdoms and wove them into one contiguous law code. Doing so allowed subjects of each kingdom to feel that they were not subjugated by a new king (why bother, in that case?) and instead to feel like they were part of a greater whole: English, rather than Mercian, West Saxon, or Kentish. Without this sense of unity, there would have been no surviving the Viking invasions, and the world would look a much different place today. Instead, Alfred deserves every bit of his name and sobriquet: King Alfred the Great. By weaving together the ancient Anglo-Saxon customs, the various kingdoms’ historic law codes, and the unifying authority of the Bible, Alfred created the great Doombook. The Doombook deserves recognition as England’s first consolidated law code and the lattice pattern into which all subsequent law stitched.
We are surely right to revere Magna Carta, but it is a mistake to consider it the sole origin of our rights and liberties. Magna Carta is immortal and will stand forever for the time that the common counsel of the realm pushed back and refused the wiping away of its historic customs and institutes. But we should recognize, raise, and revere the earlier contribution of Alfred who wove together the many threads of law and tradition into the legal tapestry that we have only added to, but never replaced.
[1] The traditional spelling of Alfred’s book of laws is Domboc, but I have chosen here the spelling that Black’s Law Dictionary uses. His laws, called dooms (from the Old English root dōm, meaning judgment), were compiled into a book (boc in Old English) into what became known as the Domboc, or Doombook.
[2] A.E. Dick Howard, Magna Carta: Text & Commentary 9 (1998).
[3] See Jill Lepore, The Rule of History: Magna Carta, the Bill of Rights, and the Hold of Time, The New Yorker, April 20, 2015, https://www.newyorker.com/magazine/2015/04/20/the-rule-of-history (accessed April 10, 2018).
[4] J.C. Holt, Magna Carta 33 (3d ed. 2015).
[5] See, e.g., Id. at 72-76.
[6] Austin Lane Poole, From Domesday Book to Magna Carta 479 (2d ed. 1955).
[7] 1 William Blackstone, Commentaries *85.
[8] Frederick Pollock & Frederic William Maitland, The History of English law 173 (Cambridge Univ. Press 2d ed. 1968).
[9] Even the well-known Black’s Law Dictionary has not realized that Alfred’s laws are still with us. Instead, it states that “[t]he code existed until the reign of Edward IV, when it was lost.” Doombook, Black’s Law Dictionary (10th ed. 2014).
[10] Paul M. Pruitt, Jr., King John, Magna Carta and the Origins of English Legal Rights, The Alabama Lawyer, March 2015, at 117 (emphasis added).
[11] Probably around 890 A.D. H.G. Richardson & G.O. Sayles, Law and Legislation from Æthelberht to Magna Carta 17 (1966) [hereinafter Richardson & Sayles, Law and Legislation].
[12] See F.L. Attenborough, The Laws of the Earliest English Kings 34-35 (1922).
[13] Henry II had left his children, Richard and John, with a “superb administrative machinery of government” that could function “in the king’s absence … in war or in peace … under the strain of repeated, heavy financial demands.” Arthur R. Hogue, Origins of the Common Law 45 (1966).
[14] William the Conqueror considered himself the rightful heir to the English throne, rather than a foreign conqueror. He “was of a mind to preserve what he regarded as his inheritance” as king of England rather than impose foreign, Norman rule on his island. H.G. Richardson & G.O. Sayles, The Governance of Medieval England 27 (1963) [hereinafter Richardson & Sayles, Governance].
[15] See Frank Stenton, Anglo-Saxon England 622, 683 (3d ed. 1971) (“[William’s] administration was based on the theory that he had restored the good law of King Edward[ the Confessor]’s after it had been overthrown by Harold[ Godwinson]’s usurpation…. The framework of the Old English state survived the Conquest.”).
[16] Richardson & Sayles, Law and Legislation, supra note 11, at 30.
[17] Holt used the tapestry metaphor describing “the grievances and education in government” that the Angevin kings had provided their subjects that would be “woven into the tapestry of Magna Carta.” Holt, supra note 4, at 33.
[18] Howard, supra note 2, at 3; see also Pruitt, supra note 10, at 118-19 (Many of these grievances had arisen under John’s bother’s and father’s reigns.).
[19] A tax on knights.
[20] Poole, supra note 6, at 471.
[21] See Henry I’s Coronation Oath § 13. “The law of Edward [the Confessor] I restore to you together with the improvements by which my father [William the Conqueror] improved it by the counsel of his barons.”
[22] Pollock & Maitland, supra note 8, at 88.
[23] 4 Blackstone, supra note 7, at *412.
[24] John Hudson, The Oxford History of The Laws of England, Vol. II 21-24 (2012).
[25] Oliver Wendell Holmes, Jr., The Common Law 3 (1881); see also Tom Lambert, Law and Order in Anglo-Saxon England 224-27 (2017) Lambert writes that much effort was made to “keep[] the enmity contained” when feuds erupted. Anglo-Saxon legislation sought to minimize feuds’ damage by “encouraging properly targeted vengeance killings.”
[26] Asser, Life of King Alfred [hereinafter Asser], in Alfred the Great: Asser’s Life of King Alfred and Other Contemporary Sources 109 (Simon Keynes & Michael Lapidge eds., 1983) [hereinafter Alfred the Great].
[27] Stenton, supra note 15, at 241.
[28] Id. at 243, 249-50.
[29] Id. at 269.
[30] 4 Blackstone, supra note 7, at *411.
[31] Richardson & Sayles, Law and Legislation, supra note 11, at
16, 28.
[32] It is possible that Alfred produced different versions of his Doombook for Wessex, Kent, and Mercia. The version of West Saxon king Ine’s laws would have been for use in Wessex. Under this theory, a version of the Doombook appended with Offa’s laws would have been sent to Mercia and another with Æthelberht’s to Kent. See Benjamin Thorpe, Preface to Ancient Laws and Institutes of England, at x (1840).
[33] The barons might even have simply been looking for an excuse to overthrow King John, thinking that he would not cooperate with the Charter. Poole, supra note 6, at 479.
[34] Alfred the Great, supra note 25, at 62; Poole, supra note 6, at 212, 329.
[35] Poole, supra note 6, at 344-45.
[36] Asser, supra note 26, § 11 at 69-70.
[37] Asser, supra note 26, § 12 at 70.
[38] Poole, supra note 6, at 332-37.
[39] Asser, supra note 26, § 13, 18 at 70-71, 73.
[40] Poole, supra note 6, at 337-38.
[41] E.g. The Anglo-Saxon Chronicle 70 (G. N. Garmonsway trans., 1975).
[42] Poole, supra note 6, at 348.
[43] Id. at 362-68 (Richard had been captured on his return from the Crusades).
[44] Id. at 368.
[45] See Robin Hood: Men in Tights (20th Century Fox 1993) (Patrick Stewart’s classic King Richard metes out justice to Prince John in Mel Brooks’s masterpiece: “Brother, you have surrounded your given name with a foul stench. From this day forth, all the toilets in this kingdom shall be known as Johns.”).
[46] Pollock & Maitland, supra note 8, at 172.
[47] Magna Carta §§ 49, 58 in Howard, supra note 2, at 48, 51.
[48] Id. at § 62.
[49] Id. at §§ 52, 56.
[50] Id. at § 50.
[51] Id. at § 51.
[52] King Cnut had created some royal forests, but their laws and administration were benign compared to the Angevin forest laws. See infra note 53 and accompanying text.
[53] 2 Blackstone, supra note 7, at *414-15.
[54] Id. at *415-16.
[55] See Richardson & Sayles, Governance, supra note 14, at 446.
[56] Richardson & Sayles, Law and Legislation, supra note 11, at 128; see The Laws of King Cnut § 81 in Thorpe, supra note 32, at 421 (“I will that every man be entitled to his hunting, in wood and in field, on his own possession.”).
[57] 2 Blackstone, supra note 7, at *416.
[58] Magna Carta, supra note 47, §§ 44, 47, 48.
[59] Id. at § 44 (The section provides that people who did not live in a royal forest no longer had to appear before the forest justiciars to answer general summonses. This must mean that some had been required to do so before the Charter.)
[60] Id. at § 47. But Holt put forward that the bulk of the royal forest creation was Henry II’s work and that by the end of King John’s reign, much of those forest lands had already been sold to local lords and communities. Holt, supra note 4, at 76-77.
[61] See generally Gonzalo E. Rodriguez, Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta, 10 Unbound 1 (2018).
[62] Magna Carta, supra note 47, § 33.
[63] Second-Century Roman law seemed to provide both for private diversion of river water and the alienation of servitudes to that water. Eventually Justinian would more clearly define which types of waters would be reserved for public use and which could be privately alienated. Rodriguez, supra note 61, at 4-9.
[64] Magna Carta, supra note 47, § 31.
[65] See Laws of Alfred, § 13 in Bill Griffiths, Early English Law: An Introduction 63-64 (1995); see also Holmes, supra note 25, at 18-19, 24-25.
[66] Howard, supra note 2, at 45.
[67] Preface to the Laws of Alfred, supra note 65, § 33.
[68] Laws of Alfred, supra note 65, § 34.
[69] Id.
[70] Id.; Stenton, supra note 15, at 528.
[71] Treaty Between Alfred and Guthrum § 5 in Alfred the Great, supra note 26, at 171.
[72] Id.
[73] Magna Carta, supra note 47, § 41.
[74] Id. at § 42.
[75] Howard, supra note 2, at 38.
[76] Henry I’s Coronation Oath, supra note 21, § 4.
[77] Howard, supra note 2, at 38.
[78] Henry I’s Coronation Oath, supra note 21, § 4.
[79] Preface to the Laws of Alfred, supra note 65, § 34.
[80] Tacitus, Germania 20.1 (M. Hutton trans., Loeb Classical Library 1970).
[81] King Cnut’s laws represent a middle ground, both in substance and in time, where a widow was allowed to marry whomever she wanted, but only after waiting a year after her husband’s death. More impressive is that women were not to be forced to marry men they disliked. The Laws of King Cnut, supra note 56, §§ 74-75.
[82] Howard, supra note 2, at 23.
[83] The assertions by Pollock and Maitland, taken together, that Magna Carta was both “restorative” as well as a statement “that the king is and shall be below the law,” must mean that the kings of England had not been above the law before 1215. Restoring that the king be not above the law means that the king was not formerly above the law. Pollock & Maitland, supra note 8, at 172-73.
[84] Tacitus, supra note 80, at 7.1.
[85] Id. at 11.1-2.
[86] Magna Carta, supra note 47, §§ 12, 14.
[87] Richardson & Sayles, Governance, supra note 14, at 145-46.
[88] See Maurice Powicke, The Thirteenth Century 341-42 (2d ed. 1962).
[89] Stenton, supra note 15, at 236-37.
[90] Id. at 550-54.
[91] Id.
[92] Pollock & Maitland, supra note 8, at 66.
[93] See Snorri Sturluson, Saga of Harald Fairhair 24 in Heimskringla 78-79 (Lee M. Hollander trans.,1964).
[94] While the Norman dukes did convene councils, they seemed more to operate as a rubber stamp rather than to provoke serious deliberation. And they met much less frequently than their Anglo-Saxon counterparts. Stenton, supra note 15, at 555-56.
[95] Howard, supra note 2, at 7-8.
[96] Magna Carta, supra note 47, § 38.
[97] Id. at § 39.
[98] Id. at § 40.
[99] Preface to the Laws of Alfred, supra note 65, § 43.
[100] Id. at § 35.
[101] Richardson & Sayles, Law and Legislation, supra note 11, at 151.
[102] Excepting the “environmental” topics concerning forests, resources, and rights-of-way discussed supra notes 52-65 and accompanying text.