Theodore John Rivers -- Widows' Rights in Anglo-Saxon Law

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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.

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Widows' Rights in Anglo-Saxon LawBy THEODORE JOHN RIVERS

Women's legal status in England improved appreciably as theAnglo-Saxon period drew to a close. Although this development wascharacteristic 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 mostfavored women in England were not wives or unmarried daughters,but widows.2Of all the laws which concern women in Anglo-Saxon legisla-tion, several were concerned with a woman's most basic rights: theright to social and sexual protection. Since all women in medievalsociety were under the protection (mundium) of men, either fathers,husbands, brothers, or other male guardians, women in many caseswere not legally responsible for their own affairs, save for adultery,incest, homicide, or sorcery. Moreover, if a woman fell victim to acrime, recompense (usually given in the form of monetary compen-sation) was paid to her guardian, unless the guardian was her

1. There are few introductory studies of women in Anglo-Saxonsociety. In general, see Doris Mary Stenton, The English Woman inHistory (1957), ch. I: The Anglo-Saxon Woman, pp. 1-28, and EvelynAcworth, The New Matriarchy (1965), ch. III: The Anglo-Saxon Period,pp. 49-65. A notable example of the political ability of noble Englishwomen is evident in the career of King Alfred's eldest child, his daughterAethelflaed, 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 presentedto 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 andorigin of the common-law dower, Annals of the American Academy ofPolitical and Social Science, v. 4, (1894), 233-264; Ernst Young, TheAnglo-Saxon Family Law, in Essays in Anglo-Saxon Law, ed. HenryAdams (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 refer-ences 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

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1975 WIDOWS'RIGHTS 209husband. In the latter case, payment for any injustice to her waspaid to her kindred, since obligations to the kindred were notbroken upon marriage. In the early Anglo-Saxon period, monetarycompensation for widows likewise went to their kindred. However,in late Anglo-Saxon times women obtained new guardians-thechurch 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 musthave 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 wiveswere potentially under the legal jurisdiction of their husbands.Widows, however, gained more rights than married women orwomen who never married. The reason is that, since wives andmaidens were under male protection of husband, father, or otherguardian, their tutelage was immediate. Such was not the case forwidows; instead, they were placed under the protection of thechurch and the state, which in most cases, became a far more dis-tant type of protection.3Fundamentally, widows were nonetheless tieated like all otherwomen in Anglo-Saxon law; that is, they were protected from ex-ploitation because women were viewed as socially inferior.4 Thisview of social inferiority is not surprising, since it is men who makethis distinction. Yet the absence of direct male control enabledwidows to develop more rights than single women or wives.The majority of laws which concern widows appear late inAnglo-Saxon law, coming mostly from V-VI Aethelred and I-II Cnut.Besides these late laws, there are only four laws from Aethelberht'scode and one each from Hlothhere and Eadric's and Ine's whichalso concern widows. Surprisingly, widows are not discussed inAlfred's code.5 Anglo-Saxon laws which concern widows protect

3. Protectionby church and state shouldnot be thoughtof as a univer-sal type of tutelage which makes widows continually subject no matterwhere they travel within Anglo-SaxonEngland. Rather, the authorityofthe church and crown is too fragmented to give any real substance tothis legislated protection.Wives and unmarrieddaughterslive with theirhusbands and fathers, but widows often live alone (unless they remarry),being supportedby their late husband'smorning-giftand inheritedprop-erty.4. There is no distinction in Anglo-Saxonlaw for widowers. Unlikewomen, men are not classified maritally.5. The relative dates when these laws were promulgatedare:Aethelberhtante 597 V Aethelred1008Hlothhere&Eadric685-6 VI Aethelred1008-11Ine 688-95 I-IICnut 1027-34All references to these laws are taken from the best edition of the



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210 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XIXthem from violation of the mundium, defend their inheritancerights, stress their financial obligations to the king, or emphasizetheir social obligations to the Christian community. A detaileddescription follows.Widows most basic right was the mundium. The Anglo-Saxonlaws which describe this right were primarily concerned thatwidows be not sexually assaulted. The mundium made its first ap-pearance in Aethelberht 75, which protected widows of the nobility;this protection was also extended to widows of the next threeclasses. If a widow was not only assaulted but also abducted,double the mundium was required.7 This two-fold payment wasprobably 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 requirethat the woman be returned, only that the crime be paid for mone-tarily. Although this law may not contain every pertinent detail forthis offense in early Anglo-Saxon society, its lack of concern thatthe woman be returned is a good indication of the pre-Christian(that is, totally Germanic) origins of Aethelberht's code.8Anglo-Saxon laws: Felix Liebermann, Die Gesetze der Angelsachsen, 3vols. (Halle, 1903-1916, reprinted, Aalen, 1960). (The only exceptionhere is the date from Aethelberht's code. Although Liebermann gives601-4, this is much too late. See n. 8 below.) Citations to individual lawsreferred to in this study are supplied in the first volume of Liebermann'sedition. 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), andA. J. Robertson, The Laws of the Kings of England from Edmund toHenry I (1925).6. Aethelberht 75,1. See H. Munro Chadwick, Studies on Anglo-SaxonInstitutions (Cambridge, 1905), pp. 76-102, for a description of classesin Anglo-Saxon England.7. Aethelberht 76. Cf. Hazeltine, Eheschliessung, pp. 19-20.8. A great deal has been said about the influence of Christianity onAethelberht's code. The greatest influence that the Church could bring toEngland with St. Augustine's arrival in 597 is the Roman tradition(the written word), but it does not explain many predominantly paganinstitutions preserved in Aethelberht's code. The only part of Aethel-berht's code which is Christian is its preface, which is now thought tohave been appended considerably later than the time the code itself waswritten down. See Henry G. Richardson and George O. Sayles, Law andLegislation from Aethelberht to Magna Carta, Edinburgh UniversityPublications, History, Philosophy and Economics, XX (1966), pp. 1-9. Alsosee 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 thatthe influence of the Church on Kentish law occured gradually, but this



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1975 WIDOWS'RIGHTS 211The next law regarding widows' mundium appeared 400 yearslater. This law was VI Aethelred 39 (A.D. 1008-11), and it indicated

that widows were by then placed under the sponsorship of churchand state. Although this law does not specify what the paymentwas if the mundium of widows was violated; nevertheless, II Cnut52 (A.D. 1027-34) indicates that for this crime the offender mustrender the wergeld of the violated woman.9 How this payment wasdivided between the church and the state was not discussed. Theassumption of widows' protection by the state had occurred, how-ever, in the reign of Aethelred, not Cnut, ' while the guardianshipthat the church gave to widows first appeared in Edgar's reign(959-975). 1 The acceptance of widows' mundium by church andstate is described below. Suffice it to say here that widows becameincreasingly significant in late Anglo-Saxon England due to theireconomic 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'scode, law 78 indicates that this financial assistance equaled one-half of the late husband's property.12 In Aethelberht's time, theproperty conferred was rarely landed estates. Property inherited bywidows and children was usually movable, either in the form ofdoes not explain the unusual compensation bishops received if theirproperty was stolen as expressed by Aethelberht's code, although the lat-ter view is upheld in J. M. Wallace-Hadrill, Early Germanic Kingship inEngland and on the Continent (Oxford, 1971), pp. 39-41. That thepreface to Aethelberht's code is, indeed, a later addition is also supportedby 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 thewergeld. His wergeld would make little sense, since monetary compen-sation 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 inVarious 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 andSend. Although Robertson does not attempt to date this document morespecifically than late tenth century, it is dated ca. 950-968 in P. H. Saw-yer, Anglo-Saxon Charters: An Annotated List and Bibliography, RoyalHistorical Society Guides and Handbooks, v. 8, (1968), p. 406 (# 1447).Contrary to Sawyer (ibid), however, the estates of Sunbury and Send werenot purchased by Archbishop Dunstan, but only placed under his tute-lage for the represented widow and child.12. The other half of the property reverts to the paternal kindred.



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212 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XIXmoney or livestock.'3 That the paternal inheritance could be be-stowed gradually over a period of years was described by a laterlaw, Ine 38, which provided that six shillings be given every yearfor support of the late father's child. The law indicated that thesesix shillings annually were equal to a cow in summer and an ox inwinter. An annual supply of a cow and an ox seems extremely ex-travagant in the light of England's simple economy. What this lawmay mean is that a cow was milked and an ox harnessed to furnishthe family's subsistence at the yearly value of six shillings.'4 Itcan hardly be assumed that the widow's child was supplied everyyear with a cow and an ox, since this would have amounted to aconsiderable sum of money, particularly when the widow had morethan one young child, as would usually have been the case.In addition to these benefits, Aethelberht 78 also obligated thewidow's kindred to maintain the late husband's house for widowand children until each individual child reached maturity, whichoccurred at age ten. Although the widow's kindred maintained thefamily's residence, the tutelage of the children fell to the latefather's kindred, not to the surviving mother. This important factis 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 thepaternal kindred. These laws indicated quite clearly that thepaternal inheritance destined for widows was more a provision forthe children than for the widows, since widows were not entitled toinherit from their late husbands if they had no children.15The inheritance of the husband's property had no bearing onwhat personal property the wife (widow) could have in her own

13. Eric John, Land Tenure in Early England: A Discussion of SomeProblems,Studies in Early English History,v. 1, (1960), p. 59. See feoh(movable property) n Liebermann, Gesetze,v. 2, p. 69.14. Attenborough,Laws, p. 189, believes a cow is given in summerif the husband dies in that season, and an ox in winter similarly. Thesix shillings itself is derivedfrom 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 provisionfor a marriedwomanis slightly different, since she is entitled to one-third of her husband'sestate if she wishes to leave her husband. This is supported by Ine 57 inwhich a wife may leave her spouse if she is innocent of the latter's crimeof 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 LegalCapacity (1879), p. 24. It appears reasonable to conclude that fromIne'stime (late seventh century), the wife's inheritance becomes standardizedat one-third.



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1975 WIDOWS'RIGHTS 213right, nor do any of the laws described here pertain to the morning-gift, the property which the newly-married husband gave to hisbride the morning after their wedding night.All remaining Anglo-Saxon laws which concern widows ap-pear either in V-VI Aethelred or I-II Cnut. It is not surprising thatthe majority of these laws concern widow's obligations; increasedrights might be expected to bring increased responsibilities. Thereare eight laws indicating the state's prohibition of remarriage bywidows within one year of their husbands' death, a requirementwhich made its first appearance in the Poenitentiale Theodori (A.D.668-690), the penitential of Bishop Theodore of Canterbury.'6A widow who married within this allotted time was to lose her morn-ing-gift and all property which she inherited from her deceasedhusband,'7 even if she was married against her will.'8 Theseverity of this violation was extended to the husband the bereavedwife married, since he must forfeit his wergeld to the king.'9 Norwere widows to be consecrated as nuns too hastily after their hus-bands' deaths.20 The reason for all this frowning on urgency is asimple one. If widows married or entered the convent within thefirst year of their husbands' death, the king lost the heriot tax, aprincipal source of revenue. Even if a widow paid the heriot withinthe first year of her husband's death, she still could not remarrywithin the same length of time.21 After the tax was paid and ayear had elapsed since her husband's decease, however, the widowcould remarry or become a nun if she chose.22 The remarriageof a widow removed her from the church-state mundium, andplaced her once again under the mundium of her husband. Whenthis happened, her privileged status of a widow ceased, and herduties 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 Haddenand 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 'libripoenitentiales' and selections from related documents, Columbia Uni-versity Records of Civilization, v. 29, (1938), p. 209. Here the translationappears as book II, ch. 12, ?10.17. II Cnut 73a. Cf. V Aethelred 21,1; VI Aethelred 26,1; and IICnut 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.



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214 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XIXin which they lived. All widows who did not live adulterously re-ceived protection from the church, usually the local bishop, andstate.23 As long as they did this, the financial independencewhich widows obtained in late Anglo-Saxon times allowed them tosue or be sued in court,2 to will, sell, or inherit property,25and to direct their affairs generally as they saw fit. That widowscould will, sell, or inherit landed property in late Anglo-SaxonEngland is proof of the development of widows' rights, since widowswere not allowed to inherit other than movable property in Aethel-berht's time. A brief look at Anglo-Saxon charters will substantiatethis point.. Ecclesiastical and monarchical protection could alsoapply to the disadvantage of widows, however, since they could beexploited by the king's dues 2 or even lose their protection if theyviolated the law, as for example if they were found guilty of livingin adultery. In addition, widows like everyone else in Anglo-SaxonEngland, were not permitted to marry within the sixth degree ofconsanguinity.27Widows and widows' rights were continually significant inAnglo-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 andSocial Science, v. 4, p. 250 (1894). Although widows could plead theirown cases in court in late Anglo-Saxon times, they still remain under thetutelage of church and state. As described above, it is the distance ofthis 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, RollsSeries, 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 ofStonea: Liber Eliensis, ed. E. O. Blake, Royal Historical Society, CamdenThird Series, v. 92 (1962), book II, ch. 18 (pp. 93-94). Widows sellingland 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' inde-pendence regarding their own property, particularly in regard to the saleof land. For widows' rights concerning inheriting and selling land fromthe late ninth to the early eleventh century, see the innumerable char-ters in H.P.R. Finberg, The Early Charters of Wessex, Studies in EarlyEnglish History, v. 3, (1964), and his Early Charters of the West Mid-lands, 2nd ed., Studies in Early English History, v. 2, (1972). Also seethe general comments in Willystine Goodsell, A History of Marriage andthe Family, rev. ed. (1934), pp. 208-209. (The first edition of this workis 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).



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1975 WIDOWS' RIGHTS 215with the more rudimentary aspects of widows' rights, that is, pro-tection of the mundium and defense of the paternal inheritance.Later laws extended these basic rights to obligations as well. Theincreasing equality of widows with men in England occurred latein the Anglo-Saxon period, and this is supported by the later laws,particularly Aethelred's and Cnut's, and by charters dating from asearly as the tenth century. The principal reason for the improvedlegal status of widows in Anglo-Saxon society was the absence ofdirect male control.2' Widows did not lose all of their favoredstatus with the introduction of Norman feudalism in the mid-eleventh century, yet the true flowering of widows' rights appearedwithin the context of Anglo-Saxon England.

28. The marriage of a succeeding king to the late king's widow waspracticed in Anglo-Saxon England, although both Bede and Asser areshocked by this custom. The first reference to this practice is the mar-riage of Eadbald, Aethelberht of Kent's son, to the latter's second wife in616. It is repeated by Aethelbald of Wessex who married Judith, thewidow of his father Aethelwulf in 858, as well as by Cnut who marriedAethelred's widow, Emma, in 1016. Modern authorities question whetheror not this was acceptable custom. It was acceptable only insofar that itstrengthened the already existing bonds of kingship. Outside of itsutilitarianism, it was not common practice in England. The latter viewis supported by William A. Chaney, The Cult of Kingship in Anglo-SaxonEngland: 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).

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