Temple University

Widows' Rights in Anglo-Saxon Law

Author(s): Theodore John Rivers
Source: The American Journal of Legal History, Vol. 19, No. 3 (Jul., 1975), pp. 208-215
Published by: Temple University
Stable URL: http://www.jstor.org/stable/844882 .
Accessed: 29/08/2013 20:10
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact support@jstor.org.

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

http://www.jstor.org

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

Widows' Rights in Anglo-Saxon Law

By THEODORE JOHN RIVERS
Women's legal status in England improved appreciably as the
Anglo-Saxon period drew to a close. Although this development was
characteristic
of all women in early English society, widows attained more independence than any other marital class in AngloSaxon England.' For this reason, it can be said that the most
favored women in England were not wives or unmarried daughters,
but widows.2
Of all the laws which concern women in Anglo-Saxon legislation, several were concerned with a woman's most basic rights: the
right to social and sexual protection. Since all women in medieval
society were under the protection (mundium) of men, either fathers,
husbands, brothers, or other male guardians, women in many cases
were not legally responsible for their own affairs, save for adultery,
incest, homicide, or sorcery. Moreover, if a woman fell victim to a
crime, recompense (usually given in the form of monetary compensation) was paid to her guardian, unless the guardian was her
1. There are few introductory studies of women in Anglo-Saxon
society. In general, see Doris Mary Stenton, The English Woman in
History (1957), ch. I: "The Anglo-Saxon Woman," pp. 1-28, and Evelyn
Acworth, The New Matriarchy (1965), ch. III: "The Anglo-Saxon Period,"
pp. 49-65. A notable example of the political ability of noble English
women is evident in the career of King Alfred's eldest child, his daughter
Aethelflaed, who, upon her husband's death, ruled Mercia from 911-918.
See F. T. Wainwright, "Aethelflaed Lady of the Mercians," in The AngloSaxons: Studies in some Aspects of their History and Culture presented
to Bruce Dickins, ed. Peter Clemoes (1959), pp. 53-69.
2. There are no studies of widows' rights in Anglo-Saxon law. Occasional legal references to widows can be had in: Florence G. Buckstaff,
"Married woman's property in Anglo-Saxon and Anglo-Norman law and
origin of the common-law dower," Annals of the American Academy of
Political and Social Science, v. 4, (1894), 233-264; Ernst Young, "The
Anglo-Saxon Family Law," in Essays in Anglo-Saxon Law, ed. Henry
Adams (Boston, 1876), pp. 121-182; Harold Dexter Hazeltine, Zur Geschichte der Eheschliessung nach angelsiichsische Recht (Berlin, 1905),
which was reprinted from the Festgabe fiur Dr. Bernhard Hiibner
(Berlin, 1905); and Fritz Roeder, Die Familie bei den Angelsachsen,
Studien zur englischen Philologie, IV (Halle, 1899). Also see legal references in Lorraine Lancaster, "Kinship in Anglo-Saxon Society," Brit. J.
Sociology, v. 9,230-250, 359-377 (1958), reprinted, in part, in Early Medieval Society, ed. Sylvia L. Thrupp (1967), pp. 17-41.
208

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

1975

WIDOWS'RIGHTS

209

husband. In the latter case, payment for any injustice to her was
paid to her kindred, since obligations to the kindred were not
broken upon marriage. In the early Anglo-Saxon period, monetary
compensation for widows likewise went to their kindred. However,
in late Anglo-Saxon times women obtained new guardians-the
church and the state and with these new guardians, the legal position of women was transformed.
Male protection, of course, is a relative thing, and there must
have been Anglo-Saxon families in which the wife was more assertive than her husband, and therefore, less in need of direct control.
Yet, no matter how authoritarian a wife may be, Anglo-Saxon wives
were potentially under the legal jurisdiction of their husbands.
Widows, however, gained more rights than married women or
women who never married. The reason is that, since wives and
maidens were under male protection of husband, father, or other
guardian, their tutelage was immediate. Such was not the case for
widows; instead, they were placed under the protection of the
church and the state, which in most cases, became a far more distant type of protection.3
Fundamentally, widows were nonetheless tieated like all other
women in Anglo-Saxon law; that is, they were protected from exploitation because women were viewed as socially inferior.4 This
view of social inferiority is not surprising, since it is men who make
this distinction. Yet the absence of direct male control enabled
widows to develop more rights than single women or wives.
The majority of laws which concern widows appear late in
Anglo-Saxon law, coming mostly from V-VI Aethelred and I-II Cnut.
Besides these late laws, there are only four laws from Aethelberht's
code and one each from Hlothhere and Eadric's and Ine's which
also concern widows. Surprisingly, widows are not discussed in
Alfred's code.5 Anglo-Saxon laws which concern widows protect
3. Protection by church and state should not be thought of as a universal type of tutelage which makes widows continually subject no matter
where they travel within Anglo-Saxon England. Rather, the authority of
the church and crown is too fragmented to give any real substance to
this legislated protection. Wives and unmarried daughters live with their
husbands and fathers, but widows often live alone (unless they remarry),
being supportedby their late husband's morning-gift and inherited property.
4. There is no distinction in Anglo-Saxon law for widowers. Unlike
women, men are not classified maritally.
5. The relative dates when these laws were promulgatedare:
Aethelberhtante 597
V Aethelred 1008
Hlothhere & Eadric 685-6
VI Aethelred 1008-11
Ine 688-95
I-II Cnut 1027-34
All references to these laws are taken from the best edition of the

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

210

THE AMERICAN JOURNAL OF LEGAL HISTORY

Vol.

XIX

them from violation of the mundium, defend their inheritance

rights, stress their financial obligations to the king, or emphasize
their social obligations to the Christian community. A detailed
description follows.
Widows most basic right was the mundium. The Anglo-Saxon
laws which describe this right were primarily concerned that
widows be not sexually assaulted. The mundium made its first appearance in Aethelberht 75, which protected widows of the nobility;
this protection was also extended to widows of the next three
classes." If a widow was not only assaulted but also abducted,
double the mundium was required.7 This two-fold payment was
probably required in order to compensate the widow's guardian,
especially if the abductor wished to keep the woman as a wife. Surprisingly, the law just described (Aethelberht 76) did not require
that the woman be returned, only that the crime be paid for monetarily. Although this law may not contain every pertinent detail for
this offense in early Anglo-Saxon society, its lack of concern that
the woman be returned is a good indication of the pre-Christian
(that is, totally Germanic) origins of Aethelberht's code.8
Anglo-Saxon laws: Felix Liebermann, Die Gesetze der Angelsachsen, 3
vols. (Halle, 1903-1916, reprinted, Aalen, 1960). (The only exception
here is the date from Aethelberht's code. Although Liebermann gives
601-4, this is much too late. See n. 8 below.) Citations to individual laws
referred to in this study are supplied in the first volume of Liebermann's
edition. Volumes II and III contain a glossary and commentary respectively. English translations of Anglo-Saxon laws are supplied in F.
L. Attenborough, The Laws of the Earliest English Kings (1922), and
A. J. Robertson, The Laws of the Kings of England from Edmund to
Henry I (1925).
6. Aethelberht 75,1. See H. Munro Chadwick, Studies on Anglo-Saxon
Institutions (Cambridge, 1905), pp. 76-102, for a description of classes
in Anglo-Saxon England.
7. Aethelberht 76. Cf. Hazeltine, Eheschliessung, pp. 19-20.
8. A great deal has been said about the influence of Christianity on
Aethelberht's code. The greatest influence that the Church could bring to
England with St. Augustine's arrival in 597 is the "Roman tradition"
(the written word), but it does not explain many predominantly pagan
institutions preserved in Aethelberht's code. The only part of Aethelberht's code which is Christian is its preface, which is now thought to
have been appended considerably later than the time the code itself was
written down. See Henry G. Richardson and George O. Sayles, Law and
Legislation from Aethelberht to Magna Carta, Edinburgh University
Publications, History, Philosophy and Economics, XX (1966), pp. 1-9. Also
see Hans Wiirdinger, "Einwirkungen des Christentums auf das angelsaichsische Recht," Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte, Germ. Abt., v. 55 (1935), 105-130. It is reasonable to assume that
the influence of the Church on Kentish law occured gradually, but this

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

1975

WIDOWS'RIGHTS

211

The next law regarding widows' mundium appeared 400 years

later. This law was VI Aethelred 39 (A.D. 1008-11), and it indicated
that widows were by then placed under the sponsorship of church
and state. Although this law does not specify what the payment
was if the mundium of widows was violated; nevertheless, II Cnut
52 (A.D. 1027-34) indicates that for this crime the offender must
render the wergeld of the violated woman.9 How this payment was
divided between the church and the state was not discussed. The
assumption of widows' protection by the state had occurred, however, in the reign of Aethelred, not Cnut,"' while the guardianship
that the church gave to widows first appeared in Edgar's reign
(959-975)."1 The acceptance of widows' mundium by church and
state is described below. Suffice it to say here that widows became
increasingly significant in late Anglo-Saxon England due to their
economic independence, aided by the absence of direct male control.
A widow received financial assistance upon her husband's demise if children had been born from their marriage. In Aethelberht's
code, law 78 indicates that this financial assistance equaled onehalf of the late husband's property.12 In Aethelberht's time, the
property conferred was rarely landed estates. Property inherited by
widows and children was usually movable, either in the form of
does not explain the unusual compensation bishops received if their
property was stolen as expressed by Aethelberht's code, although the latter view is upheld in J. M. Wallace-Hadrill, Early Germanic Kingship in
England and on the Continent (Oxford, 1971), pp. 39-41. That the
preface to Aethelberht's code is, indeed, a later addition is also supported
by William A. Chaney, "Aethelberht's Code and the King's Number,"
Amer. J. Leg. Hist., v. 6, 153, n. 9 (1962).
9. Robertson, Laws, p. 203, supplies "his" wergeld rather than "the"
wergeld. His wergeld would make little sense, since monetary compensation is given according to the class of the victim, not of the criminal.
Liebermann, Gesetze, I, p. 346, also renders the wergeld.
10. Cf. Stuart A. Queen and Robert W. Habenstein, The Family in
Various Cultures, 3rd ed. (1967), p. 219.
11. See A. J. Robertson, ed. and trans., Anglo-Saxon Charters, Cambridge Studies in English Legal History, 2nd ed. (1956), pp. 90-93 (#44).
Robertson calls this charter: "History of the Estates of Sunbury and
Send." Although Robertson does not attempt to date this document more
specifically than late tenth century, it is dated ca. 950-968 in P. H. Sawyer, Anglo-Saxon Charters: An Annotated List and Bibliography, Royal
Historical Society Guides and Handbooks, v. 8, (1968), p. 406 (# 1447).
Contrary to Sawyer (ibid), however, the estates of Sunbury and Send were
not purchased by Archbishop Dunstan, but only placed under his tutelage for the represented widow and child.
12. The other half of the property reverts to the paternal kindred.

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

212

THE AMERICAN JOURNAL OF LEGAL HISTORY

Vol.

XIX

money or livestock.'3 That the paternal inheritance could be bestowed gradually over a period of years was described by a later
law, Ine 38, which provided that six shillings be given every year
for support of the late father's child. The law indicated that these
six shillings annually were equal to a cow in summer and an ox in
winter. An annual supply of a cow and an ox seems extremely extravagant in the light of England's simple economy. What this law
may mean is that a cow was milked and an ox harnessed to furnish
the family's subsistence at the yearly value of six shillings.'4 It
can hardly be assumed that the widow's child was supplied every
year with a cow and an ox, since this would have amounted to a
considerable sum of money, particularly when the widow had more
than one young child, as would usually have been the case.
In addition to these benefits, Aethelberht 78 also obligated the
widow's kindred to maintain the late husband's house for widow
and children until each individual child reached maturity, which
occurred at age ten. Although the widow's kindred maintained the
family's residence, the tutelage of the children fell to the late
father's kindred, not to the surviving mother. This important fact
is given in Hlothhere and Eadric 6. The benefits supplied by Aethelberht 78 also make their appearance in II Cnut 70,1. Here, too,
widows and their children inherited from the husbands' estates,
with the remaining portion reverting, as in Aethelberht 78, to the
paternal kindred. These laws indicated quite clearly that the
paternal inheritance destined for widows was more a provision for
the children than for the widows, since widows were not entitled to
inherit from their late husbands if they had no children.15
The inheritance of the husband's property had no bearing on
what personal property the wife (widow) could have in her own
13. Eric John, Land Tenure in Early England: A Discussion of Some

Problems, Studies in Early English History, v. 1, (1960), p. 59. See feoh

(movable property)in Liebermann, Gesetze,v. 2, p. 69.
14. Attenborough, Laws, p. 189, believes a cow is given in summer
if the husband dies in that season, and an ox in winter similarly. The
six shillings itself is derived from the late husband's estate. See Lancaster, Brit. J. Sociology, v. 9, p. 360 (1958), (Early Medieval Society, ed.

Thrupp, p. 32).
15. In early Anglo-SaxonEngland, the provision for a marriedwoman
is slightly different, since she is entitled to one-third of her husband's
estate if she wishes to leave her husband. This is supportedby Ine 57 in
which a wife may leave her spouse if she is innocent of the latter's crime
of theft. See Courtney Stanhope Kenny, The History of the Law of England as to the Effects of Marriage on Property and on the Wife's Legal

Capacity (1879), p. 24. It appears reasonable to conclude that from Ine's

time (late seventh century), the wife's inheritance becomes standardized
at one-third.

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

1975

WIDOWS'RIGHTS

213

right, nor do any of the laws described here pertain to the morninggift, the property which the newly-married husband gave to his
bride the morning after their wedding night.
All remaining Anglo-Saxon laws which concern widows appear either in V-VI Aethelred or I-II Cnut. It is not surprising that
the majority of these laws concern widow's obligations; increased
rights might be expected to bring increased responsibilities. There
are eight laws indicating the state's prohibition of remarriage by
widows within one year of their husbands' death, a requirement
which made its first appearance in the Poenitentiale Theodori (A.D.
668-690), the penitential of Bishop Theodore of Canterbury.'6
A widow who married within this allotted time was to lose her morning-gift and all property which she inherited from her deceased
husband,'7 even if she was married against her will.'8 The
severity of this violation was extended to the husband the bereaved
wife married, since he must forfeit his wergeld to the king.'9 Nor
were widows to be consecrated as nuns too hastily after their husbands' deaths.20 The reason for all this frowning on urgency is a
simple one. If widows married or entered the convent within the
first year of their husbands' death, the king lost the heriot tax, a
principal source of revenue. Even if a widow paid the heriot within
the first year of her husband's death, she still could not remarry
within the same length of time.21 After the tax was paid and a
year had elapsed since her husband's decease, however, the widow
could remarry or become a nun if she chose.22 The remarriage
of a widow removed her from the church-state mundium, and
placed her once again under the mundium of her husband. When
this happened, her privileged status of a widow ceased, and her
duties as a wife began once again.
Widows also had social obligations to the Christian community
16. Poenitentiale Theodori, book II, ch. 12, ?9. Arthur West Hadden
and William Stubbs, ed., Councils and Ecclesiastical Documents relating to Great Britain and Ireland, 3 vols. in 4 parts (Oxford, 1869-1878,
III (1878), p. 199. Also translated in John T. McNeill and Helena Gamer,
Medieval Handbooks of Penance: A translation of the principal 'libri
poenitentiales' and selections from related documents, Columbia University Records of Civilization, v. 29, (1938), p. 209. Here the translation
appears as book II, ch. 12, ? 10.
17. II Cnut 73a. Cf. V Aethelred 21,1; VI Aethelred 26,1; and II
Cnut 73.
18. II Cnut 73,2.
19. II Cnut 73,1.
20. II Cnut 73,3.
21. II Cnut 73.
22. II Cnut 73,4.

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

214

THE

AMERICAN

JOURNAL

OF LEGAL

HISTORY

Vol.

XIX

in which they lived. All widows who did not live adulterously received protection from the church, usually the local bishop, and
state.23 As long as they did this, the financial independence
which widows obtained in late Anglo-Saxon times allowed them to
sue or be sued in court,2" to will, sell, or inherit property,25
and to direct their affairs generally as they saw fit. That widows
could will, sell, or inherit landed property in late Anglo-Saxon
England is proof of the development of widows' rights, since widows
were not allowed to inherit other than movable property in Aethelberht's time. A brief look at Anglo-Saxon charters will substantiate
this point.. Ecclesiastical
and monarchical protection could also
of
the
to
widows, however, since they could be
apply
disadvantage
exploited by the king's dues"2 or even lose their protection if they
violated the law, as for example if they were found guilty of living
in adultery. In addition, widows like everyone else in Anglo-Saxon
England, were not permitted to marry within the sixth degree of
consanguinity.27
Widows and widows' rights were continually significant in
Anglo-Saxon society. The earliest Anglo-Saxon laws were concerned
23. V Aethelred 21 (identical with VI Aethelred 26).
24. Buckstaff, Annals of the American Academy of Political and
Social Science, v. 4, p. 250 (1894). Although widows could plead their
own cases in court in late Anglo-Saxon times, they still remain under the
tutelage of church and state. As described above, it is the distance of
this form of mundium that enables widows to be more independent.
25. For example, see the will of Aethelstan Mannesune (A.D. 986),
given in Chronicon Abbatiae Rameseiensis, ed. W. Dunn Macray, Rolls
Series, v. 83, (1886), pp. 59-61. This will is summarized in C. R. Hart,
The Early Charters of Eastern England, Studies in Early English History,
v. 5 (Leicester, 1966), p. 29 (#21). Also see the will of Aescwen of
Stonea: Liber Eliensis, ed. E. O. Blake, Royal Historical Society, Camden
Third Series, v. 92 (1962), book II, ch. 18 (pp. 93-94). Widows selling
land are also illustrated in ibid., ch. 10 (p. 84) and ch. 20 (pp. 95-96).
All of the wills cited here date from the second half of the tenth century;
they are the earliest examples I have found which show widows' independence regarding their own property, particularly in regard to the sale
of land. For widows' rights concerning inheriting and selling land from
the late ninth to the early eleventh century, see the innumerable charters in H.P.R. Finberg, The Early Charters of Wessex, Studies in Early
English History, v. 3, (1964), and his Early Charters of the West Midlands, 2nd ed., Studies in Early English History, v. 2, (1972). Also see
the general comments in Willystine Goodsell, A History of Marriage and
the Family, rev. ed. (1934), pp. 208-209. (The first edition of this work
is entitled: A History of the Family as a Social and Educational Institution [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).

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions

1975

WIDOWS' RIGHTS

215

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

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

This content downloaded from 200.3.149.179 on Thu, 29 Aug 2013 20:10:04 PM

All use subject to JSTOR Terms and Conditions