Anglo-Saxon law

“ At the conquest, Latin takes the place of English in the compilations made to meet the demand for Anglo-Saxon law texts as still applied in practice.
2. It is easy to group the Anglo-Saxon laws according to the manner of their publication. They would fall into three divisions: (1) laws and collections of laws promulgated by public authority; (2) statements of custom; (3) private compilations of legal rules and enactments. To the first division belong the laws of the Kentish kings, Æthelberht, Hlothhere and Eadric, Withraed ”

“ On the one hand it is extremely doubtful whether Anglo-Saxon law had developed the idea that all land, not in the king’s immediate possession, was held directly or indirectly of the crown; and in the second place the old English system of land tenure was far slacker and less coherent than its Norman rival. Domesday Book contains frequent references to men who could leave one lord and seek another at will, and this want of stability in what was perhaps the most important division of private law meant a corresponding weakness in the whole of the Anglo-Saxon body politic. ”

“ Another feature of vital importance in the history of Anglo-Saxon law is its tendency towards the preservation of peace. Society is constantly struggling to ensure the main condition of its existence—peace. Already in Æthelberht’s legislation we find characteristic fines inflicted for breach of the peace of householders of different ranks—the ceorl, the eorl, and the king himself appearing as the most exalted among them. ”

“ The sources of Anglo-Saxon law are traceable with some wealth in the works of Brunner, in Pollock and Maitland's History of English Law, in other English, American, and German books, and, above all, in Liebermann's Die Gesetze der Angelsachsen. In his preface to the first volume, Liebermann tells us that he consulted 180 MSS.,3 and gives a list of these with all additions necessary for their identification.4 This is in itself an inestimable bibliography of Anglo-Saxon law. ”

“ The Frankish capitularies had a process called Inquisitio, which was adopted into Norman law, and was there called Enquête; this, having passed with the Normans into England, was finally shaped and embodied in the common law among the legal reforms of Henry II.
Under the Saxon laws, the true men who were sworn to do justice had a very different part to act from that which falls to the lot of our English jury. ”

“ They brought themselves the safeguard of Anglo-Saxon liberty purified and burned by those years of oppression. They transplanted Saxon England freed from the dross of Norman rule and feudal aristocracy. Liberty and law are henceforth to work out the destinies of men, and who contemplating the manner of men and whence they derived their faith, their hopes and fears, can quibble about the aims and purposes of the founders of this Republic? ”

“ In some cases, also. a man lost his family rights as a penalty. In the forty-second law of Alfred it is ordered that a man who should attack his foe after he had yielded should forfeit his right to the mægth. All these laws and customs relating to the mægth refer to one of the oldest of the Anglo-Saxon institutions affecting social life and the administration of law. ”

“ A constitutional difficulty might also readily occur to anyone, as it certainly did to the Proprietary, who was bound by the charter to maintain the fundamental principles of Anglo-Saxon law, which had always regarded the instrumentality of the oath in the administration of practical justice as the corner-stone of a system. ”

“ Learned writers have come to the most opposite opinions as to the extent to which the Anglo-Saxon dooms by their distribution of penalties recognize the personality of the theów. But this is not all. For a long time past the law has had before it the difficult problem of dealing with crimes and delicts committed by poor and economically dependent free men, men who have no land of their own, who are here to-day and gone to-morrow, ‘men from whom no right can be had.’ It has been endeavouring to make the lords answerable to a certain extent for the misdeeds of their free retainers. ”

“ But it would seem that in Kent the middle stage only had been reached at the date of the laws of Hlothære and Eadric.
Evidence that the further stage had at last been reached in Anglo-Saxon law is perhaps to be found [473] in the nearly contemporary law of Ine (s. 74) which enacts that if a theow-wealh slay an Englishman, the owner shall deliver him up to the lord and the kindred or give sixty scillings for his life. Here no further manworths are required. ”

“ The usual statement in Continental and Anglo-Saxon laws as regards compurgation is that a man must clear himself by his oath and the oaths of so many oath-helpers. But in the Laws of Ine, with which the Archbishop was doubtless conversant, another method was followed in some cases. A man must clear himself, not with the oaths of so many oath-helpers, but with an oath of so many hides. ”

“ Borough customs would throw light on one quarter of history; records of the Stanneries of Devon and Cornwall upon another. The origins of mercantile and international law might be explored; and closer knowledge could be obtained of many important State trials by a systematic account of the contents of the Baga de Secretis. The Society held out the further hope of scientific contributions to the knowledge of the Anglo-Saxon law and Anglo-French language of the Year Books. ”

“ If we can impress upon our fellow-citizens in the United States and Canada and South Africa and Ireland who are not of Anglo-Saxon origin or who have grown away from Anglo-Saxondom that throughout the English-speaking world we are maintaining the reign of English law and guarding jealously the constitutional liberties handed down to us from England, this precious basis of Anglo-Saxon solidarity will appeal to them, and they will help us to strengthen it. ”

“ There is a prominent characteristic of our laws which they have in common with all primitive codes. These all differ from maturer collections of laws in their very large proportion of criminal to civil law. Sir Henry Maine says that, on the whole, all the known collections of ancient law are distinguished from systems of mature jurisprudence by this feature,—that the civil part of the law has trifling dimensions as compared with the criminal.101 This is strikingly seen in the Kentish laws; and even in the West Saxon laws a very little study will enable the reader to verify this characteristic. ”

“ They offer the greatest protection to the individual man and the widest possibility of individual freedom the world has ever known. Within recent years, if America meant to the immigrant "the home of the free," it was because of the scrupulous administration of justice according to the laws handed down to us by our Anglo-Saxon forebears. Similarly, the immigrant of continental European origin who went to a British colony was sure of a "square deal." Before the law he was the equal of any other man. ”

“ If any one shall kill a freeman—a Frank or barbarian man who lives under the Lex Salica—let him whose guilt is proved be judged to be liable for viii. M. denarii, which make cc. solidi.
As this clause probably dates before the issue of Merovingian solidi of diminished weight, the 200 solidi of the wergeld may be taken to have been at the date of the law 200 gold solidi of Imperial standard. ”

“ For one reason, in spite of the apparent contradiction above, we are a law-abiding people. The genius of the Anglo-Saxon—I, who am a Celt, admit it—is for the orderly administration of the law, and much of the evil noted comes from the introduction within our borders {246} of an imperfectly assimilated foreign element which cherishes different views on the subject. Another deterrent cause is a cool common sense which has recognized the futility of trying to settle with blade or bullet differences which belong to the courts ”

“ We have seen in the clauses of the so-called Laws of Henry I. allusion to the ‘sac and soc’ of the lord on whose land a homicide has been perpetrated and under whose jurisdiction the wed or pledge has been given for the payment of wergeld. According to earlier phraseology, the lord’s grith or peace has been broken. He has a territorial jurisdiction over the giving of the wed by which it is to be restored, and he is entitled to fightwite accordingly. If his own man has been slain, whether on his own land or not, his mund has been broken and the manbot of his man is payable to him. ”

“ If any one go from his lord without leave or steal himself away into another shire and he be discovered, let him go where he was before and pay to his lord 60 scillings.
Judged in the light of later laws to the same or nearly similar effect, this clause must probably be regarded rather as early evidence of the relation between lord and man established generally for the maintenance of the public peace, than as bearing directly upon the question of the attachment of the smaller class of tenants to the soil. ”

“ The two Anglo-Saxon Constitutions on the other hand, are well provided with these internal defences; by their very nature they could never go through those sudden transformations, which are so often in advance of the needs and ideas of the people. ”

“ In the study of early Germanic law—a study which now for some considerable time has been scientifically prosecuted in Germany—the Anglo-Saxon dooms have received their due share of attention. A high degree of racial purity may be claimed on their behalf. Celtic elements have been sought for in them, but have never been detected. At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another ”

“ A blood relationship was established as regards children of a marriage, while husband and wife for many purposes remained in their own kindreds. There being no blood relationship between husband and wife, the husband’s kindred alone were liable for his crimes and the wife’s alone for her crimes, and neither the husband nor the wife received any portion of the other’s wergeld or was liable for his or her homicides. Such was the custom under the Cymric codes and the laws of the Bretts and Scots, and Anglo-Saxon custom as described in the so-called Laws of Henry I. was similar. ”

“ We must not infer that these two classes included strictly the whole population. Judging from Continental evidence, Wessex must have been very exceptional indeed if there were not everywhere numerous theows or thralls. From this class Anglo-Saxon wills and other documents show that there was a constant stream of freedmen or theows who by emancipation were allowed to creep up into the ceorlisc class, partly as the result of Christian impulse, and partly probably from the lack of tenants to occupy the yardlands left vacant by the desolation caused by constant wars. ”

“ Britain, however, was peculiarly situated, no Roman population remaining to preserve the civilized institutions of imperial despotism, side by side with the rude, but free, traditions of their Anglo-Saxon conquerors—most fortunately for the liberties of England—and as no regulations for a free civic proprietary are traceable in the earlier Anglo-Saxon laws, it may be doubted whether any such proprietary existed. ”

“ Nothing is more remarkable in considering the evidence which the Domesday Book affords of the different classes of tenants who cultivated the land on which they lived than the far greater proportion of freemen or socmen settled within the old Dane-law, as compared with those parts of Mercia to the west of it or with Wessex. The -ing place-names which are characteristic of the Saxon State are not conspicuous in Lincolnshire, but the -bys and -thorpes abound. ”

“ It is true that the Saxon institutions were the primitive cradle of English liberty, but by their own intrinsic force they could never have founded the enduring free English constitution. It was the Conquest that infused into them a new virtue; and the political liberties of England arose from the situation in which the Anglo-Saxon and the Anglo-Norman populations and laws found themselves placed relatively to each other in this island. The state of England under her last Anglo-Saxon kings closely resembled the state of France under the last Carlovingian, and the first Capetian princes. ”

“ Although it seems at first sight as if a legal system, which is composed of previous decisions, would soon become antiquated and petrified, the Anglo-Saxon would say with firm conviction that just such justice is the only one which can be living, because it springs not out of rationalistic preconceptions, but from actual experience. The Anglo-Saxon jurisprudence is full of historical reality and of picturesque individuality. ”

“ Some further light on the ranks and orders in the Anglo-Saxon kingdoms is shown by the rather copious ordinances on the subject of that judicial process which is generally called compurgation. This name is not technically correct, as it is of ecclesiastical origin and belongs to later times than those with which we are now dealing; but we have not yet naturalised “oath-helping” as the Germans have naturalised eid-hilfe, and the word ath-fultum, occasionally used in the Anglo-Saxon laws, has not yet attained the same degree of currency as wergild. ”

“ Kentish wergelds, 487-492; compared with Continental and Anglo-Saxon wergelds 492-495; Kentish sulungs and yokes, 514-515; gavelkind holdings, 515; Kentish læts, 463, 484-486, 502 Kindred, solidarity of, 30, 45, 157, 276; grades of, 22, 30, 76, 318; disintegration of, 111, 124, 129, 162, 164; emancipation from restraints of, 134, 158, 507; power of, in East Anglia and Kent, 415, 416; liability of, for wergeld, under Cymric custom, 42, 45; Irish, 77-80; Breton, 109; Burgundian and Wisigothic, 121-130; Salic Franks, 144, 164 ”