Ver.04.29.93*END*
The Project Gutenberg Etext Our Legal Heritage, by S. A. Reilly
OUR LEGAL HERITAGE
The first thousand years: 600 - 1600
King AEthelbert - Queen Elizabeth
2nd Edition
By
S. A. Reilly, Attorney
175 E. Delaware Place
Chicago, Illinois 60611-1724
1999
Preface
This was written to see what laws have been in existence for a
long time and therefore have proven their success in maintaining
a stable society. It's purpose is also to see the historical
context in which our legal doctrines were derived. It looks at
the inception of the common law system, the origin of the jury
system, the meaning in context of the Magna Carta provisions, the
emergence of attorneys, and the formation of probate law from
church origins.
This book is a primer. One may read it without prior knowledge in
history or law, although it will be more meaningful to lawyers
than to non-lawyers. Since it defines terms unique to English
legal history, it may serve as a good introduction on which to
base further reading in English legal history. The meaning of
some terms in King Aethelbert's code in Chapter 1 are unknown or
inexact.
The chapters are sequential. The title of each chapter in the
Table of Contents includes the time period covered. The title of
each chapter denotes an important legal development of that time
period.
Each chapter is divided into three sections: The Times, The Law,
and Judicial Procedure. The law section is the central section.
It describes the law governing the behavior and conduct of the
populace. It includes law of that time by which people lived
which is the same, similar, or a building block to the law of
today. In earlier times this is both statutory law and the common
law of the court. The Magna Carta, which is quoted in Chapter 7,
is the first statute of the Statutes at Large. The law sections
of Chapter 7 - 13 mainly quote or paraphrase most of these
statutes or the Statutes of the Realm. Excluded are statutes
which do not help us understand the development of our law, such
as statutes governing Wales after its conquest and statutes on
succession rights to the throne.
The first section of each chapter: The Times, sets a background
and context in which to better understand the laws. The usual
subject matter of history such as battles, famines, periods of
corruption, and international relations are omitted as not
helping to understand the process of civilization and development
of the law in the nation of England.
The last section of each chapter: Judicial Procedure, describes
the process of applying the law and trying cases for the
relevant time period. It also contains some examples of cases.
For clarity and easy comparison, amounts of money expressed in
pounds or marks have been converted to the smaller denominations
of shillings and pence. There are twenty shillings in a pound. A
mark in silver is two thirds of a pound.
The sources and reference books from which information was
obtained are listed in the bibliography instead of being
contained in tedious footnotes.
Dedication
A Vassar College faculty member once dedicated her book to her
students, but for whom it would have been written much earlier.
This book "Our Legal Heritage" is dedicated to the faculty of
Vassar College, without whom it would never have been written.
Table of Contents
Chapters:
1. Tort law as the first written law: to 600
2. Oaths and perjury: 600-900
3. Marriage law: 900-1066
4. Martial "law": 1066-1100
5. Criminal law and prosecution: 1100-1154
6. Common Law for all freemen: 1154-1215
7. Magna Carta: the first statute: 1215-1272
8. Land law: 1272-1348
9. Legislating the economy: 1348-1399
10. Equity from Chancery Court: 1400-1485
11. Use-trust of land: 1485-1509
12. Wills and testaments of lands and goods: 1509-1558.
13. Consideration and contract Law: 1558-1604
14. Epilogue: from 1604
Appendix: Sovereigns of England
Bibliography
Chapter 1
The Times: before 600
Clans, headed by Kings, lived in huts on top of hills or other
high places and fortified by circular or rectangular earth
ditches and banks behind which they could gather with their
herds for protection. At the entrances were several openings
only one of which really allowed entry. The others went between
banks into dead ends and served as traps in which to kill the
enemy from above. Concentric circles of ditches around these
fortified camps could reach to 14 acres. The people lived in
circular huts with wood posts in a circle supporting a roof. The
walls were made of saplings, and a mixture of mud and straw.
Sometimes there were stalls for cattle. Cooking was in a clay
oven inside or over an open fire on the outside. Forests
abounded with wolves, bears, wild boars, and wild cattle.
People wore animal skins over their bodies for warmth and around
their feet for protection when walking. They carried small items
by hooking them onto their belts.
Pathways extended through this camp of huts and for many miles
beyond. They were used for trade and transport with pack horses.
Men bought or captured women for wives and carried them over the
thresholds of their huts. The first month of marriage was called
the honeymoon because the couple was given mead, a drink with
fermented honey and herbs, for the first month of their
marriage. A wife wore a gold wedding band on the ring finger of
her left hand to show that she was married. Women wore other
jewelry too, which indicated their social rank.
Women usually stayed at home caring for children, preparing
meals, and making baskets. They also made wool felt and spun and
wove wool into cloth. Flax was grown and woven into linen cloth.
The weaving was done on an upright or warp- weighted loom. People
draped the cloth around their bodies and fastened it with a
metal brooch inlayed with gold, gems, glass, and shell, which
were glued on with glue that was obtained from melting animal
hooves. They also had amber beads and pendants. They could tie
things with rawhide strips or rope braids they made. They cut
things with flint dug up from pits. On the coast, they made bone
harpoons for deep sea fish.
The King, who was tall and strong, led his men in hunting groups
to kill deer and other wild animals in the forests and to fish
in the streams. Some men brought their hunting dogs on leashes
to follow scent trails to the animal. The men attacked the
animals with spears and threw stones. They used shields to
protect their bodies. They watched the phases of the moon and
learned to predict when it would be full and give the most light
for night hunting. This began the concept of a month.
If hunting groups from two clans tried to follow the same deer,
there might be a fight between the clans or a blood feud. After
the battle, the clan would bring back its dead and wounded. A
priest officiated over a funeral for a dead man. His wife would
often also go on the funeral pyre with him. Memorial burial
mounds would be erected over the corpses or cremated ashes of
their great men. Later, these ashes were first placed in urns
before burial in a mound of earth or the corpses were buried
with a few personal items.
The priest also officiated over sacrifices of humans, who were
usually offenders found guilty of transgressions. Sacrifices
were usually made in time of war or pestilence, and usually
before the winter made food scarce, at Halloween time. Humans
were sometimes eaten.
The clan ate deer that had been cooked on a spit over a fire, and
fruits and vegetables which had been gathered by the women. They
drank water from springs. In the spring, food was plentiful.
There were eggs of different colors in nests and many rabbits to
eat. The goddess Easter was celebrated at this time.
After this hunting and gathering era, there was farming and
domestication of animals such as horses, pigs, sheep, goats,
chicken, and cattle. Of these, the pig was the most important
meat supply, being killed and salted for winter use. Next in
importance were the cattle. Sheep were kept primarily for their
wool. Flocks and herds were taken to pastures. The male cattle,
with wood yokes, pulled ploughs in the fields of barley and
wheat. The female goat and cow provided milk, butter, and
cheese. The chickens provided eggs. The hoe, spade, and grinding
stone were used. Cloth was woven for clothes. Pottery was made
from clay and used for food preparation and consumption. During
the period of "lent" [from the word "lencten", which means
spring], it was forbidden to eat any meat or fish. This was the
season in which many animals were born and grew a lot. The
people also made boats.
Circles of big stones like Stonehenge were built so that the
sun's position with respect to the stones would indicate the day
of longest sunlight and the day of shortest sunlight. Between
these days there was an optimum time to harvest the crops before
fall, when plants dried up and leaves fell from the trees. The
winter solstice, when the days began to get longer was cause for
celebration. In the next season, there was an optimum time to
plant seeds so they could spring up from the ground as new
growth. So farming gave rise to the concept of a year. Certain
changes of the year were celebrated, such as Easter; the twelve
days of Yuletide when candles were lit and houses decorated with
evergreen; Plough Monday for resumption of work after Yuletide;
May Day when greenery was gathered from the woods and people
danced around a May pole; Whitsun when Morris dancers leapt
through their villages with bells, hobby-horses, and waving
scarves; Lammas when the first bread was celebrated; and Harvest
Home when the effigy of a goddess was carried with reapers
singing and piping behind.
There were settlements on high ground and near rivers. Each
settlement had a meadow, for the mowing of hay, and a mill, with
wooden huts, covered with branches or thatch, of families
clustered nearby. Grain was stored in pits in the earth. Each
hut had a garden for fruit and vegetables. A goat or cow might
be tied out of reach of the garden. There was a fence or hedge
surrounding and protecting the garden area and dwelling. Outside
the fence were an acre or two of fields of wheat and barley, and
sometimes oats and rye. Wheat and rye were sown in the fall, and
oats and barley in the spring. They were all harvested in the
summer. These fields were usually enclosed with a hedge to keep
animals from eating the crop. Flax was grown and made into linen
cloth. Beyond the fields were pastures for cattle and sheep
grazing. There was often an area for beehives.
Crops were produced with the open field system. In this system,
there were three large fields for the heavy and fertile land.
Each field was divided into long and narrow strips. Each strip
represented a day's work with the plough. One field had wheat,
or perhaps rye, another had barley, oats, beans, or peas, and
the third was fallow. These were rotated yearly. Each free man
was allotted certain strips in each field to bear crops. His
strips were far from each other, which insured some very fertile
and some only fair soil, and some land near his village dwelling
and some far away. These strips he cultivated, sowed with seed,
and harvested for himself and his family. After the year, they
reverted to common ownership for grazing.
The plough used was heavy and made first of wood and later of
iron. It had a mould-board which caught the soil stirred by the
plough blade and threw it into a ridge. Other farm implements
were: coulters, which gave free passage to the plough by cutting
weeds and turf, picks, spades and shovels, reaping hooks and
scythes, and sledge-hammers and anvils. With iron axes, forests
were cleared to provide more arable land.
The use of this open field system instead of compact enclosures
worked by individuals was necessary in primitive communities
which were farming only for their own subsistence. Each ox was
owned by a different man as was the plough. Strips of land for
agriculture were added from waste land as the community grew.
There were villages which had one or two market days in each
week. Cattle, sheep, pigs, poultry, calves, and rabbits were
sold there.
Flint workers mined with deer antler picks and ox shoulder blade
shovels for flint to grind into axes, spearheads, and
arrowheads. People used bone and stone tools, such as stone
hammers, and then bronze and iron tools, weapons, breast plates,
and horse bits, which were formed from moulds and/or forged by
bronze smiths and blacksmiths. Weapons included bows and arrows,
flint and copper daggers, stone axes, and shields of wood with
bronze mountings. The warriors fought with chariots drawn by two
horses. The horse harnesses had bronze fittings. The chariots
had wood wheels, later with iron rims. When bronze came into
use, there was a demand for its constituent parts: copper and
tin, which were traded by rafts on waterways and the sea. Lead
was mined. Wrought iroin bars were used as currency.
Corpses were buried far away from any village in wood coffins,
except for Kings, who were placed in stone coffins after being
wrapped in linen. Possessions were buried with them.
With the ability to grow food and the acquisition of land by
conquest, for instance by invading Angles and Saxons, the
population grew. There were different classes of men such as
eorls, ceorls [free farmers], and slaves. They dressed
differently. Freemen had long hair and beards. Slaves' hair was
shorn from their heads so that they were bald. Slaves were
chained and often traded. Prisoners taken in battle, e.g.
Britons, became slaves. Criminals became slaves of the person
wronged or of the King. Sometimes a father pressed by need sold
his children or his wife into bondage. Debtors, who increased in
number during famine, which occurred regularly, became slaves by
giving up the freeman's sword and spear, picking up a slave's
mattock [pick ax for the soils], and placing their head within a
master's hands. Children with a slave parent were slaves. The
slaves lived in huts around the homes of big landholders, which
were made of logs and consisted on one large room or hall. An
open hearth was in the middle of the earthen floor, which was
strewn with rushes. There was a hole in the roof to let out the
smoke. Here the landholder and his men would eat meat, bread,
salt, hot spiced ale, and mead while listening to minstrels sing
about the heroic deeds of their ancestors. Physical strength and
endurance in adversity were admired traits. Slaves often were
used as grain-grinders, ploughmen, sowers, haywards, woodwards,
shepherds, goatherds, swineherds, oxherds, cowherds, dairymaids,
and barnmen. A lord could kill his slave at will.
The people were worshipping pagan gods when St. Augustine came to
England in 596 A.D. to Christianize them. King AEthelbert of
Kent and his wife, who had been raised Christian on the
continent, met him when he arrived. The King gave him land where
there were ruins of an old city. Augustine used stones from the
ruins to build a church which was later called Canterbury. He
also built the first St. Paul's church in what was later called
London. Aethelbert and his men who fought with him and ate in
his household [gesiths] became Christian.
Augustine knew how to write, but King AEthelbert did not. The
King announced his laws at meetings of his people and his eorls
would decide the punishments. There was a fine of 120s. for
disregarding a command of the King. He and Augustine decided to
write down some of these laws, which now included the King's new
law concerning the church.
These laws concern personal injury, murder, theft, burglary,
marriage, adultery, and inheritance. The blood feud's private
revenge for killing had been replaced by payment of compensation
to the dead man's kindred. One paid a man's "wergeld" [worth] to
his kindred for causing his wrongful death. The wergeld [wer] of
an aetheling was 1500s., of an eorl, 300s., of a ceorl, 100s.,
of a laet [agricultural serf in Kent], 40-80s., and of a slave
nothing. At this time a shilling could buy a cow in Kent or a
sheep elsewhere. If a ceorl killed an eorl, he paid three times
as much as an eorl would have paid as murderer. The penalty for
slander was tearing out of the tongue. If an aetheling were
guilty of this offense, his tongue was worth five times that of
a coerl, so he had to pay proportionately more to ransom it.
The Law
"THESE ARE THE DOOMS [DECREES] WHICH KING AETHELBERHT ESTABLISHED
IN THE DAYS OF AUGUSTINE
1. [Theft of] the property of God and of the church [shall be
compensated], twelve-fold; a bishop's property, eleven-fold; a
priest's property, nine-fold; a deacon's property, six-fold; a
cleric's property, three-fold; church-frith [breach of the peace
of the church; right of sanctuary and protection given to those
within its precincts], two-fold [that of ordinary breach of the
peace]; m....frith [breach of the peace of a meeting place],
two-fold.
2. If the King calls his leod to him, and any one there do them
evil, [let him compensate with] a two-fold bot [damages for the
injury], and 50 shillings to the King.
3. If the King drink at any one's home, and any one there do any
lyswe [evil deed], let him make two-fold bot.
4. If a freeman steal from the King, let him repay nine-fold.
5. If a man slay another in the King's tun [enclosed premises],
let him make bot with 50 shillings.
6. If any one slay a freeman, 50 shillings to the King, as
drihtin-beah.
7. If the King's ambiht-smith [smith or carpenter] or laad-rine
[man who walks before the King or guide or escort], slay a man,
let him pay a half leod-geld.
8. [Offenses against anyone or anyplace under] the King's
mund-byrd [protection], 50 shillings.
9. If a freeman steal from a freeman, let him make threefold bot;
and let the King have the wite [fine] and all the chattels
[necessary to pay the fine].
10. If a man lie with the King's maiden [female servant], let him
pay a bot of 50 shillings.
11. If she be a grinding slave, let him pay a bot of 25
shillings. The third [class of servant] 12 shillings.
12. Let the King's fed-esl [woman who serves him food or nurse]
be paid for with 20 shillings.
13. If a man slay another in an eorl's tun [premises], let [him]
make bot with 12 shillings.
14. If a man lie with an eorl's birele [female cup-bearer], let
him make bot with 12 shillings.
15. [Offenses against a person or place under] a ceorl's
mund-byrd [protection], 6 shillings.
16. If a man lie with a ceorl's birele [female cup-bearer], let
him make bot with 6 shillings; with a slave of the second
[class], 50 scaetts [a denomination less than a shilling]; with
one of the third, 30 scaetts.
17. If any one be the first to invade a man's tun [premises], let
him make bot with 6 shillings; let him who follows, with 3
shillings; after, each, a shilling.
18. If a man furnish weapons to another where there is a quarrel,
though no injury results, let him make bot with 6 shillings.
19. If a weg-reaf [highway robbery] be done [with weapons
furnished by another], let him [the man who provided the
weapons] make bot with 6 shillings.
20. If the man be slain, let him [the man who provided the
weapons] make bot with 20 shillings.
21. If a [free] man slay another, let him make bot with a half
leod-geld of 100 shillings.
22. If a man slay another, at the open grave let him pay 20
shillings, and pay the whole leod within 40 days.
23. If the slayer departs from the land, let his kindred pay a
half leod.
24. If any one bind a freeman, let him make bot with 20
shillings.
25. If any one slay a ceorl's hlaf-aeta [bread-eater; domestic or
menial servant], let him make bot with 6 shillings.
26. If [anyone] slay a laet of the highest class, let him pay 80
shillings; of the second class, let him pay 60 shillings; of the
third class, let him pay 40 shillings.
27. If a freeman commit edor-breach [breaking through the fenced
enclosure and forcibly entering a ceorl's dwelling], let him
make bot with 6 shillings.
28. If any one take property from a dwelling, let him pay a
three-fold bot.
29. If a freeman goes with hostile intent through an edor [the
fence enclosing a dwelling], let him make bot with 4 shillings.
30. If [in so doing] a man slay another, let him pay with his own
money, and with any sound property whatever.
31. If a freeman lie with a freeman's wife, let him pay for it
with his wer- geld, and obtain another wife with his own money,
and bring her to the other [man's dwelling].
32. If any one thrusts through the riht [true] ham-scyld, let him
adequately compensate.
33. If there be feax-fang [taking hold of someone by the hair],
let there be 50 sceatts for bot.
34. If there be an exposure of the bone, let bot be made with 3
shillings.
35. If there be an injury to the bone, let bot be made with 4
shillings.
36. If the outer hion [outer membrane covering the brain] be
broken, let bot be made with 10 shillings.
37. If it be both [outer and inner membranes covering the brain],
let bot be made with 20 shillings.
38. If a shoulder be lamed, let bot be made with 30 shillings.
39. If an ear be struck off, let bot be made with 12 shillings.
40. If the other ear hear not, let bot be made with 25 shillings.
41. If an ear be pierced, let bot be made with 3 shillings.
42. If an ear be mutilated, let bot be made with 6 shillings.
43. If an eye be [struck] out, let bot be made with 50 shillings.
44. If the mouth or an eye be injured, let bot be made with 12
shillings.
45. If the nose be pierced, let bot be made with 9 shillings.
46. If it be one ala, let bot be made with 3 shillings.
47. If both be pierced, let bot be made with 6 shillings.
48. If the nose be otherwise mutilated, for each [cut, let] bot
be made with 6 shillings.
49. If it be pierced, let bot be made with 6 shillings.
50. Let him who breaks the jaw-bone pay for it with 20 shillings.
51. For each of the four front teeth, 6 shillings; for the tooth
which stands next to them 4 shillings; for that which stands
next to that, 3 shillings; and then afterwards, for each a
shilling.
52. If the speech be injured, 12 shillings. If the collar-bone be
broken, let bot be made with 6 shillings.
53. Let him who stabs [another] through an arm, make bot with 6
shillings. If an arm be broken, let him make bot with 6
shillings.
54. If a thumb be struck off, 20 shillings. If a thumb nail be
off, let bot be made with 3 shillings. If the shooting [fore]
finger be struck off, let bot be made with 8 shillings. If the
middle finger be struck off, let bot be made with 4 shillings.
If the gold [ring]finger be struck off, let bot be made with 6
shillings. If the little finger be struck off, let bot be made
with 11 shillings.
55. For every nail, a shilling.
56. For the smallest disfigurement of the face, 3 shillings; and
for the greater, 6 shillings.
57. If any one strike another with his fist on the nose, 3
shillings.
58. If there be a bruise [on the nose], a shilling; if he receive
a right hand bruise [from protecting his face with his arm], let
him [the striker] pay a shilling.
59. If the bruise [on the arm] be black in a part not covered by
the clothes, let bot be made with 30 scaetts.
60. If it be covered by the clothes, let bot for each be made
with 20 scaetts.
61. If the belly be wounded, let bot be made with 12 shillings;
if it be pierced through, let bot be made with 20 shillings.
62. If any one be gegemed, let bot be made with 30 shillings.
63. If any one be cear-wund, let bot be made with 3 shillings.
64. If any one destroy [another's] organ of generation [penis],
let him pay him with 3 leud-gelds: if he pierce it through, let
him make bot with 6 shillings; if it be pierced within, let him
make bot with 6 shillings.
65. If a thigh be broken, let bot be made with 12 shillings; if
the man become halt [lame], then friends must arbitrate.
66. If a rib be broken, let bot be made with 3 shillings.
67. If [the skin of] a thigh be pierced through, for each stab 6
shillings; if [the wound be] above an inch [deep], a shilling;
for two inches, 2; above three, 3 shillings.
68. If a sinew be wounded. let bot be made with 3 shillings.
69. If a foot be cut off, let 50 shillings be paid.
70. If a great toe be cut off, let 10 shillings be paid.
71. For each of the other toes, let one half that for the
corresponding finger be paid.
72. If the nail of a great toe be cut off, 30 scaetts for bot;
for each of the others, make bot with 10 scaetts.
73. If a freewoman loc-bore [with long hair] commit any leswe
[evil deed], let her make a bot of 30 shillings.
74. Let maiden-bot [compensation for injury to an unmarried
woman] be as that of a freeman.
75. For [breach of] the mund [protection] of a widow of the best
class, of an eorl's degree, let the bot be 50 shillings; of the
second, 20 shillings; of the third, 12 shillings; of the fourth,
6 shillings. [Mund was a sum paid to the family of the bride for
transferring the rightful protection they possessed over her to
the family of the husband. If the husband died and his kindred
did not accept the terms sanctioned by law, her kindred could
repurchase the rightful protection.]
76. If a man carry off a widow not under his own protection by
right, let the mund be twofold.
77. If a man buy a maiden with cattle, let the bargain stand, if
it be without fraud; but if there be fraud, let him bring her
home again, and let his property be restored to him.
78. If she bear a live child, she shall have half the property,
if the husband die first.
79. If she wish to go away with her children, she shall have half
the property.
80. If the husband wish to keep them [the children], [she shall
have the same portion] as one child.
81. If she bear no child, her paternal kindred shall have the
fioh [her goods]and the morgen-gyfe [morning gift; a gift make
to the bride by her husband on the morning following the
consummation of the marriage].
82. If a man carry off a maiden by force, let him pay 50
shillings to the owner, and afterwards buy [the object of] his
will from the owner.
83. If she be betrothed to another man in money [at a bride
price], let him [who carried her off] make bot with 20
shillings.
84. If she become gaengang, 35 shillings; and 15 shillings to the
King.
85. If a man lie with an esne's wife, her husband still living,
let him make twofold bot.
86. If one esne slay another unoffending, let him pay for him at
his full worth.
87. If an esne's eye and foot be struck out or off, let him be
paid for at his full worth.
88. If any one bind another man's esne, let him make bot with 6
shillings.
89. Let [compensation for] weg-reaf [highway robbery] of a theow
[slave] be 3 shillings.
90. If a theow [a type of slave] steal, let him make twofold bot
[twice the value of the stolen goods]. "
Judicial Procedure
If a man did something wrong, his case would be heard by the King
and his freemen. His punishment would be given to him by the
community.
There were occasional meetings of "hundreds", which were probably
a hundred hides of land or a hundred extended families, to
settle wide-spread disputes.