THE WEST SAXON LAWS.
"No other Germanic nation has bequeathed to us out of its earliest
experience so rich a treasure of original legal documents as the
Anglo-Saxon nation has." Such is the sentence of Dr. Reinhold Schmid,
who upon the basis of former labours, and particularly those of Mr.
Benjamin Thorpe, has given us the most compact and complete edition yet
produced of the Anglo-Saxon laws.[91]
It might seem as if laws were too far removed from the idea of
literature, to merit more than a passing notice here. Writers on modern
English literature generally leave the lawyer's work altogether out of
their field. But these are among the things that alter with age. Laws
become literary matter just as they become old and obsolete. Then the
traces they have left in words and phrases and figures of speech, their
very contrasts with the laws of the present, makes them material
eminently literary. We know what effective literary use Sir Walter Scott
has made of the antiquities and curiosities of law.
And to this may be added another remark. When we are engaged in
reconstructing an ancient, we might almost say a lost literature, we
need above all things some leading ideas concerning the conditions of
social life and opinion and mental development at the period in
question. Nothing supplies these things so safely as the laws of the
time.
INE'S LAWS.
The oldest extant West Saxon laws are those of King Ine,[92] who reigned
thirty-eight years, A.D. 688-726. As the West Saxon power
gradually absorbed all other rule in this island, we here find ourselves
entering the central stream of history. In the preamble to Ine's Laws
the name of Erconwald, bishop of London, who died in 693, is among the
persons present at the Gemôt. Consequently these laws must be referred
to the first years of Ine's reign, and they must be older than the date
of the Kentish laws of Wihtred.
The laws of Ine are preserved to us as an appendix of the laws of
Alfred. This is the case in all the manuscripts. Not only does the elder
code follow the younger, but the numbering is continuous as if welding
the two codes into one. Thorpe follows the manuscripts in this
arrangement, though not in the numbering of the sections, and the
student who consults his edition is apt to be confused with this
chronological inversion, unless he has taken note of the cause. Ine
reigned over a mixed population of Saxons and Britons, and his code is
of a more comprehensive character than that of the Kentish kings. His
enactments became, through subsequent re-enactments, the basis of the
laws not only of Wessex, but also of all England. Accordingly they seem
more intelligible to the modern reader.[93]
9. If any one take revenge before he sue for justice, let him give up
what he has seized, and pay for the damage done, and make amends with
thirty shillings.
12. If a thief be taken, let him die, or let his life be redeemed
according to his "wer." ... Thieves we call them up to seven men; from
seven to thirty-five a band (_hloth_); after that it is a troop
(_here_).
32. If a Wylisc-man have a hide of land, his "wer" is 120 shillings; if
he have half a hide, eighty shillings; if he have none, sixty shillings.
36. He who takes a thief, or has a captured thief given over to him, and
then lets him go or conceals the theft, let him pay for the thief
according to his "wer." If he be an ealdorman, let him forfeit his
shire, unless the king be pleased to show him mercy.
39. If any one go from his lord without leave, or steal himself away
into another shire, and word is brought; let him go where he before was,
and pay his lord sixty shillings.
40. A ceorl's close should be fenced winter and summer. If it be
unfenced, and his neighbour's cattle get in through his own gap, he hath
no claim on the cattle; let him drive it out and bear the damage.
43. In case any one burn a tree in a wood, and it come to light who did
it, let him pay the full penalty, and give sixty shillings, because fire
is a thief. If one fell in a wood ever so many trees, and it be found
out afterwards, let him pay for three trees, each with thirty shillings.
He is not required to pay for more of them, however many they might be,
because the axe is a reporter and not a thief (_forthon seo æsc bith
melda, nalles theof_).[94]
44. But if a man cut down a tree that thirty swine may stand under, and
it is found out, let him pay sixty shillings.
52. Let him who is accused of secret compositions clear himself of those
compositions with 120 hides, or pay 120 shillings.[95]
ALFRED'S LAWS.
Here I will quote from the introductory portion a piece which
illustrates the subject generally, and which is rendered interesting by
the wide diversity of comment which it has elicited from Mr. Kemble and
Sir H. Maine. The former is almost outrageously angry at Alfred for
attributing the system of bôts or compensations to the influence of
Christianity; while in the strong terms wherewith treason against the
lord is branded, he can only see "these despotic tendencies of a great
prince, nurtured probably by his exaggerated love for foreign
literature."[96] It is positively refreshing to come out of this heat
and dust into the orderly and consecutive demonstration of Sir H. Maine,
who concludes a course of systematic exposition on the history of
Criminal Law, and indeed concludes his entire book on Ancient Law, with
an appreciative quotation of this passage from the Laws of Alfred. It is
thus introduced:--
"There is a passage in the writings of King Alfred which brings out into
remarkable clearness the struggle of the various ideas that prevailed in
his day as to the origin of criminal jurisdiction. It will be seen that
Alfred attributes it partly to the authority of the Church and partly to
that of the Witan, while he expressly claims for treason against the
lord the same immunity from ordinary rules which the Roman Law of
Majestas had assigned to treason against the Cæsar."
Siththan thæt tha gelamp, thæt monega theoda Cristes
geleafan onfengon, tha wurdon monega seonothas geond ealne
middan geard gegaderode, and eac swa geond Angel cyn,
siththan hie Cristes geleafan onfengon, haligra biscepa and
eac otherra gethungenra witena. Hie tha gesetton for thære
mildheortnesse, the Crist lærde, æt mæstra hwelcre misdæde,
thæt tha woruld hlafordas moston mid hiora leafan buton
synne æt tham forman gylte thære fioh-bote onfon, the hie
tha gesettan; buton æt hlaford searwe, tham hie nane
mildheortnesse ne dorston gecwæthan, fortham the God
Ælmihtig tham nane ne gedemde the hine oferhogodon, ne
Crist, Godes sunu, tham nane ne gedemde, the hyne sealde to
deathe; and he bebead thone hlaford lufian swa hine selfne.
After that it happened that many nations received the faith
of Christ, and there were many synods assembled through all
parts of the world, and likewise throughout the Angle race
after they had received the faith of Christ, of holy
bishops and also of other distinguished Witan. They then
ordained, out of that compassion which Christ had taught,
in the case of almost every misdeed, that the secular lords
might, with their leave and without sin, for the first
offence accept the money penalty which they then ordained;
excepting in the case of treason against a lord, to which
they dared not assign any mercy, because God Almighty
adjudged none to them that despised Him, nor did Christ,
the Son of God, adjudge any to them that sold Him to death;
and He commanded that the lord should be loved as Himself.
Hie tha on monegum senothum monegra menniscra misdæda bote
gesetton, and on monega senoth bec hy writon hwær anne dom
hwær otherne.
They then in many synods ordained a "bot" for many human
misdeeds, and in many a synod-book they wrote, here one
decision, there another.
Ic tha Ælfred cyning thas togædere gegaderode and awritan
het monege thara, the ure foregengan heoldon, tha the me
licodon; and manege thara the me ne licodon, ic awearp mid
minra witena getheahte, and on othre wisan bebead to
healdenne, fortham ic ne dorste gethristlæcan thara minra
awuht feala on gewrit settan, fortham me wæs uncuth, hwæt
thæs tham lician wolde, the æfter us wæren. Ac tha the ic
gemette, awther oththe on Ines dæge, mines mæges, oththe on
Offan, Myrcena cyninges, oththe on Æthelbryhtes, the ærest
fulluht onfeng on Angel cynne, tha the me ryhtoste thuhton,
ic tha her on gegaderode and tha othre forlet.
I then, Alfred, king, gathered these together, and I
ordered to write out many of those that our forefathers
held which to me seemed good; and many of those that to me
seemed not good I rejected, with the counsel of my Witan,
and in other wise commanded to hold; forasmuch as I durst
not venture to set any great quantity of my own in writing,
because it was unknown to me what would please those who
should be after us. But those things that I found
established, either in the days of Ine my kinsman, or in
Offa's, king of the Mercians, or in Æthelbryht's, who first
received baptism in the Angle race, those which seemed to
me rightest, those I have here gathered together, and the
others I have rejected.
Ic tha Ælfred, West seaxna cyning, eallum minum witum thas
geeowde, and hie tha cwædon, thæt him thæt licode eallum to
healdenne.
I then, Alfred, king of the West Saxons, to all my Witan
showed these; and they then said, that it seemed good to
them all that they should be holden.
ALFRED AND GUTHRUM'S PEACE.
This is a little code which marks a crisis in Alfred's life, and, it may
be added, a crisis also in the life of the nation. When Alfred by his
victory over the Danes in 878 had brought them to sue for peace, the
treaty was made at Wedmore in Somersetshire. The original text of the
peace between Alfred and Guthrum is among the Anglo-Saxon laws, and we
present it to the reader in its entire form. The first item is about the
frontier line between the two races which was drawn diagonally through
the heart of England, cutting Mercia in two, and leaving half of it
under the Danes. The two parts into which the country was thus divided,
were designated severally as the "Engla lagu" and the "Dena lagu."
_Ælfredes and Guthrumes frith._
This is thæt frith, thæt Ælfred cynincg and Gythrum cyning
and ealles Angel cynnes witan, and eal seo theod the on East
Englum beoth, ealle gecweden habbath, and mid athum
gefeostnod, for hy sylfe and for heora gingran, ge for
geborene, ge for ungeborene, the Godes miltse recce oththe
ure.
_Alfred and Guthrum's Peace._
This is the peace that king Alfred and king Guthrum and the
counsellors of all Angel-kin, and all the people that are in
East Anglia, have all decreed and with oaths confirmed for
themselves and for their children, both for the born and for
the unborn, all who value God's favour or ours.
Cap. 1. Ærest ymb ure land-gemæra: up on Temese and thonne
up on Ligan, and andlang Ligan oth hire æ wylm, thonne on
gerihte to Bedan forda, thonne up on Usan oth Wætlinga
stræt.
Cap. 1. First about our land-boundaries:--Up the Thames,
and then up the Lea, and along the Lea to her source, then
straight to Bedford, then up the Ouse to Watling Street.
2. Thæt is thonne, gif man ofslagen weorthe, ealle we
lætath efen dyrne Engliscne and Deniscne, to VIII
healfmarcum asodenes goldes, buton tham ceorle the on gafol
lande sit, and heora liesingum, tha syndan eac efen dyre,
ægther to CC scill.
2. Videlicet, if a person be slain, we all estimate of
equal value, the Englishman and the Dane, at eight
half-marks of pure gold; except the ceorl who resides on
gafol-land, and their [_i.e._ the Danish] liesings, those
also are equally dear, either at two hundred shillings.
3. And gif mon cyninges thegn beteo manslihtes, gif he hine
ladian dyrre, do he thæt mid XII cininges thegnum.
Gif man thone man betyhth, the bith læssa maga thonne se
cyninges thegn, ladige he hine mid XI his gelicena
and mid anum cyninges thægne. And swa ægehwilcere spræce,
the mare sy thonne IIII mancussas. And gyf he ne
dyrre, gylde hit thry gylde, swa hit man gewyrthe.
3. And if a king's thane be charged with killing a man, if
he dare to clear himself, let him do it with twelve king's
thanes. If the accused man be of less degree than the
king's thane, let him clear himself with eleven of his
equals, and with one king's thane. And so in every suit
that may be for more than four mancuses. And if he dare
not, let him pay threefold, according as it may be valued.
_Be getymum._
4. And thæt ælc man wite his getyman be mannum and be horsum
and be oxum.
_Of Warrantors._
4. And that every man know his warrantor for men and for
horses and for oxen.
5. And ealle we cwædon on tham dæge the mon tha athas swor,
thæt ne theowe ne freo ne moton in thone here faran butan
leafe, ne heora nan the ma to us. Gif thonne gebyrige, thæt
for neode heora hwilc with ure bige habban wille, oththe we
with heora, mid yrfe and mid æhtum, thæt is to thafianne on
tha wisan, thæt man gislas sylle frithe to wedde, and to
swutelunge, thæt man wite thæt man clæne bæc hæbbe.
5. And we all said on that day when the oaths were sworn,
that neither bond nor free should be at liberty to go to
the host[97] without leave, nor of them any one by the same
rule (come) to us. If, however, it happen, that for
business any one of them desires to have dealings with us
or we with them, about cattle and about goods, that is to
be granted on this wise, that hostages be given for a
pledge of peace, and for evidence whereby it may be known
that the party has a clean back [_i.e._, that he has not
carried off on his back what is not his own].
EADWARD AND GUTHRUM'S LAWS.
Besides two codes of laws of Eadward, the son of Alfred, we have also a
code entitled as above. Of these laws it is said that they were first
made between Alfred and Guthrum, and afterwards between Eadward and
Guthrum.[98] Many of the enactments of this code were transmitted to
later ordinances.
This syndon tha domas the Ælfred cyneg and Guthrum cyneg
gecuran.
These are the dooms that king Alfred and king Guthrum
chose.
And this is seo gerædnis eac the Ælfred cyng and Guthrum
cyng. and eft Eadward cyng and Guthrum cyng. gecuran and
gecwædon. Tha tha Engle and Dene to frithe and to
freondscipe fullice fengen. and tha witan eac the syththan
wæron eft and unseldan thæt seolfe geniwodon and mid gode
gehihtan.
And this is the ordinance, also, which king Alfred and king
Guthrum, and afterwards king Eadward and king Guthrum,
chose and ordained, when the English and Danes fully took
to peace and to friendship; and the Witan also, who were
afterward, often and repeatedly renewed the same and
increased it with good.
ATHELSTAN'S LAWS.
Under the name of Athelstan we have five codes, of which the second and
third are mere abstracts in Latin; but the others are in Saxon; and
besides these a substantive ordinance bearing the special title of "The
Judgments of the City of London." This has been described as
follows:--"The rules of the guild composed of thanes and ceorls
(gentlemen and yeomen), under the perpetual presidency of the bishop
and portreeve of London."[99] They combine to protect themselves against
robbery, and this in two ways: (1) by promoting the action of the laws
against robbers; (2) by mutual insurance.
The determination of this code to the reign of Athelstan is guided by
the mention of the places of enactment, which are Greatley (near
Andover, Hants); Exeter; and Thundersfield (near Horley, Surrey), with
which places all the previous laws of Athelstan are associated.
From the fourth of the above-mentioned ordinances I will quote the law
about the tracking of cattle lost, stolen, or strayed:--
2. "And if any one track cattle within another's land, the owner of that
land is to track it out, if he can; if he cannot, that track is to count
as the fore-oath," _i.e._, the first legal step in an action to recover.
A more explicit description of the method of tracking cattle occurs in
the Ordinance of the Dunsæte.
This ordinance is placed by Thorpe between the laws of Æthelred and
those of Cnut. This little code of nine sections is intended to rule the
relations of a border country which, on its home side, is continuous
with Wessex, and on its outer side is next the Welsh. Sir Francis
Palgrave, misled perhaps by a questionable reading in Lambarde (1568),
who has the form Deunsætas, took this to be a treaty between the English
and British inhabitants of Devon, and bestowed on it the succinct title
of the Devonian Compact. But Mr. Thorpe objected to the form "Deun" as
groundless, and he also quoted the text of the code against it; for the
last section speaks thus:--"Formerly the Wentsæte belonged to the
Dunsæte, but that district more strictly belongs to Wessex, for they
have to send thither tribute and hostages." This admits of no
explanation in Devonshire, but in South Wales it does, and we learn from
William of Malmesbury that the river Wye was fixed by King Athelstan as
the boundary between the English and Welsh. On this basis the Wentsæte
will be the people of Gwent, and the Dunsæte will be the Welsh of the
upland or hill-country.
One of the most remarkable sections of this Code is the first, which
prescribes the method for tracking stolen cattle.
The laws concerning theft relate almost entirely to the protection of
cattle, and naturally so, because the chief wealth of the time consisted
in flocks and herds. Stolen cattle were tracked by fixed rules. If the
track led into a given district, the men of that district were bound to
show the track out of their boundary or to be responsible for the lost
property. We have just seen this in Athelstan's laws; but in the
previous reign a law of Edward, the son of Alfred, directs that every
proprietor of land is to have men ready to dispatch in aid of those who
are following the track of cattle, and that they are not to be diverted
from this duty by bribes, or inclination, or violence. But the most
explicit text on this subject is in the first chapter of the Ordinance
respecting the Dunset folk, as above said. It runs thus:--
"If the track of stolen cattle be followed from station to station, the
further tracking shall be committed to the people of the land, and proof
shall be given that the pursuit is genuine. The proprietor of the land
shall then take up the pursuit, and he shall have the responsibility,
and he shall pay for the cattle by nine days therefrom, or deposit a
pledge by that date, which is worth half more, and in a further nine
days discharge the pledge with actual payment. If objection be made that
the track was wrongly pursued, then the tracker must lead to the
station, and there with six unchosen men, who are true men, make oath
that he by folk-right makes claim on the land that the cattle passed up
that way."
We cannot follow the laws in detail, but must now conclude this subject
with one or two observations of a general kind. In the above I have
repeatedly used the word "Code"; but this is not to be understood with
technical exactness. Of late years we have heard much of "codifying" our
laws; and this expression suggests the idea of a compact and consistent
body of law, which should take the place of partial, occasional,
anomalous, and often conflicting legislation. Of "codes" in this sense,
there is very little to be found in the whole record of English law. Our
Kentish and West Saxon laws are little more than statements of custom or
amendments of custom; and while Professor Stubbs claims for the laws of
Alfred, Æthelred, Cnut, and those described as Edward the Confessor's,
that they aspire to the character of codes, yet "English law (he adds)
from its first to its latest phase, has never possessed an
authoritative, constructive, systematic, or approximately exhaustive
statement, such as was attempted by the great compilers of the civil and
canon laws, by Alfonso the Wise or Napoleon Bonaparte."[100]
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.
Our next and last observation shall be based on the absence of something
which the reader might possibly expect to find in the Saxon laws.
Of all the legal institutions that have claimed a Saxon origin, none
compares for importance with that of trial by jury. This has been called
the bulwark of English liberty, and it has been assigned to King Alfred
as the general founder of great institutions. But this is only a popular
opinion.
Perhaps there is no single matter in legal antiquities that has been so
much debated as the origin of trial by jury. In the vast literature
which the subject has called forth, the most various accounts have been
proposed. It is an English institution, but whence did the English get
it? From which of the various sources that have contributed to the
composite life of the English nation? Was it Anglo-Saxon, or was it
Anglo-Norman, or was it Keltic? Was it a process common to all the
Germanic family? If it was Norman, from which source--from their
Scandinavian ancestors or from their Frankish neighbours? All these
origins have been maintained, and others besides these. According to
some writers, it is a relic of Roman law; some trace it to the Canon
law; and champions have not been wanting to vindicate it as originally a
Slavonic institution which the Angles borrowed from the Werini ere they
had left their old mother country.[102]
In all this diversity of view there is one fixed point of common
agreement. It is allowed on all hands that England is the arena of its
historical career, and the question therefore always takes this
start,--How did the English acquire it?
The Anglo-Saxon laws have been diligently scanned to see if the practice
or the germ of it could be discovered there. In Æthelred iii., 3, there
is an ordinance that runs thus:--
And gan ut tha yldestan XII thegnas, and se gerefa
mid, and swerian on tham haligdome, the heom man on hand
sylle, thæt hig nellan nænne sacleasan man forsecgan, ne
nænne sacne forhelan.
Let the XII senior thanes go out, and the reeve
with them, and swear on the halidom that is put in their
hand, that they will not calumniate any sackless man, nor
conceal any guilty one (? suppress any suit).
This looks like the grand jury examining the bills of indictment before
trial, and determining _primâ facie_ whether they are true bills which
ought to be tried in court. But the progress of modern inquiry has led
to the conclusion, that though there may be rudiments of the principle
in Anglo-Saxon and in all Germanic customs, still it was among the
Franks in the Carling era that a definite beginning can first be
recognised. 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. The duty of the latter is to deliver a verdict on matter
of fact as proved by evidence given in court. The judge charges them to
put aside what they may have heard out of court, and let it have no
influence on their verdict, but to let that verdict be strictly based
upon the evidence of witnesses before the court.
In Æthelred's time it was different. The sworn men were not to judge
testimony truly, but to bear witness truly. They were to bring into
court their own knowledge of the case, and of any circumstances that
threw light upon it, including the general opinion and persuasion of the
neighbourhood. There was no attempt to collect evidence piecemeal, and
to rise above the level of local rumour, by a patient judicial
investigation. This provides us with something like a measure of the
intellectual stage of the public mind in Saxon times, and will perhaps
justify these remarks if they have seemed like drifting away from our
proper subject. The notion of weighing evidence had not taken its place
among the institutions of public life. This has now become with us
almost a popular habit. Proficiency and soundness in it may be rare, but
the appreciation of it, the perception of its power and beauty, and
withal a pride and glory in it, is almost universal. How wide a distance
does this seem to put between us and our Saxon forefathers, only to say
that they had but the most rudimentary notions about the nature of
evidence!
Witnesses came into court, not to speak, one by one, to a matter of
fact, but to pronounce in a body what they all believed and held. They
came to testify and uphold the popular opinion. Such testimony is like
nothing known to us now, except when witnesses are called to speak to
general character. These witnesses gave their evidence on oath; but it
would naturally happen sometimes that such sworn testimony was to be had
on both sides of the question. When this was the case, there was but one
resource left, and that was the Ordeal--the appeal to the judgment of
God. Such are the devices of inexperienced nations, who have no skill in
sifting out the truth, and are baffled by contending testimony. Nothing
can better illustrate the stage of our national progress in the times
which produced the literature which we are now surveying.
But, withal, it was in such a rude age that the foundations of English
law were laid, and those customs took a definite form which are the
groundwork of our jurisprudence, and in which consists the distinction
between our English law and the law of the other nations of Western
Europe, who have all (Scotland included) formed their legal system upon
the civil law of Rome.
LEGAL DOCUMENTS.
From the seventh century down to the end of our period we have a series
of legal documents, such as grants of land, purchases, memorials,
written wills, memoranda of nuncupatory wills, royal writs, family
arrangements, interchanges of land. The first thing to be noticed about
this whole body of writings is that they, at the beginning of the
series, are entirely in Latin; then a few words of the vulgar tongue
creep in, and then this native element goes on increasing until we have
entire documents in Saxon. Nevertheless, it remained a prevalent habit
in the case of transfer of land to have the grant written in Latin, and
the boundaries and other details expressed in Anglo-Saxon. This is a
large body of literature, and it fills six octavo volumes in Kemble's
"Codex Diplomaticus." Being of very various degrees of genuineness--some
absolute originals, some faulty copies, some too carefully amended, down
to the veriest forgeries--there is here a good field for the exercise of
critical discrimination. And there are many curious and interesting
details to reward the patient student. The following extract is from a
memorial addressed to Edward, the son of Alfred, touching matters that
had mostly fallen in his father's time; and it opens a glimpse of Alfred
in his bed-chamber receiving a committee that came to report progress.
Tha bær mon tha boc forth and rædde hie; tha stod seo
hondseten eal thæron. Tha thuhte us eallan the æt thære
some wæran thet Helmstan wære athe thæs the near. Tha næs
Æthelm na fullice gethafa ær we eodan in to cinge and rædan
eall hu we hit reahtan and be hwy we hit reahtan: and
Æthelm stod self thær inne mid; and cing stod thwoh his
honda æt Weardoran innan thon bure. Tha he thæt gedon hæfde
tha ascade he Æthelm hwy hit him ryht ne thuhte thæt we him
gereaht hæfdan; cwæth thæt he nan ryhtre gethencan ne
meahte thonne he thone ath agifan moste gif he meahte.
Then they brought forward the conveyance and read it; there
stood the signatures all thereon. Then seemed it to all of
us who were at the arbitration, that Helmstan was all the
nearer to the oath. Then was not Æthelm fully convinced
before we went in to the king and explained everything--how
we reported it, and on what grounds we had so reported it:
and Æthelm himself stood there in the room with us; and the
king stood and washed his hands at Wardour in the chamber.
When he had done that, then he asked Æthelm why it seemed
to him not right what we had reported to him; he said that
he could think of nothing more just than that he might be
allowed to discharge the oath if he were able.
FOOTNOTES:
[91] The Anglo-Saxon laws have been edited by William Lambarde, London,
1568, 4to.; Abraham Whelock, Cambridge, 1644; Wilkins, London, 1721,
folio; Dr. Reinhold Schmid, Leipzig, 1832; Thorpe, 1840; Schmid, ed. 2,
1858. It is Schmid's second edition that is spoken of above.
[92] Ine is to be pronounced as a word of two syllables.
[93] Palgrave, "English Commonwealth," i., 46.
[94] Grimm, "Legal Antiquities," § 10, quotes some widely-scattered
parallels: from Rügen he produces the proverb, "Mit der exe stelt men
nicht" (with the axe men steal not); and from Wetterau, "Wan einer
hauet, so ruft er" (when one hews, he shouts). He dubs the Anglo-Saxon
formula the more poetical (_poetischer_).
[95] "These secret compositions are forbidden by nearly every early code
of Europe; for by such a proceeding both the judge and the Crown lost
their profits. The "Capitulary" of 593 puts the receiver of a secret
composition on a level with the thief: 'Qui furtum vult celare, et
occulte sine judice compositionem acceperit, latroni similis est.' And
even now in common law, the rule is to obtain the sanction of the Court
for permission 'to speak with the prosecutor,' and thus terminate the
suit by compounding the affair in private."--THORPE. The reason
assigned is, however, not the whole reason.
[96] "Saxons in England," vol. ii., p. 208.
[97] _I.e._, go to the Danish camp in East Anglia.
[98] Here we have to understand two distinct kings of the name of
Guthrum.
[99] Coote, "The Romans of Britain," p. 397.
[100] "Documents Illustrative of English History," p. 60.
[101] "Ancient Law," chap. x. init.
[102] Palgrave, "Anglo-Saxon Commonwealth;" Stubbs, "Constitutional
History;" Heinrich Brunner, "Die Entstehung der Schwurgerichte," Berlin,
1872.