the procedure of the old popular courts was loose and informal. In fact
it was governed by traditional rules of the most formal and unbending
kind. Little as we know of the details, we know enough to be sure of
this; and it agrees with all the evidences we have of the early history
of legal proceedings elsewhere. The forms become not less but more
stringent as we pursue them to a higher antiquity; they seem to have not
more but less appreciable relation to any rational attempt to ascertain
the truth in disputed matters of fact. That task, indeed, appears to have
been regarded as too hard or too dangerous to be attempted by unassisted
human faculties. All the accustomed modes of proof involved some kind of
appeal to supernatural sanctions. The simplest was the oath of one of
the parties, not by way of testimony to particular facts, but by way of
assertion of his whole claim or defence; and this was fortified by the
oaths of a greater or less number of helpers, according to the nature of
the case and the importance of the persons concerned, who swore with him
that his oath was true. He lost his cause without a chance of recovery
if any slip was made in pronouncing the proper forms, or if a sufficient
number of helpers were not present and ready to make the oath. On the
other hand the oath, like all archaic forms of proof, was conclusive when
once duly carried through. Hence it was almost always an advantage to
be called upon to make the oath of proof, and this usually belonged to
the defendant. “Gainsaying is ever stronger than affirming ... Owning is
nearer to him who has the thing than to him who claims.”[40] Our modern
phrase “burden of proof” is quite inapplicable to the course of justice
in Anglo-Saxon courts: the benefit or “prerogative” of proof, as it is
called even in modern Scottish books, was eagerly contended for. The
swearer and his oath-helpers might perjure themselves, but if they did
there was no remedy for the loser in this world, unless he was prepared
to charge the court itself with giving false judgment. Obviously there
was no room in such a scheme for what we now call rules of evidence.
Rules there were, but they declared what number of oath-helpers was
required, or how many common men’s oaths would balance a thegn’s. In
the absence of manifest facts, such as a fresh wound, which could be
shown to the court, an oath called the “fore-oath” was required of the
complainant in the first instance as a security against frivolous suits.
This was quite different from the final oath of proof.
Oath being the normal mode of proof in disputes about property, we
find it supplemented by ordeal in criminal accusations. A man of good
repute could usually clear himself by oath; but circumstances of grave
suspicion in the particular case, or previous bad character, would drive
the defendant to stand his trial by ordeal. In the usual forms of which
we read in England the tests were sinking or floating in cold water,[41]
and recovery within a limited time from the effects of plunging the
arm into boiling water or handling red-hot iron. The hot-water ordeal
at any rate was in use from an early time, though the extant forms of
ritual, after the Church had assumed the direction of the proceedings,
are comparatively late. Originally, no doubt, the appeal was to the god
of water or fire, as the case might be. The Church objected, temporised,
hallowed the obstinate heathen customs by the addition of Christian
ceremonies, and finally, but not until the thirteenth century, was strong
enough to banish them. As a man was not put to the ordeal unless he was
disqualified from clearing himself by oath for one of the reasons above
mentioned, the results were probably less remote from rough justice than
we should expect, and it seems that the proportion of acquittals was
also larger. Certainly people generally believed to be guilty did often
escape, how far accidentally or otherwise we can only conjecture.[42]
Another form of ordeal favoured in many Germanic tribes from early times,
notwithstanding protest from the Church, and in use for deciding every
kind of dispute, was trial by battle: but this makes its first appearance
in England and Scotland not as a Saxon but as a distinctly Norman
institution.[43] It is hard to say why, but the fact is so. It seems
from Anglo-Norman evidence that a party to a dispute which we should now
call purely civil sometimes offered to prove his case not only by oath
or combat, but by ordeal, as the court might award. This again suggests
various explanations of which none is certain.[44]
Inasmuch as all the early modes of proof involved large elements of
unknown risk, it was rather common for the parties to compromise at
the last moment. Also, since there were no ready means of enforcing the
performance of a judgment on unwilling parties, great men supported by
numerous followers could often defy the court, and this naturally made
it undesirable to carry matters to extremity which, if both parties were
strong, might mean private war. Most early forms of jurisdiction, indeed,
of which we have any knowledge, seem better fitted to put pressure on the
litigants to agree than to produce an effective judgment of compulsory
force. Assuredly this was the case with those which we find in England
even after the consolidation of the kingdom under the Danish dynasty.
Rigid and cumbrous as Anglo-Saxon justice was in the things it did
provide for, it was, to modern eyes, strangely defective in its lack of
executive power. Among the most important functions of courts as we know
them is compelling the attendance of parties and enforcing the fulfilment
both of final judgments and of interlocutory orders dealing with the
conduct of proceedings and the like. Such things are done as of course
under the ordinary authority of the court, and with means constantly at
its disposal; open resistance to judicial orders is so plainly useless
that it is seldom attempted, and obstinate preference of penalties to
submission, a thing which now and then happens, is counted a mark of
eccentricity bordering on unsoundness of mind. Exceptional difficulties,
when they occur, indicate an abnormal state of the commonwealth or some
of its members. But this reign of law did not come by nature; it has
been slowly and laboriously won. Jurisdiction began, it seems, with
being merely voluntary, derived not from the authority of the State but
from the consent of the parties. People might come to the court for a
decision if they agreed to do so. They were bound in honour to accept the
result; they might forfeit pledges deposited with the court, or put their
neighbours who had become sureties in an awkward position; but the court
could not compel their obedience any more than a tribunal of arbitration
appointed at this day under a treaty between sovereign States can compel
the rulers of those States to fulfil its award. Anglo-Saxon courts had
got beyond this most early stage, but not very far beyond it.
The only way to bring an unwilling adversary before the court was to take
something of his as security till he would attend to the demand; and
practically the only things that could be taken without personal violence
were cattle. Distress in this form was practised and also regulated from
a very early time. It was forbidden to distrain until right had been
formally demanded—in Cnut’s time to the extent of three summonings—and
refused. Thus leave of the court was required, but the party had to act
for himself as best he could. If distress failed to make the defendant
appear, the only resource left was to deny the law’s protection to the
stiff-necked man who would not come to be judged by law. He might be
outlawed, and this must have been enough to coerce most men who had
anything to lose and were not strong enough to live in rebellion; but
still no right could be done to the complainant without his submission.
The device of a judgment by default, which is familiar enough to us, was
unknown, and probably would not have been understood. An elaborate system
of never trusting one man without two or more sureties (to describe it
roughly) was used to supplement these defects, and we may suppose it to
have been more or less effective, though clumsy and tedious.
Final judgment, when obtained, could in like manner not be directly
enforced. The successful party had to see to gathering the “fruits of
judgment,” as we say, for himself. In case of continued refusal to do
right according to the sentence of the court, he might take the law
into his own hands, in fact wage war on his obstinate opponent. The
ealdorman’s aid, and ultimately the king’s, could be invoked in such
extreme cases as that of a wealthy man, or one backed by a powerful
family, setting the law at open defiance. But this was an extraordinary
measure, analogous to nothing in the regular modern process of law.
The details of Anglo-Saxon procedure and judicial usage had become or
were fast becoming obsolete in the thirteenth century, which is as much
as to say that they were already outworn when the definite growth of the
Common Law began. But the general features of the earlier practice, and
still more the ideas that underlay them, have to be borne in mind. They
left their stamp on the course of our legal history in manifold ways;
many things in the medieval law cannot be understood without reference to
them; and even in modern law their traces are often to be found.
While the customary forms of judgment and justice were such as we have
said, there was a comparatively large amount of legislation or at least
express declaration of law; and, what is even more remarkable, it was
delivered in the mother tongue of the people from the first. Æthelberht,
the converted king of Kent, was anxious to emulate the civilisation of
Rome in secular things also, and reduced the customs of his kingdom, so
far as might be, to writing; but they were called _dooms_, not _leges_;
they were issued in English, and were translated into Latin only after
the lapse of some centuries. Other Kentish princes, and afterwards Ine of
Wessex, followed the example; but the regular series of Anglo-Saxon laws
begins towards the end of the ninth century with Alfred’s publication
of his own dooms, and (it seems) an amended version of Ine’s, in which
these are now preserved. Through the century and a half between Alfred’s
time and Cnut’s[45] legislation was pretty continuous, and it was always
in English. The later restoration of English to the statute roll after
the medieval reign of Latin and French was not the new thing it seemed.
It may be that the activity of the Wessex princes in legislation was
connected with the conquest of the Western parts of England, and the need
of having fixed rules for the conduct of affairs in the newly settled
districts. No one doubts that a considerable West-Welsh population
remained in this region, and it would have been difficult to apply any
local West-Saxon custom to them.
Like all written laws, the Anglo-Saxon dooms have to be interpreted in
the light of their circumstances. Unluckily for modern students, the
matters of habit and custom which they naturally take for granted are
those of which we now have least direct evidence. A large part of them is
filled by minute catalogues of the fines and compositions payable for
manslaughter, wounding, and other acts of violence. We may well suppose
that in matters of sums and number such provisions often express an
authoritative compromise between the varying though not widely dissimilar
usages of local courts; at all events we have an undoubted example of
a like process in the fixing of standard measures after the Conquest;
and in some of the later Anglo-Saxon laws we get a comparative standard
of Danish and English reckoning. Otherwise we cannot certainly tell
how much is declaration of existing custom, or what we should now call
consolidation, and how much was new. We know from Alfred’s preamble to
his laws, evidently framed with special care, that he did innovate to
some extent, but, like a true father of English statesmen, was anxious
to innovate cautiously. On the whole the Anglo-Saxon written laws,
though of priceless use to students of the times, need a good deal of
circumspection and careful comparison of other authorities for using them
aright. It is altogether misleading to speak of them as codes, or as if
they were intended to be a complete exposition of the customary law.
We pass on to the substance of Anglo-Saxon law, so far as capable of
being dealt with in a summary view. There were sharp distinctions between
different conditions of persons, noble, free, and slave. We may talk
of “serfs” if we like, but the Anglo-Saxon “theow” was much more like
a Roman slave than a medieval villein. Not only slaves could be bought
and sold, but there was so much regular slave-trading that selling men
beyond seas had to be specially forbidden. Slaves were more harshly
punished than free men, and must have been largely at their owner’s
mercy, though there is reason to think that usage had a more advanced
standard of humanity than was afforded by any positive rules. Manumission
was not uncommon, and was specially favoured by the Church. The slave had
opportunities (perhaps first secured under Alfred) for acquiring means of
his own, and sometimes bought his freedom.
Among free men there were two kinds of difference. A man might be a lord
having dependents, protecting them and in turn supported by them, and
answerable in some measure for their conduct; or he might be a free man
of small estate dependent on a lord. In the tenth century, if not before,
every man who was not a lord himself was bound to have a lord on pain
of being treated as unworthy of a free man’s rights; “lordless man” was
to Anglo-Saxon ears much the same as “rogue and vagabond” to ours. This
wide-spread relation of lord and man was one of the elements that in due
time went to make up feudalism. It was not necessarily associated with
any holding of land by the man from the lord, but the association was
doubtless already common a long time before the Conquest, and there is
every reason to think that the legally uniform class of dependent free
men included many varieties of wealth and prosperity. Many were probably
no worse off than substantial farmers, and many not much better than
slaves.
The other legal difference between free men was their estimation for
_wergild_, the “man’s price” which a man’s kinsfolk were entitled to
demand from his slayer, and which sometimes he might have to pay for his
own offences; and this was the more important because the weight of a
man’s oath also varied with it. A _thegn_ (which would be more closely
represented by “gentilhomme” than by “nobleman”) had a wergild six times
as great as a _ceorl’s_[46] or common man’s, and his oath counted for six
common oaths before the court.[47] All free men, noble or simple, looked
to their kindred as their natural helpers and avengers; and one chief
office of early criminal law was to regulate the blood-feud until there
was a power strong enough to supersede it.
We collect from the general tenor of the Anglo-Saxon laws that the
evils most frequently calling for remedy were manslaying, wounding, and
cattle-stealing; it is obvious enough that the latter, when followed
by pursuit in hot blood, was a natural and prolific source of the two
former. The rules dealing with such wrongs or crimes (for archaic laws
draw no firm line between public offence and private injury) present a
strange contrast of crude ideas and minute specification, as it appears
at first sight. Both are however really due to similar conditions. A
society which is incapable of refined conceptions, but is advanced
enough to require equal rules of some kind and to limit the ordinary
power of its rulers, is likewise incapable of leaving any play for
judicial discretion. Anglo-Saxon courts had not the means of apportioning
punishment to guilt in the particular case, or assessing compensation
according to the actual damage, any more than of deciding on the merits
of conflicting claims according to the evidence. Thus the only way
remaining open was to fix an equivalent in money or in kind for each
particular injury: so much for life and so much for every limb and member
of the human body. The same thing occurs with even greater profusion of
detail in the other Germanic compilations of the Dark Ages. In the latter
days of Anglo-Saxon monarchy treason was added to the rude catalogue
of crimes, under continental influence ultimately derived from Roman
law; but the sin of plotting against the sovereign was the more readily
conceived as heinous above all others by reason of the ancient Germanic
principle of faith between a lord and his men. This prominence of the
personal relation explains why down to quite modern times the murder of a
husband by his wife, of a master by his servant, and of an ecclesiastical
superior by a clerk, secular or regular, owing him obedience, were
specially classed as “petit treason” and distinguished from murder in
general.[48]
Secret murder as opposed to open slaying was treated with special
severity. This throws no light on our later criminal law; nor has it much
to do with love of a fair fight, though this may have strengthened the
feeling; rather it goes back to a time when witchcraft, and poisoning
as presumably connected therewith, were believed to be unavoidable by
ordinary caution, and regarded with a supernatural horror which is still
easy to observe among barbarous people. With these exceptions, and a
few later ones of offences reserved for the king’s jurisdiction, crimes
were not classified or distinguished in Anglo-Saxon custom save by the
amount of public fine[49] and private composition required to redeem the
wrong-doer’s life in each case. Capital punishment and money payment,
or rather liability to the blood-feud redeemable by money payment, and
slavery for a thief who could not make the proper fine, were the only
means of compulsion generally applicable, though false accusers and some
other infamous persons were liable to corporal penalties. Imprisonment
is not heard of as a substantive punishment; and it is needless to say
that nothing like a system of penal discipline was known. We cannot doubt
that a large number of offences, even notorious ones, went unpunished.
The more skilled and subtle attacks on property, such as forgery and
allied kinds of fraud, did not occur, not because men were more honest,
but because fraudulent documents could not be invented or employed in
a society which knew nothing of credit and did not use writing for any
common business of life.
Far more significant for the future development of English law are the
beginnings of the King’s Peace. In later times this became a synonym
for public order maintained by the king’s general authority; nowadays
we do not easily conceive how the peace which lawful men ought to keep
can be any other than the Queen’s or the commonwealth’s. But the king’s
justice, as we have seen, was at first not ordinary but exceptional,
and his power was called to aid only when other means had failed. To
be in the king’s peace was to have a special protection, a local or
personal privilege. Every free man was entitled to peace in his own
house, the sanctity of the homestead being one of the most ancient and
general principles of Teutonic law. The worth set on a man’s peace, like
that of his life, varied with his rank, and thus the king’s peace was
higher than any other man’s. Fighting in the king’s house was a capital
offence from an early time. Gradually the privileges of the king’s
house were extended to the precincts of his court, to the army, to the
regular meetings of the shire and hundred, and to the great roads. Also
the king might grant special personal protection to his officers and
followers; and these two kinds of privilege spread until they coalesced
and covered the whole ground. The more serious public offences were
appropriated to the king’s jurisdiction; the king’s peace was used as a
special sanction for the settlement of blood-feuds, and was proclaimed on
various solemn occasions; it seems to have been specially prominent—may
we say as a “frontier regulation”?—where English conquest and settlement
were recent.[50] In the generation before the Conquest it was, to all
appearance, extending fast. In this kind of development the first stage
is a really exceptional right; the second is a right which has to be
distinctly claimed, but is open to all who will claim it in the proper
form; the third is the “common right” which the courts will take for
granted. The Normans found the king’s peace nearing, if not touching, the
second stage.
Except for a few peculiar provisions, there is nothing in Anglo-Saxon
customs resembling our modern distinctions between wilful, negligent,
and purely accidental injuries. Private vengeance does not stop to
discriminate in such matters, and customary law which started from
making terms with the avenger could not afford to take a more judicial
view. This old harshness of the Germanic rules has left its traces
in the Common Law down to quite recent times. A special provision in
Alfred’s laws recommends a man carrying a spear on his shoulder to keep
the point level with the butt; if another runs on the point so carried,
only simple compensation at most[51] will be payable. If the point has
been borne higher (so that it would naturally come in a man’s face),
this carelessness may put the party to his oath to avoid a fine. If a
dog worried or killed any one, the owner was answerable in a scale of
fines rising after the first offence;[52] the indulgence of the modern
law which requires knowledge of the dog’s habits was unknown. But it may
be doubted whether these rules applied to anything short of serious
injury. Alfred’s wise men show their practical sense by an explanatory
caution which they add: the owner may not set up as an excuse that the
dog forthwith ran away and was lost. This might otherwise have seemed
an excellent defence according to the archaic notion that the animal or
instrument which does damage carries the liability about with it, and the
owner may free himself by abandoning it (_noxa caput sequitur_).[53]
We have spoken of money payments for convenience; but it does not seem
likely that enough money was available, as a rule, to pay the more
substantial wergilds and fines; and it must once have been the common
practice for the pacified avenger to accept cattle, arms, or valuable
ornaments, at a price agreed between the parties or settled by the court.
The alternative of delivering cattle is expressly mentioned in some of
the earlier laws.
As for the law of property, it was rudimentary, and inextricably mixed up
with precautions against theft and charges of theft. A prudent buyer of
cattle had to secure himself against the possible claim of some former
owner who might allege that the beasts had been stolen. The only way to
do this was to take every step in public and with good witness. If he
set out on a journey to a fair, he would let his neighbours know it.
When he did business either far or near, he would buy only in open market
and before credible persons, and, if the sale were at any distance from
home, still more if he had done some trade on the way without having set
out for the purpose, he would call the good men of his own township to
witness when he came back driving his newly-gotten oxen, and not till
then would he turn them out on the common pasture. These observances,
probably approved by long-standing custom, are prescribed in a whole
series of ordinances on pain of stringent forfeitures.[54] Even then a
purchaser whose title was challenged had to produce his seller, or, if
he could not do that, clear himself by oath. The seller might produce
in turn the man from whom he had bought, and he again might do the
like; but this process (“vouching to warranty” in the language of later
medieval law) could not be carried more than three steps back, to the
“fourth hand” including the buyer himself. All this has nothing to do
with the proof of the contract in case of a dispute between the original
parties to the sale; it is much more aimed at collusion between them,
in fact at arrangements for the receipt and disposal of stolen goods.
The witnesses to the sale are there not for the parties’ sake, but as a
check in the public interest. We are tempted at first sight to think of
various modern enactments that require signature or other formalities as
a condition of particular kinds of contracts being enforceable; but their
provisions belong to a wholly different category.