Part 13

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.

Another archaic source of anxiety is that borrowed arms may be used in a fatal fight and bring the lender into trouble. The early notion would be that a weapon used for manslaying should bring home the liability with it to the owner, quite regardless of any fault; which would afterwards become a more or less rational presumption that he lent it for no good purpose. Then the risk of such weapons being forfeited continued even to modern times. Hence the armourer who takes a sword or spear to be repaired, and even a smith who takes charge of tools, must warrant their return free from blood-guiltiness, unless it has been agreed to the contrary.[55] We also find, with regard to the forfeiture of things which “move to death,” that even in case of pure accident, such as a tree falling on a woodman, the kindred still have their rights. They may take away the tree if they will come for it within thirty days.[56]

There was not any law of contract at all, as we now understand it. The two principal kinds of transaction requiring the exchange or acceptance of promises to be performed in the future were marriage and the payment of wergild. Apart from the general sanctions of the Church, and the king’s special authority where his peace had been declared, the only ways of adding any definite security to a promise were oath and giving of pledges. One or both of these were doubtless regularly used on solemn occasions like the settlement of a blood-feud; and we may guess that the oath, which at all events carried a spiritual sanction, was freely resorted to for various purposes. But business had hardly got beyond delivery against ready money between parties both present, and there was not much room for such confidence as that on which, for example, the existence of modern banking rests. How far the popular law took any notice of petty trading disputes, such as there were, we are not informed; it seems likely that for the most part they were left to be settled by special customs of traders, and possibly by special local tribunals in towns and markets. Merchants trafficking beyond seas, in any case, must have relied on the customs of their trade and order rather than the cumbrous formal justice of the time.

Anglo-Saxon landholding has been much discussed, but is still imperfectly understood, and our knowledge of it, so far from throwing any light on the later law, depends largely on what can be inferred from Anglo-Norman sources. It is certain that there were a considerable number of independent free men holding land of various amounts down to the time of the Conquest. In the eastern counties some such holdings, undoubtedly free, were very small indeed.[57] But many of the lesser free men were in practical subjection to a lord who was entitled to receive dues and services from them; he got a share of their labour in tilling his land, rents in money and kind, and so forth. In short they were already in much the same position as those who were called villeins in the twelfth and thirteenth centuries. Also some poor free men seem to have hired themselves out to work for others from an early time.[58] We know next to nothing of the rules under which free men, whether of greater or lesser substance, held “folk-land,” that is, estates governed by the old customary law. Probably there was not much buying and selling of such land. There is no reason to suppose that alienation was easier than in other archaic societies, and some local customs found surviving long after the Conquest point to the conclusion that often the consent of the village as well as of the family was a necessary condition of a sale. Indeed it is not certain that folk-land, generally speaking, could be sold at all. There is equally no reason to think that ordinary free landholders could dispose of their land by will, or were in the habit of making wills for any purpose. Anglo-Saxon wills (or rather documents more like a modern will than a modern deed) exist, but they are the wills of great folk, such as were accustomed to witness the king’s charters, had their own wills witnessed or confirmed by bishops and kings, and held charters of their own; and it is by no means clear that the lands dealt with in these wills were held as ordinary folk-land. In some cases it looks as if a special licence or consent had been required; we also hear of persistent attempts by the heirs to dispute even gifts to great churches.[59]

Soon after the conversion of the south of England to Christianity, English kings began to grant the lordship and revenues of lands, often of extensive districts, to the Church, or more accurately speaking to churches, by written charters framed in imitation of continental models. Land held under these grants by charter or “book,” which in course of time acquired set forms and characters peculiar to England, was called _bookland_, and the king’s bounty in this kind was in course of time extended to his lay magnates. The same extraordinary power of the king, exercised with the witness and advice[60] of his Witan, which could confer a title to princely revenues, could also confer large disposing capacities unknown to the customary law; thus the fortunate holder of bookland might be and often was entitled not only to make a grant in his lifetime or to let it on such terms as he chose, but also to leave it by will. My own belief is that the land given by the Anglo-Saxon wills which are preserved was almost always bookland even when it is not so described. Indeed these wills are rather in the nature of postponed grants, as in Scotland a “trust disposition” had to be till quite lately, than of a true last will and testament as we now understand it. They certainly had nothing to do with the Roman testament.

Long before the Conquest it had become the ambition of every man of substance to hold bookland, and we may well think that this was on the way to become the normal form of land-ownership. But this process, whatever its results might have been, was broken off by the advent of Norman lords and Norman clerks with their own different set of ideas and forms.

The various customs of inheritance that are to be found even to this day in English copyholds, and to a limited extent in freehold land, and which are certainly of great antiquity, bear sufficient witness that at least as much variety was to be found before the Conquest. Probably the least usual of the typical customs was primogeniture; preference of the youngest son, ultimogeniture or junior-right as recent authors have called it, the “borough-English” of our post-Norman books, was common in some parts; preference of the youngest daughter, in default of sons, or even of the youngest among collateral heirs, was not unknown. But the prevailing type was equal division among sons, not among children including daughters on an equal footing as modern systems have it. Here again the effect of the Norman Conquest was to arrest or divert the native lines of growth. In this country we now live under laws of succession derived in part from the military needs of Western Europe in the early Middle Ages, and in part from the cosmopolitan legislation of Justinian, the line between the application of the two systems being drawn in a manner which is accounted for by the peculiar history of our institutions and the relations between different jurisdictions in England, but cannot be explained on any rational principle. But the unlimited freedom of disposal by will which we enjoy under our modern law has reduced the anomalies of our intestate succession to a matter of only occasional inconvenience.

Small indeed, it is easy to perceive, is the portion of Anglo-Saxon customs which can be said to have survived in a recognisable form. This fact nevertheless remains compatible with a perfectly real and living continuity of spirit in our legal institutions.

If we do not nowadays observe King Alfred’s dooms, or anything like them, still we owe it to the work of Alfred and his children that England was saved to become an individual nation, and that our fundamental ideas of justice have survived all external changes. Those ideas may be summed up very shortly. Justice is essentially public; the business of parties is to conduct their cases according to the rules of law, the business of the court is to hear and determine between them, not to conduct an inquiry; judicial interpretation of the law is the only authentic and binding interpretation, and in particular the executive has no such power. These principles appear obvious to most of us, but there are many civilised countries where they are not admitted. We can trace them back to the rudest beginnings of our jurisprudence; they are as vigorous as ever, in all the complexity of modern affairs, wherever the English tongue is spoken.

ALFRED AND THE ARTS

BY REV. W. J. LOFTIE

ALFRED AND THE ARTS

The story of the life of King Alfred connects his name with the practice of three arts. He was an architect, a writer, and a musician. We so often hear of the art of war that when we remember his proficiency as a soldier we are inclined to forget that fortification, fighting, fishing, and hunting, if they may be called arts, are not fine arts. Alfred’s noble defence of England against the Danes has ever since his day been an example to his countrymen of later generations. He first taught them the negative virtue that consists in not knowing when they are beaten. But our concern, in the particular chapter that has fallen to my lot, is with Alfred and the fine arts: and as you cannot enjoy painting or music without a house, it behoves us to inquire first as to the state of architecture in the ninth century, and as to the part taken by Alfred in building houses, churches, and cities. We must remember that though, as we know, writing and the illumination of manuscripts had attained a very high pitch of excellence, Alfred had no maps to guide him. His workmen may have been able to scratch their diagrams on stones, and in other similar ways to obtain guidance in carrying out such buildings as the king required. But he had traversed all that part of England over which he reigned, and was as well acquainted with the marshes of Somerset as with the wooded valley of the Lea and the chalk cliffs of his southern shore. He knew how to build and how to handle the ships of his time, and was able to defeat the Danes on what might be called their own element. Tradition has always and plausibly assigned to him a further feat of naval warfare. When his enemies had sailed up to Hertford and prepared to rest for the winter and mend their boats, he, so to speak, drew the water from under them by the knowledge which prompted him to divide the channels. The object of this and other achievements of the kind was his anxiety to obtain the command of the great estuary into which the Fleet, the Wallbrook, the Lea, and the creeks about Barking fell. To gain this region was one thing, to hold it another. The Saxons before his time disliked the use of walls in warfare. Still more they disliked the trouble of building and maintaining them. But Alfred possessed whatever was known of fortification, and by this knowledge he was able to raise the first permanent impediment in the way of future invaders.