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:—
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.