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.