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. |
[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.