while Danish words occur only as technical terms. At the conquest, Latin takes the place of English in the compilations made to meet the demand for Anglo-Saxon law texts as still applied in practice.
2. It is easy to group the Anglo-Saxon laws according to the manner of their publication. They would fall into three divisions: (1) laws and collections of laws promulgated by public authority; (2) statements of custom; (3) private compilations of legal rules and enactments. To the first division belong the laws of the Kentish kings, Æthelberht, Hlothhere and Eadric, Withraed; those of Ine of Wessex, of Alfred, Edward the Elder, Æthelstan,[1] Edmund, Edgar, Æthelred and Canute; the treaty between Alfred and Guthrum and the so-called treaty between Edward and Guthrum. The second division is formed by the convention between the English and the Welsh Dunsaetas, the law of the Northumbrian priests, the customs of the North people, the fragments of local custumals entered in Domesday Book. The third division would consist of the collections of the so-called Pseudo-leges Canuti, the laws of Edward the Confessor, of Henry I., and the great compilation of the Quadripartitus, then of a number of short notices and extracts like the fragments on the “wedding of a wife,” on oaths, on ordeals, on the king’s peace, on rural customs (Rectitudines singularum personarum), the treatises on the reeve (gerefa) and on the judge (dema), formulae of oaths, notions as to wergeld, &c. A fourth group might be made of the charters, as they are based on Old English private and public law and supply us with most important materials in regard to it. Looking somewhat deeper at the sources from which Old English law was derived, we shall have to modify our classification to some extent, as the external forms of publication, although important from the point of view of historical criticism, are not sufficient standards as to the juridical character of the various kinds of material. Direct statements of law would fall under the following heads, from the point of view of their legal origins: i. customary rules followed by divers communities capable of formulating law; ii. enactments of authorities, especially of kings; iii. private arrangements made under recognized legal rules. The first would comprise, besides most of the statements of custom included in the second division according to the first classification, a great many of the rules entered in collections promulgated by kings; most of the paragraphs of Æthelberht's, Hlothhere's, and Eadric’s and Ine’s laws, are popular legal customs that have received the stamp of royal authority by their insertion in official codes. On the other hand, from Withraed’s and Alfred’s laws downwards, the element of enactment by central authority becomes more and more prominent. The kings endeavour, with the help of secular and clerical witan, to introduce new rules and to break the power of long-standing customs (e.g. the precepts about the keeping of holidays, the enactments of Edmund restricting private vengeance, and the solidarity of kindreds as to feuds, and the like). There are, however, no outward signs enabling us to distinguish conclusively between both categories of laws in the codes, nor is it possible to draw a line between permanent laws and personal ordinances of single sovereigns, as has been attempted in the case of Frankish legislation.
3. Even in the course of a general survey of the legal lore at our disposal, one cannot help being struck by peculiarities in the distribution of legal subjects. Matters which seem to us of primary importance and occupy a wide place in our law-books are almost entirely absent in Anglo-Saxon laws or relegated to the background. While it is impossible to give here anything like a complete or exact survey of the field—a task rendered almost impossible by the arbitrary manner in which paragraphs are divided, by the difficulty of making Old English enactments fit into modern rubrics, and by the necessity of counting several times certain paragraphs bearing on different subjects—a brief statistical analysis of the contents of royal codes and laws may be found instructive.
We find roughly 419 paragraphs devoted to criminal law and procedure as against 91 concerned with questions of private law and civil procedure. Of the criminal law clauses, as many as 238 are taken up with tariffs of fines, while 80 treat of capital and corporal punishment, outlawry and confiscation, and 101 include rules of procedure. On the private law side 18 clauses apply to rights of property and possession, 13 to succession and family law, 37 to contracts, including marriage when treated as an act of sale; 18 touch on civil procedure. A subject which attracted special attention was the law of status, and no less than 107 paragraphs contain disposition dictated by the wish to discriminate between the classes of society. Questions of public law and administration are discussed in 217 clauses, while 197 concern the Church in one way or another, apart from purely ecclesiastical collections. In the public law division it is chiefly the power, interests and privileges of the king that are dealt with, in roughly 93 paragraphs, while local administration comes in for 39 and purely economic and fiscal matter for 13 clauses. Police regulations are very much to the fore and occupy no less than 72 clauses of the royal legislation. As to church matters, the most prolific group is formed by general precepts based on religious and moral considerations, roughly 115, while secular privileges conferred on the Church hold about 62, and questions of organization some 20 clauses.
The statistical contrasts are especially sharp and characteristic when we take into account the chronological sequence in the elaboration of laws. Practically the entire code of Æthelberht, for instance, is a tariff of fines for crimes, and the same subject continues to occupy a great place in the laws of Hlothhere and Eadric, Ine and Alfred, whereas it appears only occasionally in the treaties with the Danes, the laws of Withraed, Edward the Elder, Æthelstan, Edgar, Edmund and Æthelred. It reappears in some strength in the code of Canute, but the latter is chiefly a recapitulation of former enactments. The system of “compositions” or fines, paid in many cases with the help of kinsmen, finds its natural place in the ancient, tribal period of English history and loses its vitality later on in consequence of the growth of central power and of the scattering of maegths. Royalty and the Church, when they acquire the lead in social life, work out a new penal system based on outlawry, death penalties and corporal punishments, which make their first appearance in the legislation of Withraed and culminate in that of Æthelred and Canute.
As regards status, the most elaborate enactments fall into the period preceding the Danish settlements. After the treaties with the Danes, the tendency is to simplify distinctions on the lines of an opposition between twelvehynd-men and twyhynd-men, paving the way towards the feudal distinction between the free and the unfree. In the arrangements of the commonwealth the clauses treating of royal privileges are more or less evenly distributed over all reigns, but the systematic development of police functions, especially in regard to responsibility for crimes, the catching of thieves, the suppression of lawlessness, is mainly the object of 10th and 11th century legislation. The reign of Æthelred, which witnessed the greatest national humiliation and the greatest crime in English history, is also marked by the most lavish expressions of religious feeling and the most frequent appeals to morality. This sketch would, of course, have to be modified in many ways if we attempted to treat the unofficial fragments of customary law in the same way as the paragraphs of royal codes, and even more so if we were able to tabulate the indirect evidence as to legal rules. But, imperfect as such statistics may be, they give us at any rate some insight into the direction of governmental legislation.
4. The next question to be approached concerns the pedigree of Anglo-Saxon law and the latter’s natural affinities. What is its position in the legal history of Germanic nations? How far has it been influenced by non-Germanic elements, especially by Roman and Canon law? The oldest Anglo-Saxon codes, especially the Kentish and the West Saxon ones, disclose a close relationship to the barbaric laws of Lower Germany—those of Saxons, Frisians, Thuringians. We find a division of social ranks which reminds us of the threefold gradation of Lower Germany
- ↑ The Judicia civitatis Lundoniae are a gild statute confirmed by King Æthelstan.
