The History of English Law before the Time of Edward I. Frederic William Maitland

apocryphal authorities, the “Mirror of Justices” being the chief and flagrant example, they belong not to the Anglo-Saxon but to a much later period of English law. For the more part they are not even false history; they are speculation or satire.

      Charters.Another kind of contemporary writings affords us most valuable evidence for the limited field of law and usage which those writings cover. The field, however, is even more limited than at first sight it appears to be. We mean the charters or “land-books” which record the munificence of princes to religious houses or to their followers, or in some cases the administration and disposition of domains thus acquired. Along with these we have to reckon the extant Anglo-Saxon wills, few in number as compared with charters properly so called, but of capital importance in fixing and illustrating some points. It was Kemble’s great achievement to make the way plain to the appreciation and use of this class of evidences by his Codex Diplomaticus. We have to express opinions more or less widely different from Kemble’s on several matters, and therefore think it well to say at once that no one who has felt the difference between genius and industrious good intentions can ever differ with Kemble lightly or without regret. Kemble’s work often requires correction; but if Kemble’s work had not been, there would be nothing to correct.⁴

      Chronicles etc.Then we have incidental notices of Anglo-Saxon legal matters in chronicles and other writings, of which the value for this purpose must be judged by the usual canons of coincidence or nearness in point of time, the writer’s means of access to contemporary witness or continuous tradition not otherwise preserved, his general trustworthiness in things more easily verified, and so forth. Except for certain passages of Bede, we do not think that the general literary evidence, so to call it, is remarkable either in quantity or in quality. Such as we have is, as might be expected, of social and economic interest in the first place, and throws a rather indirect light upon the legal aspect of Anglo-Saxon affairs.

Anglo-Norman documents.Lastly, we have legal and official documents of the Anglo-Norman time, and foremost among them Domesday Book, which expressly or by implication tell us much of the state of England immediately [p.5] before the Norman Conquest. Great as is the value of their evidence, it is no easy matter for a modern reader to learn to use it. These documents, royal and other inquests and what else, were composed for definite practical uses. And many of the points on which our curiosity is most active, and finds itself most baffled, were either common knowledge to the persons for whose use the documents were intended, or were not relevant to the purpose in hand. In the former case no more information was desired, in the latter none at all. Thus the Anglo-Norman documents raise problems of their own which must themselves be solved before we can use the results as a key to what lies even one generation behind them.

Survey of Anglo-Saxon legal institutions.On the whole the state of English law before the Conquest presents a great deal of obscurity to a modern inquirer, not so much for actual lack of materials as for want of any sure clue to their right interpretation at a certain number of critical points. Nevertheless we cannot trace the history of our laws during the two centuries that followed the Conquest without having some general notions of the earlier period; and we must endeavour to obtain a view that may suffice for this purpose. It would be a barren task to apply the refined classification of modern systems to the dooms of Ine and Alfred or the more ambitious definitions of the Leges Henrici Primi. We shall take the main topics rather in their archaic order of importance. First comes the condition of persons; next, the establishment of courts, and the process of justice; then the rules applicable to breaches of the peace, wrongs and offences, and finally the law of property, so far as usage had been officially defined and enforced, or new modes of dealing with property introduced. The origin and development of purely political institutions has been purposely excluded from our scope.

Personal conditions: lordship.As regards personal condition, we find the radical distinction, universal in ancient society, between the freeman and the slave. But in the earliest English authorities, nay, in our earliest accounts of Germanic society, we do not find it in the clear-cut simplicity of Roman law. There is a great gulf between the lowest of freemen and the slave; but there are also differences of rank and degrees of independence among freemen, which already prepare the way for the complexities of medieval society. Some freemen are lords, others [p.6] are dependents or followers of lords. We have nothing to show the origin or antiquity of this division; we know that it was the immemorial custom of Germanic chiefs to surround themselves with a band of personal followers, the comites described by Tacitus, and we may suppose that imitation or repetition of this custom led to the relation of lord and man being formally recognized as a necessary part of public order. We know, moreover, that as early as the first half of the tenth century the division had become exhaustive. An ordinance of Æthelstan treats a “lordless man” as a suspicious if not dangerous person; if he has not a lord who will answer for him, his kindred must find him one; if they fail in this, he may be dealt with (to use the nearest modern terms) as a rogue and vagabond.⁵ The term “lord” is applied to the king, in a more eminent and extensive but at the same time in a looser sense, with reference to all men owing or professing allegiance to him.⁶ Kings were glad to draw to their own use, if they might, the feeling of personal attachment that belonged to lordship in the proper sense, and at a later time the greater lords may now and again have sought to emulate the king’s general power. In any case this pervading division of free persons into lords and men, together with the king’s position as general over-lord, combined at a later time with the prevalence of dependent land tenures to form the more elaborate arrangements and theories of medieval feudalism. It does not seem possible either to assign any time in English history when some freemen did not hold land from their personal lords, or to assign the time when this became a normal state of things. In the latter part of the ninth century there was already a considerable class of freemen bound to work on the lands of others, for an ordinance of Alfred fixes the holidays that are to be allowed them; and we can hardly doubt that this work was incident to their own tenure.⁷ At all events dependent landholding appears to have been common in the century before the Norman Conquest. It was the work of the succeeding century to establish the theory that all land must be “held of” some one as a fixed principle of English law, and to give to the conditions of tenure as distinct from the personal status of [p.7] the tenant an importance which soon became preponderant, and had much to do with the ultimate extinction of personal servitude under the Tudor dynasty.⁸

The family.Dependence on a lord was not the only check on the individual freedom of a freeborn man. Anglo-Saxon polity preserved, even down to the Norman Conquest, many traces of a time when kinship was the strongest of all bonds. Such a stage of society, we hardly need add, is not confined to any one region of the world or any one race of men. In its domestic aspect it may take the form of the joint family or household which, in various stages of resistance to modern tendencies and on various scales of magnitude, is still an integral part of Hindu and South Slavonic life. When it puts on the face of strife between hostile kindreds, it is shown in the war of tribal factions, and more specifically in the blood-feud. A man’s kindred are his avengers; and, as it is their right and honour to avenge him, so it is their duty to make amends for his misdeeds, or else maintain his cause in fight. Step by step, as the power of the State waxes, the self-centred and self-helping autonomy of the kindred wanes. Private feud is controlled, regulated, put, one may say, into legal harness; the avenging and the protecting clan of the slain and the slayer are made pledges and auxiliaries of public justice. In England the legalized blood-feud expired almost within living memory, when the criminal procedure by way of “appeal” was finally abolished. We have to conceive, then, of the kindred not as an artificial body or corporation to which the State allows authority over its members in order that it may be answerable for them, but as an element of the State not yielding precedence to the State itself. There is a constant tendency to conflict between the old customs of the family and the newer laws of the State; the family preserves archaic habits and claims