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

courts, our direct evidence is of the scantiest. We have to supplement it with indications derived from the Norman and later times.

Union of temporal and spiritual jurisdiction.One well-known peculiarity of the Anglo-Saxon period is that secular and ecclesiastical courts were not sharply separated, and the two jurisdictions were hardly distinguished. The bishop sat in [p.17] the county court; the church claimed for him a large share in the direction of even secular justice,⁴⁰ and the claim was fully allowed by princes who could not be charged with weakness.⁴¹ Probably the bishop was often the only member of the court who possessed any learning or any systematic training in public affairs.

The king’s justice not ordinary.The most general Anglo-Saxon term for a court or assembly empowered to do justice is gemót. In this word is included all authority of the kind from the king and his witan⁴² downwards. Folcgemót appears to mean any public court whatever, greater or less. The king has judicial functions, but they are very far removed from our modern way of regarding the king as the fountain of justice. His business is not to see justice done in his name in an ordinary course, but to exercise a special and reserved power which a man must not invoke unless he has failed to get his cause heard in the jurisdiction of his own hundred.⁴³ Such failure of justice might happen, not from ill-will or corruption on the part of any public officer, but from a powerful lord protecting offenders who were his men.⁴⁴ In such cases the king might be invoked to put forth his power. It is obvious that the process was barely distinguishable from that of combating an open rebellion.⁴⁵

      After the Norman Conquest, as time went on, the king’s justice became organized and regular, and superseded nearly all the functions of the ancient county and hundred courts. But the king’s power to do justice of an extraordinary kind was far from being abandoned. The great constructive work of Henry II. and Edward I. made it less important for a time. In the fifteenth and sixteenth centuries it showed its vitality in the hands of the king’s chancellors, and became the root of the modern system of equity.⁴⁶ Down to our own time that system preserved the marks of its origin in the peculiar character of the compulsion exercised by courts of equitable jurisdiction. Disobedience to their process and decrees was a direct and special contempt of the king’s authority, and a “commission [p.18] of rebellion” might issue against a defendant making default in a chancery suit, however widely remote its subject-matter might be from the public affairs of the kingdom.⁴⁷

Jurisdiction of witan.We have many examples, notwithstanding the repeated ordinances forbidding men to seek the king’s justice except after failure to obtain right elsewhere, of the witan exercising an original jurisdiction in matters of disputed claims to book-land.⁴⁸ This may be explained in more than one way. Book-land was (as we shall see) a special form of property which only the king could create, and which, as a rule, he created with the consent and witness of his wise men. Moreover, one or both parties to such suits were often bishops or the heads of great houses of religion, and thus the cause might be regarded as an ecclesiastical matter fit to be dealt with by a synod rather than by temporal authority, both parties doubtless consenting to the jurisdiction.

      

      The charters that inform us of what was done, especially in 803 and 825, at the synods or synodal councils of Clovesho,⁴⁹ that “famous place” whose situation is now matter of mere conjecture,⁵⁰ leave no doubt that on these occasions, at least, the same assembly which is called a synod also acted as the witan. The secular and spiritual functions of these great meetings might have been discriminated by lay members not taking part in the ecclesiastical business; but it is by no means certain that they were.⁵¹ In any case it is highly probable that the prohibitions above cited were never meant to apply to the great men of the kingdom, or royal foundations, or the king’s immediate followers.

County and hundred courts.The ordinary Anglo-Saxon courts of public justice were the county court and the hundred court, of which the county court was appointed to be held twice a year, the hundred every four weeks.⁵² Poor and rich men alike were entitled to have right done to them, though the need of emphasizing this elementary point of law in the third quarter of the tenth century suggests that the fact was often otherwise.⁵³

      Thus the hundred court was the judicial unit, so to speak, for ordinary affairs. We have no evidence that any lesser public court [p.19] existed. It is quite possible that some sort of township meeting was held for the regulation of the common-field husbandry which prevailed in most parts of England: and the total absence of any written record of such meetings, or (so far as we know) allusion to them, hardly makes the fact less probable. But we have no ground whatever for concluding that the township-moot, if that were its name, had any properly judicial functions. “Mark-moot,” which has been supposed to be the name of a primary court, appears rather to mean a court held on the marches of adjacent counties or hundreds, or perhaps on the boundary dyke itself.⁵⁴

      The ordinances which tell us of the times of meeting appointed for the county and hundred courts tell us nothing whatever of their procedure. It may be taken as certain, however, that they had no efficient mode of compelling the attendance of parties or enforcing their orders. A man who refused to do justice to others according to the law could only be put out of the protection of the law, save in the cases which were grave enough to call for a special expedition against him. Outlawry, developed in the Danish period as a definite part of English legal process, remained such until our own time. All this is thoroughly characteristic of archaic legal systems in general. Nothing in it is peculiarly English, not much is peculiarly Germanic.

Private jurisdiction.Thus far we have spoken only of public jurisdiction. But we know that after the Norman Conquest England was covered with the private jurisdictions of lords of various degrees, from the king himself downwards, holding courts on their lands at which their tenants were entitled to seek justice in their own local affairs, and bound to attend that justice might be done to their fellows. “Court baron” is now the most usual technical name for a court of this kind, but it is a comparatively modern name. Further, we know that private jurisdiction existed on the continent much earlier, and that it existed in England in the early part of the eleventh century. It is a [p.20] question not free from doubt whether the institution was imported from the continent not long before that time, or on the contrary had been known in England a good while before, perhaps as early as the date of our earliest Anglo-Saxon laws and charters, notwithstanding that it is not expressly and directly mentioned in documents of the earlier period. For our present purpose it is enough to be sure that private courts were well established at the date of the Conquest, and had been increasing in number and power for some time.⁵⁵

[p.21]Subject-matter of Anglo-Saxon justice. Proceeding to the subject-matters of Anglo-Saxon jurisdiction, we find what may be called the usual archaic features. The only substantive rules that are at all fully set forth have to do with offences and wrongs, mostly those which are of a violent kind, and with theft, mostly cattle-lifting. Except so far as it is involved in the law of theft, the law of property is almost entirely left in the region of unwritten custom and local usage. The law of contract is rudimentary, so rudimentary as to be barely distinguishable from the law of property. In fact people who have no system of credit and very little foreign trade, and who do nearly all their business in person and by word of mouth with neighbours whom they know, have not much occasion for a law of contract. It is not our purpose to consider in this place the relation of Anglo-Saxon customs and ordinances to those of Germanic nations on the continent; to inquire, for example, why the Salic or the Lombard laws should present striking resemblances even in detail to the laws of Alfred or Cnut, but provide with equal or greater minuteness for other similar cases on which the