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

compilation which set in after the Norman Conquest, and of which the so-called laws of Henry I. are the most conspicuous product, we see not only imitation of the continental collections, but sometimes express reference to their rules.⁵⁶ But this kind of reference, [p.22] at the hands of a compiler who could also quote the Theodosian code,⁵⁷ throws no light whatever on the possibilities of continental influence at an earlier time. It is highly probable that Alfred and his successors had learned persons about them who were more or less acquainted with Frankish legislation if not with that of remoter kingdoms. But it suffices to know that, in its general features, Anglo-Saxon law is not only archaic, but offers an especially pure type of Germanic archaism. We are therefore warranted in supposing, where English authority fails, that the English usages of the Anglo-Saxon period were generally like the earliest corresponding ones of which evidence can be found on the continent.

The king’s peace.Preservation of the peace and punishment of offences were dealt with, in England as elsewhere, partly under the customary jurisdiction of the local courts, partly by the special authority of the king. In England that authority gradually superseded all others. All criminal offences have long been said to be committed against the king’s peace; and this phrase, along with “the king’s highway,” has passed into common use as a kind of ornament of speech, without any clear sense of its historical meaning. The two phrases are, indeed, intimately connected; they come from the time when the king’s protection was not universal but particular, when the king’s peace was not for all men or all places, and the king’s highway was in a special manner protected by it. Breach of the king’s peace was an act of personal disobedience, and a much graver matter than an ordinary breach of public order; it made the wrong-doer the king’s enemy. The notion of the king’s peace appears to have had two distinct origins. These were, first, the special sanctity of the king’s house, which may be regarded as differing only in degree from that which Germanic usage attached everywhere to the homestead of a freeman; and, secondly, the special protection of the king’s attendants and servants, and other persons whom he thought fit to place on the same footing. In the later Anglo-Saxon period the king’s particular protection is called grið as distinct from the more general word frið. Although the proper name is of comparatively recent [p.23] introduction⁵⁸ and of Scandinavian extraction, the thing seems to answer to the Frankish sermo or verbum regis, which is as old as the Salic law.⁵⁹ The rapid extension of the king’s peace till it becomes, after the Norman Conquest, the normal and general safeguard of public order, seems peculiarly English.⁶⁰ On the continent the king appears at an early time to have been recognized as protector of the general peace, besides having power to grant special protection or peace of a higher order.⁶¹

      The various peaces.It is not clear whether there was any fixed name for the general peace which was protected only by the hundred court and the ealdorman. Very possibly the medieval usage by which an inferior court was said to be in the peace of the lord who held the court may go back in some form to the earliest time when there were any set forms of justice; and there is some evidence that in the early part of the tenth century men spoke of the peace of the witan.⁶² We have not found English authority for any such term as folk-peace, which has sometimes been used in imitation of German writers. No light is thrown on early Anglo-Saxon ideas or methods of keeping the peace by the provision that every man shall be in a hundred and tithing, for it first appears in this definite form in the laws of Cnut,⁶³ and both its history and meaning are disputable. This, however, is a matter of administrative mechanism rather than of the law itself. We shall have a word to say about this matter when hereafter we speak of frankpledge.

Feud and atonement.In Anglo-Saxon as well as in other Germanic laws we find that [p.24] the idea of wrong to a person or his kindred is still primary, and that of offence against the common weal secondary, even in the gravest cases. Only by degrees did the modern principles prevail, that the members of the community must be content with the remedies afforded them by law, and must not seek private vengeance, and that, on the other hand, public offences cannot be remitted or compounded by private bargain.

      Personal injury is in the first place a cause of feud, of private war between the kindreds of the wrong-doer and of the person wronged. This must be carefully distinguished from a right of specific retaliation, of which there are no traces in Germanic law.⁶⁴ But the feud may be appeased by the acceptance of a composition. Some kind of arbitration was probably resorted to from a very early time to fix the amount. The next stage is a scale of compensation fixed by custom or enactment for death or minor injuries, which may be graduated according to the rank of the person injured. Such a scale may well exist for a time without any positive duty of the kindred to accept the composition it offers. It may serve only the purpose of saving disputes as to the amount proper to be paid when the parties are disposed to make peace. But this naturally leads to the kindred being first expected by public opinion and then required by public authority not to pursue the feud if the proper composition is forthcoming, except in a few extreme cases which also finally disappear. At the same time, the wrong done to an individual extends beyond his own family; it is a wrong to the community of which he is a member; and thus the wrong-doer may be regarded as a public enemy. Such expressions as “outlaw against all the people” in the Anglo-Saxon laws preserve this point of view.⁶⁵ The conception of an offence done to the state in its corporate person, or (as in our own system) as represented by the king, is of later growth.

      Tariff of compositions.Absolute chronology has very little to do with the stage of growth or decay in which archaic institutions, and this one in particular, may be found in different countries and times. The Homeric poems show us the blood-feud in full force in cases of manslaying [p.25] (there is little or nothing about wounding), tempered by ransom or composition which appears to be settled by agreement or arbitration in each case. In the classical period of Greek history this has wholly disappeared. But in Iceland, as late as the time of the Norman Conquest of England, we find a state of society which takes us back to Homer. Manslayings and blood-feuds are constant, and the semi-judicial arbitration of wise men, though often invoked, is but imperfectly successful in staying breaches of the peace and reconciling adversaries. A man’s life has its price, but otherwise there is not even any recognized scale of compositions. In the Germanic laws both of England and of the mainland we find a much more settled rule some centuries earlier. Full scales of composition are established. A freeman’s life has a regular value set upon it, called wergild, literally “man’s price” or “man-payment,”⁶⁶ or oftener in English documents wer simply; moreover, for injuries to the person short of death there is an elaborate tariff. The modern practice of assessing damages, though familiar to Roman law in the later republican period, is unknown to early Germanic law, nor were there in Germanic procedure any means of applying the idea if it had existed. Composition must generally be accepted if offered; private war is lawful only when the adversary obstinately refuses to do right. In that case indeed, as we learn from a well-known ordinance of Alfred,⁶⁷ the power of the ealdorman, and of the king at need, may be called in if the plaintiff is not strong enough by himself; in other words the contumacious denier of justice may be dealt with as an enemy of the commonwealth. At a somewhat later time we find the acceptance and payment of compositions enforced by putting the obligation between the parties under the special sanction of the king’s peace.⁶⁸ But it was at least theoretically possible, down to the middle of the tenth century, for a manslayer to elect to bear the feud of the kindred.⁶⁹ His own kindred, however, might avoid any share in the feud by disclaiming him; any of them who maintained him after this, as well as any of the avenging kinsfolk who [p.26] meddled with any but the actual wrong-doer, was deemed a foe to the king (the strongest form of expressing outlawry) and forfeited all his property.

Wer, wíte, bót.We find the public and private aspects of injurious acts pretty clearly distinguished by the Anglo-Saxon terms. Wer, as we have said, is the value set on a man’s life, increasing with his rank. For many purposes it could be a burden as well as a benefit;