СНАР. І.

The England of

have been used as a cover for smuggling; while the custom of enforcing a visit to the shrine of St. Peter as a penance for ecclesiastical crimes must Ecgberht. have introduced a criminal element into the pilgrim companies. The association was the easier as the unshorn hair and beard which the law imposed on the "banished" man was also the customary mark of the pilgrim. Poverty too told hardly on the virtue of the women devotees; and Boniface, with a touch of priestly exaggeration, protests that by the middle of the eighth century Englishwomen of evil life could be found in every city in Lombardy.1 But the religious impulse never ceased to supply worthier pilgrims than these; there was indeed so constant a stream of Englishmen traversing Rome from shrine to shrine, listening to its wild legends, gathering relics, books, gold-work, and embroidery, that it was necessary by Offa's day to found a distinct quarter of the town, called the "Saxon School," for their reception and shelter.

and

unwritten law.

It would be hard to trace out the multifold forms Written in which the new religion impressed itself upon the social and political organization of the people whom it had won. We have already seen the influence which it exerted on the intellectual development of the country, but if the art of writing, as the missionaries introduced it, made a revolution in our literature, it made an even greater revolution in our law. Law, as all early tribes understood it, was simply the custom of each separate people as uttered from memory by its "law-man," under check of his assessors and

1 Lett. Bonif. (ed. Giles), lxiii. p. 146; cf. xlix. p. 104.

CHAP. I.

of the gathered folk. Such utterances were looked The on as changeless and divine. The authority of the England of Ecg berht. past was in fact unquestioned; the people itself was conscious of no power to change the customs of its fathers; and it was only by an unconscious adaptation to the varying circumstances of each generation that this oral law was ceaselessly modified. But with the writing down of these customs the whole conception of law was changed. Not only was its sacred character, as well as the mystery which veiled its sources in the memory of the law-man, taken from it, but the mere writing them down fixed and hardened the customs themselves and took from them their power of adaptation and self-development; for change in the laws could henceforth only be wrought consciously, and on grounds of reason or necessity which questioned or set aside the authority they drew from the past.

Early

English

codes.

What caused this revolution to be so little felt was the slowness with which it was wrought. Great as was the fame of Ethelberht's code among scholars like Bæda, it was long before the rival states followed the example of Kent. There is nothing to warrant us in believing that written law reached Wessex before Ine, or Mercia before Offa, or that it ever reached Northumbria at all. The sphere, too, of the written code remained a narrow and partial one; it restricted itself for the most part to such customs as were affected by the new moral conceptions which Christianity brought in and the new social order it created, or to the changes in police or in land-tenure which sprang from the natural advance

CHAP. I.

The England of

of population and wealth.1 Æthelberht's laws are little more than a record of the customary fines for penal offences, with a provision for the legal Ecgberht. status of the new Christian priesthood, and in the Kentish codes that follow, it is mainly on the ecclesiastical side that the area of legislation is widened.3 Ine found himself forced by the advance of industry and by a new state of public order to deal largely with the subjects of agriculture and police, while fresh provisions were needed to regu

1 The earliest codes we possess are those of Kent, the laws of Æthelberht (ab. 600), those of Hlothere and Eadric (673—685), and those of Wihtræd (ab. 690). Ine's laws (676—705) are our only West-Saxon code. The Mercian code of Offa (755—794), though used by Ælfred in his compilation, is now lost.

2 Out of ninety clauses, forty-one fix the fines for injury to various parts of the body. Almost all the laws refer to violent attacks on person or property: there is no mention of trade or agriculture. The Church is mentioned in the first provision alone.

3 The Church is not mentioned in Hlothere and Eadric's laws, of whose sixteen provisions about half are fines for violence, the rest being for the most part regulations as to plaints in a suit, chapmen, and man-stealing; but those of Wihtræd are almost wholly ecclesiastical.

A fourth of Ine's laws are concerned with agriculture in some way or other, such as the fencing of lands, protection of woods, cattle-stealing and maiming, trespass, firing of fences, &c. Few relate to acts of violence, but nearly a quarter of the whole code is concerned with theft, while the subject of trade comes for the first time prominently forward. Legal procedure again is largely treated. Under internal police we may place the provisions for determining the relations of a man with his lord, for regulating the quitting of lands, and the like. The laws against mutilation of cattle, no doubt records of early custom, are really directed against damage done to what was the general medium of exchange, for a mutilated beast was useless for purposes of barter.

CHAP. I.

late the position of the Welsh who had submitted The to his sword; but in other ways the bounds of his England of Ecgberht legislation are as narrow as those of the Kentish code, nor, so far as we can gather from Alfred's compilation, were those of Offa any wider. To the last, indeed, the whole of our family law, with the bulk of our village and of our land law, remained purely oral.

Early English

dence.

The new moral ideas which were generated alike by jurispru- Christianity and by the settlement of the community itself in more peaceful and industrious form told with equal force on English jurisprudence. A glance at the early history of our national justice shows that its original groundwork was the right of feud. Older than "the peace of the folk," far older than "the king's peace," which was to succeed it, was the "frith " or peace of the freeman himself, the right

1

that each man had to secure for himself safe life and sound limb. He lay, as the phrase ran then, "in his own hand." It was his right to fight his foe, his right and even his duty personally to exact vengeance for wrong done to him; and his kinsmen were bound by their tie of blood to aid him alike in self-defence and in revenge. Traces of this older state of things, in which every freeman was his own absolute guardian and avenger, ran through the whole structure of

66

1 "Mund" or "hand" meant the protection conferred by any one and the peace consequent on it, and "mund-bryce," or "hand-breach," was the violent breaking in on this peace and the sum paid as atonement for such a "breach of the peace."– Essays in Anglo-Saxon Law," (Boston) p 279. Even in later days we may note that before paying the "wite," or fine for the breach of the "folk-peace," a culprit has to pay the bôt, or atonement to the wronged man for the breach of his own peace.

3

CHAP. I.

The England of

our later jurisprudence and procedure. A man might slay one whom he found in his own house within closed doors with his wife, or daughter, or Ecgberht. sister, or mother; he might slay the thief whom he caught red-handed in the actual commission of his theft,2 or the accused man who would not come in peacefully to make answer to the charge. But as a general right, that of unregulated vengeance had long passed away before Saxon or Engle reached Britain. The conquerors came as "folks"; and the very existence of a folk implied a "folk-frith" of the community as a whole. Every man of the folk lay in "the folk's hand"; and, wrong-doer as he might be, it was only when the "hand" was opened, and its protection withdrawn, that the folk could suffer him to be maimed or slain. The earliest conception therefore of public justice was a solemn waiver on the part of the community of its right and duty of protection in the case of one who had wronged his fellow member of the folk. Till such a waiver was given the wrongdoer remained in the folk's "mund"; and to act against him without such a waiver or without appeal to the folk was to act against the folk itself, for it was a breach of the peace or frith to which his mund" entitled him. It was the demand for such a withdrawal of the public protection that constituted

1 Ll. Ælfred, 4. Thorpe, "Anc. Laws," i. 91.

2 Ll. Ine, 12, 16, 21, 28, 35. Thorpe, " Anc. Laws," i. 111-125. 3 Ll. Eadw. and Guthr. 6. Thorpe, "Anc. Laws," i. 171.

4 "It was a fundamental rule of German law that vengeance must be authorised by previous permission of the Court, or if it preceded the judgment, it must afterwards be justified before the tribunal.”—“ Essays in Angl. Sax. Law," p. 264.