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by verbal contract and symbols, before witnesses; a staff, a horn, a twig, or a piece of turf represented a property, before written contracts were in use; and often accompanied the written deed afterwards. From the fact that it could be transferred by a written instrument, private property came commonly to be called boc-land, as distinguished from the folc-land, which, even in later times, when the institution had been encroached upon, could only be granted away-in the first instance, at least -with the sanction of the witan. But the right to boc-land was not necessarily absolute; it might be limited by a sort of entail upon the family; and in this case the occupier could not lease it away from them, and probably could not dispose of it. What property could strictly be called his own is a little doubtful. I incline to think that all inherited land belonged, like the share of the original colonist, to the family, and that on the death of the head, it was equally divided among all males. But in the case of personalty, or of estates acquired during the testator's lifetime, it would seem that the right of bequest was acknowledged, and practised pretty much without limitation, except, of course, that it could not bar any claims upon the property. In the case of a great man, the will was commonly made in the presence of the witan, as much, I think, for the sake of witnesses, as because the bequeathal of folc-land would require a guarantee from the state, if the right to dispose of it had been left doubtful. A certain preference to sons over daughters, and to elder over younger sons, is perceptible in the wills of the great landowners. But the realty of a man who died intestate, was divided equally among his
1 Placuit mihi hanc paginam condere et una cum cespite terræ prædictæ tradere tibi.-Cod. Dip., 114.
2 Alfred, 41; A. S. Laws, vol. i., p. 89. Land might be tied up to almost any extent, especially if reversion to a monastery was in question. Thus we find land partly given, partly sold, to Eanwolf for himself and three heirs, with reversion to Stretford monastery.-Cod. Dip., 314. Under Canute, a Dane tries to recall a hasty sale of land, on the plea that he cannot prejudice his heirs.—Hist. Ram., c. 85; Gale, vol. iii., p. 442. Osbern says of Odo's father, a Danish nobleman, "jus hereditatis quod ad illum lege primogenitorum venire debebat, subtrahit.”Ang. Sacra, vol. ii., p. 78.
sons; even the unmarried daughters were in all likelihood excluded from any share in it. The tradition of modern times, that a son must be disinherited with a shilling to show that he was not forgotten, has probably been derived from a Roman original. But little customs of this sort cannot be pressed; Augustine or Vicarius may have imported them. Our marriage laws are very Roman, but were no doubt introduced by canonists, not copied from civil practice. It is curious that in England a will might be made by word of mouth, before witnesses, as easily as by a deed. The reason, no doubt, was a just suspicion that documents might be forged, and that forgeries would be less easy of detection by unlettered and uncritical judges than perjuries.
How an action for land was conducted, we cannot now
Si quis pater-familias casu aliquo sine testamento obierit pueri inter se hereditatem paternam æqualiter dividant. For pueri, the French version reads les enfans.-Gul. Conq., 34; A. S. Laws, vol. i., p. 481. The Kentish custom of gavelkind is said to have been the practice of the county before the Norman conquest, confirmed by special favour to the men of Kent. By the custom of Hereford, the property of a man who died intestate escheated to the crown.- Consuetudines, Gale, vol. iii., p. 769. As late as Henry I.'s time, the eldest son only inherited the fief; boc-land was held to belong to the family; and acquired property might be disposed of at pleasure.-Leges Hen. Imi, lxx., 21; A. S. Laws, vol. i., p. 575.
2 A son having impleaded his mother before the county court, a deputation was despatched to receive her answer; in her anger she disinherited him, and declared a kins woman her sole legatee of "land and gold, gown and dress." The deputation reported the answer; judgement to that effect was given in favour of the kinswoman's husband, and a record of the judgement ordered to be made. -Cod. Dip., vol. i., p. cix. A nuncupative will on a death-bed is recorded in the Domesday of Worcestershire.---Consuetudines, Gale, vol. iii., p. 768. Under Henry II., Hamo Blund, of Bury-St.-Edmund's, made a will by word of mouth, in presence only of his two legatees, and a priest. Sampson, abbot of St. Edmund's, and some time justice in Eyre, declared it informal, on the ground that the ecclesiastical superior had not been informed, and forced the heirs to agree to a new disposition of the property.-Chron. Joc. de Brak, pp. 67, 68. Here, however, the real objection seems to have been that the transaction had been unduly private. The Council of Cashel, 1172 A.D., decreed that wills were to be made in presence of the confessor and neighbours, and the personalty divided into three parts: one for the children, one for the wife, and one for the burial expenses.-Wilkins, vol. i., p. 473. This, no doubt, represents English usage; and shows that in the twelfth century the power of bequest was singularly limited by custom.
determine with any certainty. Judging from later analogy, we should say that in the absence of public prosecutors, the individual was bound in the first place to take his own remedy, and enter forcibly upon any property that was unjustly withheld from him. If again dispossessed, he would bring the question before the county court, or, if a noble, before the witan, or, if it were church property, before the synod.1 The two parties would then bring forward their compurgators, and the case would probably be referred to a sort of committee or jury, composed of men from the district, who were likely to know the land-marks. A prescription of thirty years' occupancy (longissimi temporis possessio) was a bar to any recovery of the estate impleaded. In the procedures there seems to have been a certain looseness; we read of a deputation waiting upon a great lady to receive her answer, and we find the lawgivers trying, probably with as little effect as in later times, to fix a term in which suits should be ended.3 But the limits of land were defined with scrupulous accuracy, and a register of decisions and deeds was kept in the superior courts.*
How chattels were bought, sold, and reclaimed, may be gathered from full and authentic notices. There were guilds of merchants and artizans, which congregated in the same quarters of their respective cities, in its Tanner, Fellmonger, and Flesher Streets, and enjoyed the monopoly of their respective branches of industry. In spite of the English names under which we know them, it is pretty certain that they only continued the old Roman collegia of the trades, with perhaps
Cod. Dip., 104, 184, 1237.
2 Cod. Dip., 184, triginta annis et eo amplius. This prescription of thirty years for secular, and forty for ecclesiastical property, barred any claim, even though founded upon fraud or violence in the tenant impleaded. It belongs to the times before Justinian.-Sandars's Institutes of Justinian, pp. 236, 237. Mr. Long observes that under Constantine, a period of thirty or forty years-for it seems that the time was not quite settled-was to be considered as sufficient for a præscriptio.-Dict. of Antiquities, p. 789.
3 "In the hundred, as in any other gemot, we ordain that folc-right be pronounced in every suit, and that a term be fixed when it shall be fulfilled."-Edgar, 7; A. S. Laws, vol. i., p. 261.
4 See above, p. 187, note 2.
ALL SALES WITNESSED.
somewhat larger powers for the protection of native industry. To effect this object, and prevent all possibility of fraud, every purchase had to be made in public and before witnesses; the very intention of purchase had to be declared to a man's neighbours, before he went to buy anything at a distance; and if an unexpected purchase were made on a journey, the buyer was bound to legalize it by a declaration to the township on his return. A sort of cordon was drawn around the great cities, at a distance of some three miles; between this and the city wall, no transaction could be legally made; and business was thus confined to the market, or at least to the street. A foreigner was not allowed to retail his wares. These laws were especially vexatious in the case of butcher's meat, which had to be bought continually, and which every one tried to buy at Christmas-tide. But by the letter of Anglo-Saxon law, a purchaser who could not prove that he had bought in market-overt, was compelled to give up the article challenged, and could not recover against the vendor. He even had to satisfy the good men (probi homines) whom the city appointed to warrant and inspect sales, that he was not himself a suspicious character. In the case of gold or silver plate, which might have been stolen from a church, the salesman who had no witnesses to his original purchase, might be imprisoned on suspicion, till he obtained bail.2 It is probable that the "good men" witnessed debts as well as sales. But the recovery of a disputed debt was transacted in the county court; an acknowledgement once made there, ensured a verdict against the debtor; and any attempt to evade payment was punished by forfeiture of as much again as he owed.3
It is curious to observe how Bentham's doctrine that the state is bound to insure the property of its subjects, was literally
1 Edgar, 6, 7; A. S. Laws, vol. i., p. 261.
2 Edw. Conf., 38, 39, Libertas Civitatum; Ethelred, iii., 8; A. S. Laws, vol. i., pp. 297, 461-464.
3 Alfred, 22; A.S. Laws, vol. i., p. 77. Mr. Thorpe understands this to mean that the plaintiff having once declared a debt, was bound to prosecute his claim in open court. The words will, I believe, bear either sense, but that which I have given them seems most in harmony with Anglo-Saxon custom.
THE FRITH-GUILD SYSTEM.
applied by the Anglo-Saxons. A man who found his cattle gone, was bound to prove, by pointing out the track, that they had been stolen from the place in which he left them; if, negligently trusting in the frith-guild's vigilance, he had allowed them to stray on the commons, not only without a guard, but without inspection from time to time, he could not recover against the tithing. When the loss was notified, and the track pointed out, the guild was bound to follow up the quest, till they either found the thief, or arrived at the boundary of another guild. In this latter case, the hue and cry was passed on; and, in theory, might lead all over England, till the property was recovered, or till compensation was made by the thief or by the guild within whose limits the guilty spoor had stopped.1 Of course it was comparatively easy to track cattle. In the case of smaller animals, and of chattels that might be carried away, it is natural to presume that the owner would be required to give more positive proof of having lost them. Except in the cases of a few great lords, property of all kinds, whether plate or poultry, would be small in amount; and the fact of former possession would be easily proved.
The punishments for theft were very uncertain, the general principles being, that property might be protected by its owner at any cost; but further, as in murder, that the simple offence might be commuted for a fine. Hence the thief taken with the mainour might be killed, if he were over fifteen, by the injured man; but he might also ransom his life by payment of a fluctuating sum. Latterly, the laws became more severe; and under Edgar, a theft supported by perjury, was to be punished with death. A man who would not stand his trial, was outlawed. He then, in common parlance, wore the wolf's head, and lay at the mercy of any man to be slain with bill or
Judicia Civ. Lund., viii.; A. S. Laws, vol. i., pp. 237-239. It is note-worthy that an estate was sometimes exempted from the duty of following up the hue and cry.-Cod. Dip., 260, 300.
2 Athelstane, v., 12; A. S. Laws, vol. i., pp. 241-243.
3 Edgar, s. 11; A. S. Laws, vol. i., p. 277.
4 Ethelred, i., 1; A. S. Laws, vol. i., pp. 281-283.