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JUDICIAL PROVINCE OF THE STATE.

181

or provided for the enforcement, of the penalty. To extirpate sin was the duty of the church, and the state assisted it with all its prestige and powers. Penance practically was compulsory, not optional. But the canons forbade priests to take any part in the shedding of blood, and they had not yet learned to evade this provision by handing back the men they had sentenced to the temporal arm. The punishment of death was therefore unknown to the Saxon state, except for treason and lese-majesty, or for witchcraft and sacrilege, which followed the same analogy. It is true there were a number of cases in which a man, detected in a crime, or refusing to surrender to the law, or having forfeited its protection, might be slain. But these are regulations of police rather than of justice. Similarly, the notorious thief might be mutilated ; but the punishment was probably designed to cripple him in his peculiar activity, and to designate him as a convict. It is doubtful, though the laws speak of prisons, whether during these centuries there was any place in which a criminal could be confined for life. Generally, it may be said that the tenour of the Anglo-Saxon laws was merciful, or at least not bloody.

Much has been said about the barbarism of commuting offences for money punishments. It might be said that it is a barbarism which we have not yet outgrown: the rich man pays his five pounds at the police-court, while the poor man goes away in the van; even adultery is still matter of assessment. Yet until offences against life and property were distinctly regarded as immoral no less than detrimental, it is difficult to see how the state could profess to do anything more than aim at prevention and compensation. In Christian times, the recognition of sin as a political evil changed the whole aspect of the question. But with a half-pagan population, a moral change in the laws could not be at once effected ; it was natural to leave the punishment for outraged religion to the church. If the church could enforce its decrees, could compel abstinence

1

Alfred, 4, 7; Ethelred, vi., 7; vii., 9, 13; A. S. Laws, vol. i., pp. 63, 67, 317, 331, 333.

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CORRECTIONAL POWERS OF THE CHURCH.

from food, and brand the offender with infamy, it was certainly not inefficient as a correctional system. And in cases where the guilt had been great, it sometimes secluded the criminals from society, by compelling them to enter a convent.

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66

" In the absence of records of the Anglo-Saxon law courts, many instances of the exercise of church jurisdiction are not forthcoming; but some can be produced. In the case of Thurkill above given,“ vir de reatu perjurii, mulier de culpâ homicidii solemnis pænam pænitentiæ exceperunt.” — Gale, vol. iii., p. 441. Dunstan forced a nobleman, who had made an uncanonical marriage, and bought a pardon from Rome, to do penance before a synod.-Anglia Sacra, vol. ii., p. 215. By the custom of Lewes, “rex habet hominem adulterum, archiepiscopus feminam.” At Guildford, " quandam viduam cujus erat domus accepit præpositus villæ, et ideo misit episcopus domum illam in suo manerio.” -Gale, vol. iii., p. 762. This forfeiture of the 'dower was the enforcement of a church canon, by which the widow was not to marry within a year of her husband's death.-Ecg. Excep., 118; A. S. Laws, vol. ii., p. 114. A man who perjured himself was to enter a monastery ; one who killed his kinsman or a priest, to go to Rome.---Pæn. Ecg., lib. ii., 24 ; lib. iv., 6; A. S. Laws, vol. ii., pp. 193, 205. This binary theory of justice is well expressed by the council of Enham (c. 50.) “He who, anywhere, henceforth shall corrupt just laws, either of God or of men, let him strictly make bòt for it, in whatever manner is fitting, as well with divine bòt, as with secular correction.”—A. S. Laws, vol. i., p. 320. ANGLO-SAXON CIVIL LAW.

ROMANO-BRITISH CHARACTER OF THE CITIES, MUNICIPAL ORGANIZATION AND

LAWS DERIVED FROM THE ROMANS,TENURES OF LAND AND RIGHTS OF
BEQUEST.-ACTIONS

FOR
LAND, SALES

OF

CHATTELS REGULATED AS

PUBLIC CONTRACTS. - PROPERTY INSURED BY THE STATE.-PRINCIPLE OF
MUTUAL INSURANCE IN THE PRIVATE GUILDS.-ANGLO-SAXON AND WELSH

CONTRASTS.

While the country districts of England received a new organization from their Saxon occupiers, the still numerous towns which had not been stormed and destroyed, remained in possession of their old franchises, and only paid a quit-rent to their conquerors. Even where a portion of the Saxons clustered together, instead of spreading over the country, they do not seem to have entered within the old walls ; neither the splendour of Roman civilization, nor the neighbourhood of a large Romanic population, would have suited them; they settled down under roofs of their own rearing, defended by a few earthworks and a ditch, on some rising ground near the great cities and highways. In the course of one or two centuries, these British and Saxon townships would no doubt everywhere be fused into new cities. Meanwhile, the framework of municipal government, the laws affecting property and trade, the customs of local taxation, even regulations for building and burial, continued to bear the impress of their Roman origin. The corrupt language of the provincials, differing in every district, and without a literature of its own, gave way before the more uniform dialect of the dominant race, though several hundred words, in the three or four thousand which exhaust the needs of ordinary life, attest the intermarriages of the conquered people with their conquerors. But laws and habits of thought are longer-lived than speech.

184

ROMAN AND SAXON MUNICIPALITIES.

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A Roman colonia or municipium had consisted pretty generally of two main classes, the servile, and the free, who might by courtesy be called the self-governing. The free, if they were well-born or prosperous, might become decuriones, or common councilmen of their city, and in this capacity they elected magistrates, the præfectus, duumvir, or duumviri, and their assessors or subordinates, from their own ranks. Under Roman rule, the police of the cities was maintained by men set apart for the purpose.

This institution was supplanted under the Saxons by the more congenial frank-pledge system, and except perhaps in the case of the kings, who might, like Edwin, maintain a small body of police, the preservation of the peace became the duty of the citizens at large, who were divided into tithings and hundreds at some unknown period. The degraded dignity of the decuriones had now come to embrace every member of the tithing; the duties of the inferior magistracy had been chiefly restricted to matters affecting property ; and under the new name of probi homines, or good men, they were now clected to attest the different acts of bargain and sale. The præfectus, or burh-gerefa, was rather a royal than a civic officer; representing, no doubt, in the first instance, the intrusive Saxon element, and seeing that the king's dues were collected. But by the analogy of the scir-gerefa, it was also his place to look after the safety of the walls, and the organization of the militia. Like the mayor of Anglo-Norman times, he was probably elected by the citizens, and confirmed by the king. His term of office in Roman and Norman, and it is likely therefore in Saxon times, was for a

a

year.

Naturally, there are few traces in the Anglo-Saxon laws of those peculiar powers which the ædiles and other municipal officers exercised. Some offices no doubt died out; others were transacted noiselessly. A few vestiges remain, however,

| The correspondence of the Saxon to the Roman municipal ranks was, I believe, first pointed out by Mr. Wright in a highly suggestive paper on Municipal Privileges.-Archæologia, vol. xxxii.

TRACES OF ROMAN MUNICIPAL ORGANIZATION.

185

of the civic polity inherited from the Romans. The duty of repairing walls and bridges, was a burden attached to all property, from which it could only be relieved by a decree of the state, whether Roman or English. It is clear that the

, walls in question were those of cities; and the fact that in Anglo-Saxon charters this obligation is invariably noticed or implied, shows how completely municipal the organization of Britain had been. In the reign of Athelstane, a time was fixed in the spring of every year for the performance of this duty. The obligation to bury the dead beyond the city walls existed at least as late as the time of Augustine. Again, the privilege of local mints, which the different cities enjoyed, if not immediately derived from the Romans, must at least have dated from the short period of British independence.

It is difficult to state positively whether the laws affecting the possession and transfer of property, were derived from Roman tradition, or formed spontaneously during the growth of the English commonwealth. The analogies of the two systems are, however, very great; probably many of them arose from similar circumstances, but were afterwards modelled to a more exact conformity, by men whose culture had been chiefly Latin. The Saxon folc-land is the Latin ager publicus ; the reserve of land, which the state keeps for future wants, and which it cannot properly alienate from itself, except for a time. Distinguished from this is the ager privatus, the share of the citizen in the first instance, when the spoils were divided after conquest. If he has full property in this (dominium), he may lease it out to his neighbour as gafol-land (possessio), or sell it. The act of sale in England, as in Rome, was at first

1 By Just. Novel., 131, c. 5, the clergy, who had been exempted under Constantine, were again compelled to take part in the itineris sternendi aut pontium ædificii vel reparationis opus. The Pontis et Arcis instauratio, brycg and burhbòt, is coupled in Anglo-Saxon law with the fyrd or expeditio, the duty of military service, which I think is certainly not of Roman, though it may be of municipal as well as of Saxon origin.

2 St. Augustine himself was buried out of Canterbury, on the Dover road. Stanley's Memorials of Canterbury, p. 24; Bede, H. E., lib. i., c. 33.

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