CHAPTER VII.

X.Slender reason hadHeto be proud ofThe welcome of war-knives—He that was reft of hisFolk and his friends that hadFallen in conflict,Leaving his son, too,Lost in the carnage,Mangled to morsels,A youngster in war!XI.Slender reason hadHeto be glad ofThe clash of the war-glaive—Traitor and tricksterAnd spurner of treaties—He nor had Anlaf,With armies so broken,A reason for braggingThat they had the betterIn perils of battleOn places of slaughter—The struggle of standards,The rush of the javelins,The crash of the charges,The wielding of weapons—The play that they played withThe children of Edward.Alfred Tennyson, “Ballads and Other Poems,” 1880, p. 174.

Slender reason hadHeto be proud ofThe welcome of war-knives—He that was reft of hisFolk and his friends that hadFallen in conflict,Leaving his son, too,Lost in the carnage,Mangled to morsels,A youngster in war!

XI.

Slender reason hadHeto be glad ofThe clash of the war-glaive—Traitor and tricksterAnd spurner of treaties—He nor had Anlaf,With armies so broken,A reason for braggingThat they had the betterIn perils of battleOn places of slaughter—The struggle of standards,The rush of the javelins,The crash of the charges,The wielding of weapons—The play that they played withThe children of Edward.

Alfred Tennyson, “Ballads and Other Poems,” 1880, p. 174.

The longest of our ballads, though it is imperfect, is that of the “Battle of Maldon.” In the year 991 the Northmen landed in Essex, and expected to be bought off with great ransom; but Brithnoth, the alderman of the East Saxons, met them with all his force, and, after fighting bravely, was killed. The lines here quoted occur after the alderman’s death:—

Leofsunu gemælde,and his linde ahof,bord to gebeorge;he tham beorne oncwæth;Ic thæt gehate,thæt ic heonon nellefleon fotes trym,ac wille furthor gan,wrecan on gewinnemine wine drihten!Ne thurfon me embe Sturmerestede fæste hæleth,wordum ætwitan,nu min wine gecranc,thæt ic hlafordleasham sithiewende from wige!ac me sceal wæpen niman,ord and iren!

Then up spake Levesonand his shield uphove,buckler in ward;he the warrior addressed:I make the vow,that I will not henceflee a foot’s pace,but will go forward;wreak in the battlemy friend and my lord!Never shall about Stourmere,the stalwart fellows,with words me twitnow my chief is down,that I lordlesshomeward go march,turning from war!Nay, weapon shall take me,point and iron.

Other ballads, or something like ballads, that are embodied in the Saxon chronicles are:—“TheConquest of Mercia” (942); “The Coronation of Eadgar at Bath” (973); “Eadgar’s Demise” (975); “The Good Times of King Eadgar” (975); “The Martyr of Corf Gate” (979); “Alfred the Innocent Ætheling” (1036); “The Son of Ironside” (1057); “The Dirge of King Eadward” (1065).

Others there are of which only brief scraps remain, almost embedded in the prose of the chronicles:—“The Sack of Canterbury” (1011); “The Wooing of Margaret” (1067); “The Baleful Bride Ale” (1076); “The High-handed Conqueror” (1086).88

Our last piece shall be “Widsith, or the Gleeman’s Song.”89This is a string of reminiscences of travel in the profession of minstrelsy; some part of which has a genuine air of high antiquity.90In the course of a long tradition it has undergone many changes which cannot now be distinguished. But, besides these, there are some glaring patches of literary interpolation, chiefly from Scriptural sources. I quote the concluding lines:—

Swa scrithendegesceapum hweorfath,gleo men gumenageond grunda fela;thearfe secgaththonc word sprecath,simle suth oththe northsumne gemetath,gydda gleawnegeofum unhneawne,se the fore duguthewile dom aræraneorlscipe æfnan;oth thæt eal scacethleoht and lif somod:Lof se gewyrcethhafath under heofenumheahfæstne dom.

So wandering onthe world about,glee-men do roamthrough many lands;they say their needs,they speak their thanks,sure south or northsome one to meet,of songs to judgeand gifts not grudge,one who by merit hath a mindrenown to makeearlship to earn;till all goes outlight and life together.Laud who attainshath under heavenhigh built renown.

74In “A Book for the Beginner in Anglo-Saxon,” Clarendon Press Series; ed. 2 (1879), p. 70.75The editions and translations are by Thorkelin, Copenhagen, 1815; Kemble, ed. 1, London, 1833; ed. 2, London, 1835; translation, 1837; Ettmüller, German translation, Zurich, 1840; Schaldemose, with Danish translation, Copenhagen, 1851; Thorpe, with English translation, Oxford, 1855; Grundtvig, Copenhagen, 1861; Moritz Heyne, German translation, Paderborn, 1863; Grein, 1867; Arnold, Oxford, 1876; Moritz Heyne, Text, ed. 4, 1879.76Wulfgar then spoke to his own dear lord:“Here are arrived, come from afarOver the sea-waves, men of the Geats;The one most distinguished the warriors braveBeowulf name. They are thy suppliantsThat they, my prince, may with thee nowGreetings exchange; do not thou refuse themThy converse in turn, friendly Hrothgar!They in their war-weeds seem very worthyContenders with earls; the chief is renownedWho these war-heroes hither has led.”Hrothgar then spoke, defence of the Scyldings;“I knew him of old when he was a child;His aged father was Ecgtheow named;To him at home gave Hrethel the GeatHis only daughter: his son has nowBoldly come here, a trusty friend sought.”This is from Mr. Garnett’s translation, which is made line for line. Published by Ginn, Heath, & Co., Boston, 1882.77Dr. Karl Müllenhof (papers in Haupt’s “Zeitschrift”) follows the same line. His treatment is thus described by Mr. Henry Morley:—“The work was formed, he thinks, by the combination of several old songs—(1) ‘The Fight with Grendel,’ complete in itself, and the oldest of the pieces; (2) ‘The Fight with Grendel’s Mother,’ next added; then (3) the genealogical introduction to the mention of Hrothgar, forming what is now the opening of the poem. Then came, according to this theory, a poet, A, who worked over the poem thus produced, interpolated many passages with skill, and added a continuation, setting forth Beowulf’s return home. Last came a theoretical interloper, B, a monk, who interspersed religious sayings of his own, and added the ancient song of the fight with the dragon and the death of Beowulf. The positive critic not only finds all this, but proceeds to point out which passages are old, older, and oldest, where a few lines are from poet A, and where other interpolation is from poet B.”—“English Verse and Prose” in “Cassell’s Library of English Literature,” p. 11.78No one needs to be told that the dragon story is of high antiquity. But even of the elements which have most the appearance of history some may be traced so far back till they seem to fade into legend. Thus Higelac can hardly be any other than that Chochilaicus of whom Gregory of Tours records that he invaded the Frisian coast from the north, and was slain in the attempt. In our poem, this recurs with variations no less than four times as a well-known passage in the adventures of Higelac. But it affords a doubtful basis for argument about the date of our poem.79See Dr. Vigfusson’s remarks in the Prolegomena to his edition of the “Sturlinga Saga,” Oxford, Clarendon Press, 1878.80See Dr. Morris’s Preface to the Blickling Homilies.81Cod. Exon., ed. Thorpe, p. 473.82Cod. Exon., ed. Thorpe, p. 476; Grein, i., 248.83Years ago I discussed this little poem before the Bath Field Club; and my arguments were subsequently printed in the “Proceedings” of that society (1872). Professor Wülcker has since agreed with me that the subject of the poem is a city, and not a fortress. My identification of the ruin with Acemanceaster (Bath) has been approved by Mr. Freeman in his volume on “Rufus.”84The feeling which pervades this remarkable fragment was strangely recalled by the following passage in a recent book that has interested many:—“Masses of strange, nameless masonry, of an antiquity dateless and undefined, bedded themselves in the rocks, or overhung the clefts of the hills; and out of a great tomb by the wayside, near the arch, a forest of laurel forced its way, amid delicate and graceful frieze-work, moss-covered and stained with age. In this strangely desolate and ruinous spot, where the fantastic shapes of nature seem to mourn in weird fellowship with the shattered strength and beauty of the old Pagan art-life, there appeared unexpectedly signs of modern dwelling.”—“John Inglesant,” by J. H. Shorthouse, new edition, 1881, vol. ii., p. 320.85Cod. Exon., ed. Thorpe, p. 286.86A translation of this poem in Alexandrines appeared in theAcademy, May 14, 1881, by E. H. Hickey.87Cod. Exon., ed. Thorpe, p. 377. His title is “Deor the Scald’s Complaint.” I have adopted the title from Professor Wülcker, “Des Sängers Trost.”88Sometimes a prose passage of unusual energy raises the apprehension that it may be a ballad toned down. Dr. Grubitz has suggested this view of the Annal of 755, in which there is a fight in a Saxon castle (burh). The graphic description of the place, the dramatic order of the incidents, and the life-like dialogue of the parley, might well be the work of a poet.89Kemble called it “The Traveller’s Song;” Thorpe, Cod. Exon., p. 318, “The Scop or Scald’s Tale.”90A valuable testimony is borne to the substantial antiquity of this poem, by the fact that Schafarik, who is the chief ethnographer for Sclavonic literature, regards it as a valuable source on account of the Sclavonic names contained in it. I am indebted to Mr. Morfil, of Oriel College, for this information.

74In “A Book for the Beginner in Anglo-Saxon,” Clarendon Press Series; ed. 2 (1879), p. 70.

75The editions and translations are by Thorkelin, Copenhagen, 1815; Kemble, ed. 1, London, 1833; ed. 2, London, 1835; translation, 1837; Ettmüller, German translation, Zurich, 1840; Schaldemose, with Danish translation, Copenhagen, 1851; Thorpe, with English translation, Oxford, 1855; Grundtvig, Copenhagen, 1861; Moritz Heyne, German translation, Paderborn, 1863; Grein, 1867; Arnold, Oxford, 1876; Moritz Heyne, Text, ed. 4, 1879.

76Wulfgar then spoke to his own dear lord:“Here are arrived, come from afarOver the sea-waves, men of the Geats;The one most distinguished the warriors braveBeowulf name. They are thy suppliantsThat they, my prince, may with thee nowGreetings exchange; do not thou refuse themThy converse in turn, friendly Hrothgar!They in their war-weeds seem very worthyContenders with earls; the chief is renownedWho these war-heroes hither has led.”Hrothgar then spoke, defence of the Scyldings;“I knew him of old when he was a child;His aged father was Ecgtheow named;To him at home gave Hrethel the GeatHis only daughter: his son has nowBoldly come here, a trusty friend sought.”This is from Mr. Garnett’s translation, which is made line for line. Published by Ginn, Heath, & Co., Boston, 1882.

Wulfgar then spoke to his own dear lord:“Here are arrived, come from afarOver the sea-waves, men of the Geats;The one most distinguished the warriors braveBeowulf name. They are thy suppliantsThat they, my prince, may with thee nowGreetings exchange; do not thou refuse themThy converse in turn, friendly Hrothgar!They in their war-weeds seem very worthyContenders with earls; the chief is renownedWho these war-heroes hither has led.”Hrothgar then spoke, defence of the Scyldings;“I knew him of old when he was a child;His aged father was Ecgtheow named;To him at home gave Hrethel the GeatHis only daughter: his son has nowBoldly come here, a trusty friend sought.”

This is from Mr. Garnett’s translation, which is made line for line. Published by Ginn, Heath, & Co., Boston, 1882.

77Dr. Karl Müllenhof (papers in Haupt’s “Zeitschrift”) follows the same line. His treatment is thus described by Mr. Henry Morley:—“The work was formed, he thinks, by the combination of several old songs—(1) ‘The Fight with Grendel,’ complete in itself, and the oldest of the pieces; (2) ‘The Fight with Grendel’s Mother,’ next added; then (3) the genealogical introduction to the mention of Hrothgar, forming what is now the opening of the poem. Then came, according to this theory, a poet, A, who worked over the poem thus produced, interpolated many passages with skill, and added a continuation, setting forth Beowulf’s return home. Last came a theoretical interloper, B, a monk, who interspersed religious sayings of his own, and added the ancient song of the fight with the dragon and the death of Beowulf. The positive critic not only finds all this, but proceeds to point out which passages are old, older, and oldest, where a few lines are from poet A, and where other interpolation is from poet B.”—“English Verse and Prose” in “Cassell’s Library of English Literature,” p. 11.

78No one needs to be told that the dragon story is of high antiquity. But even of the elements which have most the appearance of history some may be traced so far back till they seem to fade into legend. Thus Higelac can hardly be any other than that Chochilaicus of whom Gregory of Tours records that he invaded the Frisian coast from the north, and was slain in the attempt. In our poem, this recurs with variations no less than four times as a well-known passage in the adventures of Higelac. But it affords a doubtful basis for argument about the date of our poem.

79See Dr. Vigfusson’s remarks in the Prolegomena to his edition of the “Sturlinga Saga,” Oxford, Clarendon Press, 1878.

80See Dr. Morris’s Preface to the Blickling Homilies.

81Cod. Exon., ed. Thorpe, p. 473.

82Cod. Exon., ed. Thorpe, p. 476; Grein, i., 248.

83Years ago I discussed this little poem before the Bath Field Club; and my arguments were subsequently printed in the “Proceedings” of that society (1872). Professor Wülcker has since agreed with me that the subject of the poem is a city, and not a fortress. My identification of the ruin with Acemanceaster (Bath) has been approved by Mr. Freeman in his volume on “Rufus.”

84The feeling which pervades this remarkable fragment was strangely recalled by the following passage in a recent book that has interested many:—“Masses of strange, nameless masonry, of an antiquity dateless and undefined, bedded themselves in the rocks, or overhung the clefts of the hills; and out of a great tomb by the wayside, near the arch, a forest of laurel forced its way, amid delicate and graceful frieze-work, moss-covered and stained with age. In this strangely desolate and ruinous spot, where the fantastic shapes of nature seem to mourn in weird fellowship with the shattered strength and beauty of the old Pagan art-life, there appeared unexpectedly signs of modern dwelling.”—“John Inglesant,” by J. H. Shorthouse, new edition, 1881, vol. ii., p. 320.

85Cod. Exon., ed. Thorpe, p. 286.

86A translation of this poem in Alexandrines appeared in theAcademy, May 14, 1881, by E. H. Hickey.

87Cod. Exon., ed. Thorpe, p. 377. His title is “Deor the Scald’s Complaint.” I have adopted the title from Professor Wülcker, “Des Sängers Trost.”

88Sometimes a prose passage of unusual energy raises the apprehension that it may be a ballad toned down. Dr. Grubitz has suggested this view of the Annal of 755, in which there is a fight in a Saxon castle (burh). The graphic description of the place, the dramatic order of the incidents, and the life-like dialogue of the parley, might well be the work of a poet.

89Kemble called it “The Traveller’s Song;” Thorpe, Cod. Exon., p. 318, “The Scop or Scald’s Tale.”

90A valuable testimony is borne to the substantial antiquity of this poem, by the fact that Schafarik, who is the chief ethnographer for Sclavonic literature, regards it as a valuable source on account of the Sclavonic names contained in it. I am indebted to Mr. Morfil, of Oriel College, for this information.

THE WEST SAXON LAWS.

“Noother Germanic nation has bequeathed to us out of its earliest experience so rich a treasure of original legal documents as the Anglo-Saxon nation has.” Such is the sentence of Dr. Reinhold Schmid, who upon the basis of former labours, and particularly those of Mr. Benjamin Thorpe, has given us the most compact and complete edition yet produced of the Anglo-Saxon laws.91

It might seem as if laws were too far removed from the idea of literature, to merit more than a passing notice here. Writers on modern English literature generally leave the lawyer’s work altogether out of their field. But these are among the things that alter with age. Laws become literary matter just as they become old and obsolete. Then the traces they have left in words and phrases and figures of speech, their very contrasts with the laws of the present, makes them material eminently literary. We know what effective literary use Sir Walter Scott has made of the antiquities and curiosities of law.

And to this may be added another remark. When we are engaged in reconstructing an ancient, we might almost say a lost literature, we need above all things some leading ideas concerning the conditions of social life and opinion and mental development at the period in question. Nothing supplies these things so safely as the laws of the time.

The oldest extant West Saxon laws are those of King Ine,92who reigned thirty-eight years,A.D.688-726. As the West Saxon power gradually absorbed all other rule in this island, we here find ourselves entering the central stream of history. In the preamble to Ine’s Laws the name of Erconwald, bishop of London, who died in 693, is among the persons present at the Gemôt. Consequently these laws must be referred to the first years of Ine’s reign, and they must be older than the date of the Kentish laws of Wihtred.

The laws of Ine are preserved to us as an appendix of the laws of Alfred. This is the case in all the manuscripts. Not only does the elder code follow the younger, but the numbering is continuous as if welding the two codes into one. Thorpe follows the manuscripts in this arrangement, though not in the numbering of the sections, and the student who consults his edition is apt to be confused with this chronological inversion, unless he has taken note of the cause. Ine reigned over a mixed population ofSaxons and Britons, and his code is of a more comprehensive character than that of the Kentish kings. His enactments became, through subsequent re-enactments, the basis of the laws not only of Wessex, but also of all England. Accordingly they seem more intelligible to the modern reader.93

9. If any one take revenge before he sue for justice, let him give up what he has seized, and pay for the damage done, and make amends with thirty shillings.

12. If a thief be taken, let him die, or let his life be redeemed according to his “wer.” ... Thieves we call them up to seven men; from seven to thirty-five a band (hloth); after that it is a troop (here).

32. If a Wylisc-man have a hide of land, his “wer” is 120 shillings; if he have half a hide, eighty shillings; if he have none, sixty shillings.

36. He who takes a thief, or has a captured thief given over to him, and then lets him go or conceals the theft, let him pay for the thief according to his “wer.” If he be an ealdorman, let him forfeit his shire, unless the king be pleased to show him mercy.

39. If any one go from his lord without leave, or steal himself away into another shire, and word is brought; let him go where he before was, and pay his lord sixty shillings.

40. A ceorl’s close should be fenced winter and summer. If it be unfenced, and his neighbour’s cattle get in through his own gap, he hath no claim on the cattle; let him drive it out and bear the damage.

43. In case any one burn a tree in a wood, and it come to light who did it, let him pay the full penalty, and give sixty shillings, because fire is a thief. If one fell in a wood ever so many trees, and it be found out afterwards, let him pay for three trees, each with thirty shillings. He is not required to pay for more of them, however many they might be, because the axe is a reporter and not a thief (forthon seo æsc bith melda, nalles theof).94

44. But if a man cut down a tree that thirty swine may stand under, and it is found out, let him pay sixty shillings.

52. Let him who is accused of secret compositions clear himself of those compositions with 120 hides, or pay 120 shillings.95

Here I will quote from the introductory portion a piece which illustrates the subject generally, and which is rendered interesting by the wide diversity of comment which it has elicited from Mr. Kemble and Sir H. Maine. The former is almost outrageously angry at Alfred for attributing the system of bôts or compensations to the influence of Christianity; while in the strong terms wherewith treason against the lord is branded, he can only see “these despotic tendencies of a great prince, nurtured probably by his exaggerated love for foreign literature.”96It is positively refreshing to come out of this heat and dust into the orderly and consecutive demonstration of Sir H. Maine, who concludes a course of systematic exposition on thehistory of Criminal Law, and indeed concludes his entire book on Ancient Law, with an appreciative quotation of this passage from the Laws of Alfred. It is thus introduced:—

“There is a passage in the writings of King Alfred which brings out into remarkable clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. It will be seen that Alfred attributes it partly to the authority of the Church and partly to that of the Witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the Roman Law of Majestas had assigned to treason against the Cæsar.”

Siththan thæt tha gelamp, thæt monega theoda Cristes geleafan onfengon, tha wurdon monega seonothas geond ealne middan geard gegaderode, and eac swa geond Angel cyn, siththan hie Cristes geleafan onfengon, haligra biscepa and eac otherra gethungenra witena. Hie tha gesetton for thære mildheortnesse, the Crist lærde, æt mæstra hwelcre misdæde, thæt tha woruld hlafordas moston mid hiora leafan buton synne æt tham forman gylte thære fioh-bote onfon, the hie tha gesettan; buton æt hlaford searwe, tham hie nane mildheortnesse ne dorston gecwæthan, fortham the God Ælmihtig tham nane ne gedemde the hine oferhogodon, ne Crist, Godes sunu, tham nane ne gedemde, the hyne sealde to deathe; and he bebead thone hlaford lufian swa hine selfne.

After that it happened that many nations received the faith of Christ, and there were many synods assembled through all parts of the world, and likewise throughout the Angle race after they had received the faith of Christ, of holy bishops and also of other distinguished Witan. They then ordained, out of that compassion which Christ had taught, in the case of almost every misdeed, that the secular lords might, with their leave and without sin, for the first offence accept the money penalty which they then ordained; excepting in the case of treason against a lord, to which they dared not assign any mercy, because God Almighty adjudged none to them that despised Him, nor did Christ, the Son of God, adjudge any to them that sold Him to death; and He commanded that the lord should be loved as Himself.

Hie tha on monegum senothum monegra menniscra misdæda bote gesetton, and on monega senoth bec hy writon hwær anne dom hwær otherne.

They then in many synods ordained a “bot” for many human misdeeds, and in many a synod-book they wrote, here one decision, there another.

Ic tha Ælfred cyning thas togædere gegaderode and awritan het monege thara, the ure foregengan heoldon, tha the me licodon; and manegethara the me ne licodon, ic awearp mid minra witena getheahte, and on othre wisan bebead to healdenne, fortham ic ne dorste gethristlæcan thara minra awuht feala on gewrit settan, fortham me wæs uncuth, hwæt thæs tham lician wolde, the æfter us wæren. Ac tha the ic gemette, awther oththe on Ines dæge, mines mæges, oththe on Offan, Myrcena cyninges, oththe on Æthelbryhtes, the ærest fulluht onfeng on Angel cynne, tha the me ryhtoste thuhton, ic tha her on gegaderode and tha othre forlet.

I then, Alfred, king, gathered these together, and I ordered to write out many of those that our forefathers held which to me seemed good; and many of those that to me seemed not good I rejected, with the counsel of my Witan, and in other wise commanded to hold; forasmuch as I durst not venture to set any great quantity of my own in writing, because it was unknown to me what would please those who should be after us. But those things that I found established, either in the days of Ine my kinsman, or in Offa’s, king of the Mercians, or in Æthelbryht’s, who first received baptism in the Angle race, those which seemed to me rightest, those I have here gathered together, and the others I have rejected.

Ic tha Ælfred, West seaxna cyning, eallum minum witum thas geeowde, and hie tha cwædon, thæt him thæt licode eallum to healdenne.

I then, Alfred, king of the West Saxons, to all my Witan showed these; and they then said, that it seemed good to them all that they should be holden.

This is a little code which marks a crisis in Alfred’s life, and, it may be added, a crisis also in the life of the nation. When Alfred by his victory over the Danes in 878 had brought them to sue for peace, the treaty was made at Wedmore in Somersetshire. The original text of the peace between Alfred and Guthrum is among the Anglo-Saxon laws, and we present it to the reader in its entire form. The first item is about the frontier line between the two raceswhich was drawn diagonally through the heart of England, cutting Mercia in two, and leaving half of it under the Danes. The two parts into which the country was thus divided, were designated severally as the “Engla lagu” and the “Dena lagu.”

Ælfredes and Guthrumes frith.

This is thæt frith, thæt Ælfred cynincg and Gythrum cyning and ealles Angel cynnes witan, and eal seo theod the on East Englum beoth, ealle gecweden habbath, and mid athum gefeostnod, for hy sylfe and for heora gingran, ge for geborene, ge for ungeborene, the Godes miltse recce oththe ure.

Alfred and Guthrum’s Peace.

This is the peace that king Alfred and king Guthrum and the counsellors of all Angel-kin, and all the people that are in East Anglia, have all decreed and with oaths confirmed for themselves and for their children, both for the born and for the unborn, all who value God’s favour or ours.

Cap. 1. Ærest ymb ure land-gemæra: up on Temese and thonne up on Ligan, and andlang Ligan oth hire æ wylm, thonne on gerihte to Bedan forda, thonne up on Usan oth Wætlinga stræt.

Cap. 1. First about our land-boundaries:—Up the Thames, and then up the Lea, and along the Lea to her source, then straight to Bedford, then up the Ouse to Watling Street.

2. Thæt is thonne, gif man ofslagen weorthe, ealle we lætath efen dyrne Engliscne and Deniscne, toviiihealfmarcum asodenes goldes, buton tham ceorle the on gafol lande sit, and heora liesingum, tha syndan eac efen dyre, ægther toccscill.

2. Videlicet, if a person be slain, we all estimate of equal value, the Englishman and the Dane, at eight half-marks of pure gold; except the ceorl who resides on gafol-land, and their [i.e.the Danish] liesings, those also are equally dear, either at two hundred shillings.

3. And gif mon cyninges thegn beteo manslihtes, gif he hine ladian dyrre, do he thæt midxiicininges thegnum. Gifman thone man betyhth, the bith læssa maga thonne se cyninges thegn, ladige he hine midxihis gelicena and mid anum cyninges thægne. And swa ægehwilcere spræce, the mare sy thonneiiiimancussas. And gyf he ne dyrre, gylde hit thry gylde, swa hit man gewyrthe.

3. And if a king’s thane be charged with killing a man, if he dare to clear himself, let him do it with twelve king’s thanes. If the accused man be of less degree than the king’s thane, let him clear himself with eleven of his equals, and with one king’s thane. And so in every suit that may be for more than four mancuses. And if he dare not, let him pay threefold, according as it may be valued.

Be getymum.

4. And thæt ælc man wite his getyman be mannum and be horsum and be oxum.

Of Warrantors.

4. And that every man know his warrantor for men and for horses and for oxen.

5. And ealle we cwædon on tham dæge the mon tha athas swor, thæt ne theowe ne freo ne moton in thone here faran butan leafe, ne heora nan the ma to us. Gif thonne gebyrige, thæt for neode heora hwilc with ure bige habban wille, oththe we with heora, mid yrfe and mid æhtum, thæt is to thafianne on tha wisan, thæt man gislas sylle frithe to wedde, and to swutelunge, thæt man wite thæt man clæne bæc hæbbe.

5. And we all said on that day when the oaths were sworn, that neither bond nor free should be at liberty to go to the host97without leave, nor of them any one by the same rule (come) to us. If, however, it happen, that for business any one of them desires to have dealings with us or we with them, about cattle and about goods, that is to be granted on this wise, that hostages be given for a pledge of peace, and for evidence whereby it may be known that the party has a clean back [i.e., that he has not carried off on his back what is not his own].

Besides two codes of laws of Eadward, the son of Alfred, we have also a code entitled as above. Of these laws it is said that they were first made between Alfred and Guthrum, and afterwards between Eadward and Guthrum.98Many of the enactments of this code were transmitted to later ordinances.

This syndon tha domas the Ælfred cyneg and Guthrum cyneg gecuran.

These are the dooms that king Alfred and king Guthrum chose.

And this is seo gerædnis eac the Ælfred cyng and Guthrum cyng. and eft Eadward cyng and Guthrum cyng. gecuran and gecwædon. Tha tha Engle and Dene to frithe and to freondscipe fullice fengen. and tha witan eac the syththan wæron eft and unseldan thæt seolfe geniwodon and mid gode gehihtan.

And this is the ordinance, also, which king Alfred and king Guthrum, and afterwards king Eadward and king Guthrum, chose and ordained, when the English and Danes fully took to peace and to friendship; and the Witan also, who were afterward, often and repeatedly renewed the same and increased it with good.

Under the name of Athelstan we have five codes, of which the second and third are mere abstracts in Latin; but the others are in Saxon; and besides these a substantive ordinance bearing the special title of “The Judgments of the City of London.” This has been described as follows:—“The rules of the guild composed of thanes and ceorls (gentlemen andyeomen), under the perpetual presidency of the bishop and portreeve of London.”99They combine to protect themselves against robbery, and this in two ways: (1) by promoting the action of the laws against robbers; (2) by mutual insurance.

The determination of this code to the reign of Athelstan is guided by the mention of the places of enactment, which are Greatley (near Andover, Hants); Exeter; and Thundersfield (near Horley, Surrey), with which places all the previous laws of Athelstan are associated.

From the fourth of the above-mentioned ordinances I will quote the law about the tracking of cattle lost, stolen, or strayed:—

2. “And if any one track cattle within another’s land, the owner of that land is to track it out, if he can; if he cannot, that track is to count as the fore-oath,”i.e., the first legal step in an action to recover.

A more explicit description of the method of tracking cattle occurs in the Ordinance of the Dunsæte.

This ordinance is placed by Thorpe between the laws of Æthelred and those of Cnut. This little code of nine sections is intended to rule the relations of a border country which, on its home side, is continuous with Wessex, and on its outer side is next the Welsh. Sir Francis Palgrave, misled perhaps by a questionable reading in Lambarde (1568), who has the form Deunsætas, took this to be a treaty between the English and British inhabitants of Devon, and bestowed on it the succinct title of the Devonian Compact. But Mr. Thorpe objected to the form “Deun” as groundless, and he also quoted the text of the code against it; for the last section speaks thus:—“Formerly the Wentsæte belonged to the Dunsæte, but that district more strictly belongs to Wessex, for they have to send thither tribute and hostages.” This admits of no explanation in Devonshire, but in South Wales it does, and we learn from William of Malmesbury that the river Wye was fixed by King Athelstan as the boundary between the English and Welsh. On this basis the Wentsæte will be the people of Gwent, and the Dunsæte will be the Welsh of the upland or hill-country.

One of the most remarkable sections of this Code is the first, which prescribes the method for tracking stolen cattle.

The laws concerning theft relate almost entirely to the protection of cattle, and naturally so, because the chief wealth of the time consisted in flocks and herds. Stolen cattle were tracked by fixed rules. If the track led into a given district, the men of that district were bound to show the track out of their boundary or to be responsible for the lost property. We have just seen this in Athelstan’s laws; but in the previous reign a law of Edward, the son of Alfred, directs that every proprietor of land is to have men ready to dispatch in aid of those who are following the track of cattle, and that they are not to be diverted from this duty by bribes, or inclination, or violence. But the most explicit text on this subject is in thefirst chapter of the Ordinance respecting the Dunset folk, as above said. It runs thus:—

“If the track of stolen cattle be followed from station to station, the further tracking shall be committed to the people of the land, and proof shall be given that the pursuit is genuine. The proprietor of the land shall then take up the pursuit, and he shall have the responsibility, and he shall pay for the cattle by nine days therefrom, or deposit a pledge by that date, which is worth half more, and in a further nine days discharge the pledge with actual payment. If objection be made that the track was wrongly pursued, then the tracker must lead to the station, and there with six unchosen men, who are true men, make oath that he by folk-right makes claim on the land that the cattle passed up that way.”

We cannot follow the laws in detail, but must now conclude this subject with one or two observations of a general kind. In the above I have repeatedly used the word “Code”; but this is not to be understood with technical exactness. Of late years we have heard much of “codifying” our laws; and this expression suggests the idea of a compact and consistent body of law, which should take the place of partial, occasional, anomalous, and often conflicting legislation. Of “codes” in this sense, there is very little to be found in the whole record of English law. Our Kentish and West Saxon laws are little more than statements of custom or amendments of custom; and while Professor Stubbs claims for the laws of Alfred, Æthelred, Cnut, and those described as Edward the Confessor’s, that they aspireto the character of codes, yet “English law (he adds) from its first to its latest phase, has never possessed an authoritative, constructive, systematic, or approximately exhaustive statement, such as was attempted by the great compilers of the civil and canon laws, by Alfonso the Wise or Napoleon Bonaparte.”100

There is a prominent characteristic of our laws which they have in common with all primitive codes. These all differ from maturer collections of laws in their very large proportion of criminal to civil law. Sir Henry Maine says that, on the whole, all the known collections of ancient law are distinguished from systems of mature jurisprudence by this feature,—that the civil part of the law has trifling dimensions as compared with the criminal.101This is strikingly seen in the Kentish laws; and even in the West Saxon laws a very little study will enable the reader to verify this characteristic.

Our next and last observation shall be based on the absence of something which the reader might possibly expect to find in the Saxon laws.

Of all the legal institutions that have claimed a Saxon origin, none compares for importance with that of trial by jury. This has been called the bulwark of English liberty, and it has been assigned to King Alfred as the general founder of great institutions. But this is only a popular opinion.

Perhaps there is no single matter in legal antiquities that has been so much debated as the origin of trial by jury. In the vast literature which thesubject has called forth, the most various accounts have been proposed. It is an English institution, but whence did the English get it? From which of the various sources that have contributed to the composite life of the English nation? Was it Anglo-Saxon, or was it Anglo-Norman, or was it Keltic? Was it a process common to all the Germanic family? If it was Norman, from which source—from their Scandinavian ancestors or from their Frankish neighbours? All these origins have been maintained, and others besides these. According to some writers, it is a relic of Roman law; some trace it to the Canon law; and champions have not been wanting to vindicate it as originally a Slavonic institution which the Angles borrowed from the Werini ere they had left their old mother country.102

In all this diversity of view there is one fixed point of common agreement. It is allowed on all hands that England is the arena of its historical career, and the question therefore always takes this start,—How did the English acquire it?

The Anglo-Saxon laws have been diligently scanned to see if the practice or the germ of it could be discovered there. In Æthelred iii., 3, there is an ordinance that runs thus:—

And gan ut tha yldestanxiithegnas, and se gerefa mid, and swerian on tham haligdome, the heom man on hand sylle, thæt hig nellan nænne sacleasan man forsecgan, ne nænne sacne forhelan.

Let thexiisenior thanes go out, and the reeve with them, and swear on the halidom that is put in their hand, that they will not calumniate any sackless man, nor conceal any guilty one (? suppress any suit).

This looks like the grand jury examining the bills of indictment before trial, and determiningprimâ faciewhether they are true bills which ought to be tried in court. But the progress of modern inquiry has led to the conclusion, that though there may be rudiments of the principle in Anglo-Saxon and in all Germanic customs, still it was among the Franks in the Carling era that a definite beginning can first be recognised. The Frankish capitularies had a process called Inquisitio, which was adopted into Norman law, and was there called Enquête; this, having passed with the Normans into England, was finally shaped and embodied in the common law among the legal reforms of Henry II.

Under the Saxon laws, the true men who were sworn to do justice had a very different part to act from that which falls to the lot of our English jury. The duty of the latter is to deliver a verdict on matter of fact as proved by evidence given in court. The judge charges them to put aside what they may have heard out of court, and let it have no influence on their verdict, but to let that verdict be strictly based upon the evidence of witnesses before the court.

In Æthelred’s time it was different. The sworn men were not to judge testimony truly, but to bear witness truly. They were to bring into court their own knowledge of the case, and of any circumstancesthat threw light upon it, including the general opinion and persuasion of the neighbourhood. There was no attempt to collect evidence piecemeal, and to rise above the level of local rumour, by a patient judicial investigation. This provides us with something like a measure of the intellectual stage of the public mind in Saxon times, and will perhaps justify these remarks if they have seemed like drifting away from our proper subject. The notion of weighing evidence had not taken its place among the institutions of public life. This has now become with us almost a popular habit. Proficiency and soundness in it may be rare, but the appreciation of it, the perception of its power and beauty, and withal a pride and glory in it, is almost universal. How wide a distance does this seem to put between us and our Saxon forefathers, only to say that they had but the most rudimentary notions about the nature of evidence!

Witnesses came into court, not to speak, one by one, to a matter of fact, but to pronounce in a body what they all believed and held. They came to testify and uphold the popular opinion. Such testimony is like nothing known to us now, except when witnesses are called to speak to general character. These witnesses gave their evidence on oath; but it would naturally happen sometimes that such sworn testimony was to be had on both sides of the question. When this was the case, there was but one resource left, and that was the Ordeal—the appeal to the judgment of God. Such are the devices of inexperienced nations, who have no skill in sifting out the truth, and are baffled by contending testimony.Nothing can better illustrate the stage of our national progress in the times which produced the literature which we are now surveying.

But, withal, it was in such a rude age that the foundations of English law were laid, and those customs took a definite form which are the groundwork of our jurisprudence, and in which consists the distinction between our English law and the law of the other nations of Western Europe, who have all (Scotland included) formed their legal system upon the civil law of Rome.

From the seventh century down to the end of our period we have a series of legal documents, such as grants of land, purchases, memorials, written wills, memoranda of nuncupatory wills, royal writs, family arrangements, interchanges of land. The first thing to be noticed about this whole body of writings is that they, at the beginning of the series, are entirely in Latin; then a few words of the vulgar tongue creep in, and then this native element goes on increasing until we have entire documents in Saxon. Nevertheless, it remained a prevalent habit in the case of transfer of land to have the grant written in Latin, and the boundaries and other details expressed in Anglo-Saxon. This is a large body of literature, and it fills six octavo volumes in Kemble’s “Codex Diplomaticus.” Being of very various degrees of genuineness—some absolute originals, some faulty copies, some too carefully amended, down to the veriest forgeries—there is here a good field for the exercise of criticaldiscrimination. And there are many curious and interesting details to reward the patient student. The following extract is from a memorial addressed to Edward, the son of Alfred, touching matters that had mostly fallen in his father’s time; and it opens a glimpse of Alfred in his bed-chamber receiving a committee that came to report progress.

Tha bær mon tha boc forth and rædde hie; tha stod seo hondseten eal thæron. Tha thuhte us eallan the æt thære some wæran thet Helmstan wære athe thæs the near. Tha næs Æthelm na fullice gethafa ær we eodan in to cinge and rædan eall hu we hit reahtan and be hwy we hit reahtan: and Æthelm stod self thær inne mid; and cing stod thwoh his honda æt Weardoran innan thon bure. Tha he thæt gedon hæfde tha ascade he Æthelm hwy hit him ryht ne thuhte thæt we him gereaht hæfdan; cwæth thæt he nan ryhtre gethencan ne meahte thonne he thone ath agifan moste gif he meahte.

Then they brought forward the conveyance and read it; there stood the signatures all thereon. Then seemed it to all of us who were at the arbitration, that Helmstan was all the nearer to the oath. Then was not Æthelm fully convinced before we went in to the king and explained everything—how we reported it, and on what grounds we had so reported it: and Æthelm himself stood there in the room with us; and the king stood and washed his hands at Wardour in the chamber. When he had done that, then he asked Æthelm why it seemed to him not right what we had reported to him; he said that he could think of nothing more just than that he might be allowed to discharge the oath if he were able.

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