Part 14

Far more significant for the future development of English law are the beginnings of the King’s Peace. In later times this became a synonym for public order maintained by the king’s general authority; nowadays we do not easily conceive how the peace which lawful men ought to keep can be any other than the Queen’s or the commonwealth’s. But the king’s justice, as we have seen, was at first not ordinary but exceptional, and his power was called to aid only when other means had failed. To be in the king’s peace was to have a special protection, a local or personal privilege. Every free man was entitled to peace in his own house, the sanctity of the homestead being one of the most ancient and general principles of Teutonic law. The worth set on a man’s peace, like that of his life, varied with his rank, and thus the king’s peace was higher than any other man’s. Fighting in the king’s house was a capital offence from an early time. Gradually the privileges of the king’s house were extended to the precincts of his court, to the army, to the regular meetings of the shire and hundred, and to the great roads. Also the king might grant special personal protection to his officers and followers; and these two kinds of privilege spread until they coalesced and covered the whole ground. The more serious public offences were appropriated to the king’s jurisdiction; the king’s peace was used as a special sanction for the settlement of blood-feuds, and was proclaimed on various solemn occasions; it seems to have been specially prominent—may we say as a “frontier regulation”?—where English conquest and settlement were recent.[50] In the generation before the Conquest it was, to all appearance, extending fast. In this kind of development the first stage is a really exceptional right; the second is a right which has to be distinctly claimed, but is open to all who will claim it in the proper form; the third is the “common right” which the courts will take for granted. The Normans found the king’s peace nearing, if not touching, the second stage.

Except for a few peculiar provisions, there is nothing in Anglo-Saxon customs resembling our modern distinctions between wilful, negligent, and purely accidental injuries. Private vengeance does not stop to discriminate in such matters, and customary law which started from making terms with the avenger could not afford to take a more judicial view. This old harshness of the Germanic rules has left its traces in the Common Law down to quite recent times. A special provision in Alfred’s laws recommends a man carrying a spear on his shoulder to keep the point level with the butt; if another runs on the point so carried, only simple compensation at most[51] will be payable. If the point has been borne higher (so that it would naturally come in a man’s face), this carelessness may put the party to his oath to avoid a fine. If a dog worried or killed any one, the owner was answerable in a scale of fines rising after the first offence;[52] the indulgence of the modern law which requires knowledge of the dog’s habits was unknown. But it may be doubted whether these rules applied to anything short of serious injury. Alfred’s wise men show their practical sense by an explanatory caution which they add: the owner may not set up as an excuse that the dog forthwith ran away and was lost. This might otherwise have seemed an excellent defence according to the archaic notion that the animal or instrument which does damage carries the liability about with it, and the owner may free himself by abandoning it (_noxa caput sequitur_).[53]

We have spoken of money payments for convenience; but it does not seem likely that enough money was available, as a rule, to pay the more substantial wergilds and fines; and it must once have been the common practice for the pacified avenger to accept cattle, arms, or valuable ornaments, at a price agreed between the parties or settled by the court. The alternative of delivering cattle is expressly mentioned in some of the earlier laws.

As for the law of property, it was rudimentary, and inextricably mixed up with precautions against theft and charges of theft. A prudent buyer of cattle had to secure himself against the possible claim of some former owner who might allege that the beasts had been stolen. The only way to do this was to take every step in public and with good witness. If he set out on a journey to a fair, he would let his neighbours know it. When he did business either far or near, he would buy only in open market and before credible persons, and, if the sale were at any distance from home, still more if he had done some trade on the way without having set out for the purpose, he would call the good men of his own township to witness when he came back driving his newly-gotten oxen, and not till then would he turn them out on the common pasture. These observances, probably approved by long-standing custom, are prescribed in a whole series of ordinances on pain of stringent forfeitures.[54] Even then a purchaser whose title was challenged had to produce his seller, or, if he could not do that, clear himself by oath. The seller might produce in turn the man from whom he had bought, and he again might do the like; but this process (“vouching to warranty” in the language of later medieval law) could not be carried more than three steps back, to the “fourth hand” including the buyer himself. All this has nothing to do with the proof of the contract in case of a dispute between the original parties to the sale; it is much more aimed at collusion between them, in fact at arrangements for the receipt and disposal of stolen goods. The witnesses to the sale are there not for the parties’ sake, but as a check in the public interest. We are tempted at first sight to think of various modern enactments that require signature or other formalities as a condition of particular kinds of contracts being enforceable; but their provisions belong to a wholly different category.

Another archaic source of anxiety is that borrowed arms may be used in a fatal fight and bring the lender into trouble. The early notion would be that a weapon used for manslaying should bring home the liability with it to the owner, quite regardless of any fault; which would afterwards become a more or less rational presumption that he lent it for no good purpose. Then the risk of such weapons being forfeited continued even to modern times. Hence the armourer who takes a sword or spear to be repaired, and even a smith who takes charge of tools, must warrant their return free from blood-guiltiness, unless it has been agreed to the contrary.[55] We also find, with regard to the forfeiture of things which “move to death,” that even in case of pure accident, such as a tree falling on a woodman, the kindred still have their rights. They may take away the tree if they will come for it within thirty days.[56]

There was not any law of contract at all, as we now understand it. The two principal kinds of transaction requiring the exchange or acceptance of promises to be performed in the future were marriage and the payment of wergild. Apart from the general sanctions of the Church, and the king’s special authority where his peace had been declared, the only ways of adding any definite security to a promise were oath and giving of pledges. One or both of these were doubtless regularly used on solemn occasions like the settlement of a blood-feud; and we may guess that the oath, which at all events carried a spiritual sanction, was freely resorted to for various purposes. But business had hardly got beyond delivery against ready money between parties both present, and there was not much room for such confidence as that on which, for example, the existence of modern banking rests. How far the popular law took any notice of petty trading disputes, such as there were, we are not informed; it seems likely that for the most part they were left to be settled by special customs of traders, and possibly by special local tribunals in towns and markets. Merchants trafficking beyond seas, in any case, must have relied on the customs of their trade and order rather than the cumbrous formal justice of the time.

Anglo-Saxon landholding has been much discussed, but is still imperfectly understood, and our knowledge of it, so far from throwing any light on the later law, depends largely on what can be inferred from Anglo-Norman sources. It is certain that there were a considerable number of independent free men holding land of various amounts down to the time of the Conquest. In the eastern counties some such holdings, undoubtedly free, were very small indeed.[57] But many of the lesser free men were in practical subjection to a lord who was entitled to receive dues and services from them; he got a share of their labour in tilling his land, rents in money and kind, and so forth. In short they were already in much the same position as those who were called villeins in the twelfth and thirteenth centuries. Also some poor free men seem to have hired themselves out to work for others from an early time.[58] We know next to nothing of the rules under which free men, whether of greater or lesser substance, held “folk-land,” that is, estates governed by the old customary law. Probably there was not much buying and selling of such land. There is no reason to suppose that alienation was easier than in other archaic societies, and some local customs found surviving long after the Conquest point to the conclusion that often the consent of the village as well as of the family was a necessary condition of a sale. Indeed it is not certain that folk-land, generally speaking, could be sold at all. There is equally no reason to think that ordinary free landholders could dispose of their land by will, or were in the habit of making wills for any purpose. Anglo-Saxon wills (or rather documents more like a modern will than a modern deed) exist, but they are the wills of great folk, such as were accustomed to witness the king’s charters, had their own wills witnessed or confirmed by bishops and kings, and held charters of their own; and it is by no means clear that the lands dealt with in these wills were held as ordinary folk-land. In some cases it looks as if a special licence or consent had been required; we also hear of persistent attempts by the heirs to dispute even gifts to great churches.[59]

Soon after the conversion of the south of England to Christianity, English kings began to grant the lordship and revenues of lands, often of extensive districts, to the Church, or more accurately speaking to churches, by written charters framed in imitation of continental models. Land held under these grants by charter or “book,” which in course of time acquired set forms and characters peculiar to England, was called _bookland_, and the king’s bounty in this kind was in course of time extended to his lay magnates. The same extraordinary power of the king, exercised with the witness and advice[60] of his Witan, which could confer a title to princely revenues, could also confer large disposing capacities unknown to the customary law; thus the fortunate holder of bookland might be and often was entitled not only to make a grant in his lifetime or to let it on such terms as he chose, but also to leave it by will. My own belief is that the land given by the Anglo-Saxon wills which are preserved was almost always bookland even when it is not so described. Indeed these wills are rather in the nature of postponed grants, as in Scotland a “trust disposition” had to be till quite lately, than of a true last will and testament as we now understand it. They certainly had nothing to do with the Roman testament.

Long before the Conquest it had become the ambition of every man of substance to hold bookland, and we may well think that this was on the way to become the normal form of land-ownership. But this process, whatever its results might have been, was broken off by the advent of Norman lords and Norman clerks with their own different set of ideas and forms.

The various customs of inheritance that are to be found even to this day in English copyholds, and to a limited extent in freehold land, and which are certainly of great antiquity, bear sufficient witness that at least as much variety was to be found before the Conquest. Probably the least usual of the typical customs was primogeniture; preference of the youngest son, ultimogeniture or junior-right as recent authors have called it, the “borough-English” of our post-Norman books, was common in some parts; preference of the youngest daughter, in default of sons, or even of the youngest among collateral heirs, was not unknown. But the prevailing type was equal division among sons, not among children including daughters on an equal footing as modern systems have it. Here again the effect of the Norman Conquest was to arrest or divert the native lines of growth. In this country we now live under laws of succession derived in part from the military needs of Western Europe in the early Middle Ages, and in part from the cosmopolitan legislation of Justinian, the line between the application of the two systems being drawn in a manner which is accounted for by the peculiar history of our institutions and the relations between different jurisdictions in England, but cannot be explained on any rational principle. But the unlimited freedom of disposal by will which we enjoy under our modern law has reduced the anomalies of our intestate succession to a matter of only occasional inconvenience.

Small indeed, it is easy to perceive, is the portion of Anglo-Saxon customs which can be said to have survived in a recognisable form. This fact nevertheless remains compatible with a perfectly real and living continuity of spirit in our legal institutions.

If we do not nowadays observe King Alfred’s dooms, or anything like them, still we owe it to the work of Alfred and his children that England was saved to become an individual nation, and that our fundamental ideas of justice have survived all external changes. Those ideas may be summed up very shortly. Justice is essentially public; the business of parties is to conduct their cases according to the rules of law, the business of the court is to hear and determine between them, not to conduct an inquiry; judicial interpretation of the law is the only authentic and binding interpretation, and in particular the executive has no such power. These principles appear obvious to most of us, but there are many civilised countries where they are not admitted. We can trace them back to the rudest beginnings of our jurisprudence; they are as vigorous as ever, in all the complexity of modern affairs, wherever the English tongue is spoken.

ALFRED AND THE ARTS

BY REV. W. J. LOFTIE

ALFRED AND THE ARTS

The story of the life of King Alfred connects his name with the practice of three arts. He was an architect, a writer, and a musician. We so often hear of the art of war that when we remember his proficiency as a soldier we are inclined to forget that fortification, fighting, fishing, and hunting, if they may be called arts, are not fine arts. Alfred’s noble defence of England against the Danes has ever since his day been an example to his countrymen of later generations. He first taught them the negative virtue that consists in not knowing when they are beaten. But our concern, in the particular chapter that has fallen to my lot, is with Alfred and the fine arts: and as you cannot enjoy painting or music without a house, it behoves us to inquire first as to the state of architecture in the ninth century, and as to the part taken by Alfred in building houses, churches, and cities. We must remember that though, as we know, writing and the illumination of manuscripts had attained a very high pitch of excellence, Alfred had no maps to guide him. His workmen may have been able to scratch their diagrams on stones, and in other similar ways to obtain guidance in carrying out such buildings as the king required. But he had traversed all that part of England over which he reigned, and was as well acquainted with the marshes of Somerset as with the wooded valley of the Lea and the chalk cliffs of his southern shore. He knew how to build and how to handle the ships of his time, and was able to defeat the Danes on what might be called their own element. Tradition has always and plausibly assigned to him a further feat of naval warfare. When his enemies had sailed up to Hertford and prepared to rest for the winter and mend their boats, he, so to speak, drew the water from under them by the knowledge which prompted him to divide the channels. The object of this and other achievements of the kind was his anxiety to obtain the command of the great estuary into which the Fleet, the Wallbrook, the Lea, and the creeks about Barking fell. To gain this region was one thing, to hold it another. The Saxons before his time disliked the use of walls in warfare. Still more they disliked the trouble of building and maintaining them. But Alfred possessed whatever was known of fortification, and by this knowledge he was able to raise the first permanent impediment in the way of future invaders.

The best authorities agree that to Alfred rather than to the Romans must be ascribed the foundation of London as it was during the Middle Ages, and as, in a sense, it is still. Stow, as far back as the reign of Queen Elizabeth, citing some long-lost document or tradition, tells us that Alfred found London empty. He, to use a very modern expression, “restored” the walls. He rebuilt them with the material at hand, namely, the material with which another Saxon king had built the church of St. Alban. The Saxons had disdained to fight behind walls in their conquest of the degenerate and Romanised Britons. But the Danes were as fighting men equal to the Saxons. Some advantage was needed before the Saxons could overcome their formidable invaders. He saw two important points to be gained by the restoration of London: first, that his new city would be virtually impregnable by the Danes; secondly, that the situation would be that from which he could best defend the whole valley of the Thames. As the Thames rises in Gloucestershire, and runs thence to Essex and Kent, this was to defend all his English dominions. We say now that to hold the Nile is to hold all Egypt and much more. In those days, when the river was the chief highway, to protect the Thames was to protect Kent, Wessex, and Mercia. I have mentioned hunting as an art. Alfred had an eye for a hunting country, as we say now. London was seen by him as we see Pevensey, a ruined wall enclosing nothing. There may have been vestiges of a church. There may have been the piers of a bridge. There can have been little else. Alfred made the bridge into a fortress, renewing the great timbers which had connected the piers. The bridge stood a long way farther down the stream than the modern London Bridge, and to defend it the king built a tower at the south-east corner of the restored wall. William the Conqueror, like Alfred, saw the advantages of the site, and here he placed the tower which still stands, a relic of his reign, a reminiscence of that of his great predecessor. The Roman roads through the city, and the gates by which they made their exit, no longer existed, or, at best, were ruined and useless. He made one road diagonally from the bridge across his market-place to Westgate, which we know as Newgate. A second road led to what we still call Bishopsgate, some distance westward from the site of a Roman gate which opened on the old roads to Lincoln and into Essex. His corn-market, where there was a weighing-stone for wheat, stood to the west of the Market Place or Cheap. A road along the northern side of the Cheap was in existence so soon after Alfred’s time that it must have been planned if it was not made by him. We call it Cheapside, and here there are traditions of a king’s palace near the spot where, centuries later, the great men of the city began to assemble in their Guildhall.

We have mentioned Alfred’s wall. His outline, we may be sure, was speedily filled up. St. Paul’s Church rose among the wooden and brick houses. Civic institutions began to show themselves where there was security; and Alfred’s brother-in-law, Burgred, the last King of Mercia, had a house in Coleman Street, and gave the cabbage garden to the Bishop of Worcester. Alfred’s daughter, Æthelflæd, married Æthelred, Burgred’s successor, who was called the Alderman of the Mercians. To him, and after his death to his widow, the king committed the charge and governance of the city, and Æthelbert became the first alderman of London. The importance of the place is apparent. It was the easternmost bulwark of Alfred’s kingdom against the settled Danes of East Anglia, as well as against the fresh incursions of pirates and filibusters from over the sea. Alfred’s prescience is proved by one single fact. From that day to this London has never been taken by force of arms. The Danes from the North Sea never got past the Tower—the Danes from the Danelaw never broke through the wall.