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present, constitute the common law of England, may, with confidence, be attributed to the Anglo-Saxon era. It has been, indeed, contended that they are wholly derived from the Britons;* but, although this is, unquestionably, the case with some, as has been observed in a former payet yet the customs of those different nations which suceessively established themselves in the island, were necessarily incorporated with them. The pertinacity with which the descendants of the Britons clung to the Saxou institu. tions, in opposition to the innovations introduced by the Normans at the conquest, would induce the belief that they formed the foundation of that common law, which it became the pride and boast of succeeding ages to maintain.
The Witena-gemot of the Saxons, comprising the principal landed proprietors of the kingdom, was the supreme assembly of the state; combining, like our present House of Lords, the legislative and judicial capacities. The qualifications for sitting in this august assembly, are allowed to have consisted in territorial possessions; and it is generally considered that forty hides of land constituted an eligibility; yet whether that property entitled persons to a seat in the genot, or only qualified them to be elected by their peers, as their representatives there, is now involved in impenetrable obscurity. Thus much concerning them is certain, that they not only assisted the monarch with their counsel, in cases of state exigency, but their consent was necessary to the validity or promulgation of the laws, as all the remaining laws of that period profess to have been enacted with their concurrence. What were the leading characteristics of these regulations, it may be interesting briefly to examine.
That wise institution, and invaluable privilege, the Trial by Jury, is referable to the Saxon period, although it cannot be precisely ascertained at what time it was first introduced. In
. Fortescue. c. 17.
+ Vide ante. p. 31–32. Turner's Hist. Angl. Sax. Vol. II. p. 220, et seq. $ Blackst. Eumm. Vol. I. p. 148.
deed, it would seem probable, that this mode of trial was adopted by gradual and imperceptible degrees; as its origin may be traced to a principle in use at a very early date. When a man was accused of any crime, it was a judicial custom of the Saxons, that he might clear himself, if he could procure a certain number of persons to come forward and swear that they believed him guiltless of the allegation. These persons so produced, were called compurgators, and appear to have been literally juratores; and the veredictum sworn to by them, so far determined the case as to acquit the prisoner. Although the custom of acquittal by compurgators, has been doubted, by some writers, to have been the origin of juries,* yet they appear so nearly to resemble a jury in its early and rude shape, that, perhaps, we may safely as. sign that judicious and inestimable institution to this remote origin.t That the trial by jury existed at the time of the Con. quest, is not disputed.
The custom of acquittal by compurgators, who were originally produced, or nominated, by the party accused, made it necessary to attach inviolable sanctity to the obligation of an oath; and we, consequently, find that oaths were administered in the most solemn and impressive manner, both in respect to the place of administering, and the form of words and ceremonies used; yet, even these circumstances, so likely to produce a deep impression on the imagination, in an age of ignorance and superstition, did not prevent the frequent occurrence of perjury, although that crime was punished with great severity.'
As the power of the church gradually advanced, new forms of judicial proceedings were introduced by its crafty ministers; and the sanctity of the proceedings, aided by the difficulty of procuring a sufficient number of compurgators for the purpose of ac
• Henry's Hist. Brit. Vol. III. p. 424.
+ See an extended inquiry into this subject, and various documents illus. trative of the gradual improvement of the custom of acquittal by compurge. tors, in Turner's Hist. Angl. Sax. Vol. II, p. 271, et seq.
Hen. Hist. Vol. III. p. 426.
quittal, which, in some cases, were required to be very numerous, frequently induced the accused to appeal to Heaven for proof of their innocence, which introduced the custom of Trial by Or• deal. Of this mode of trial there were several kinds, of which the most conimon were the ordeal of the cross; the ordeal of the corsned; the ordeal of cold water; the ordeal of hot water; and the ordeal of hot iron.* These several modes of trial were preceded by various superstitious solemuities; and while they were popular, the trials by jurators were of unfrequent occurrence; but as men began to perceive the futility of such blind appeals to Heaven, the legal tribunals became more resorted to, and juries more frequent.+
The laws of succession to property were such as appear most consonant to the natural wishes and desires of mankind; children were the heirs of their fathers. When the children were all sons, the property was equally divided among them, and the same rule obtained when they were all daughters; but the pro. portions in which it descended, if there were children of both sexes, is not clearly ascertained. When a man died without children, bis nearest relations inherited his possessions; aud, in defanlt of heirs, the whole fell to the king. This, however, was only in the instauce of those who died intestate, the testamentary bequest of property being allowed, under certain restrictions, in the more advanced periods of the Anglo-Saxon era. The custom of inheritance by Borough-english, in which the youngest son was the heir, to the exclusion of the rest, is, also, said to have prevailed in some districts during the Saxou tiines. S
The Matrimonial laws of the Anglo-Saxons were calculated to prevent unequal, or imprudent, contracts. For this purpose every woman was considered to be under the legal guardianship of some man, who was termed her Mundboru, and no act of
• For a particular description of these several ordeals, see Henry's Hist. Brit. Vol. III. p, 428, et seq.
Turner's Hist. Angl. Sax. Vol. II. p. 275.
Wilkins. Leges. Saxon. p. 266. Hen. Hist. Vol. III. p. 401–405, ŷ Turner's Angl. Sax. Vol. II. p. 181.
hers was valid, without his consent. On her marriage, her mundbora received a pecuniary recompense for his ward, in the shape of a present, of an amount limited by her rank, which was called her mede, or price; and if any one were rash enough to commit the crime of mundbreach, by marrying a woman without the consent of her guardian, he acquired no legal authority over his wise, or any of her goods, by such a marriage. The husband, on bis marriage, received from the friends of his bride a considerable present, in furniture, arms, cattle, or money, according to the circumstances of her family, which was called faderfum (father-gist;) but was bound, on the first morning of their marriage, to present her with a morgængife, or morning.gist, the amount of which was also limited by law, and which became the separate property of the wife.*,
Whilst the rights of the female part of the community were thus protected, their connubial fidelity was enforced by severe penalties,t and even the breach of decorum was signally punished; it being a rule of Anglo-Saxon law, that if a widow should marry, within twelvemonths after the decease of her husband, she should forfeit her morgen-gift, and all the property derived froin her first marriage;t a rule that appears to have influenced the period, which is considered, at the present day, as the test of a decorous exhibition of grief.
The great leading principle in the penal laws of the AngloSaxons, even in offences of the most flagrant nature, appears to have been, rather the compeusation of the injury sustained, tban the punishment of the crime. For this purpose, every man had a fixed value, in proportion to his rank, which was called his were, or were-gyld; and the destroyer of his life was punished by the payment of this were to his family or relations. In addition to this, he was also compelled to pay a certain pecuniary compen
. Wilkins. p. 147. Hen. Hist. Vol. III. p. 396. 397. &c.
sation, called his wite, to the chief magistrate presiding over the district, for the loss which the community had sustained. * The pecuniary commutation of crime appears extraordinary, in the view of a more eulightened age; yet, perhaps, among a people trained to war, and accustomed to behold the terrors of death with undaunted firmness, the evils of poverty were more dreaded than the infliction of capital punishment.
This scale of recompence pervaded the whole of their regulations respecting personal injuries ; and the price of wounds inflicted on different parts of the body, was fixed with microscopic precision.
Besides the were, or personal valuation, which secured the individual from violence, and fixed the amount of punishment for any offence committed by him, his domestic peace was, also, guarded by a mundbyrd, or right of protection, possessed by every one for mutual benefit. The price of its violation was proportioned to the rank of the patron. This privilege appears to be the principle of that doctrine still so fondly adhered to; namely, that every man's house is his castle.t
The mode of punishment by pecuniary mulcts, it will be supposed was favourable to the wealthy part of the community, who could afford to gratify their private revenge, without fear of other inconvenience than payment of the customary amercement; while the absolutely abject and needy escaped with impunity. We, consequently, find that although they were the most popular of the legal punishments, they were, in process of time, discovered to be ineffectual, and others were enacted. Among these appoar most of the punishments inflicted at the present day, together with soine which could only be allowed to exist in a barbarous and uncivilized state.
Theft was considered by the Anglo-Saxons, as a crime of
• Wilkins, p. 2, 3. Turner, Vol. II. p. 241. + Turner, Vol. II. p. 257.
Turner's Angl. Sax. Vol. II, p. 269.