PART II SKETCH OF ANGLO-AMERICAN LEGAL HISTORY CHAPTER V. THE BEGINNINGS OF LAW. 31. Introductory-The relation of English history to the English law.-No legal system can be fully explained on merely logical lines, and the AngloAmerican system is perhaps peculiarly dependent for any complete understanding of it on some knowledge of its historical development. The diligent student of the common law will not rest satisfied until he has mastered in some detail the political and social history not only of his own country but also of England, the land in which this law had its early development. Here only the merest preliminary outline of the more definitely legal history, and particularly of the origin of legal institutions, can be attempted. 32. The Anglo-Saxon beginnings. In its main body the Anglo-American law is almost purely Germanic. Of any direct influence of the aboriginal Celtic stock, or even of the Roman occupation of Britain, no perceptible trace remains. Our law begins with the English, the Teutonic conquerors of England from the Britons. But of the period before the Norman Conquest materials for legal history are naturally meager. Early law is, as we have seen, largely customary in origin. Its rules, therefore, are fresh in the common memory, and there is little need of reducing them to writing. Thus the first written laws which have come down to us from the Pre-Norman period are those of Ethelbert of Kent, which date from about 600 A. D. These and the laws of Ine of Wessex, coming from toward the end of the seventh century, are in the main mere tariffs of compositions for injuries; for example, one of Ethelbert's laws runs: "If one man strike another with the fist on the nose, three shillings." As the various tribes which divided England among them became united into a single nation, their more or less varying customs had to be brought into harmony; and the first laws of all England, those of the great Alfred, coming in the latter part of the ninth century, are fuller and somewhat wider in scope. But throughout this period the purpose of the law, so far as its written forms disclose it, seems to be little more than an attempt to maintain the peace. The effort at first is merely to restrict, and then later to put an end to, the practice of private vengeance and self-redress. The injured person must demand justice before he takes revenge himself or seizes property wrongfully detained from him. The money composition set for an injury is meant to provide a substitute for the satisfaction obtained in wreaking vengeance on the wrongdoer. So the price fixed is proportioned not to the actual injury done, but to the intensity of the desire for vengeance which must be bought off. Thus the penalty for a black bruise was greater if it was where it showed than if it was hidden under the clothing. Spots where the peace will be preserved by the power of the state emerge from the welter of the feud like islands from a flood. The claim of the church is recognized in Ethelred's law: "Be every church in the peace of God and of the King, and of all Christian folk;" in Alfred's ordinance recognizing the special sacredness of the holy days; and in the provision for sanctuary, granting safety from the avenger to one who has escaped to the hallowed spot. The state is similarly recognized. Men going to and from the public assemblies must be free from molestation, and not only the king, but those in his presence as well are protected by the imposition of a heavier composition for offenses against them. But the enforcing machinery of the law is at first conspicuously weak. We are not yet far removed from the time when the popular tribunal which is the ancestor of our modern court decided only such disputes as were voluntarily submitted to it by the parties. The Anglo-Saxon court had little power to compel submission to its jurisdiction or obedience to its judgments. The injured party must himself summon his adversary into court. If he did so in due form he was permitted to seize cattle belonging to the adversary as a security that the latter would attend the court to answer the plaintiff's complaint. Did this fail to induce his appearance, the only measure left to the court was formally to pronounce the recalcitrant outside the protection of the law. Judgments by default were unknown. Similarly, if, after a judgment was pronounced against him, the losing party did not pay the composition set, or return the chattel adjudged to be his adversary's, or was otherwise disobedient, the successful party was left to his own resources, but permitted to exercise the immemorial rights of private vengeance or selfredress to which these previous proceedings had interposed a temporary check. The Anglo-Saxon courts were not specialized tribunals for the administration of justice. Their members were neither professional judges nor lawyers. The courts were the popular assemblies by means of which all the functions of government, so far as they were then developed, were performed. In each locality the Hundred Moot, composed of the freemen of the neighboring settlements, met for deliberation on local affairs, and among these the settlement of what we would now regard as matters of law for the courts. The freemen were bound also to attend the less frequently convened Shire Moot where they decided matters for this larger area. The meeting was presided over by the local nobleman or bishop, but the decisions were rendered by the meeting itself. The Witan or Council of great nobles who advised the king also exercised judicial powers among their other functions. The latest laws we possess from the Pre-Norman period are those of Cnut, the Danish conqueror, 1016-1035. They disclose a development in the law which parallels the increased power of the central government. Certain offenses are now treated, wherever committed, as offenses against the king, and are punished, not by compelling a payment to the injured man or his kinsfolk, but by the infliction of corporal punishment on the wrongdoer-mutilation or even death. In other words, a real criminal law is developing. Again, certain places-like the king's highway, and certain persons-like his immediate retinue, are under the king's special jurisdiction. Another evidence of the growing power of the king is traceable in the beginnings of a system of allotment by him of land from his private domain to his followers on condition of their performing various services to him. This system of tenure, elaborated under the Norman kings, lies at the foundation of much of our real property law. To sum up, the Anglo-Saxons had developed the conception that the object of law was the maintenance of peace and order in society. Their political organization, however, long weakened by internal dissension, and then by the menace or actuality of foreign invasion, failed to develop a strong state to support the legal system by a vigorous sanction. 33. The effects of the Norman Conquest.—No definite break with the English law marks the Norman Conquest of 1066. Indeed, the Norman kings sought to placate their English subjects by promising them the benefits of their ancient law. But the necessities of administration, the task of holding the throne against danger from a powerful and rebellious set of great nobles, as well as from rival claimants to the kingship, and the menace of a peo |