18 The Anglo-Saxon Codes-Code of William I. endeavor to describe and explain, and to trace to their true source, those early laws and institutions which seem to have in any way affected the political and judicial polity and system of jurisprudence, which were permanently established after the Norman Conquest. In the first place, it may be proper to introduce a general account of the codes which were compiled during this interval. Several codes were compiled subsequently to that of Ethelbirht; of these the most important in every sense was unquestionably the code of Canute, who, in the chronicles of the times is styled Rex Christianissimus (i). This code embodied with improvements (k) and modifications most of the provisions in the codes of Ina, Alfred, Edgar, and Canute's other predecessors (); it also contained some additional regulations. There is great reason to believe that this code was in operation possibly with improvements adapted to the habits of the times at the Norman Conquest; William, in the early part of his reign, sent commissioners into the country to search out what were the laws of Edward, for which his English subjects were so clamorous (m); he caused a code to be compiled, which will be more particularly noticed in a subsequent chapter, *which, so far as it adopts the Anglo-Saxon laws and customs, [*19] is in the main founded on that of Canute; it is expressly stated in the Saxon chronicle (n) that Edward the Confessor renewed the laws of Canute, which may account for the code of William bearing so great a resemblance to it. William's was, in fact, an Anglo-Saxon code. It is, however, very doubtful whether William's code, as a whole, ever had the force of law-at least, for any length of time; I am not aware of any specific reference to it in after times. The ancient charters and the chronicles of events which were kept in the monasteries afford most valuable commentaries, and are most important supplements to the codes. I proceed, as proposed, to take a general view of the laws and customs affecting persons and property, and of the political and judicial institutions which prevailed in England under the Anglo-Saxon and Danish sovereigns as they are to be collected from these several sources, so far as they come within the range before pointed out. (i) Hist. Rames. p. 437. (k) Between the time of Alfred and Canute, there are signs of a marked improve ment in the notions of criminal jurisprudence; there was a gradual increase in the catalogue of crimes, for which no composition was admitted, Allen, p. 110, and notes. It is to this circumstance, perhaps, that Wallingford, p. 549, refers, when he says that Canute wholly altered the laws of his predecessors. (1) It is to be observed that there was no distinction, in principle, between Danelage, West-Saxonalage, and Merchenlage. (m) There exists a compilation called Leges Edwardi Confessoris, before referred to, p. 5; Wilkins, p. 197; Ancient Laws, i. p. 443, which is a Norman compilation; it is of uncertain date; it amalgamates Norman and Saxon customs, and uses terms which were not in use before the Conquest; for instance, "feudum," which expression however is sometimes found in continental documents in the 10th century, Savigny, tom. ii. p. 88. This compilation certainly never had the force of law. The learned and industrious Hickes could find no trace of any code of Edward, Dissert. Epist. p. 95. Knyghton, p. 2338. 65; and Malmesbury, p. 75, say, that the laws which the English required to be put in force were those which were in use in King Edward's time, not what he had made. It should be here mentioned that Sir M. Hale's account of the laws of Edward, Hist. of the C. L. p. 78, and that in the Chron. Lichf. Wilkins, p. 197, Anc. L. i. p. xii. and Bromton's p. 937, 19, 956, 7, and Ingulph's account, p. 914, have not escaped attention. (n) A. D. 1065. Ed. Ingr. Legislation of the Anglo-Saxon Codes-Laws as to Land. 19 CHAPTER IV. LAWS AND CUSTOMS OF THE ANGLO-SAXONS RELATING TO Provisions in regard to Sales-Market overt-Laws and Customs relating to Property Modes of ConveyanceWriting not necessary, but Boc or Charter usually drawn up- THE legislation of the codes which we have now to consider, though it exhibits several new features, retains much of the character of that of Ethelbirht. The preservation of the public peace, and the securing to the clergy and the great landed proprietors (the only class that originally, at least, took a direct part in legislation) the enjoyment of their privileges, may be recognized as two main objects in all the codes. There is little to be found on the subject of merely civil jurisprudence; but the provisions in regard to sales and transfers of goods call for some notice. It was declared that no *sale, transfer, or exchange should be valid unless it took place before witnesses, a gerefa, a magistrate (a), [*20] the priest of the place, or the lord of the land (b). By the laws of Edgar there was to be a certain number of persons selected in each burgh or town, before whom all such transactions were to take place (c). The great aim of these provisions was to prevent a traffic in stolen cattle (d) and other property (e); the provisions as to warranty of all articles sold, which are numerous and precise, appear to have been intended for the same purpose (f). There was a special provision that purchases in London should be made before witnesses or the portreve (g): the doctrine of the common law, which secures to the purchaser goods purchased in market overt (h), is based upon these early laws. Some others of the laws relating to movable or personal property will hereafter be adverted to. The laws and customs relating to property in land present the most (e) Caut. 23, 24; Anc. Laws, 389-91, repeated by code of Will. 1. § 45; ib. 485; et v. Edw. (the Elder) 1. p. 159; Athelst. 1. p. 10. p. 205. § 12. p. 207. This was also the practice amongst the Romans, Savigny, tom. 1. § 85. (b) Athelst. Bromt. p. 842. (c) Anc. Laws, i. p. 275. Mr. Allen, p. 95, would assimilate these witnesses to the scabini or delegated judges of the Francs; but, as it appears to me, without sufficient authority, they were rather a standing Jury. (d) Solæ et gratissimæ Opes. Tac. de Mor. Agathias, lib. 1. c. 4. (e) See in addition to the laws before cited, those of Ina. 25; and Palgrave, Rise, &c. p. 187-90; Inquiry, p. 475. Canute's law, however, applied to immovables as well, xliii. Bromt. 925. (f) Int. al. Edw. (the Elder) § 1. Anc. L. 159-161. (g) Hickes' Diss. 93; Pulling, Laws and C. of Lond. 401. (h) V. ii. Bla. Comm. p. 449. 20 Bocland-Power of Alienation, &c.—-Entails. important subject for consideration; here the charters must be largely resorted to. It has already been noticed, that originally the absolute property with all its incidents, equivalent to the Dominium directum of the Roman law, which will presently be described, was enjoyed by the owners of the original allotments made at the Anglo-Saxon Conquest (i). The alodial owner, unless fettered by some restriction imposed by those under whom he claimed, had the absolute power of alienation and disposition (k) by gift and sale, and by will (7), both of which must have been introduced from Roman models. The clergy had a direct interest in encouraging the unlimited power of devising, as it was the church. that was principally benefited by its exercise (m). The owner of alodial, or as it was called Bocland, might grant it absolutely or for a [*21] limited interest, reserving or granting away the reversion at his pleasure. So he might impose any conditions or services he thought proper (n); nor was there anything to prevent an estate of any kind or quantity being granted, and whether to take effect presently or at a future day, or on the happening of any given event. The only check upon individual caprice in these respects (for the written law was silent) was, that in the event of any dispute in respect of the amount of the interest granted, or the time at which it should vest, or the services or conditions imposed, the assembled thanes, at the county or hundred court under their ecclesiastical and civil president, would pass their judgment upon them (o). Lands were let on lease, rendering a rent in money or in kind, for life and for terms of years (p). The owner of land had the power of settling his property directly, in a way that the Romans could only accomplish through the medium of a trust-namely, on a particular class of descendants in succession (g). The practice of settling lands on the male descendants in preference to females was introduced before the time of Alfred (r). Entails were in frequent use, particularly in grants of benefices, which will be hereafter more fully noticed; they were probably of Roman original, for the Romans had been much in the habit of entailing lands, by way of fidei commissa, on their children, and their freedmen and their descendants, with an ex (i) The Bocland of the early codes and charters, is generally called in Latin instruments terra hereditaria, terra testamentaria, or alodis. Bromt. 923-931; Hickes' Dissert. 85; Allen, p. xxxviii; but Bocland being the subject of unrestricted alienation on any terms or conditions, came to be held for a term, for life, or for any other quantity of interest as after mentioned. (k) Or, as it may be said, of mancipation. See Selden, Gloss. voce Alodis, p. 27 b. "Mancipandum" is sometimes used in the charters, Text. Roff. 88; "trado et mancipo," Offa, A. D. 789; Kemble, i. p. 190; ibid. p. xxviii. introd. (1) Somner, Gavelk. p. 89. Devise by will was clearly of Roman original:-"et nullum testamentum," Tacitus, Heinnec. El. Jur. German, ii. § 145; Hargrave's Note, Co. Litt. 111. Written wills were of Pretorian introduction; they were not sanc tioned by the Jus Civile: a legal will was a species of mancipation. (m) "Antiquorum plurimi-quibus uberior inerat virtutum vigor et gratia-de rebus suis quid cuique religiosorum locorum post se pro animarum suarum salute cedere debuissent provide disponebant," Hist. Rames. xxvi. p. 406. (n) See Allen on the Prerog. p. 139. 142 -8, and 154, and the references. (0) V. inf. Judicial Tribunals. (p) In the Sax. Chron. a. n. 852, there is a lease of lands of a monastery, the rent reserved being a certain quantity of wood, coal, peat, Welsh ale, meat, a horse, a money rent, and one night's entertainment yearly; et v. Hist. Eliens. 477; Heming, 306-7; Hickes, Dissert. p. 59; Turner, iv. 215. (7) See Hickes, Dissert. p. 9. (r) See the recitals in Alfred's Will, ed. Pickering. Marriage Settlements—Conveyances—Bocs. 21 press restriction against alienation (s). Alfred enacted, that in order to render the estate so limited inalienable, the instrument of settlement should be declared before the kindred in the presence of the king and of the bishop; and that being done, the will of the donor was ordered to be observed (t). It was at first compulsory,-at all times usual,-for the husband, "at the time he became betrothed to his intended wife, to endow her with a share of his goods; where there was no endowment [*22] she took one-third of the personal property of her husband (u), which she was obliged to give up to his relatives or next of kin on second marriage (x). Settlements of land on marriage were also in use; there are precedents of such settlements giving to the wife an estate for her life, with a general or limited power of selling or devising it; if this power were not exercised, no doubt it reverted to the heirs of the grantor (y). No technical or set form of conveyance was prescribed; any words expressive of the meaning of the parties appear to have been sufficient (2). Writing was not necessary (a); but it became usual, after the example of the Byzantine constitutions (b), to accompany all transfers of alodial land, whether by way of gift or sale, by a charter, or land-boc; and "gebocced" became the common expression for conveyed (c). Some grants were accompanied by delivery of possession by symbol; some lands were held by the symbol then delivered (d); but the boc and the delivery of a symbol were only modes of proof (e); an agreement for sale made before witnesses might be enforced (f). It was usual expressly to include the charters in grants of alodial land, or of lands which had formed part of the public domain (g), and he who had the bocs or charters was, prima facie at least, considered to have the best (s) Instances of such entails, with a restriction against alienation, and decisions upon them, may be seen Dig. xxxi. i. 77, l. 27 and 28; ib. l. 78, § 3, l. 88, § 15. Justinian, in one of his most verbose and confused novels, which is supposed to have been obtained corruptly to serve some particular person (No. clix.) appears to have restrained this power to four successive objects or degrees. See Butler's note to Co. Litt. 191 a, vi. 7. Gibbon (vol. viii. p. 80, n. 154) gives rather a different version of this novel. The limitanean dotations mentioned infra, p. 31, were directly entailed, see Palg. p. 356. (t) § 41 Anc. L. p. 89; et v. Hickes, Dissert. p. 9; p. 53. Devise to a man and his progenies; Smith's Bede, Append. 767. The formularies in Baluze, tom. ii. 406, 7. 412, &c., show that the power of disposition by charter and will equally prevailed in France; et v. Savigny, ii. 65. et seq. (u) Edmund, Anc. L. p. 255, and n. (d). (z) Cnut. Anc. L. 417. (y) Hickes, Diss. Epist. 152. (z) See Kemble's Charters, i. p. xxxi. IXXVI. introd. 66 A. D. 789, Kemble, i. p. 189. Simil. Marc. Form. Baluze, ii. p. 418. Conventio perficit sine scriptis habitam emptionem," Ulpian, Dig. xviii. 1. 2; Cod. iv. 21. 10. (b) "Græcorum ad hoc imbuti exemplis, qui quod scire volunt litteris tradunt," Grant of Doneburth, A. D. 802; Kemble, i. 219, et v. Cod. Theod. viii. 12. 1. (c) V. int. al. Lye, Append. No. 4.; Hist. Eliens. p. 520, 521; and Sir F. Palgrave. (d) Hickes instances the Pusey Horn. temp. Canut. Dissert. p. 84; Pref. p. xxv. tenenda per unum cornu, temp. Ed. Confess. ibid. A clod or twig was sometimes used as a symbol, ib. 84, 85; Text Roff. 88, c. 55; Grant of Sigiraed of Kent, A. D. 759; Kemble, i. 139. (e) Hickes, Dissert. 30. 33. 57. 60. 83. 87. There are many instances of sales evidenced only by witnesses, int. al. Hist. Eliens. 467. (f) Hist. Rames. 441-4. This was a conditional agreement for sale obtained by a bishop from the husband when drunk and his wife, of the wife's inheritance; a very discreditable transaction, but which was carried into execution. (g) V. int. al. Heming, 372; Kemble, ii. 273, cum libro ejusdem terræ. 22 Title Confirmed at County Court-Opening of Wills. title (h). If a boc were lost or destroyed, and the contents could be proved, the owner might obtain a substituted boc at the king's court (i). The monasteries were the principal depositories of the charters or title-deeds of the great landed proprietors; all that could be found by William the First were destroyed by him, in furtherance of his policy that all titles should commence from himself (k). The Shire Gewitnesse and Witena Dom, that is, the judgment *voluntary or contentious of the county court or other court of [*23] competent jurisdiction, on the title to property, real or personal, was the highest security that could be obtained (1). Hence it was not uncommon for owners of land, if they had not obtained a previous judgment establishing their title, particularly preparatory to any intended disposition of their land, to cause their charters to be inspected at the county or hundred court, or if the person were of sufficient consequence, at the king's court (m), or a synod if he desired to leave his land to the church (n), with a view to obtain the shire gewitnesse or witena dom as to his title, and at the same or a subsequent court to announce his will as to the disposition of his property, either by way of direct or testamentary grant, and to have it then reduced into writing if not already done (o). The party who had obtained the shire gewitnesse or witena dom in affirmance of his title, usually had it recorded at a neighboring monastery (p). Purchases of land for the same reason were usually made at the county court (q). Vades or sureties were sometimes demanded of the vendor to warrant his title (r). All wills after the death of the testator appear to have been brought to the county or some other court to be proved and established by the "witena dom" which custom was evidently of Roman original (s). Α verbal will made before witnesses might be established equally as a written will-no definite number of witnesses appears to have been necessary (t). Though the custom of devising by will was, as before noticed, Roman, yet at first the Roman formalities were not adopted. (h) Hist. Eliens. c. xxxv.; Gale, p. 479. (i) V. infra, King's Court. (k) See Lingard, ii. 41; Simeon, 200; M. Par. 8; Westm. 226. (1) See, int. al. the charter of Edmund, cited Somner on Gavelk. p. 86; "testimonium comitatus," Domesday, Heming, p. 512; Hist. Rames. p. 468; Leg. Cnut. § 80; Anc. L. i. 421; et v. Heming, p. 79, temp. Will. I. (m) Alfred took this precaution preparatory to making his will; see the recitals in his will. (n) Cart. Ethelwlf. A. n. 844; Kemble, ii. p. 19; Ethelric. A. D. 804; Heming, p. 447; The king and Optimates attended these sy nods, v. inf. (0) V. Cnut. § 80. Anc. L. i. p. 421, et v. p. 295, "witword;" Hickes, Dissert. 3. 9. 30. 57. 84, Pref. p. xxv.; Heming and Kemble, ubi sup.; Æthelst. § 12. Anc. L. 207. (p) See Hickes, Dissert. p. 3. 5. 7. 9. (q) Hist. Eliens. c. vi. p. 466, temp. Edg. et v. c. viii. and ix. p. 468; xiv. p. 472–3. (r) Quo facto (sale and payment of the money) quæsivit abbas ab eo vades de emptione hujus terræ, cui omnes respond entes dixerunt quod Grantebriccge et Norwice et Theoforth et Gyppes wice, tantæ libertatis et dignitatis essent, ut si quis ibi terram compararet vadibus non indigeret, Hist. Eliens. xxxvi. p. 479. (8) Hickes, Dissert. 57, 58. On the continent, wills were registered in the Curiæ, Savigny, ii. 115. v. infra, note (u) p. 24. (1) Hickes, Diss. Epist. 3. 53. 56, 57, 58. The practice of opening wills before the Præses at the conventus prevailed amongst the Romans, Savigny, tom. i. p. 85. From eight to sixteen is the usual number of witnesses; by the Roman law seven witnesses and their seals were required. One will was established on the single testimony of A. B. Dunstan, who had been sent for by the testator when in extremis, Hickes, Dissert. 53-57; 10,000 viri electissimi offered to swear to his veracity, ibid. p. 60. |