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this quite aside from the excellences of that system, concerning which I shall presently speak. My present point is this: That the mere fact that one and the same system of jurisprudence exists in all of the states, is of itself of vast importance, since it is a most powerful agency in promoting commercial, social, and intellectual intercourse, and in cementing the national unity.

The history of the common law system may be treated of conveniently under five heads: (1) English law before the Conquest, (2) the development of the common law, (3) the development of equity, (4) the law merchant, (5) the reform-movement.




opet of Anglo-Saxons

as to preveur,


For most practical purposes, the history of English law does not begin till after the Norman Conquest, and the earliest things which modern lawyers are strictly bound to know must be allowed to date. only from the thirteenth century, and from the latter half of it rather than the former. Nevertheless a student who does not look further back will be puzzled by relics of archaic law which were not formally discarded until quite modern times, and he may easily be misled. by plausible but incorrect explanations of them such as have been current in Blackstone's time and much later. . . . The extreme antiquities of our law may not often be required in practice, but it is not safe to neglect them altogether, and still less safe to accept. uncritical explanations when it does become necessary to consider them.

Prodern law



From the LAWS OF AETHELBIRHT (Kent, about 600 A. D.).
Thorpe's translation.)

33. If there be seizing by the hair, let there be L scaetts for bot. 34. If there be an exposure of the bone, let bot be made with III shillings.

35. If there be an injury of the bone, let bot be made with IV shillings.

36. If the outer bone be broken, let bot be made with X shillings. 37. If it be both, let bot be made with XX shillings.

38. If a shoulder be lamed, let bot be made with XXX shillings.

They grew out of custom.

very formal.

Law was very

39. If an ear be struck off, let bot be made with XII shillings. 40. If the other ear hear not, let bot be made with XXV shillings. 41. If an ear be pierced, let bot be made with III shillings. 42. If an ear be mutilated, let bot be made with VI shillings. 43. If an eye be (struck) out, let bot be made with L shillings. 44. If a mouth or an eye be injured, let bot be made with XII shillings.

45. If the nose be pierced let bot be made with IX shillings. 46. If it be one ala let bot be made with III shillings.

47. If both be pierced, let bot be made with VI shillings.

48. If the nose be otherwise mutilated, for each let bot be made with VI shillings.

49. If it be pierced, let bot be made with VI shillings.

50. Let him who breaks the chin-bone pay for it with XX shillings.

51. For each of the four front teeth, VI shillings; for the tooth which stands next to them, IV shillings; for that which stands next to that, III shillings; and then afterwards, for each a shilling.

52. If the speech be injured, XII shillings. If the collar bone be broken, let bot be made with VI shillings.

53. Let him who stabs (another) through an arm, make bot with VI shillings. If an arm be broken, let him make bot with VI shillings.

54. If a thumb be struck off, XX shillings. If a thumb nail be off, let bot be made with III shillings. If the shooting (i. e. fore) finger be struck off, let bot be made with VIII shillings. If the middle finger be struck off, let bot be made with IV shillings. If the gold (i. e. ring) finger be struck off, let bot be made with VI shillings. If the little finger be struck off, let bot be made with III shillings.

55. For every nail a shilling.

56. For the smallest disfigurement of the face, III shillings; and for the greater, VI shillings.

57. If anyone strike another with his fist on the nose, III shillings.

58. If there be a bruise, a shilling; if he receive a right hand bruise, let him (the striker) pay a shilling.

59. If the bruise be black in a part not covered by the clothes, let bot be made with XXX scaetts.

60. If it be covered by the clothes, let bot for each be made with XX scaetts.

61. If the belly be wounded, let bot be made with XII shillings; if it be pierced through, let bot be made with XX shillings.

From the LAWS OF ALFRED (Wessex, about 890 A. D.). (This and the succeeding extracts from the Anglo-Saxon laws are from Thorpe's translation.)

We also command: that the man who knows his foe to be homesiting fight not before he demand justice of him. If he have such power that he can beset his foe, and besiege him within, let him keep him within for VII days, and attack him not, if he will remain within. And then, after VII days, if he will surrender, and deliver up his weapons, let him be kept safe for XXX days, and let notice. of him be given to his kinsmen and his friends. If, however, he flee to a church, then let it be according to the sanctity of the church, as we have before said above. But if he have not sufficient power to besiege him within, let him ride to the ealdorman and beg aid of him.. If he will not aid him, let him ride to the king before he fights. In like manner also, if a man come upon his foe, and he did not before know him to be home-staying; if he be willing to deliver up his weapons, let him be kept for XXX days, and let notice of him be given to his friends, if he will not deliver up his weapons then he may attack him. If he be willing to surrender, and to deliver up his weapons, and anyone after that attack him, let him pay as well wer as wound, as he may do, and wite, and let him have forfeited his maegship. We also declare, that with his lord a man may fight without risk of legal consequences, if anyone attack the lord; thus may the lord fight for his man. After the same wise, a man may fight with his born kinsman, if a man attack him wrongfully, except against his lord. That we do not allow. And a man may fight without legal consequences, if he find another with his lawful wife, within closed doors, or under one covering, or with his lawfully born daughter, or with his lawfully born sister, or with his mother, who was given to his father as his lawful wife.


2. Then is this: If a man be slain, we estimate all equally dear, English and Danish, at viii half marks of pure gold.


3. And if a king's thegn be accused of manslaying, if he dare to clear himself, let him do that with xii king's thegns. If any one

accuse that man who is of less degree than the king's thegn, let him clear himself with xi of his equals and with one king's thegn. And so for every suit which may be for more than iv mancuses. And if he dare not, let him pay for it threefold, as it may be valued.

From the LAWS OF ATHELSTAN (about 930).

12. And we have ordained that no man buy any property out of port over xx pence; but let him buy there within, on the witness of the portreeve, or of another unlying man; or further on the witness of the reeves at the folkmote.

From the "ORDINANCE OF THE HUNDRED" OF EDGAR (950-975). 4. And we have ordained, concerning unknown cattle; that no one should possess it without the testimonies of the men of the hundred, or the tithingman, and that he be a well-trusty man; and unless he have either of these, let no vouching to warranty be allowed him.


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The courts were open air meetings of the freemen who were bound to attend them, the suitors as they are called in the tes Anglo-Norman and later mediaeval law; there was no class of professional lawyers; there were no judges in our sense of learned persons especially appointed to preside, expound the law, and cause justice to be done; the only learning available was that of the bishops, abbots, and other great ecclesiastics. This learning, indeed, was all the more available and influential because before the Norman Conquest, there were no separate ecclesiastical courts in England. There were no clerks, nor apparently, any permanent officials of the popular courts; their judgments proceeded from the meeting itself, not from the presiding officer, and were regularly preserved only in the memory of the suitors.

From the SECULAR ORDINANCE OF EDGAR. Cap. I.. This, then, is first what I will: that every man be worthy of folk right, as well poor as rich; and that righteous dooms be judged to him; and let there be such remission in the bot as may be becoming before God and tolerable before the world.

Cap. 6. And let the hundred gemot be attended as it was before fixed; and thrice in the year let a burh-gemot be held, and twice a shire gemot; and let there be present the bishop of the shire and

the ealdorman, and there both expound as well the law of God as the secular law.


Some considerable time before the Norman Conquest, but how long is not known, bishops and other great men had acquired the right of holding courts of their own and taking the profits in the shapes of fines and fees, or what would have been the king's share of the profits. My own belief is that this began very early, but there is no actual proof of it. Twenty years after the conquest, at any rate, we find private jurisdiction constantly mentioned in the Domesday Survey, and common in every part of England; about the same time, or very shortly afterwards, it was recognized as a main ingredient in the complex and artificial system of feudalism. After having grown in England, as elsewhere, to the point of threatening the king's supremacy, but having happily found in Edward I. a master such as it did not find elsewhere before the time of Richelieu, the manorial court is still with us in a form attenuated almost to the point of extinction.

Rigid and cumbrous as Anglo-Saxon justice was in the things it did provide for, it was, to modern eyes, strangely defective in its lack of executive power. Among the most important functions of courts as we know them is compelling the attendance of parties and enforcing the fulfilment both of final judgments and of interlocutory orders dealing with the conduct of proceedings and the like. Such things are done as of course under the ordinary authority of the court. . But this reign of law did not come by nature; it has been slowly and laboriously won. Jurisdiction began, it seems, with being merely voluntary, derived not from the authority of the state but from the consent of the parties. People might come to the court for a decision if they agreed to do so. They were bound in honour to accept the result; they might forfeit pledges deposited with the court; but the court could not compel their obedience any more than a tribunal of arbitration appointed at this day under treaty between sovereign states can compel the rulers of those states to fulfil its award. Anglo-Saxon courts had got beyond this most early stage, but not very far beyond it.

The only way to bring an unwilling adversary before the court. was to take something of his as security till he would attend the demand; and practically the only things that could be taken with

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