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out personal violence were cattle. Distress in this form was practiced and also regulated from a very early time. It was forbidden to distrain until right had been formally demanded and refused. Thus leave of court was required, but the party had to act for himself as best he could. If distress failed to make the defendant appear, the only resource left was to deny the Law's protection to the stiff-necked man who would not come to be judged by law. He might be outlawed, and this must have been strong enough to coerce most men who had anything to lose and were not strong enough to live in rebellion; but still no right could be done to the complainant without his submission. The device of a judgment by default, which is familiar enough to us, was unknown, and probably would not have been understood.
Final judgment, when obtained, could in like manner not be directly enforced. The successful party had to see to gathering the "fruits of judgment," as we say, for himself. In case of continued refusal to do right, he might take the law into his own hands, in fact wage war on his obstinate opponent. The ealdorman's aid, and ultimately the king's, could be invoked in such extreme cases as that of a wealthy man, or one backed by a powerful, family, setting the law at open defiance. But this was But this was an extraordinary measure, analogous to nothing in the regular modern process of law.
From the LAWS OF INE (about 690).
Cap. 9. If any one take revenge before he demand justice, let him give up what he has taken to himself and pay (the damage done) and make bot with 30 shillings.
From the LAWS OF CNUT (I016-1035).
Cap. 19. And let no man take any distress, either in the shire or out of the shire before he has thrice demanded his right in the hundred. If at the third time he have no justice, then let him go at the fourth time to the shire-gemot, and let the shire appoint him a fourth term. If that then fail, let him take leave either from hence or thence, that he may seize his own.
From the JUDICIA CIVITATIS LUNDONIAE OF ATHELSTAN (about 930).
Cap. viii. 2. And if it then should happen that any kin be so strong and so great, within land or without land
they refuse us our right, and stand up in defence of a thief, that
we all of us ride thereto with the reeve within whose manung it may be.
From the "ORDINANCE OF THE HUNDRED" of Edgar.
7. In the hundred, as in any other gemot, we ordain that folkright be pronounced in every suit, and that a term be fixed when it shall be fulfilled. And he who shall break that term, unless it be by his lord's decree, let him make bot with xxx shillings and on the day fixed fulfill that which he ought to have done before.
3. And the man who neglects this and denies the doom of the hundred, and the same be afterwards proved against him, let him pay to the hundred xxx pence; and for the second time lx pence, half to the hundred, half to the lord. If he do so a third time, let him pay half a pound; for the fourth time, let him forfeit all he owns and be an outlaw, unless the king allow him to remain in the country.
From the LAWS OF ATHELSTAN (about 960).
12. If anyone when thrice summoned fail to attend the gemot, let him pay a penalty to the king, and let it be announced seven days before the gemot is to be. But if he will not do right nor pay the penalty, then let all the chief men belonging to the burh ride to him and take all that he has and put him in pledge. But if anyone will not ride with his fellows, let him pay penalty to the king.
CASE OF EADWINE AGAINST EANWENE, BEFORE THE COUNTY COURT AT AYLTON. Essays in Anglo-Saxon Law, 365 (prior to 1033).
Here is made known in this writing that a shire-gemot sat at Aylton in King Cnut's day. There came Bishop Aethelstan, and Ealdorman Ranig, and Eadwine, (son) of the ealdorman, and Leofwine, son of Sulfsig, and Thurkil White; and Tofig Proud came there on the king's errand; and there was sheriff Bryning, and Aegelweard of Frome, and Leofwine of Frome, and Godwin of Stoke, and all the thanes in Herefordshire. Then came there Eadwine son of Eanwene, faring to the gemot, and made claim against his own mother for a piece of land; namely, Wellington and Cradley. Then asked the bishop who was to answer for his mother; then answered Thurkil White and said that it was his part (to do so), if he knew the case. As he did not know the case, they appointed three thanes from the gemot, and should ride where she was; namely, at Fawley; these were Leofwine of Frome, and Aegel
sie the Red, and Winsie Shipman. And when they came to her, then asked they what tale she had about the lands which her son sued for. Then said she that she had no land that belonged to him in any way, and she was vehemently angry with her son, and called her kinswoman Leofled, Thurkil's wife, to her, and said to her before them thus: Here sits Leofled, my kinswoman, whom I grant both my land and my gold, both raiment and garment, and all that I own, after my day. And she afterwards said to the thanes: Do thanelike and well. Declare my errand to the gemot before all the good men, and make known to them whom I have granted my land to, and all my property; and to my son nothing whatever; and ask them to be witness to this. And they then did so, rode to the gemot, and made known to all the good men what she had laid on them. Then Thurkil White stood up in the gemot and asked all the thanes to give his wife clear the lands that her kinswoman granted her, and they did so. And Thurkil rode then
to Saint Aethelbert's minster, by leave and witness of the whole people, and caused (this) to be recorded in a church book.
Bot-Composition. A sum of money paid to an injured person to buy off the vengeance that would otherwise be sought.
Folk-mote-Assembly of the freemen in the county court.
Wer-The pecuniary estimation of a man, by which the value of his oath and the sum to be paid for his death were determined. sum paid to the kindred of the person killed to buy off their vengeance.
Wite-A fine. A payment by way of punishment. A payment to the king to buy off his vengeance for an affront to him.
THE DEVELOPMENT OF THE COMMON LAW.
(a) The King's Peace.
From the LAWS OF AETHELBIRHT (600).
Cap. 2. If the king call his people to him and any one there do them evil, let him compensate with a two-fold bot and fifty shillings to the king.
Cap. 3. If the king drink at anyone's house, and anyone there do any offense, let him make two-fold bot.
Cap. 5. If a man kill another in the king's mansion, let him make bot with 50 shillings.
Cap. 8. The fine for breach of the king's protection 50 shillings. Cap. 13. If a man slay another in an eorl's enclosure, let him make bot with 12 shillings.
Cap. 15. The fine for breach of an eorl's protection 6 shillings. Cap. 17. If anyone be the first to make an inroad into a man's enclosure, let him make bot with 6 shillings; let him who follows, with 3 shillings; after, each a shilling.
From the LAWS OF WHITRAED (Kent about 700).
Cap. 2. That the fine for breach of the protection of the church be 50 shillings, the same as the king's.
From the LAWS OF INE (about 690).
Cap. 6. If any one fight in the king's house, let him be liable in all his property, and be it in the king's doom whether he shall or shall not have life. If any one fight in a minster, let him make bot with one hundred and twenty shillings. If any one fight in an ealdorman's house, or in any other distinguished wita's, let him make bot with LX shillings, and pay a second LX shillings as wite. But if he fight in a gafol-gelda's house, or in a gebur's, let him pay CXX, shillings as wite and to the gebur VI shillings. And though it be fought on mid-field, let one hundred and twenty shillings be given as wite. But if they have altercation at a feast, and one of them bear it with patience let the other give XXX shillings as wite.
From the LAWS OF ALFRED.
Cap. 5. We also ordain to every church which has been hallowed by a bishop, this frith; if a fah-man flee to or reach one, that for seven days no one drag him out. But if any one do so, then let him be liable in the king's fine for breach of his protection and the church-frith; more if he there commit more wrong, if, despite of hunger, he can live; unless he fight his way out. If the brethern have further need of their church, let them keep him in another house, and let not that have more doors than the church. Let the church-ealdor take care that during this term no one give him food. If he himself be willing to deliver up his weapons to his foes, let them keep him xxx days, and let them give notice of him to his kinsmen. It is also church-frith; if any man seek a church for any of those offences, which had not been before revealed, and there
confess himself in God's name, be it held forgiven. He who steals on Sunday, and at Yule, or at Easter, or on Holy Thursday, and on Rogation days; for each of these we will that the bot be twofold, as during Lent-fast.
Cap. 15. If a man fight before an archbishop or draw his weapon, and he be taken; be it in the king's doom, either death, or life, as he may be willing to grant him. If he escape, and be taken again, let him pay for himself according to his wer-gild, and make bot for the offense, as well wer as wite, according as he may have wrought.
Cap. 15. If a man fight before an archbishop or draw his weapon, let him make bot with one hundred and fifty shillings. If before another bishop or an ealdorman this happens, let him make bot with one hundred shillings.
Cap. 38. If any man fight before the king's ealdorman in the gemot, let him make bot with wer and wite as it may be right; and before this cxx shillings to the ealdorman as wite. If he disturb the folkmote by drawing his weapon, exx shillings to the ealdorman as wite. If aught of this happen before a king's ealdorman's junior, or a king's priest, xxx shillings as wite.
Cap. 40. The king's burh-bryce shall be cxx shillings. An archbishop's ninety shillings. Any other bishop's, and an ealdorman's, Ix shillings. A twelve-hynde man's, xxx shillings. A six-hynde man's, xv shillings. A ceorl's edor-bryce, v shillings. If aught of this happen when the fyrd is out, or in Lent fast, let the bot be twofold. If any one in Lent put down holy law among the people without leave, let him make bot with cxx shillings.
From the LAWS OF ETHELRED (978-1016).
II. Cap. 6. If the frith breach be committed within a burh, let the inhabitants of the burh themselves go and get the murderers, living or dead, or their nearest kindred, head for head. If they will not, let the ealdorman go; if he will not, let the king go; if he will not, let the ealdordom lie in unfrith.
From the SECULAR DOOMS OF CNUT.
Cap. 83. And I will that every man be entitled to immunity from molestation to the gemot and from the gemot, except he be a notorious thief.
From the LAWS OF ETHELRED.
VI. Cap. 13. Be every church in the peace of God and of the king, and of all Christian folk.