The laws of the Anglo-Saxon monarchs which we have from the period of Ethelbert of Kent, to the Norman Conquest, contain all, more or less, the application of the Were, but in none, after they had left the parent land. Nothing can exceed the simplicity and brevity of these codes. In Christi nomine incipit Legis Saxonum, Liber de Vulneribus. 1. De ictu nobilis solid. XXX. vel si negat, tertia manu juret. 2. Livor et Tumor LX. solid. vel sexta manu juret. 3. Si sanguinat cum CXX. solid. vel cum undecim juret. 4. Si os paruerit CLXXX. solid. vel cum undecim juret. 7. Si per capillos alium comprehenderit, CXX. solid. componat vel XII. a manu juret. The two bodies of law, the Lex Saxonum and the Lex Frisionum may be found at length in the Codex Legum Antiquarum of Lindenbrog, a curious collection of the legislation of the middle ages. Hoel, or Howell Dda, Howell the Good, was a King of South Wales in the 10th century-the date of his compilation, which consists of three codes, the Venedotian, Dimetian, and Gwentian, is between 914 and 942, and it appears that laws of a similar character are traceable as far back as the 6th century. The republication of these statutes forms one of the great labors of the Record Commission. These laws exhibit the most minute particularity in the estimation of damages. They speak of various sorts of compensation for, I. Saraad, or a disgrace. II. Galanas, or murder. And these terms, saraad and galanas, are also used for the mulct imposed for the offence or crime. There were also two other fines; the Dirwy, (from Dir, force) a fine of twelve kine, or three pounds; and Camlwrw, a fine of three kine, or nine score pence. The following extracts illustrate this legislation. Venedotian Code, p. 115. 27. In three ways Saraad occurs to every person in the world; by striking, assaulting, and taking by violence from him; and if it be a man, if his wife be violated, it is saraad to him; if it be a woman, if she find another woman with her husband, it is saraad to her; and so nobody escapes without being subject to saraad.— 27. The Galanas of a steward, a chief of a kindred, a canghellor, and a chief huntsman, is nine score and nine kine, once augmented; and the saraad is nine kine and nine score of silver, once augmented. P. 108, § 12. A dirwy is due for fighting; fighting is assault and battery, and blood and wounds-the three things that constitute fighting; and therefore it is right to pay dirwy for them. The amount of the dirwy is twelve kine, or three pounds; the amount of the camlwrw is three kine, or nine score pence.- P. 125, § 38. For a dog, or for a bird, or for any thing of that kind, there is neither direy nor forfeiture of life; but camlwrw to the lord, and amends to the owner of the property.— P. 187. Of the worth of fowls. 1. A hen is one penny in value. 2. A cock is two hens in value. P. 140. Of skins this treats. 1. The skin of an ox is eight pence in value. 2. The skin of a hart, eight pence.— P. 141. Of the worth of trees this treats. 1. The worth of an oak, six score pence. 2. The worth of a knurled oak, on which there is no fruit, four legal pence.P. 142 Here Iowerth, the son of Madog, son of Raawd, saw it to be expedient to with the exception of those of Alfred, between A. D. 871 and 901, do we find the same minute classification of wrongs and remedies which we have just had occasion to notice. In the laws of Alfred, the rates are higher, whether owing to a better appreciation of personal rights, or to the increase and consequent depreciation of the currency. In the laws of the Conqueror, the weres become very few. Perhaps this is evidence of a civilization gradually increasing, and a jurisprudence slowly improving; for feeble, certainly, and unreliable, must be the tribunal charged with the task of imposing damages in civil suits, if the legislator considers it unsafe to be trusted with the assessment of the amount. This elaborate and minute specification, therefore, though on its face it appears to indicate the care and watchfulness of the lawgiver, on a closer examination furnishes stronger proof of his distrust of the judiciary. Arbitrary rules, which do not bend to the justice of the particular matter, especially when used to fix values, are always a misfortune and a defect in jurisprudence; they should never be tolerated, unless on account of some peculiar and extraordinary difficulty in arriving at the truth of the individual case. What the judiciary was under the Anglo-Saxon government, it is now apparently impossible to learn. Sir Francis Palgrave says,* "some kind of adjudication probably took place amongst write the worth of the building, and the furniture, cotillage, and corn damage, together with the proof book. P. 145. An iron pan, a legal penny. P. 151. Every other thing whatsoever, on which there is no legal worth, is to be appraised. § XXIII. Now of the members of the human body. P. 157. Of corn damage this treats. 16. If a horse be found stretching his neck over a hedge, eating the corn, it is not right to take him, but to obtain compensation for damage, unless he be exculpated. Anomalous Welsh Laws. P. 708, § 5. Three punishments for ferocious acts; the payment of galanas for the slain; death to him who does the deed, and harrying spoliation of the property of the murderer." As I have said, I take these extracts from the Ancient Laws of Wales, published in one of the folios of the Record Commission; the valuable labors of that Commission, and their munificent liberality to the literary institutions of this country, cannot be too frequently nor honorably noticed. * Vol. I., p. 205. the Anglo-Saxons before the were could be required." But any inquiry into this matter, even if practicable, would lead us far beyond our proper limits. It may not, however, be foreign to our subject to notice, that if the were or the wite could not be paid, it seems slavery was the consequence. "The criminal whose own means were insufficient, and whose relatives or lord would not assist him to make up the legal fine he had incurred, was either compelled to surrender himself to the plaintiff or to some third party, who paid the sum for him by agreement with the injured party. Such a serf was called criminal slave. These are the servi redemptione of Henry the First."* We now come to the examination of the tribunals, which, under our present system, are charged with the duty of assessing the amount of damages. Various modes of trial in civil suits have obtained at different periods of English jurisprudence; trials by battle, wager of law, ordeal and by jury. The trial by battle was the natural growth of the period at which we find it existing. "Man," says the learned and sagacious writer, whom I have already several times quoted, "never begins by introducing any law which is entirely unreasonable; but he very frequently allows a law to degenerate into folly, by obstinately retaining it after it has outlived its use and application." We should naturally expect, in a barbarous and disturbed state of society, where every man's house was a castle, and the whole structure of society upon a martial basis, that questions of right would originally be decided by an appeal to force, and that the first efforts of the legislator and the jurist would only be to systematize and solemnize this mode of determining a controversy by subjecting it to fixed rules, and decreeing the result to determine the right forever. This mode of trial naturally gave way before the advancing spirit of order.§ *The Saxons in England, by J. M. Kemble, 1849, Vol. I., p. 197. In the continuation of this work, which the preface informs us is to discuss, among other things, the law of descent, contracts, and the forms of judicial process, a very valuable addition may be expected to our knowledge of the Anglo-Saxons. + Palgrave's Rise and Progress, Vol. I., p. 229. "Ainsi," says M. Guizot, "s'est introduit dans la legislation le combat judiciaire, comme une regularization du droit de Guerre, une arene limitée ouverte à la vengeance. Guizot, Hist. de la Civilization en France, Tome 1, p. 294. § Although singular as it appears, the appeal of death was not abolished in Eng The trial by ordeal, finally prohibited in the early part of the thirteenth century, was the creature of a superstitious age. It was the offspring of the clergy, and perhaps one among their many efforts to counteract the violence of the military portion of the community. In this aspect, it may not have been without its uses. The wager of law, or trial by compurgators, of which we see constant traces in the Anglo-Saxon laws, and which existed till a very recent period,* may claim a more reasonable origin. A party accused of an offense, exonerated himself from the charge, by the oaths of a certain number of witnesses, and as Sir Francis Palgrave well observes: "In criminal cases, the whole theory of this trial resolves itself into the ordinary practice of our modern courts of justice. Evidence has been given by which a presumption is raised against the accused, but not being conclusive, it is rebutted by the proofs of general good character."+ Of the four modes of trial of which we have spoken, then, the one that has survived them all, after undergoing, however, very material modifications in its construction, is the trial by jury. But it is not within the scope of our present subject, to trace the gradual formation of this institution. Suffice it to say, that trial by jury, originally a trial by witnesses, the jury being themselves the witnesses, gradually supplanted the various land till within the last thirty years. See Ashford vs. Thornton, 1 B. & Ald., p. 405, which resulted in an act of Parliament. * 3 Black. Com., Ch. 22, p. 845. In New York, by II. Revised Statutes, p. 410, Part III. Ch. VII. Tit. IV. Art. 2, § 4, "trials by battle, and by the grand assize and all other modes of trial, except by a jury or by referees, are forever abolished." Wager of law existed in England till very recently. It was abolished in all cases by 3 and 4 W. 4, c. 42, § 18. Chitty on Pleadings, Vol. I., p. 142. Vol. I., p. 233. This analogy applies, however, only to those cases where the evidence is presumptive, and not positive, as in the latter class testimony to character is admitted only in mitigation of the sentence. "La veritable origine des Conjuratores," says Guizot, "c'est que tout autre moyen de constater les faits etait a peu pres impraticable. Pensez a ce qu'exige une telle recherche, a ce qu'il faut de developpement intellectuel, et de puissance publique pour le rapprochement et la confrontation des divers genres de preuves, pour recueillir, et debattre des temoignages, pour amener seulement les temoins devant les juges et en obtenir la verité en presence des accusateurs et des accusés. Rien de tout cela n'etait possible dans la societe que regissait la Loi Salique; et ce n'est point par choix ni par aucune combinaison morale, c'est parcequ'on ne savait et ne pouvait mieux faire qu'on avait recours alors au jugement de Dieu et au serment des parens."-Guizot, Hist. de la Civilization en France, Vol. I., p. 285. "The ancient jurymen were not empanelled to examine into the credibility of modes of trial by battle, ordeal and wager of law, and from the time of the reign of Henry II. seems to have begun to acquire stability, if not its present form.* At all events, at the period of the earliest systematic records of judicial proceedings in England, the jury had become the tribunal which disposed of the question of fact, and the amount of damages became a principal part of their jurisdiction. All hope of discovering how early this period was, is now, perhaps, lost, with the date of still greater interest, that of the origin of parliamentary representation. But it is certain that damages by their present name, were known at a very early period of the English law. The statute of Gloucester, passed 6 Edward I., A. D. 1278, after giving damages in certain real actions in which they were not previously recoverable, goes on to give costs in the same cases, and closes by enacting that the act shall apply to all cases where the party is to recover damages. "Et tout ceo soit tenu en tout cas ou homme recover damages."S In Robert Pilfold's case it is said, "It is to be known that this word Damna is taken in the law in two several significa the evidence; the question was not discussed and argued before them; they, the jurymen, were the witnesses themselves, and the verdict was substantially the examination of these witnesses, who of their own knowledge, and without the aid of other testimony, afforded their evidence respecting the facts in question to the best of their belief. In its primitive form, therefore, a trial by jury was only a trial by witnesses." -Palgrave, Vol. I., p. 244. *The ordeal was prohibited by the 18th Canon of the Fourth Lateran Council, A. D. 1215.-Palgrave, Vol. I., p. 66. See, also, Repp on Ancient Trial by Jury, already cited, (p. 15, in notes,) an ingenious treatise to illustrate the gradual formation of the jury, from the wager of law and the trial by battle. To Sir Francis Palgrave's work I acknowledge great obligations. Indeed, to the legal student who desires an acquaintance with the origin of our jurisprudence, it is indispensable. Mr. Petheram says, in his Sketch of Anglo-Saxon Literature, that at its appearance it was not pecuniarily successful; but he well adds, "that for many years to come, it must form the basis of our knowledge respecting the frame work of the Anglo-Saxon government."-Petheram's Sketch, p. 146. Those, also, who desire a philosophical view of the Barbaric Codes, cannot be better referred than to Mr. Guizot's Histoire de la Civilization en France, the 9th and 10th lessons of the first volume, and Mr. Hallam's History of Europe during the Middle Ages, Vol. I., Chap. II., on the Feudal System. + Turner's Anglo-Saxons, Book VIII., Ch. IV., Vol. III., p. 185, and Appendix III., Ch. IX., Vol. II., p. 536. + Stat. at Large, by Ruff head, Vol. I. § See Barrington's Observations on the Statutes, p. 109. "After verdict given of the principal cause, the jury are asked touching costs and damages."-Jacobs's Law Dict. in voc. | Rep., Part X., p. 115. |