Chapter III: His Translations and His Will (3)

The conditions under which Boethius produced that unique work _The Consolation of Philosophy_ may have tended to give the book a special attraction for the mind of the trouble-tossed king. He certainly seems to have made great use of the book as a text for his own reflections and meditations. “For although King Alfred professed to translate the work of Boethius, yet he inserted in various parts many of his own thoughts and feelings,” etc. These are the words of one who up to the moment of writing was the latest editor of Alfred’s _Boethius_;[29] but now he must share the ground with Mr. Sedgefield, whose new and greatly improved text has just issued from the Clarendon Press. On Alfred’s manner of dealing with his originals Mr. Sedgefield says: “Even in his most faithful translation, that of the _Cura Pastoralis_, King Alfred is by no means what in these days would be called literal; while in his _Boethius_ it is the exception to find a passage of even a few lines rendered word for word.” And, we may add, it is precisely this free handling which gives to the king’s translations their personal interest, and nowhere is this peculiar attraction so strongly felt as in his adaptation of Boethius.

German research has somewhat modified the inference which ascribed to Alfred everything in his version which is not found in the text. Old Latin commentaries and scholia upon the _De Consolatione_ have been discovered in continental libraries, which contain similar expansions, especially those in the direction of Christian doctrine. This discovery enlarges the literary interest, with small detraction from the work of the king. His glory is not of a kind to rise and fall by little gradations of more or less. The suggestions supplied by these commentaries are in their nature very obvious. For, as was observed by Mr. Stewart, the most casual reader of Boethius cannot fail to be struck with the strong theism which breathes through his pages, and invites the touch of paraphrase to give it the full Christian sound, as when the city of Truth, from which Boethius represents himself as exiled, becomes under the translator’s hand the heavenly Jerusalem; a thought which is expressed in the recently discovered scholia. But in Lib. ii. metr. 4, where the translator brings in the striking sentence, “Christ dwelleth in the vale of Humility and at the monumental stone of Wisdom,” the old Latin annotator contributes only this—“The stone is Christ.” Of the famous simile which likens the world to an egg, there is this much found in the scholia—“That the sky and the earth and the sea are in configuration like an egg.” See how this is developed by the poet:[30]—

Ðu gestaðoladest Thou didst establish
þurh þa strongan meaht, through strong might,
weroda wuldor cyning, glorious king of hosts,
wunderlice wonderfully
eorðan swa fæste the earth so fast
þæt hio on ænige that she on any
healfe ne heldeð, side heeleth not,
ne mæg hio hider ne þider nor can hither or thither
sigan þe swiðor any more decline
þe hio symle dyde. than she ever did.
Hwæt hi þeah eorðlices Lo nothing earthly
auht ne haldeð, at all sustains her,
is þeah efn eþe it is equally easy
up and of dune upwards and downwards
to feallanne that there should be a fall
foldan þisse: of this earth:
þæm anlicost likest in fashion to
þe on æge bið how in an egg
gioleca on middan, middlemost is the yolk,
glideð hwæþre and withal gliding free
æg ymbutan. the egg round about.
Swa stent eall weoruld So standeth the world
stille on tille, still in its place,
streamas ymbutan, while streaming around,
lagufloda gelac, water-floods play,
lyfte and tungla, welkin and stars,
and sio scire scell and the shining shell
scriðeð ymbutan circleth about
dogora gehwilce; day by day now
dyde lange swa. as it did long ago.

Book iii. metre 9; p. 182, ed. Sedgefield.

This simile occurs only in the poetical version of the Metres, for there are two versions, one in prose and another in verse, and it is agreed that the versification has been done after and from the prose; but there is a question (into which we cannot now enter) whether Alfred is the author of both, or only of the prose version.

But before we quit Alfred’s _Boethius_, we must notice his treatment of Lib. ii. prosa 7, where we may discover something more than free handling. In the first three lines of that section he found a profession of disinterestedness which he could honestly appropriate to himself. The Latin speaks thus: “Thou knowest, said I, that I was never governed by the ambition of transitory wealth. But material for action I did covet, that my talents might not rust in idleness.” Upon these lines for a text the king made his chapter xvii., in which it is evident that he forgets Boethius and speaks for himself and of himself throughout. Applying his author’s words to himself, he expands them into a veritable apology, explaining why a king needs a great revenue, and ending thus: “I resolved to live honourably as long as I lived, and after my time to leave to the men who should come after me my memorial in good works.”

Now we come to the translation of the _Cura Pastoralis_, a work of high and manifold interest.[31] A copy of it was sent to every bishop in England. The very copy which was addressed to Werferth, Bishop of Worcester, is still in our possession. It is preserved in the Bodleian Library, and may be seen under glass by every visitor. This wonderful relic, like the Alfred Jewel, seems to bring us into personal contact with the great king himself.

In Alfred’s Epistle to the bishops, which forms his Preface to the _Pastoralis_, the mind of the king is laid open in a very remarkable manner. Among the many precious evidences which time has spared for the perpetuation of a noble memory, the first place must certainly (on the whole) be accorded to this Preface. It exhibits in the clearest light the reflections of the king upon the past and present condition of his country, his deep sense of the vast losses that had been sustained, his meditation on the means of repair at his command, and the direction of his thoughts to that which is the only root of effective reform, an enlightened and instructed national conscience. In his contemplation of this vital principle, he perceives the value of religious education, and the necessity of beginning there. At this point his discourse enters more into detail, the practical drift of which is, that the Latin schools being lost, and being (for the present at least) irreplaceable, it will be necessary to institute a system of education through the medium of the English language. Some scholars thought that education could only be properly conducted through Latin, and that the vernacular would lower its dignity and value. They could not wholly approve of the method of translations. Here Alfred had nearly the same battle to fight as Jerome fought before him, and in his apology he drew materials from Jerome’s store, adding the further inference that if Scripture might be had in the vulgar tongue, why not other good books?

Children (he thought) should be taught to read English, and this elementary stage of education should be common to all of free birth. For the sons of those who could afford to prolong the education of their children, Latin studies should follow, and such boys should be trained for the higher offices. Here the English basis of education is propounded as a course which was dictated by necessity; but if ever it should be demonstrated that this course is absolutely the best, the credit of having been the first to open the right path must not on that account be denied to King Alfred. In the good old times, Wessex had been far behind Northumbria in the culture of the classics, but this had led to a fuller development of the vernacular, and Alfred found his mother tongue not inadequate to the occasion, and large specimens of Latin literature were rendered in West Saxon, and thus it happened that the dialect of Wessex became to the after literature of England what the Attic dialect was to the literature of Greece.

The king’s letter to the bishops begins thus:—

ÐEOS BÔC SCEAL TO WIOGORA CEASTRE

THIS BOOK IS TO GO TO WORCESTER

Alfred, king, commandeth to greet Wærferth, bishop, with
his words in loving and friendly wise: and I would have you
informed that it has often come into my remembrance, what
wise men there formerly were among the Angle race, both of
the sacred orders and the secular; and how happy times those
were throughout the Angle race; and how the kings who had
the government of the folk in those days obeyed God and His
messengers; and they on the one hand maintained their peace
and their customs and their authority within their borders,
while at the same time they spread their territory outwards;
and how it then went well with them both in war and in wisdom;
and likewise the sacred orders, how earnest they were, as well
about teaching as about learning, and about all the services
that they owed to God; and how people from abroad came to this
land for wisdom and instruction; and how we now should have to
get them abroad if we were going to have them. So clean was
it fallen away in the Angle race, that there were very few on
this side Humber who would know how to render their services in
English, or just read off an epistle out of Latin into English;
and I wean that not many would be on the other side Humber.
So few of them were there that I cannot think of so much as
a single one south of Thames when I took to the realm. God
Almighty be thanked that we have now any teachers in office.

Moreover, the king called also to mind what he had himself seen in his early days, before all the harryings and burnings of recent times: how the churches of England had been well stored with books, and the clergy were numerous, but they had profited little by the books, because they could not understand them, as they were not written in their own language. At this point his eloquence rises to a dramatic pitch, and “It is,” he breaks out, “as if they had said: ‘Our ancestors, who were the masters of these sacred places, they loved wisdom, and by means of it they acquired wealth and left it to us. Here may yet be seen their traces, but we are not able to walk in their steps, forasmuch as we have now lost both the wealth and the wisdom, because we were not willing to bend our minds to that pursuit.’” Remembering all this, he had marvelled very exceedingly at those good scholars who were once so frequent in England, men who had completely mastered the Latin books, that they had not been willing to translate any part of them into their own language. But he soon answered himself and said, that they never could have anticipated the present utter decay, and it was their very zeal for learning which caused them to abstain from translating, because they thought that the path of education and knowledge lay through the study of languages.

Then I remembered how the law of Moses was first known in
Hebrew; and later, when the Greeks had learned it, they
translated it into their own language, and all other books too.
And later still the Latin people in the same manner, they by
means of wise interpreters, translated all the books into their
own speech. And so also did all the other Christian nations
translate some portion of the books into their own speech.

Therefore to me it seemeth better, if it seemeth so to you,
that we also some books, those that most needful are for all
men to be acquainted with, that we turn those into the speech
which we all can understand, and that ye do as we very easily
may with God’s help, if we have the requisite peace, that all
the youth which now is in England of free men, of those who
have the means to be able to go in for it, be set to learning,
while they are fit for no other business, until such time as
they can thoroughly read English writing: afterwards further
instruction may be given in the Latin language to such as are
intended for a more advanced education, and are to be prepared
for higher office. As I then reflected how the teaching of the
Latin language had recently decayed throughout this people of
the Angles, and yet many could read English writing, then began
I among other various and manifold businesses of this kingdom
to turn into English the book that is called _Pastoralis_ in
Latin, and _Hierdebóc_ (Shepherding-Book) in English, sometimes
word for word, sometimes sense for sense, just as I learned
it of Plegmund my archbishop, and of Asser my bishop, and of
Grimbald my priest, and of John my priest. After I had learned
it so that I understood it and could render it with fullest
meaning, I translated it into English; and to each see in my
kingdom I will send one; and on each there is an “æstel” (ón
ælcre bið án æstel), which is of the value of 50 mancuses. And
I command in the name of God that no man remove the “æstel”
from the book, nor the book from the minster. No one knows how
long such learned bishops may be there, as now, thank God!
there are in several places; and therefore I would that they
(the books) should always be at the place; unless the bishop
should wish to have it with him, or it should be anywhere on
loan, or any one should be writing another copy.

It has never been satisfactorily decided what kind of object is meant by the “æstel” which accompanied every one of the presentation copies of the _Hierdebóc_. Dr. Sweet translates thus: “And on each there is a clasp worth fifty mancus. And I command in God’s name that no man take the clasp from the book, or the book from the minster.” Dr. Bosworth, in his Dictionary, explained æstel as a writing-tablet, and identified the word with “astula” in Du Cange. Now it is not easy to see the propriety of combining so personal a thing as a note-book with a volume designed for common use. Nor could such an object be a fixture upon the great book, which is what the king’s phrase (ón ælcre bið) seems to require. On the other hand, Dr. Sweet’s clasp is indeed a fixture, but of such a kind as to be a part of the book itself which could not be removed without wilful mutilation, and it does not appear that the king in his injunction is apprehensive of so flagrant an outrage as that.

My own impression is that the clue to the interpretation is furnished by a Glossary of the eleventh century, which gives “indicatorium” as the equivalent of æstel (Wright-Wülker, i. 327). I imagine a marker either of metal or of wood with metal fittings, so constructed as to be fixed upon the binding, and to bring a small plank across the page wherever desired. This would keep the parchment flat when apt to buckle, would mark the reader’s or transcriber’s place, and would minimise the risk of injury by fingering. It would be attached to one of the boards only in a movable way, perhaps with a screw, and consequently would require a strict and imperative rule to secure it from misplacement. The derivation might well be from “astula” (= assula).

This great epistolary Preface is followed by a second, of another theme and another type. The first is conceived in the statesmanlike spirit of a king who is meditating of civil order and education in a country that has almost lapsed into barbarism. The second is the utterance of the literary artist concerning the book he has translated, the author and his merits, and the weight of his authority, not disregarding the history and transmission of the very codex over which he has been at work. The first of these prefaces is in strong and ragged prose; the second is in heroic verse, which recalls the tradition that Alfred was fond of the old songs of his native land.

Þis ærendgewrit Agustinus
ofer sealtne sæ suðan brohte
ieg-buendum, swa hit ær fore
adihtode drihtnes cempa
Rome papa. Ryhtspell monig 5
Gregorius gleawmod gind wód
ðurh sefan snythro searoðonca hord.
Forðæm he monncynnes mæst gestriende
rodra wearde, Romwara betest,
monna módwelegost, mærðum gefrægost. 10

Siððan min on Englisc Ælfred kyning
awende worda gehwelc, and me his writerum
sende suð and norð; heht him swelcra má
brengan bi ðære bisene, ðæt he his biscepum
sendan meahte forðæm hi his sume ðorften, 15
ða ðe Lædenspræce læste cuðon.

I append an alliterative translation, which runs almost line for line:—

This epistle Augustine
over salt sea brought from the south
to us island-dwellers, just as it erst
indited had been by Christ’s doughty soldier
the Roman pontiff. Much right discourse 5.
did Gregory of glowing wit give forth apace
with skilful soul, a hoard of studious thought.
He of mankind converted the most
to the Ruler of heaven: he of Romans the best,
of men the most learned and widest admired. 10.
At length into English, Alfred the King
wended[32] my every word: and me to his writers
south and north sent out; more copies of such
he bade them bring back, that he to his bishops
might send, for some of them needed it, 15.
those who with Latin speech had least acquaintance.

A few notes may be useful here. In the first line the expression “This epistle” applies to the entire work, because it is addressed by Gregory to John, Bishop of Ravenna, and opens with a dedication in epistolary form.

The poet has a warm feeling for the very manuscript he has been bending over, which he venerates as a sacred relic, because it was one of the books which were brought to this island by Augustine, Gregory’s chosen missionary.

In lines 8-10 is there not a reminiscence of the closing lines of the _Beowulf_?

At verse 11 there is an abrupt transition, and the after part is in an altered manner. The book itself becomes the speaker, and in the diction we recognise the manner of him who dictated to his goldsmith the now famous legend:

ÆLFRED MEC HEHT GEWYRCAN.

In line 12 we should particularly note the assertion which is couched in the words “awende worda gehwelc,” a marked and idiomatic phrase which may be represented in Latin thus: “vertit verborum quodque,” _i.e._ translated every word. This does not point to any rule or restriction in the manner of rendering, as if the translator had tasked himself to a verbal fidelity, for in his first preface, speaking of this very work, he had plainly said that he had sometimes rendered word by word and sometimes sense for sense (hwilum word be worde, hwilum andgit of andgite). But what he meant to say was this, that whereas in his other translations he had used his originals as passive material to be wrought upon and converted as his own design and purpose guided him, he had treated Gregory’s _Pastoral Care_ as he would treat Scripture, wherein nothing could be added nor taken away.

To conclude the subject of Alfred’s Gregory’s _Pastoral Care_, let it be noted, that not only is it one of the books which are said to have been translated by the king, but the statement is made by himself speaking in the first person, and with a singular circumstantiality, and that besides this the book is distinguished by three peculiar incidents: (1) That the translation was entire; (2) that a copy of it was sent to every bishop; (3) that the king was pleased to celebrate the memorable history of the copy upon which he had worked.

As the chief of Alfred’s translations the _Hierdebóc_ has naturally taken up much of our space, and we must now be brief on the _Dialogues_. And indeed we have the less to say because the Alfredian version has not yet been edited.[33] It exists in three manuscripts of the eleventh century, one in the Cotton Library, and the other two at Oxford and Cambridge. This translation is reputed to have been made by Werferth, Bishop of Worcester, but the authority for this statement is late and of doubtful value. There is no mention of it in the preface, where the king speaks in the first person, and acknowledges the services of friends who had acted as transcribers. It runs thus:—

“I, Alfred, by the grace of Christ, dignified with the honour of royalty, have assuredly understood, and through the reading of holy books have often heard, that we to whom God hath given so much eminence of worldly distinction, have peculiar need at times to humble and subdue our minds to the divine and spiritual law, in the midst of this earthly anxiety; and I accordingly sought and requested of my trusty friends that they for me, out of pious books about the conversation and miracles of holy men, would transcribe the instruction that hereinafter followeth: that I, through the admonition and love being strengthened in my mind, may now and then contemplate the heavenly things in the midst of these earthly troubles.”

Such is the preface in the two manuscripts at Oxford and Cambridge; but in lieu of this the Cotton manuscript has a preface in high-pitched archaic and stilted prose wherein the book speaks and sets forth that it was transcribed by order of a Bishop Wulfstan from a copy that was given him by King Alfred, whose name is glorified with romantic superlatives of eulogy. This is poor apocryphal stuff, but yet as a glimpse at the posthumous cultus of Alfred’s fame it is interesting and even valuable.[34]

Bede’s _History_ was the most modern of the books on Alfred’s list. In this book the translator omitted considerable sections and added none. There is no contemporary record that the translator was King Alfred. The earliest extant statement of the kind is in Ælfric’s _Homily on St. Gregory’s Day_, where the preacher, referring to “Historia Anglorum,” as he calls it, adds, “which King Alfred translated out of Latin into English.” Though a hundred years later, this is nevertheless excellent testimony, and it has been supported both by later historians and until recently by modern critics.

But now the latest editor,[35] Mr. Thomas Miller, has pointed out some radical differences of dialect between the West Saxon of the _Cura Pastoralis_ and the English of this translation, which he locates in the northern part of Mercia. He is further guided by certain ecclesiastical considerations (especially the contents of the parts omitted) to select Litchfield as the spot where the translation was probably made. The evidence is too multifarious to be stated here, but it seems worthy to receive a searching examination and discussion.

So far we have treated of the more conspicuous and better-known of the king’s writings; we must now make mention of his minor works. In “The Shrine: a Collection of Occasional Papers on Dry Subjects,” which appeared at irregular intervals from 1864 to 1870, the Rev. Oswald Cockayne published for the first time two works which claim to rank among Alfredian literature. These he entitled, _King Ælfred’s Book of Martyrs_ and _Blooms by King Ælfred_.

The _Blooms_ are a translation or adaptation of Augustine’s Soliloquies and his Epistle to Paulina on the Vision of God, intermingled with extracts from the _City of God_ and from Gregory, and from Jerome, and withal many passages that appear to be original. The English of the book is a debased Saxon of the twelfth century. The title _Blooms_ is a translation of “blostman,” which is repeatedly used of the work in the Anglo-Saxon text. There is a preface, in which the work is spoken of under another figure—that of collecting material to build a house. At the close we read, “Here end the sayings which King Alfred collected.” Lappenberg classed the book (then unprinted) among the apocryphal works of the king, and Pauli thought that some compiler of the twelfth century had used the name of the king whose memory was still dear to the people. But in 1877 Professor Wülker took it up, and he soon changed the aspect of the case. He showed, in a highly convincing manner, that this book has an intimate relation with Alfred’s _Boethius_, that it carries on an argument which was broached there, and that the two books must be from the same hand. His inference is that it was done after the _Boethius_, and that it was (apparently) the latest work upon which the king was engaged. In 1894 the affinity between the two books was further confirmed by Mr. Frank G. Hubbard in _Modern Language Notes_. Specially convincing are two brief touches in chapter xvii., which echo the argument of the similarly numbered chapter in Alfred’s _Boethius_ which I have called an apology. The book is in an imperfect state.

(_Cottonian Library_)]

The _Book of Martyrs_ is also imperfect, beginning at December 31 with St. Columba, and ending with St. Thomas, December 21. The first day of January is called “the eighth Yule day” (se eahteða geohhel dæg). There are four manuscripts of this book, and one of them, a fragment of two leaves, appears to be of Alfred’s time. Moreover, of the saints which are recorded none are later than the ninth century. Another argument is that under November 15 is given a Life of St. Milus, which must (says Cockayne) have been brought direct from Syria to England, and probably from Helias, the patriarch of Jerusalem, with whom Alfred had a correspondence, according to the nearly contemporary _Leech Book_. These evidences appear to Wülker to justify the conclusion of Cockayne, “that the Martyr Book here presented was at least in use in Ælfred’s time, and was probably then composed.”

We must now mention some titles of books imputed to the king. By the third generation after Alfred the tradition of his literary activity had already assumed mythical proportions. The Latin historian Æthelweard says that nobody knows how many volumes he produced (_volumina numero ignoto_). William of Malmesbury says that at the time of his death he was working at a translation of the Psalter. There is a poetical work of maxims and proverbs in which each of the detached sentences begins with “Thus said Alfred.” This book opens with an assembly of notables at Seaford, presided over by King Alfred, the Shepherd and Darling of England. These Proverbs of Alfred appear to be a composition of the twelfth century. Moreover, he is said to have translated into English the Fables of Æsop. He is also credited with a treatise on Falconry.

But if in one direction the tradition has reached a fabulous extreme, it is possible, on the other hand, that there may still remain something of his which has been overlooked or has not been adequately recognised. I allude to the Saxon Chronicle, about the king’s relation to which there is doubtless more to be said than has yet found a place in literature. To speak but of one section—I never can read the annals of 893-897 without seeming to hear the voice of King Alfred. Among the illuminations of the approaching anniversary, we may hope that a clearer light will be shed upon this interesting question.

The Will of Alfred is a very remarkable document, and opens to us more than might be expected of family arrangements as to property. That coupling of the names of Æþered and Ælfred which has such a singular and conspicuous appearance in the Chronicle receives some very practical illustration. There were at that time no professional men to make Wills, and we have no cause to doubt that the diction is Alfred’s, as it purports to be, being indited in the first person. There is much in this document to provoke inquiry and research, and it would probably repay the diligent student for a closer investigation than it has hitherto received.

In our time when books are freely produced in great abundance, it is hard to appreciate the power and originality of King Alfred’s work in the field of literature. When we look about for his motives we find such as these: need of occasional retirement and solace in the midst of harassing affairs, desire for personal improvement and edification, strong intellectual appetites, etc.—but all these controlled by one chief and dominant purpose, that of national education. Looking at the external aspect of the king’s situation we might have judged it sufficient for him at that time to concentrate his energies upon the restoration of material prosperity and the strengthening of the national armaments. That the prior necessity of these was not overlooked, we have ample proof in the subsequent progress of Wessex. But this did not satisfy the kingly ambition of Alfred; he craved for his people the higher benefits of political life, their moral and intellectual and spiritual development. Curiosity may well prick us to ask from what source far-reaching aims like these so suddenly burst into our history, and that, too, at a time of exhaustion at home and apprehension from abroad. If King Alfred saw a connection between general education and the acquisition of wealth (as there is some indication that he did), this may partly explain the energy of his educational policy, but we still desiderate something more. If we might assume that being under a strong sense of what he had himself gained by his early education, he desired to impart the like advantages to his people, then and only then the problem would find its appropriate and adequate solution.

The beginnings of modern education in the seventh century were quickened with the sense that something had been lost, and the whole movement was coloured with the sentiment of retrieval and recovery. Two great historical exhibitions of this effort are displayed in the Latin schools of Anglia and of Charlemagne, which are in fact but two parts of one movement, linked together by the name of Alcuin.

King Alfred’s educational revival is isolated from the preceding by the wars and desolations of the Wicingas, and it starts with a new basis in the installation of the mother tongue as the medium of elementary teaching. To this innovation it is due that we alone of all European nations have a fine vernacular literature in the ninth and tenth and eleventh centuries. And the domestic culture of that era, I take it, was the cause why the great French immigration which followed in the wake of the Norman Conquest did not finally swamp the English language.

ENGLISH LAW BEFORE THE NORMAN CONQUEST

BY SIR FREDERICK POLLOCK

ENGLISH LAW BEFORE THE NORMAN CONQUEST[36]

At first sight Anglo-Saxon law may appear merely barbarous to the modern reader. In order to be just to it we must consider its surroundings.

Anglo-Saxon life was rough and crude as compared not only with any modern standard but with the amount of civilisation which survived, or had been recovered, on the Continent. There was very little foreign trade, not much internal traffic, nothing like industrial business of any kind on a large scale, and (it need hardly be said) no system of credit. Such conditions gave no room for refined legal science applied by elaborate legal machinery, such as those of the Roman Empire had been and those of modern England and the commonwealths that have sprung from her were to be. Such as the men were, such had to be the rules and methods whereby some kind of order was kept among them. Our ancestors before the Norman Conquest lived under a judicial system, if system it can be called, as rudimentary in substance as it was cumbrous in form. They sought justice, as a rule, at their primary local court, the court of the hundred, which met once a month, and for greater matters at a higher and more general court, the county court, which met only twice a year, except, perhaps, for merely formal business. We say purposely met rather than sat. The courts were open-air meetings of the freemen who were bound to attend them, the _suitors_ as they are called in the terms of Anglo-Norman and later medieval law; there was no class of professional lawyers; there were no judges in our sense of learned persons specially 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 its presiding officer, and were regularly preserved only in the memory of the suitors. A modern student or man of business will at first sight wonder how this rude and scanty provision for judicial affairs can have sufficed even in the Dark Ages. But when we have reflected on the actual state of Anglo-Saxon society, we may be apt to think that at times the hundred and the county court found too little to do rather than too much. The materials for what we now call civil business practically did not exist.

There is now no doubt among scholars that the primary court was the hundred court. If the township had any regular meeting (which is quite uncertain), that meeting was not a judicial body. The King, on the other hand, assisted by his Council of wise men, the Witan,[37] had a superior authority in reserve. It was allowable to seek justice at the king’s hands if one had failed, after due diligence, to obtain it in the hundred or the county court. Moreover the Witan assumed jurisdiction in the first instance where land granted by the king was in question, and perhaps in other cases where religious foundations or the king’s great men were concerned. Several examples of such proceedings are recorded, recited as we should say in modern technical speech, in extant land-charters which declare and confirm the result of disputes, and therefore we know more of them than we do of the ordinary proceedings in the county and hundred courts, of which no written record was kept. But they can have had very little bearing, if any, on the daily lives of the smaller folk. In important cases, the county court might be strengthened by adding the chief men of other counties; and, when thus reinforced, there is hardly anything to distinguish it from the Witan save that the king is not there in person.[38] The king might act as arbitrator or give advice to his immediate dependents to compromise their suits; but there was no regular way of appealing from the judgments of the popular courts.

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 shape 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 recognised 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. It is not material for the later history of English law to settle exactly how far the process of concession or encroachment had gone in the time of Edward the Confessor, or how fast its rate was increasing at the date of the Conquest. There can be no doubt that on the one hand it had gained and was gaining speed before “the day when King Edward was alive and dead,”[39] or on the other hand that it was further accelerated and emphasised under rulers who were familiar with a more advanced stage of feudalism on the Continent. But this very familiarity helped to make them wise in time; and there was at least some foreshadowing of royal supremacy in existing English institutions. Although the courts of the hundred and the county were not the king’s courts, the king was bound by his office to exercise some general supervision over their working. He was represented in the county court by the sheriff; he might send out commissioners to inquire and report how justice was done, though he could not interfere with the actual decisions. The efficiency of these powers varied in fact according to the king’s means and capacity for exercising them. Under a wise and strong ruler like Alfred or Æthelstan they might count for much; under a feeble one like Æthelred they could count for very little.

A modern reader fresh to the subject might perhaps expect to find that the procedure of the old popular courts was loose and informal. In fact it was governed by traditional rules of the most formal and unbending kind. Little as we know of the details, we know enough to be sure of this; and it agrees with all the evidences we have of the early history of legal proceedings elsewhere. The forms become not less but more stringent as we pursue them to a higher antiquity; they seem to have not more but less appreciable relation to any rational attempt to ascertain the truth in disputed matters of fact. That task, indeed, appears to have been regarded as too hard or too dangerous to be attempted by unassisted human faculties. All the accustomed modes of proof involved some kind of appeal to supernatural sanctions. The simplest was the oath of one of the parties, not by way of testimony to particular facts, but by way of assertion of his whole claim or defence; and this was fortified by the oaths of a greater or less number of helpers, according to the nature of the case and the importance of the persons concerned, who swore with him that his oath was true. He lost his cause without a chance of recovery if any slip was made in pronouncing the proper forms, or if a sufficient number of helpers were not present and ready to make the oath. On the other hand the oath, like all archaic forms of proof, was conclusive when once duly carried through. Hence it was almost always an advantage to be called upon to make the oath of proof, and this usually belonged to the defendant. “Gainsaying is ever stronger than affirming ... Owning is nearer to him who has the thing than to him who claims.”[40] Our modern phrase “burden of proof” is quite inapplicable to the course of justice in Anglo-Saxon courts: the benefit or “prerogative” of proof, as it is called even in modern Scottish books, was eagerly contended for. The swearer and his oath-helpers might perjure themselves, but if they did there was no remedy for the loser in this world, unless he was prepared to charge the court itself with giving false judgment. Obviously there was no room in such a scheme for what we now call rules of evidence. Rules there were, but they declared what number of oath-helpers was required, or how many common men’s oaths would balance a thegn’s. In the absence of manifest facts, such as a fresh wound, which could be shown to the court, an oath called the “fore-oath” was required of the complainant in the first instance as a security against frivolous suits. This was quite different from the final oath of proof.

Oath being the normal mode of proof in disputes about property, we find it supplemented by ordeal in criminal accusations. A man of good repute could usually clear himself by oath; but circumstances of grave suspicion in the particular case, or previous bad character, would drive the defendant to stand his trial by ordeal. In the usual forms of which we read in England the tests were sinking or floating in cold water,[41] and recovery within a limited time from the effects of plunging the arm into boiling water or handling red-hot iron. The hot-water ordeal at any rate was in use from an early time, though the extant forms of ritual, after the Church had assumed the direction of the proceedings, are comparatively late. Originally, no doubt, the appeal was to the god of water or fire, as the case might be. The Church objected, temporised, hallowed the obstinate heathen customs by the addition of Christian ceremonies, and finally, but not until the thirteenth century, was strong enough to banish them. As a man was not put to the ordeal unless he was disqualified from clearing himself by oath for one of the reasons above mentioned, the results were probably less remote from rough justice than we should expect, and it seems that the proportion of acquittals was also larger. Certainly people generally believed to be guilty did often escape, how far accidentally or otherwise we can only conjecture.[42] Another form of ordeal favoured in many Germanic tribes from early times, notwithstanding protest from the Church, and in use for deciding every kind of dispute, was trial by battle: but this makes its first appearance in England and Scotland not as a Saxon but as a distinctly Norman institution.[43] It is hard to say why, but the fact is so. It seems from Anglo-Norman evidence that a party to a dispute which we should now call purely civil sometimes offered to prove his case not only by oath or combat, but by ordeal, as the court might award. This again suggests various explanations of which none is certain.[44]

Inasmuch as all the early modes of proof involved large elements of unknown risk, it was rather common for the parties to compromise at the last moment. Also, since there were no ready means of enforcing the performance of a judgment on unwilling parties, great men supported by numerous followers could often defy the court, and this naturally made it undesirable to carry matters to extremity which, if both parties were strong, might mean private war. Most early forms of jurisdiction, indeed, of which we have any knowledge, seem better fitted to put pressure on the litigants to agree than to produce an effective judgment of compulsory force. Assuredly this was the case with those which we find in England even after the consolidation of the kingdom under the Danish dynasty.

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, and with means constantly at its disposal; open resistance to judicial orders is so plainly useless that it is seldom attempted, and obstinate preference of penalties to submission, a thing which now and then happens, is counted a mark of eccentricity bordering on unsoundness of mind. Exceptional difficulties, when they occur, indicate an abnormal state of the commonwealth or some of its members. 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, or put their neighbours who had become sureties in an awkward position; but the court could not compel their obedience any more than a tribunal of arbitration appointed at this day under a 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 to the demand; and practically the only things that could be taken without personal violence were cattle. Distress in this form was practised and also regulated from a very early time. It was forbidden to distrain until right had been formally demanded—in Cnut’s time to the extent of three summonings—and refused. Thus leave of the 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 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. An elaborate system of never trusting one man without two or more sureties (to describe it roughly) was used to supplement these defects, and we may suppose it to have been more or less effective, though clumsy and tedious.

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 according to the sentence of the court, 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 an extraordinary measure, analogous to nothing in the regular modern process of law.

The details of Anglo-Saxon procedure and judicial usage had become or were fast becoming obsolete in the thirteenth century, which is as much as to say that they were already outworn when the definite growth of the Common Law began. But the general features of the earlier practice, and still more the ideas that underlay them, have to be borne in mind. They left their stamp on the course of our legal history in manifold ways; many things in the medieval law cannot be understood without reference to them; and even in modern law their traces are often to be found.

While the customary forms of judgment and justice were such as we have said, there was a comparatively large amount of legislation or at least express declaration of law; and, what is even more remarkable, it was delivered in the mother tongue of the people from the first. Æthelberht, the converted king of Kent, was anxious to emulate the civilisation of Rome in secular things also, and reduced the customs of his kingdom, so far as might be, to writing; but they were called _dooms_, not _leges_; they were issued in English, and were translated into Latin only after the lapse of some centuries. Other Kentish princes, and afterwards Ine of Wessex, followed the example; but the regular series of Anglo-Saxon laws begins towards the end of the ninth century with Alfred’s publication of his own dooms, and (it seems) an amended version of Ine’s, in which these are now preserved. Through the century and a half between Alfred’s time and Cnut’s[45] legislation was pretty continuous, and it was always in English. The later restoration of English to the statute roll after the medieval reign of Latin and French was not the new thing it seemed. It may be that the activity of the Wessex princes in legislation was connected with the conquest of the Western parts of England, and the need of having fixed rules for the conduct of affairs in the newly settled districts. No one doubts that a considerable West-Welsh population remained in this region, and it would have been difficult to apply any local West-Saxon custom to them.

Like all written laws, the Anglo-Saxon dooms have to be interpreted in the light of their circumstances. Unluckily for modern students, the matters of habit and custom which they naturally take for granted are those of which we now have least direct evidence. A large part of them is filled by minute catalogues of the fines and compositions payable for manslaughter, wounding, and other acts of violence. We may well suppose that in matters of sums and number such provisions often express an authoritative compromise between the varying though not widely dissimilar usages of local courts; at all events we have an undoubted example of a like process in the fixing of standard measures after the Conquest; and in some of the later Anglo-Saxon laws we get a comparative standard of Danish and English reckoning. Otherwise we cannot certainly tell how much is declaration of existing custom, or what we should now call consolidation, and how much was new. We know from Alfred’s preamble to his laws, evidently framed with special care, that he did innovate to some extent, but, like a true father of English statesmen, was anxious to innovate cautiously. On the whole the Anglo-Saxon written laws, though of priceless use to students of the times, need a good deal of circumspection and careful comparison of other authorities for using them aright. It is altogether misleading to speak of them as codes, or as if they were intended to be a complete exposition of the customary law.

We pass on to the substance of Anglo-Saxon law, so far as capable of being dealt with in a summary view. There were sharp distinctions between different conditions of persons, noble, free, and slave. We may talk of “serfs” if we like, but the Anglo-Saxon “theow” was much more like a Roman slave than a medieval villein. Not only slaves could be bought and sold, but there was so much regular slave-trading that selling men beyond seas had to be specially forbidden. Slaves were more harshly punished than free men, and must have been largely at their owner’s mercy, though there is reason to think that usage had a more advanced standard of humanity than was afforded by any positive rules. Manumission was not uncommon, and was specially favoured by the Church. The slave had opportunities (perhaps first secured under Alfred) for acquiring means of his own, and sometimes bought his freedom.

Among free men there were two kinds of difference. A man might be a lord having dependents, protecting them and in turn supported by them, and answerable in some measure for their conduct; or he might be a free man of small estate dependent on a lord. In the tenth century, if not before, every man who was not a lord himself was bound to have a lord on pain of being treated as unworthy of a free man’s rights; “lordless man” was to Anglo-Saxon ears much the same as “rogue and vagabond” to ours. This wide-spread relation of lord and man was one of the elements that in due time went to make up feudalism. It was not necessarily associated with any holding of land by the man from the lord, but the association was doubtless already common a long time before the Conquest, and there is every reason to think that the legally uniform class of dependent free men included many varieties of wealth and prosperity. Many were probably no worse off than substantial farmers, and many not much better than slaves.

The other legal difference between free men was their estimation for _wergild_, the “man’s price” which a man’s kinsfolk were entitled to demand from his slayer, and which sometimes he might have to pay for his own offences; and this was the more important because the weight of a man’s oath also varied with it. A _thegn_ (which would be more closely represented by “gentilhomme” than by “nobleman”) had a wergild six times as great as a _ceorl’s_[46] or common man’s, and his oath counted for six common oaths before the court.[47] All free men, noble or simple, looked to their kindred as their natural helpers and avengers; and one chief office of early criminal law was to regulate the blood-feud until there was a power strong enough to supersede it.