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The want of convenient materials for writing would necessarily limit its application, even if the knowledge had been extensively diffused. But in the earliest period níuch mystery was attached to the Runes. Secrecy is implied in the very name. Magical virtues were ascribed to them. Spells. and charms were framed in these magical characters. They aided the lover, the rival, or the warrior. They gave unerring swiftness to the arrow in its path, and resistless keenness to the sword..
By Augustine and his followers, the Latin alphabet was introduced. Few as the individuals might be who became familiar with the new mode of writing, still it was one step towards the acquirement of the Latin language, the great medium of useful knowledge. There were two sounds, however, which could not be indicated by the Roman alphabet, and for these alone the runes were considered necessary. And the runes þ. Thorn and
Wen, the th and the w, still appear in the Anglo-Saxon alphabet. Yet for the first of these letters the scribes occasionally employed the Greek , and by adding a diacritical line to the Latin Dor d, Đ, 8, they formed a new character of equivalent power. *
Laws and charters, so far as they extend, are the materials of history, least liable to suspicion. Sanctioned by the supreme authority, these monuments constitute the highest class of evidence; and if the authenticity of the instrument be established, it follows that the contents must be admitted to be true. Wilful error and individual prejudice can never be expected to find a place in these documents, which are equivalent to the oral declarations of the parties from whom they proceed. The preamble of the law and the recitals of the grant must therefore be vouched with much more confidence than the narrative of any historian, however impartial or well informed. He is but a relator, stating the matter which he has acquired from others. In the charter and the statute we are addressed by the Sovereign and the Nation.
Besides the statements which are directly gained from these public instruments, they furnish-after-ages with those comments upon history which are not less important thau facts themselves. Events engage the principal attention of the ancient chronicler. He dwells upon transactions. He only glances at the details of government and administration, Kings and Earls pass before us, Battles succeed to battles, and councils to councils.; but unless we understand the dignity of the Chief, the duties of the Soldier, the functions of the Sages, we obtain only the most imperfect developement of the state and condition of the common
* The characters and þ. are used indifferently, and there is no foundation for the conjecture that the one denoted th hard, and the other th soft. VOL. XXXIV. NO. LXVII.
wealth. Truth is of no utility excepting when it can be turned to better account than fiction. History affords instruction, only when the pleasure derived from incident and adventure can be combined with the higher interest arising from the consideration of government and policy. When this interest is absent, the ehronicle is no better than the romance. Of what consequence is it now to us to know that one petty chieftain of the eighth century obtained the ascendancy over a savage compeer, whose bones have long since mouldered into dust—that one obscure tribe discomfited another half civilized horde?-Why should we weary ourselves with recounting the struggles between the kites and the crows, unless they elucidate that state of society, from whence, by a long though unbroken series of descents, our present government has been derived? But a satisfactory knowledge of the elements composing the ancient constitution can only be collected from the jurisprudence of the Anglo-Saxon lawgivers. Much of their legislation exists amongst us in principle and spirit, however obsolete and uncouth it may appear in language and form. And hence the Anglo-Saxon law must be justly considered as the best preliminary to the study of our ancient bistory.
One most important consequence of the introduction of the Latin alphabet amongst the Anglo-Saxons was the application of writing to legal documents and legislation. Until the Teutonic nations settled on Roman ground, the law was oral and traditionary. It was a common law, existing as the English common law still exists, in customs, whether local or national, recorded in the memory of the judges, and published by the practice of the tribunal. If any aid was required to the recollection, it was afforded either by poetry, or, at least, by the condensation of the maxim or principle in proverbial or antithetical sentences like the Cymric triads. There are many vestiges of this poetry of the law. But the rules of justice, when the law was administered' by the warlike nobles in the presence of the people, were not concealed from their knowledge in the Runes, the characters of mystery. Nor can it be discovered that any of the Teutonic nations' reduced their customs into writing, until the influence of increasing civilization rendered it expedient to depart from their primeval usages. It would afford a curious parallel to the modern circumstances of the English law, if the remains of Anglo-Saxon jurisprudence could be divided into Æ or Æwa, customs or common law; Asetnysse, statutes; and Domas, adjudged cases or precedents. But these terms, whatever distinction may have been originally intended, are employed indiscriininately, and the first specimens of Anglo-Saxon legislation are the dooms, which #thelbyrht, king of Kent, established with the consent of his
witan in the days of St. Augustine.' Bede, who commemorates and praises this proceeding, adds that it was effected after the example of the Romans. This expression, however, can only refer to the promulgation of the law in writing, contrasted with the national customary law. Ethelbert's statute offers no imitation whatever of Roman policy. Entirely Teutonic in language as well as in spirit, it relates only to the amount of the pecuniary fines or weres, payable for various transgressions.
Unlike the other Teutonic nations, who employed the Latin language, the laws of Æthelbyrht are written in the English language, as the dialect is termed by Bede, and they afford the earliest specimens of barbarous' jurisprudence in the vernacular tongue. They now exist in a single manuscript, the volume which we owe to the care of Ernulphus, Bishop of Rochester; and the paragraph or section, containing the penalties imposed upon offenders against the peace of the Church and Clergy, seems to correspond in tenor with the recital given by Bede. But it is quite impossible to believe that the text of the Anglo-Norman manuscript of the eleventh century exhibits an unaltered specimen of the English of the reign of thelbyrht.* The language has evidently been modernized and corrupted by successive transcriptions. Some passages are quite unintelligible, and the boldest critic would hardly venture upon conjectural emendations, for which he can obtain no collateral aid, Neither have we any proof whatever of the integrity of the text. It cannot be asserted, with any degree of confidence, that we have the whole of the law. Destitute of any statutory clause or enactment, it is from the title or rubric alone, that we learn the name of the legislator.
After the interval of more than a century, Hlothære and Eadric (675-685) made additions to the laws which their ancestors had established before them,' and which principally relate to the singular system of pledges and warranty intended for the purpose of preventing theft and larceny, an institution which holds so conspicuous a place in the Anglo-Saxon policy. Wihtræd's laws, which were enacted at Berghamstede in the ninth year of his reign (699), are chiefly ecclesiastical, affixing temporal punishments to spiritual offences. The laws of Hlothære and Eadric and Wibtræd, though more intelligible than the laws of Ethelbert,
* The orthography of proper namés adopted by Bede indicates that the pronun. ciation of the Anglo-Saxon language was then much harsher than in the ninth century. Ædilberct, Oidilvald, Alchfrid, were softened into Æthelbyrht, Æthelwald, Ealfrith. 'Appended to the Ely Manuscript of Bede is the song of Cædmon. Smith and Wanley assign the date of 737 to the manuscript. If this conjecture be correct, this fragnient is the only example of the ancient Anglo-Saxon orthography, as we are not aware that there is any specimen of the language preserved in any other manuscript older than the ninth century.
still offer many difficulties, and the corruptions are equally irremediable, no other text existing except the modern manuscript of Ernulphus. No traces can be found of any other manuscript. And as an ancient Latin translation of the Anglo-Saxon laws, made about the time of Henry I. does not include the laws of the several Kentish kings, it is probable that they were entirely unknown to the translator.
It is foreign to our present purpose to investigate the history of Anglo-Saxon legislation ; we shall therefore enumerate, without detailing, the successive statutes of Alfred, Edward the Elder, Athelstane, Ethelred, and Edgar, of which the substance is in great measure included in the capitulary or statute enacted by
Canute, King of all England, of the Danes and of the Northmen, at Winchester, with the advice of his witan.' This monarch obtianed a high reputation for his wisdom and equity; and although there is no portion of his enactinents in which any positive novelty, either of form or principle, can be discovered, still they exhibit a greater degree of systematical jurisprudence and organization than appears in the statutes of the earlier English kings. On the accession of Edward the Confessor, the Anglo-Saxon monarch was required by the clergy and Baronage of the nation to promise the observance of the laws of the Danish King, a request to which he acceded, and which he sanctioned by his oath ; and the older body of laws acquired the name of the laws of the Confessor, not because he enacted them, but because he renewed them. Yet this renewal was contined to England proper,
for it was not till the close of his reign that the laws of Canute were pronulgated in the subordinate Kingdom of Northumbria.
William the Norman followed the example of Canute the Dane, by re-enacting and confirming the statutes of his predecessors, and we must consider the laws which are extant under his name as closing the series of monuments of Anglo-Saxon legislation. We are told that the English with one accord demanded the restoration of the laws and customs known and used by them," the laws under which they were born, such as bad prevailed in the days of holy king Edward the Confessor. To this demand, William assented; and a statute or capitulary, purporting to contain the laws and customs which King Williain granted to the people of England after the conquest, being the same which King Edward his cousin held before him,' has been preserved in Romance and in Latin.
Both texts agree so closely as to show that, the one is a translation from the other. The Latin text is yet in manuscript. The Romance, or French text, which was published by Selden with a Latin version, and afterwards by Lambard and Wilkins from the history ascribed to Ingulphus, has long enjoyed
the reputation of being the original. If so, the code would be a testimony indeed both of English liberty and English servitude, for, whilst it proves that William respected the Saxon laws, it also seems to afford evidence of the plan which he is said to have formed for the extirpation of the English tongue; and it must be ranked as one of the main landınarks in the history of the French language. In the printed copies the text is evidently faulty, and the loss of the ancient manuscripts of Ingulphus, as will be seen below, seemed to prevent all chance of rendering it more correct except by conjecture. It fortunately happens that a manuscript formerly belonging to Archbishop Parker, and afterwards to Coke, and which preserves the greater part of the text of the laws repeated in Ingulphus, has recently been discovered amongst the literary remains of Holkham, and from this last mentioned manuscript, the following extracts are made:
• Cez sunt les leis e les custumes que li Reis Will. grantad al pople de Engleterre apres le cunquest de la terre ; iceles meimes que li Reis Edward sun cusin tint devant lui.-Ceo est a saver-Pais a Seinte Iglise de quel forfeit que hom fet oust, e il poust venir a Seint Iglise, oust pais de vie e de membre E si aucuns meist mein en celui ki la mere iglise requereit si ceo fust u evesque u abeie u iglise de religiun, rendist ceo qu'il aureit pris e cent souz le forfeit. E de mere iglise de parosse xx souz, e de chapele x souz. E ki enfreint pais le Rei, en Merchene-lahe, cent souz les amendes. Autresi de hemfare e de agwait purpense.'
Such, if we can believe Ingulphus, are the laws of the Conqueror in the very idiom in which they were promulgated, and according to the copy brought by him from London. That the substance of the statute is authentic may be admitted. It is abundantly proved that William allowed the Anglo-Saxon law to remain unaltered; and, judging from internal evidence, the matter is uninterpolated. But the employment of the French language in this solemn instrument is so utterly contrary to the usage and practice of the eleventh century, as at least to awaken some suspicion. At that period no law in France was ever written in the rustic and colloquial Romance language. Whether the dialect can be referred to that age, must be ascertained by comparison with documents, if there be any, whose dates can be fixed by positive proof, and not by conjecture. The forms, it is true, have an archaic cast, but the idiomatic peculiarities, and the orthography of the French language as spoken in England during the reign of Edward I., exhibit then nearly to the same extent, and if we are to found our opinions upon the language alone, we cannot place the French text of the laws in any higher period than the early part of the reign of Henry III., which also appears to be the era of the Holkham. manuscript. Nor are there any external arguments which can