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CHAPTER 1: THE ANGLO-SAXON PERIOD: RACES AND RELIGION - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE ANGLO-SAXON PERIOD: RACES AND RELIGION
THE COMING OF THE ROMANS
While this was happening at the heart of the Empire, many of the outskirts were witnessing a process such as went on in Britain. The conquest of Gaul inevitably drew the attention of Roman generals to Britain, whose population had intimate ties of race, language and sympathy with the Gauls. At times the Britons seem to have sent assistance to their Celtic kinsmen on the continent, and so attracted the wrath of Rome. Finally in ad 43 the systematic conquest of the island was begun by Agricola, and for the next three and a half centuries Britain was under Roman rule. The character of this occupation cannot be better described than in the words of Haverfield, the scholar who has shed most light on this difficult and obscure period:
“From the standpoint alike of the ancient Roman statesman and of the modern Roman historian, the military posts and their garrisons formed the dominant element in Britain. But they have left little permanent mark on the civilisation and character of the island. The ruins of their forts and fortresses are on our hill-sides. But, Roman as they were, their garrisons did little to spread Roman culture here. Outside their walls, each of them had a small or large settlement of womenfolk, traders, perhaps also of time-expired soldiers wishful to end their days where they had served. But hardly any of these settlements grew up into towns. York may form an exception. . . . Nor do the garrisons appear greatly to have affected the racial character of the Romano-British population.”1
Britain was prosperous for a time. Then towards the middle of the fourth century troubles began; invasions from the north by the Picts and along the east coast by the Saxons grew more and more serious, until
“finally, the Great Raid of Barbarians who crossed the Rhine on the winter’s night which divided 406 from 407, and the subsequent barbarian attack on Rome itself, cut Britain off from the Mediterranean. The so-called ‘departure of the Romans’ speedily followed. This departure did not mean any great departure of persons, Roman or other, from the island. It meant that the central government in Italy now ceased to send out the usual governors and other high officials and to organise the supply of troops. No one went: some persons failed to come.”1
It is significant that sites which have been thoroughly explored fail to reveal Roman coins of later date than the opening years of the fifth century.2 Before these invaders, towns were abandoned; Roman speech and boundaries vanished: only the massive foundations of the roads survived. The Britons retired to the hills of Wales and Scotland and there resumed their Celtic culture and speech, and became, in the fulness of time, one of the springs of mediaeval art and learning.
THE ENGLISH CONQUEST
Of the three tribes who constituted the bulk of the invaders, two—the Angles and the Saxons—are hardly distinguishable either in language or customs, both coming, moreover, from the narrow neck of land which now separates Denmark from the mainland. From the end of the third century the Saxons appear in history as raiders and pirates, although the Angles, on the other hand, drop back into obscurity (as far as Roman writers are concerned) ever since Tacitus mentioned them in the beginning of the second century until the sixth century, when we read of them in England. They have left a mass of epic poetry, however, which gives some idea of the life their chieftains led; indeed, the similarities of this literature with that of Norway, Sweden and Germany suggest an international culture covering Northern Europe. The material remains of these tribes while still on the mainland, which have been unearthed, show a high degree of perfection in weaving, and that “the warriors of the period were armed in a manner not substantially improved upon for many centuries afterwards”. Many of their swords bear the marks of Roman manufacturers. They had also a Runic alphabet of their own devising, which long remained in use. Of their religion little is known with certainty; Woden, Thunor and Frig have given us the names of Wednesday, Thursday and Friday, but the surviving legends are too late to tell us much about early English culture and history. As early as the Bronze Age they had been familiar with the plough.3 The invaders must not be regarded as complete savages, therefore. Of the Jutes much less is known. They were the dominant settlers in Kent and it is significant that the early Kentish laws have marked peculiarities of social structure, although the language differs but slightly. It is certainly curious how Kent from the beginning and all through the middle ages preserved peculiar local variants, but it must not be assumed too confidently that all this necessarily relates to an original difference in the Jutish invaders. The geographical position of Kent at the gateway of England has in fact given it an exceptional position in the religious, military and commercial, as well as in the legal, history of the country, but this position was won after, rather than before, the Conquest.1
The invasion and settlement of the country by these tribes occupies about two centuries (roughly from 400 to 600). In the end, a number of different kingdoms were established—at least ten of them are known with certainty to have existed at various dates—and for the next two centuries the main themes are the spread of Christianity and the growth of unity in place of these warring kingdoms. It is true that the later years of the Roman occupation had seen the first introduction of Christianity into the island, and that an important and vigorous church had been organised, but the English invaders crushed the British Christians and maintained their own ancient mythology. England therefore had to be converted anew, and the year 597 was a momentous one, for the arrival of St Augustine established contact between the English tribesmen and the Roman Church which was now (under St Gregory I, “the Great”) definitely entering upon its mediaeval task of establishing one supreme spiritual authority in Europe. Gregory “was a Roman of the Romans, nurtured on traditions of Rome’s imperial greatness, cherishing the memories of pacification and justice, of control and protection”.2
THE ADVENT OF CHRISTIANITY
The results of the re-introduction of Christianity were of the highest importance. The existing tribal organisation must have seemed weak and inefficient to the missionaries coming from such well-organised States as existed on the continent, and very soon we see the results of their teaching in the enhanced value placed upon the monarchy, and in the tendency towards larger national units. After long years of warfare the petty tribal units were replaced by a few large kingdoms ruled and administered by kings who watched European methods. Soon, too, they learned the Roman art of taxation, which consisted in dividing the land into units of equal assessment instead of equal area (calling them in English “hides”).3 Again, the advent of the clergy meant the introduction of a new class into English society, and so a new law of status had to be devised for their protection. Consequently laws were made, and, “in the Roman style”,4 were written down. It is possible that legislation was occasionally effected upon other subjects as well. And finally, the Church brought with it moral ideas which were to revolutionise English law. Christianity had inherited from Judaism an outlook upon moral questions which was strictly individualistic. The salvation of each separate soul was dependent upon the actions of the individual. This contrasted strongly with the custom of the English tribes which looked less to the individual than to the family group of which the individual formed a part. Necessarily such a system had little place for an individualistic sense of morals, for the group, although it was subjected to legal liability, can hardly be credited with moral intention in the sense that an individual can. With the spread of Christianity all this slowly changed. First, responsibility for actions gradually shifted from the whole group to the particular individual who did the act; and then the Church (and later the law) will judge that act, if necessary, from the point of view of the intention of the party who committed it.
ENGLAND AND THE DANES
The Anglo-Saxon period is very long, and a great deal of development took place in it.1 Beginning for practical purposes about 597 (the landing of St Augustine) we have a continuous stream of legal sources which are definitely Anglo-Saxon in character down to the Norman Conquest in 1066 and even later.2 There are treatises dating about the year 1118 which are still typically Anglo-Saxon in content and outlook.3 We may therefore place the limits of this period roughly and in round figures between 600 and 1100, a period of five hundred years. The length of this age can be realised by remembering that five hundred years is the interval between Bracton and Blackstone, between Chaucer and Kipling, and between the battles of Agincourt and the Marne. In so long a period we must omit details. The one fact of capital importance besides the growing unification of England, is the coming of the Norsemen and Danes, for it has left definite traces upon our history. The very word “law” is not English but Norse.
Scandinavia was peopled by tribes who were as astute in trade as they were fierce in war. The discoveries of English coins in the islands of the Baltic, together with Arabian coins from Bagdad and Samarcand (which had reached the Baltic through Russia), are witness to the distant foreign commence of the Norse. During the ninth century, for reasons unknown, the Norse became unusually active on the sea, and a series of maritime raids resulted in the colonisation of Iceland, parts of Ireland and Scotland, the Orkneys, Shetlands, Hebrides, and portions of Northern France (thenceforward to be known as Normandy). A Scandinavian tribe of “Rus” gave its name (although not its language) to Russia, while a few even penetrated to the Mediterranean. In England, after fierce fighting, they succeeded in retaining from King Alfred almost the whole eastern half of the kingdom (879), and more than a century after his death a Danish dynasty united under a single ruler—the great King Cnut (1016-1035)—England, Norway and Denmark. Cnut’s laws were long popular in England, and in after years men looked back with respect to his reign, trying to revive his legislation. The Danes left a permanent mark on that part of the country where they had longest ruled. They independently developed a sort of grand jury, of which we shall speak later; they arrived earlier than the rest of the country at the stage where land could be freely bought and sold; they had a marked tendency to form clubs and guilds; their peasantry were less subject to the lords; borough institutions seem to have flourished peculiarly under their rule.1
The death of Cnut and the division of his Empire brings us to the accession of St Edward the Confessor (1043-1066), who throughout the middle ages was the national hero of the English when they resented Norman influence. (Hence it is that a large body of “Laws of Edward the Confessor” was forged as a patriotic weapon against the Norman dynasty.) In fact, the antithesis was false, and the spread of foreign culture in England increased immensely during his reign, which in some respects seems a sort of peaceful Norman conquest. The disputed succession on his death brought William the Conqueror in 1066 and Norman arms finished what Norman civilisation had already begun.
F. J. Haverfield in Cambridge Mediaeval History, i. 370. See especially R. G. Collingwood and J. N. L. Myres, Roman Britain (the Oxford History of England).
F. J. Haverfield, op. cit. 379.
Ibid., 381. (The latest date seems to be about 420.)
F. M. G. Beck in Cambridge Mediaeval History, i. 384-386.
See the very interesting suggestions in Pollock and Maitland, i. 186; and the monograph of J. E. A. Jolliffe, Pre-Feudal England and the Jutes (1933).
W. H. Hutton in Cambridge Mediaeval History, ii. 251.
The word “hide” was already used to denote the normal holding necessary for the maintenance of a family. See especially, F. M. Stenton, Anglo-Saxon England, 276, 638.
Bede, Historia Ecclesiastica, ii. 5.
For a short but authoritative account of Anglo-Saxon life and institutions, see D. Whitelock, The Beginnings of English Society (Penguin Books, 1952). She has also collected and translated the most important of the sources in English Historical Documents (ed. D. C. Douglas, 1955), vol. i.
The Anglo-Saxon laws have been edited on a monumental scale by Felix Liebermann, Die Gesetze der Angelsachsen (1903-1916). A very serviceable text with English translations and notes is given by F. L. Attenborough, Laws of the Earliest English Kings (Cambridge, 1922), and A. J. Robertson, Laws of the Kings of England from Edmund to Henry I (Cambridge, 1925). There are extracts in W. Stubbs, Select Charters of English Constitutional History (9th edn., Oxford, 1913).
See below, pp. 15, 255-256.
Vinogradoff, English Society in the Eleventh Century, 4-11; Corbett in Cambridge Mediaeval History, iii. 401; J. E. G. de Montmorency, Danish Influence on English Law and Character, Law Quarterly Review, xl. 324-343; F. M. Stenton, The Danes in England, History, v. 173-177; R. H. C. Davis, East Anglia and the Danelaw, Transactions of the Royal Historical Society (1955), 23.