ABSTRACT
Germanic society, both before the migrations and after the settlement in England, was marked by two prominent characteristics: the folk-law and the kindred. Whenever people begin to associate together in some kind of communal life, rules of conduct have to be devised to maintain peace and order. Such rules are rarely committed to writing, but they are faithfully remembered and handed down from one generation to another as the ‘folk-law’ or ‘custom’ of the people. Whilst it is impossible to believe that folk-law was completely immutable, it is clear that any irresponsible alteration or adjustment to a particular case was little removed from impiety. Therefore the early assembly-courts concentrated simply on one task, to see that, before the mystic ordeals of fire, water and the like were called upon to proclaim guilt or innocence, there had been no mistake in the hallowed preliminaries. That is why Anglo-Saxon law placed all the emphasis upon procedure with all its elaborate formulas and formalities. Folk-law protected all men’s persons and property by imposing upon wrongdoers a fine in accordance with a fixed tariff of compensations: the ‘wergild’ was the sum paid to the kin of a slain man and varied in its rate with the victim’s social status; the ‘bot’ was the sum paid to the injured man himself and varied with the parts of his body outraged and the kind of property damaged. For its enforcement, folk-law depended largely upon the kindred. Should a man do wrong or be wronged, that was not a matter which concerned himself alone, for his kinsmen were involved in either suffering revenge or in having to carry out retaliation. Hence the assembly-courts would pay no attention to a mere individual and do nothing on his sole behalf. They required every litigant to be accompanied by his kindred to vouch for him. Even then his personal and unsupported statement was of no value: his kindred must swear a confirmatory oath with him; how many ‘compurgators’, as they were called, were necessary depended on the social status of the parties to the litigation and the seriousness of the offence. And, finally, to make sure that he would accept the findings of the court, whatever they might be, he had to rely upon his kindred to furnish a guarantee, to act as his sureties or ‘borh’.
