THE ANGLO-SAXON FAMILY LAW.

THE principal difficulty in dealing with Anglo-Saxon Family Law is occasioned by lack of material. The legal sources of the Anglo-Saxon period contain little pure family law, and even the main outlines of the family system of the Anglo-Saxons would be difficult to determine without a knowledge of the kindred systems of the continental Germans. The reason is not far to seek. The earliest collections of written laws among the Germans were not comprehensive codes, designed to cover the whole region of law, but in the main only records of new principles introduced by specific legislation or through the medium of the courts. With the migration of the tribes a rapid development of law began, but at first only particular branches of the law were affected. Family law, belonging entirely to the domain of custom, opposed the most stubborn resistance to innovation, and remained longest outside of this development. Dealing with the intimate relations of private life, and administered within and by the family, its rules formed part of the daily habits and of the common sense of the community. Family law, therefore, offered little occasion either for judicial decisions or legislative enactments. In certain cases the violation of family rights and obligations entailed legal penalties, but more frequently family custom and public law are found opposed. In two directions, however, the family system was / gradually modified. On the one hand, the old independence of the family in private feuds, dangerous to the peace of the state, was gradually limited by the growing power of public law; and, on the other, the church exerted its influence to

soften the harsher features of the old system. Most of the provisions in the laws relating specially to the family are innovations in one of these two directions. Few as these are, they are sufficient to prove that the family system of the Anglo-Saxons was essentially the same with that found existing in all other German tribes.

The importance of the family in all early societies of the Indo-Germanic race has been so often dwelt upon, that a long discussion of it here would be superfluous. Saxon England formed no exception to the rule. The family was not only the most important institution of private law; it stood also at the bottom of the whole police and criminal system. In the earliest times it was upon the family that the state chiefly depended for the maintenance of peace and the punishment of crime. It was to the family first of all that every member / of the community owed the protection he enjoyed. In childhood the family watched over and protected him, even from his father. Members of the family were his witnesses and sureties at his marriage. Before the court they swore for him either to support his claim as plaintiff or his denial as defendant; and, in case of necessity, they were obliged to pay his fines. In the blood-feud they stood beside him to defend him even with their lives. Even after his death, their guardianship did not cease. If he were murdered, they avenged his murder or exacted compensation for it. They acted as guardians of his widow and children, and took charge of his estate till his children came of age. All of common blood were bound by these ties of mutual right and obligation. If these ties had been somewhat loosened, if the bond of kinship among the subjects of Ine and Wihtraed was no longer what it had been among their ancestors at some remote past, it was far from being the mere nominal connection that it has since become. Though the family no longer owned and administered its property in common, the traces of the older system were still seen in the right of heirs to prevent the alienation of the family estate, a right not limited to descendants, but extending to more remote kinsmen. In the AngloSaxon period only the first steps had been taken in that development which has continued to modern times, exalting the individual at the expense of the family as a whole.

What, then, was this formidable association? There were two groups of individuals in the Anglo-Saxon community, to which the word family may be applied, but, for the sake of clearness, it will be better to give them specific names. The first and larger group, including the whole body of the kindred, is called in Anglo-Saxon the maegth or maegburh. Of course, in speaking of the whole body of the kindred, reference must be made to some one person as the starting point. In the course of this essay, therefore, whenever the maegth is mentioned, it must be understood to mean the maegth of some one person, the propositus. The second and smaller group, including only the husband, his wife, and children, may be called the household. That these two groups were really distinct, and that the smaller was not merely a portion of the larger group, follows from the relative position of husband and wife. Nothing is more evident in the laws than that the wife is not regarded as kin to her husband's kin. The wife, at marriage, did not become one of her husband's maegth, but remained in her own. If she committed a wrong, neither the husband nor his maegth were in any way responsible. Her kindred alone bore the feud or made compensation.1 If the husband committed a crime without the cognizance of his wife, the wife and her kin were free from any obligation either to bear the feud or to make compensation. It follows, as a matter of course, that the wergeld of the husband was paid to his maegth, as the wergeld of the wife to hers.1 Moreover, the wife had no rights of inheritance from the husband or his maegth, and he could not inherit from the wife or her maegth. The household was formed by the alliance of two persons, who had different maegthe. The maegth of the woman intrusted to her husband the guardianship over her, which they, up to that time, had exercised. He became her active guardian; but her maegth constantly watched over his administration of his trust, and interfered to protect her if necessary. This guardianship exercised by the husband over the wife and her estate was essential from the nature of the marriage relation, but it did not place the wife in her husband's maegth. It did not create between husband and wife the mutual rights and obligations arising from the blood-feud and from inheritance, and it was these rights and obligations which especially characterized the maegth. These existed only between those of common blood. To make the household therefore a portion of the larger group of the maegth is