condition. All these have their origin in the more general ground of incapacity to bear arms. As the courts were, at first, assemblies of all the armed freemen, no one not a member of the army could appear in court; and, of course, no one not able to use weapons could fight in the blood-feud. But the capacity to bear arms, as the criterion of legal independence, belongs only to the earliest period. As the blood-feud weakened and judicial processes superseded it, and as the courts became purely judicial bodies, we find women acquiring a legal independence which would have been impossible under the earlier law.

As the guardianship over those legally dependent by reason of their status was not a family guardianship, it does not concern us here. Persons dependent by reason of physical defects - the lame, blind, dumb, insane, &c.1 were under the guardianship of their father, or, if he were dead, of the nearest male of the paternal kindred. The guardian paid their fines, protected them and their property, and doubtless had the use and enjoyment of their estate.

When the household was broken up by the death of the father, the children passed into the guardianship of the nearest male of the paternal kindred. Hl. and Ead. 6: “If a husband die, wife and child yet living, then it is right that the child follow the mother; and let sufficient security be given from among his paternal kindred to keep his property until he be ten years of age." Ine, 38: "If a ceorl and his wife have a child between them, and the ceorl die, let the mother have her child and feed it; and let VI. shillings be given her for its fostering, a cow in summer and an ox in winter; and let the kindred take care of the homestead until it be of age." From these passages, it is clear that the control of the child's person did not belong to the guardian, but to the mother. It was the guardian's duty to supply nourishment for the child, to take care of the estate, and to represent the child in the courts. In return, he had, without doubt, the use and enjoyment of the estate during the child's minority.

On coming of age, wards could sue for property wrongfully withheld by the guardian, or alienated by him to third parties.1 Boys became independent on attaining their majority; but girls continued under guardianship until their marriage, or entrance into a convent. Of the powers of the guardian over women of full age, nothing is said; and it only remains to suppose that they were the same as those of the father.

That widows, in the early law, were under guardianship, is clear from Æthelb. 76: "If a man carry off a widow not belonging to him, let the mund be twofold." It is not clear whether they were under the guardianship of their own kin, or of the husband's next of kin, as in most of the continental laws, but probably the former. In the later law, widows were practically independent. Æthelr. V. 21: "And let every widow who conducts herself lawfully be in God's peace and the king's. And let every one continue twelve months husbandless; afterwards, let her choose what she herself will."2 The latter clause has generally been taken to mean that the widow might follow her own will in marrying. But it means more than this. She was free to enter a convent. Cnut, II. 73, § 3: "And let not a widow take the veil too precipitately." It has already been shown that she had the free disposal of her property; and it appears, from some passages in the charters, that she was free to choose her "forespeca," or guardian, to represent her in the courts. In Cod. Dip. DCLXXXV., Elflaed gives certain lands to Æthelmere, the ealdorman: "pæt he min fulla freond and mundiend beo on minum dege," &c., - "that he be my full friend and guardian during my life; " and, again, "paet he beo on minum life min fulla freond and forespreca and mira manna," - "on condition that, during my life, he be my entire friend, my advocate, and that of my men." So, in Cod. Dip. DCCLV. (vide App. No. 28), a widow appears as party to a suit brought by her own son, who would necessarily be her guardian if the old rules of guardianship were in force. This necessity of a forespeca, or representative before the courts,

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was all that remained of the old guardianship of widows; and even this does not seem to have been always necessary in later times. In one suit, not only is the plaintiff a woman, who prosecutes her suit before the king and in the shire court, but many "good women" take part in the oath.1 Nothing shows more clearly the enormous change that had taken place in the position of women, and in the character of the courts, since the settlement of the Saxons in England.

In want of male kindred of the male stem, the duties of guardian, in some of the continental laws, passed to the nearest male of the maternal kindred; in others, to the king. The Anglo-Saxon laws throw no light on this point; but it is clear that the king was guardian for all who had no kindred, including natural children 2 and foreigners.

1 Cod. Dip. DCXCIII. (App. No. 22).

2 Ine, 27.

3 Ed. and Guth. § 12; Æthelr. VIII. 33; Cnut, II. 40.

G

THE ANGLO-SAXON LEGAL PROCEDURE.

I.

A GERMAN scholar has well illustrated the distinction between the suit of modern times and that of the primitive German period by comparing the former to a syllogism, in which the body of judicial rules is the major, and the declaration of facts the minor premise; while the latter, without any such structure, might be but a simple demand on the defendant for compensation. The democratic character of German political institutions finds a parallel in the large judicial powers vested in the individual (Selbsthülfe). Many evidences point to the supposition that, in the most archaic German procedure, even seizure - the distress of the common law was permitted to the individual without intervention of the court.1 Whether this was true or not, it is at all events certain that, in the earliest known German sources, permission of the court was always necessary before proceeding to execution.

The early legal system, which existed throughout the period closed by the Salic law, and which will be designated as the Executive Procedure, in opposition to the enlarged procedure which arose about the time of Childebert, in the sixth century, was pre-eminently a procedure of coercion, as distinguished from that of proof known to later times. A strict exactness existed in the relation between law and procedure, as shown in the case where, when the defendant repeated the claim of the plaintiff and denied it word for word, he lost his suit if he stammered in the repetition. And this strict formalism gave to the individual a means of procedural coercion, fortified, in case of resistance, by a legal sanction. The distinction, for example, between the executive procedure and the procedure in regard to land which arose later, consisted in the narrowness and limited character of the department of proof and judgment in the former, and the absence of any examination of the material basis of the action.

The old Germanic law recognized no causae cognitio; the plaintiff's material right was not examined. Nor did the legal conceptions of the early Germans recognize the distinctions of Roman law between real and personal actions. To the Romans, a real right was original, unlimited ownership (dominium), from which parts could be separated and conveyed to another (jura in re); while, to the German mind, the material possession of, and the right over, the thing were bound closely together. The conception of the thing as an abstract quantity was foreign to their modes of thought. The right to a movable could not be acquired by a contract in genere, but only by the actual delivery of possession; while the real right was acquired by a contract in specie, without delivery. But private property in land was unrecognized. In the early executive period, there was no action for inheritance, or real property; and the civil procedure was essentially one for debt.1 As legal conceptions advanced and new needs were felt, there arose a pressure for additional judicial aid, and an extension of the procedure. The Lex Salica stood out to mark the close of the old executive period in German law, although even in the Lex Salica the introduction of the action for movables had already widened the old procedure, following a development which was always an extension, but not a destruction, of the old system. To this later period belong the codes of the Ripuarian Franks,2 the Burgundians, the Visigoths, and the Lombards.

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