Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/116

 102 /. BEFORE THE NORMAN CONQUEST Normans found the king's peace nearing, if not touching, the second stage. Except for a few peculiar provisions, there is nothing in Anglo-Saxon customs resembling our modern distinctions between wilful, negligent, and purely accidental injuries. Private vengeance does not stop to discriminate in such mat- ters, and customary law which started from making terms with the avenger could not afford to take a more judicial view. This old harshness of the Germanic rules has left its traces in the Common Law down to quite recent times. A special provision in Alfred's laws recommends a man carrying a spear on his shoulder to keep the point level with the butt ; if another runs on the point so carried, only simple compensation at most ^ will be payable. If the point has been borne higher (so that it would naturally come in a man's face), this carelessness may put the party to his oath to avoid a fine. If a dog worried or killed any one, the owner was answerable in a scale of fines rising after the first of- fence ; ^ the indulgence of the modern law which requires knowledge of the dog's habits was unknown. But it may be doubted whether these rules applied to anything short of serious injury. Alfred's wise men show their practical sense by an explanatory caution which they add: the owner may not set up as an excuse that the dog forthwith ran away and was lost. This might otherwise have seemed an excellent defence according to the archaic notion that the animal or instrument which does damage carries the liability about with it, and the owner may free himself by abandoning it {noxa caput seqtdtur).^ We have spoken of money payments for convenience ; but it does not seem likely that enough money was available, as a rule, to pay the more substantial wergilds and fines ; and it must once have been the common practice for the pacified avenger to accept cattle, arms, or valuable ornaments, at a price agreed between the parties or settled by the court. The alternative of delivering cattle is expressly mentioned in some of the earlier laws. •See Holmes, the Common Law, 7-12.
 * ^If . The statement is rather obscure. * Mf. 33.