Page:The Green Bag (1889–1914), Volume 01.pdf/193

170 people, they seized the first captive they could, and compelled him to fight in single combat with one of their own champions. Each was armed with the weapons of his own country, and the victory of either was looked upon as prophetic of the event of the war.

Before the Norman conquest, and for a long time after, the law of England was noted for the fewness, as it afterwards was for the number, of crimes punishable with death. Whenever an enormous offence was committed, a fine called weregild was paid by the malefactor to the friends and relatives of the person injured or killed. This pecuniary satisfaction owes its origin to the Germans, among whom homicide itself was expiated by the gift of a certain number of herds and flocks; and with this gift the whole family must be satisfied, in order to stifle their animosity and thirst for revenge. A fine was always paid by offenders to the State, and to the person injured or his relatives. These customs are the original of the law of appeal, which is an accusation by one subject against another for some heinous crime, demanding satisfaction for the particular injury suffered, rather than for the offence to the public; and of the law of forfeiture, whereby a man loses his lands and they go as a recompense for the wrong which he has done to an individual or the public. The essence or principle, both of the German custom and the English law, is the same; to punish the party who commits the offence and compensate the party injured, and thus at the same time to suppress both crime and a desire to revenge it in individuals.

It is undoubtedly true that a vast portion of the law, and especially of real property, hangs upon the feudal system; it is equally true that this system itself, although finally and firmly planted in England by William the Norman and his mail-covered barons, was not unknown to the Saxons, and was brought over by them from Germany. To the German law of descent may also be traced gavelkind, borough-English and many other customs. Nor must we forget the trial by jury, that boast of the English law and bulwark of English liberty. For that we are indebted for its introduction, neither to classic Greece nor imperial Rome, but to a people who, equalling either in chivalry and arms, surpassed them both in the unfettered freedom of their lot.

These are a few of the leading and living principles of the English law, which may clearly be traced to the forests and marshes of Germany. They are simple, and were naturally brought into life by the wants of a wandering uncivilized people. We know that the idea of deriving from such a source the vast and intricate machinery of the English government, is treated by many writers of learning and fame as fond and fanciful. We know that the sketch of Tacitus has often been looked upon rather as a lively portrait of the manners of a free and generous people, drawn in a great degree from his own imagination, and intended to rebuke and reform the morals of Rome, rather than to describe those which really prevailed in Germany. Upon what ground this opinion is based we are at a loss to know, unless it be in the vanity of those who advance it. Tacitus was a historian and not a novelist, and his treatise on Germany is no mere piece of fancy.

It is undoubtedly difficult to say, that this custom was derived from the Germans, and that from the Britons; that one law was introduced from Rome, and another from Germany. But can it be denied that the Saxons brought their laws as well as their language into Britain, when they subdued it? Is it likely they would have left behind the customs in which they were bred, and tamely yielded or slavishly adopted those of the country which they had so lately conquered? Is it not more likely that they would have blended their usages together, and thus made a system more perfect than either? The customs of the Germans are plainly one of the streams which, uniting their waters, form the broad and deep and clear river of the law. — American Jurist.