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A man's death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws. The king, who furnished the court, now sued for the penalty. He supplanted the family in the claim on the guilty thing, and the Church supplanted him. In Edward the First's time some of the cases remind of the barbarian laws at their rudest stage.
The point of especial importance, it will be remembered, was the oath. Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee.
It has been stated already that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day. It will be seen directly whether the German folk-laws can also be followed into England. In the nearly contemporaneous laws of Ine, the surrender and payment are simple alternatives.
And so he goes on pouring out from his very soul the fiery words that tell of the warning of God's laws, and the worsening of folk-laws; and how the Sanctuaries are unprotected, and God's houses are robbed and stripped of their property, and holy orders are despised, and widows forced wrongfully to marry, and too many are made poor and humbled, and poor men are sorely betrayed and cruelly plotted against; and far and wide innocent people are given into the power of foreigners, and cradle-children made slaves through cruel evil laws for a little theft: and freeman's right taken away, and thrall's right narrowed, and alms' right diminished.
The state of things which prevailed on the border between England and Scotland within recent times, and which is brought back in the flesh by the ballad of the Fray O'Suport, is very like that which in an earlier century left its skeleton in the folk-laws of Germany and England. Cattle were the principal property known, and cattle-stealing the principal form of wrongful taking of property.
The obvious analogy between purchaser and heir seems to have been used in the folk-laws, but mainly for another purpose than those which will have to be considered in the English law. This was to enlarge the sphere of alienability.
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