This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The English law of contract, like English law in general, was built upon Anglo-Saxon law as a basis; and this, in turn, was influenced profoundly by the organization, procedure, and mode of trial, of the Anglo-Saxon courts. They were popular courts; that is, they were made up of the suitors who attended upon them. There was no judge, and furthermore, there was no technically trained legal class. This is certainly true of the hundred courts and the shire courts. Possibly in private jurisdictions the lord or his steward actually possessed a knowledge of the law in excess of that possessed by the mass of the suitors. Whether from a desire to avoid responsibility or from the fear of arousing jealousy, the king seems to have attempted to prevent plaintiffs from bringing suits before him unless it could be shown that the local courts could not do justice.1 The system, therefore, taken as a whole, was a system of administering a tribal customary law by administrators who were not experts therein. The merits of the case were decided without evidence upon the point in issue. Compurgation and various forms of the ordeal were the means by which the outcome of the litigation was determined.2 As a consequence of this system of courts and of these methods of trial, there was no available means for deciding complex questions of fact and no means whatever for passing on the amount of damages. The society was a simple agricultural one and except possibly for the merchant class there was little trade or business. The economic conditions were not favorable to the growth of the law of contracts; and if they had been, the judicial machinery would have retarded or prevented the growth of contract law. There was probably the same lack of harmony between the different courts that characterized later English law. We can be sure from the Anglo-Saxon codes that the law of Wessex, Mercia, and Northumbria differed on many important points. It is quite likely that usually a court which attempted to apply the law of Wessex for example, did not even feel bound to reach the same results which another court had reached upon the same facts under the same law; and very likely it did not feel bound to reach the same result which it had reached itself on the same facts in some former suit. Indeed, the methods of declaring the law and of determining the issue made this almost inevitable.
1II Laws of Edgar (secular), 2 (I Thorpe, Ancient Laws and Institutes, 267); Laws of Cnut (Secular), 17 (I Thorpe, Ancient LawB and Institutes, 385).
2I Pollock & Maitland, 38 et seq.;
Essays in Anglo-Saxon Law, pp. 297, et seq.
For trial by oath and ordeal on the continent, see Brissaud, History of French Public Law (Continental Legal History Series), Sec. 118, 119; see also references in Sec. 8.