The History of England - Vols. 1 to 6 (32 page)

alderman or earl, presided over them.w
The affair was determined in a summary manner, without much pleading, formality, or delay, by a majority of voices; and the bishop and alderman had no further authority than to keep order among the

freeholders, and interpose with their opinion.x
Where justice was denied during three sessions by the Hundred, and then by the County court, there lay an appeal to the

king’s court;y
but this was not practised on slight occasions. The aldermen received a

third of the fines levied in those courts;z
and as most of the punishments were then pecuniary, this perquisite formed a considerable part of the profits belonging to his office. The two thirds also, which went to the king, made no contemptible part of the public revenue. Any freeholder was fined who absented himself thrice from these

courts.a

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As the extreme ignorance of the age made deeds and writings very rare, the County or Hundred court was the place where the most remarkable civil transactions were finished, in order to preserve the memory of them, and prevent all future disputes.

Here testaments were promulgated, slaves manumitted, bargains of sale concluded; and sometimes, for greater security, the most considerable of these deeds were inserted in the blank leaves of the parish Bible, which thus became a kind of register, too sacred to be falsified. It was not unusual to add to the deed an imprecation on all such as should be guilty of that crime.
b

Among a people, who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative. There were few or no taxes imposed by the states: There were few statutes enacted; and the nation was less governed by laws, than by customs, which admitted a great latitude of interpretation.

Though it should, therefore, be allowed, that the Wittenagemot was altogether composed of the principal nobility, the county-courts, where all the free-holders were admitted, and which regulated all the daily occurrences of life, formed a wide basis for the government, and were no contemptible checks on the aristocracy. But there is another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility; and the degree of it which prevails, cannot be determined so much by the public statutes, as by small incidents in history, by particular customs, and sometimes by the reason and nature of things. The Highlands of Scotland have long been entitled by law to every privilege of British subjects; but it was not till very lately that the common people could in fact enjoy these privileges.

The powers of all the members of the Anglo-Saxon government are disputed among historians and antiquaries: The extreme obscurity of the subject, even though faction had never entered into the question, would naturally have begotten those controversies. But the great influence of the lords over their slaves and tenants, the clientship of the burghers, the total want of a middling rank of men, the extent of the monarchy, the loose execution of the laws, the continued disorders and convulsions of the state; all these circumstances evince, that the Anglo-Saxon government became at last extremely aristocratical; and the events, during the period immediately preceding the conquest, confirm this inference or conjecture.

Both the punishments inflicted by the Anglo-Saxon courts of

Criminal law.

judicature, and the methods of proof employed in all causes,

appear somewhat singular, and are very different from those which prevail at present among all civilized nations.

We must conceive, that the ancient Germans were little removed from the original state of nature: The social confederacy among them was more martial than civil: They had chiefly in view the means of attack or defence against public enemies, not those of protection against their fellow-citizens: Their possessions were so slender and so equal, that they were not exposed to great danger; and the natural bravery of the people made every man trust to himself and to his particular friends for his defence or PLL v6.0 (generated September, 2011)

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vengeance. This defect in the political union drew much closer the knot of particular confederacies: An insult upon any man was regarded by all his relations and associates as a common injury: They were bound by honour, as well as by a sense of common interest, to revenge his death, or any violence which he had suffered: They retaliated on the aggressor by like acts of violence; and if he were protected, as was natural and usual, by his own clan, the quarrel was spread still wider, and bred endless disorders in the nation.

The Frisians, a tribe of the Germans, had never advanced beyond this wild and imperfect state of society; and the right of private revenge still remained among them

unlimited and uncontrouled.c
But the other German nations, in the age of Tacitus, had made one step farther towards completing the political or civil union. Though it still continued to be an indispensable point of honour for every clan to revenge the death or injury of a member, the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference. He obliged the person maimed or injured, and the relations of one killed, to accept of a present from the aggressor and his relations,
d as a compensation for the injury,e
and to drop all farther prosecution of revenge. That the accommodation of one quarrel might not be the source of more, this present was fixed and certain, according to the rank of the person killed or injured, and was commonly paid in cattle, the chief property of those rude and uncultivated nations. A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered: It satisfied their pride by the submission which it expressed: It diminished their regret for the loss or injury of a kinsman by their acquisition of new property, and thus general peace was for a moment restored to the

society.f

But when the German nations had been settled some time in the provinces of the Roman empire, they made still another step towards a more cultivated life, and their criminal justice gradually improved and refined itself. The magistrate, whose office it was to guard public peace and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, or to his family, he thought himself entitled to exact a fine, called the Fridwit, as an atonement for the breach of peace, and as reward for the pains which he had taken in accommodating the quarrel. When this idea, which is so natural, was once suggested, it was willingly received both by sovereign and people.

The numerous fines which were levied, augmented that revenue of the king: And the people were sensible, that he would be more vigilant in interposing with his good offices, when he reaped such immediate advantage from them; and that injuries would be less frequent, when, besides compensation to the person injured, they were

exposed to this additional penalty.g

This short abstract contains the history of the criminal jurisprudence of the northern nations for several centuries. The state of England in this particular, during the period of the Anglo-Saxons, may be judged of by the collection of ancient laws, published by Lambard and Wilkins. The chief purport of these laws is not to prevent or entirely suppress private quarrels, which the legislator knew to be impossible, but only to regulate and moderate them. The laws of Alfred enjoin, that, if any one know, that his enemy or aggressor, after doing him an injury, resolves to keep within his own house PLL v6.0 (generated September, 2011)

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and his own lands,
h
he shall not fight him, till he require compensation for the injury.

If he be strong enough to besiege him in his house, he may do it for seven days without attacking him; and if the aggressor be willing, during that time, to surrender himself and his arms, his adversary must detain him thirty days, but is afterwards obliged to restore him safe to his kindred,
and be content with the compensation.
If the criminal fly to the temple, that sanctuary must not be violated. Where the assailant has not force sufficient to besiege the criminal in his house, he must apply to the alderman for assistance; and if the alderman refuse aid, the assailant must have recourse to the king: And he is not allowed to assault the house, till after this supreme magistrate has refused assistance. If any one meet with his enemy, and be ignorant that he was resolved to keep within his own lands, he must, before he attack him, require him to surrender himself prisoner, and deliver up his arms; in which case he may detain him thirty days: But if he refuse to deliver up his arms, it is then lawful to fight him. A slave may fight in his master’s quarrel: A father may fight in his son’s with any one, except with his master.
i

It was enacted by king Ina, that no man should take revenge for an injury till he had

first demanded compensation, and had been refused it.k

King Edmond, in the preamble to his laws, mentions the general misery, occasioned by the multiplicity of private feuds and battles; and he establishes several expedients for remedying this grievance. He ordains, that, if any one commit murder, he may, with the assistance of his kindred, pay within a twelvemonth the fine of his crime, and if they abandon him, he shall alone sustain the deadly feud or quarrel with the kindred of the murdered person. His own kindred are free from the feud, but on condition that they neither converse with the criminal, nor supply him with meat
or other
necessaries:
If any of them, after renouncing him, receive him into their house,
or
give himassistance,
they are finable to the king, and are involved in the feud. If the kindred of the murdered person take revenge on any but the criminal himself,
after he
isabandoned by hiskindred,
all their property is forfeited, and they are declared to be enemies to the king and all his friends.
l
It is also ordained, that the fine for murder

shall never be remitted by the king,m
and that no criminal shall be killed who flies to the church, or any of the king’s towns;
n
and the king himself declares, that his house shall give no protection to murderers, till they have satisfied the church by their pennance, and the kindred of the deceased, by making compensation.
o
The method appointed for transacting this composition is found in the same law.
p

These attempts of Edmond, to contract and diminish the feuds, were contrary to the ancient spirit of the northern barbarians, and were a step towards a more regular administration of justice. By the Salic law, any man might, by a public declaration, exempt himself from his family quarrels: But then he was considered by the law as no longer belonging to the family; and he was deprived of all right of succession, as the punishment of his cowardice.
q

The price of the king’s head, or his weregild, as it was then called, was by law 30,000

thrimsas, near 1300 pounds of present money. The price of the prince’s head was 15,000 thrimsas; that of a bishop’s or alderman’s 8000; a sheriff’s 4000; a thane’s or clergyman’s 2000; a ceorle’s 266. These prices were fixed by the laws of the Angles.

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By the Mercian law, the price of a ceorle’s head was 200 shillings; that of a thane’s

six times as much; that of a king’s six times more.r
By the laws of Kent, the price of the archbishop’s head was higher than that of the king’s.
s
Such respect was then paid to the ecclesiastics! It must be understood, that, where a person was unable or unwilling to pay the fine, he was put out of the protection of law and the kindred of the deceased had liberty to punish him as they thought proper.

Some antiquariest
have thought, that these compensations were only given for man-slaughter, not for wilful murder: But no such distinction appears in the laws; and it is contradicted by the practice of all the other barbarous nations,
u
by that of the ancient

Germans,w
and by that curious monument above mentioned of Saxon antiquity, preserved by Hickes. There is indeed a law of Alfred’s which makes wilful murder capital;
x
but this seems only to have been an attempt of that great legislator towards establishing a better police in the kingdom, and it probably remained without execution. By the laws of the same prince, a conspiracy against the life of the king might be redeemed by a fine.
y

The price of all kinds of wounds was likewise fixed by the Saxon laws: A wound of an inch long under the hair was paid with one shilling: One of a like size in the face,

two shillings: Thirty shillings for the loss of an ear; and so forth.z
There seems not to have been any difference made, according to the dignity of the person. By the laws of Ethelbert, any one who committed adultery with his neighbour’s wife was obliged to pay him a fine, and buy him another wife.
a

These institutions are not peculiar to the ancient Germans. They seem to be the necessary progress of criminal jurisprudence among every free people, where the will of the sovereign is not implicitly obeyed. We find them among the ancient Greeks during the time of the Trojan war. Compositions for murder are mentioned in Nestor’s speech to Achilles in the ninth Iliad, and are called αποιναι. The Irish, who never had any connections with the German nations, adopted the same practice till very lately; and the price of a man’s head was called among them his
eric;
as we learn from Sir John Davis. The same custom seems also to have prevailed among the Jews.
b