136 ence. Non-finable Offences Multiplied under Christian influence, fines were regarded as a most insufficient punishment for weighty offences, and forfeiture to the king was introduced. Very probably, also, the old money fines were not thought sufficient to repress disorder.' With time, Church and king became more and more united in support of centralized government, administrative, legislative and judicial, as opposed to a diffused and weaker system of local self-government and large personal independ"The great struggle," writes Kemble, "assumed the new form of offences against the state," and state energies were more and more directed to punishing as crimes acts formerly regarded simply as unfortunate harms to an individual. Offences of an especially serious character, or such as were altogether too prevalent, were made "bótless," and the state itself inflicted the penalty. From strong King Alfred's reign non-finable offences are multiplied,3 and even injuries for which compensation was still socially permissible, were threatened with punishment at the will of the king. Moreover, the king possessed large powers of pardoning. By the dooms of Ine of Wessex (688-725), fighting in the king's house is punished by the loss of all property, and death or life at the king's pleasure. In this reign the dooms confer considerable power upon the Church; a few sins are punished by fines, but almost no crimes are mentioned. Offences are still generally regarded as torts. In the Kentish dooms of Hlothar and Eadric (673– 686) no crimes and no sins against the Church are mentioned. All are laws of tort. Of the twenty-eight dooms of Whitraed King of Kent (690-725), the first four relate to Kemble, ii, 50. 'Adams, p. 277-8. Alfred, ii, § 6, Thorpe, p. 30; Cnut, ii, § 36, Thorpe, p. 171. Ibid., ii, 50-1. *Alfred, ii, § 7, Thorpe, p. 30; Ine, § 36, Thorpe, p. 54; Cnut, ii, §13, Thorpe, p. 164. Ine, § 6, Thorpe, p. 46. 'Thorpe, pp. 11–15. the Church, giving it "freedom from imposts" and otherwise strengthening its authority, and a very large proportion relate to composition for sins, such as Sunday labor,' offerings to devils, and eating flesh on fast days.3 Doom 26 shows a development of the king's power to regulate punishment for theft. There are no true crimes mentioned. During King Alfred's noble reign (871-901), there is a very marked increase in the power of the king and of the Christian Church, as manifested and safe-guarded by penal and criminal dooms. The Code opens with forty-eight dooms of Almighty God, beginning with the Ten Commandments. Death is the penalty decreed for very many sins.* Of the seventy-seven secular dooms, most reproduce the customary tariff fines for personal and other injuries; but No. 42 is very important, for Alfred was strong enough to enact a true criminal ordinance, forbidding private vengeance until after compensation had been sought in the popular courts of justice. To enforce this doom needed a mighty king, well supported by public opinion. At the end of Alfred's ecclesiastical ordinances, and again by No. 4 of the secular dooms, "treason against a lord" is declared to be "bótless," i. e., made a true crime, unatonable by money fine, and death and forfeiture of goods are decreed against it. This is a great change from ancient custom, and was probably effected through the influence of the Church, for the doom is decreed on the authority of the Bible. The ecclesiastical ordinance reads as follows: "Many Synods assembled .. among the English race, after they had received the faith of Christ, of holy bishops and also of other exhalted 'witan.' They then ordained, out of that 1 Whitraed, §§ 9, 10, 11, Thorpe, p. 17. Ibid., §§ 12 and 13, Thorpe, p. 18. Ibid., §§ 14 and 15, Thorpe, p. 18. Alfred, i, 14, 30, 31, 32, Thorpe, pp. 21-24. 6 1 Ibid., p. 26. 138 Wise King Alfred mercy which Christ had taught, that secular lords, with their leave, might, without sin, take for almost every misdeed, for the first offence, the money-'bót' which they then ordained; except in cases of treason against a lord, to which they dared not assign any mercy, because God Almighty adjudged none to them who despised him, nor did Christ, the Son of God, adjudge any to him who sold him to death; and he commanded that a lord should be loved as one's self." But King Alfred, notwithstanding these most important innovations, wished it understood that his dooms were but a compilation of the good laws long in force among his people, namely, the dooms proclaimed by Ine of Wessex, Offa of Mercia, and Aethelberght of Kent. As he himself tells us: "I then, Alfred, king, gathered these together and commanded many of those to be written which our forefathers held, those which seemed to me good; and many of those which seemed to me not good I rejected them by the counsel of my witan . . . . for I durst not venture to set down in writing much of my own." The dooms of King Cnut and of William the Conqueror give similar rec ognition and royal enforcement of the ancient customary laws.3 Thus we see how carefully and very jealously the people guarded their ancient penal customs, when even their wisest and strongest kings had to introduce most necessary changes as it were by stealth, and with the greatest care not to awaken too strong public indignation. 1 Alfred's Dooms, Thorpe, p. 26. .... 2 Ibid. 3 Cnut, ii, 1, Thorpe, p. 161; Wm. the Conq., i, Thorpe, p. 201. "Men lived according to their customs, long before these customs were touched by the state. The state commenced its control by undertaking to enforce these customs, and it was only at a late period that it ventured gradually to alter them." The English judges to-day, "professing to expound only, and to develop, not to make the law, employed no legal fiction, but simply stated the very truth." (Hearn, p. 402-3.) "It needs but little reflection to understand how much more of the security and comfort of our daily life we owe to the action of custom than to the protection of law." (Hearn, p. 407.) I Gradually the nation was educated to new ideas, the laws were hardened, and the king's authority steadily increased, innovations being made, chiefly, by the plea that unauthorized vengeance was a violation of the king's peace. "Not, however, till long after the Conquest, was the king able, by means of this plea, to attract to himself the whole criminal jurisdiction, and finally put an end to private warfare and private revenge." This progress and development is marked in the penal law of the Anglo-Saxons by the transfer of many acts from the category of torts to that of crimes; the essential difference being that society now punished as an offence against itself, acts formerly punishable only by request and prosecution of the person harmed. Besides such transfers, the laws declared many sins to be crimes, and other deeds were for the first time made criminal, largely in the direction of offences against the growing power of the king, which, as we have seen, was most necessary for the social welfare. The imposition of a social penalty necessarily implies offenders to be punished, and with each newly-created crime an increase in the number of criminals. But were these laws enforced? For if not, then the actions they aimed to punish were not crimes. Records from Anglo-Saxon times are scanty. The age was one of violence and blood-shedding. Might was very generally regarded as making right. The laws bore far more heavily on the poor and weak than on the strong and powerful. A noble could murder and be quit for a fine, he could steal once or twice and his money would free him; but slaves, women and men of low degree were branded, mutilated, killed, even burnt alive, for theft and other petty offences. As to the means for the enforcement of the laws: "There was not a single person in the realm (outlaws excepted) who did not, either directly or indirectly, give some kind of 1 Cherry, p. 82. security to the state for his good behavior." Throughout the land men were organized in tithings, or groups of ten, each collectively responsible for the right conduct of its members. After the Danish conquest, in the early eleventh century, the peace-pledge, or custom of "reciprocal warranty" was clearly defined and rigorously enforced, in the attempt to repress assassination and other forms of violence. The townsman who entertained a guest even for a single night must be responsible for any evil he might do. There was watch and ward upon the highways and at the gates of the city. Yet human life continued to be held very cheap and property was secure only to the strong. Under powerful kings a stern determination to suppress violence is plainly manifest in the laws, and there is reason to believe the actions declared to be crimes were very frequently punished with outlawry, if in no other way. In modern times the criminal usually remains within the protection of the law, and the state cannot punish him unless it secures his person or property. In Anglo-Saxon days outlaws were numerous, and deprivation of all legal safeguard was the most common form of social punishment for crime. As we have seen, it was no light penalty. Edward the Elder, Æthelstan, Edmund and Edgar, with the counsel of their witan, were strong and masterful legislators, developing a centralized government, under pressure of frequent Danish invasions. In the dooms of Ethelstan (924–940), the rights of the Church are strongly secured. The ordeal is constantly in use. True criminal laws become more numerous, many sins being punished as crimes. Treason, incendiarism, secret murder, false coinage of money, denial of justice and support of thieves, applying to the king for justice before seeking it in the people's courts, failure to attend gemot or to join in attack upon the king's enemy, 1 Pike, i, 59. 'Traill, ii, 168. |