an outlaw, who could be slain without compensation.1 Publicity gave the avenger the power to prove his bona fides by

co-swearers:

HENR. 83, § 6: "If any one kill another in revenge, or self-defence, let him take to himself none of the goods of the dead, neither his horse, nor helmet, nor sword, nor any money; but in wonted manner let him arrange the body of the dead, - his head to the west, his feet to the east, upon his shield, if he it have; and let him drive deep his lance, and hang there his arms, and to it rein in his steed; and let him go to the nearest vill, and to him whom he shall first meet, as well as to him who has soen, let him declare it; that he may have proof and make defence against his [foe's] kinsmen and friends." 2

But, generally, vengeance was allowed in those cases in which outlawry would have been the penalty, and was exercised somewhat after the manner of a punishment. The formula in Anglo-Saxon law ran thus: "Homini liceat pugnare." 3 Any conception of a lex talionis, as assumed by Kemble, was foreign to early German law, and was only a subsequent effect of the church. The kinsmen of the slain could exact vengeance from the doer and his kinsmen until the sum of the wergelds of the slain kinsmen equalled the wergeld of the person avenged. The procedure of the Northern law in making a successful party in an accusation the executioner was almost repeated in Cnut's day:

CN. II. 56: "Qui murdrum aperte perpetrabit, reddatur parentibus interfecti."

Alfred1 also allowed immediate vengeance before a judgment in case a husband found another within closed doors or under a covering with his wife, daughter, sister, or mother. But the Anglo-Saxons did not permit vengeance for bodily injuries or mere threats as in the old Northern law.2

If A had slain B without cause, it was an unallowed breach of the peace; but if C, B's kinsman, slew A in revenge for B's death, it was a case of vengeance. It is now possible to draw a distinction between vengeance and feud.3

Feud does not presuppose a right of feud. The word fæho has the simple meaning of enmity, but its equivalent, feud, was chiefly used in the sense of vengeance in the folk-laws.4 In the above example, when C was seeking with his kinsmen to revenge B's death, if A and his kinsmen resisted, - as was usually the case, - and prepared to defend themselves, a private war arose, which could strictly be called "feud," or warfare in our sense. At this point the wild spirit of freedom among the Germans, and a pride, which forbade all submission, led naturally, in a rude system of government, to a resistance whose consequences were perilous to the state and destructive to life and peace. Even the offender who appeared at the court came prepared to gain by force a protection which might be denied him by a judgment of outlawry; and therefore the accuser must be attended by such numbers as insured a bloody conflict, if he hoped to prosecute his suit.5 This conflict led to others, the loser always endeavoring to compensate himself, and the victor to humble and subdue his foe.1 While vengeance was an appendage of the law, like private execution in the procedure of debt, feud, in the sense in which the word will be here used, was outside of the law, and in bold opposition to it; it was the antagonistic element of the individual warring against the interests of society, and which society was naturally, and generally without success, striving to control. For it must be kept in mind, more than has commonly been done, that law and fact were varying and different quantities in their relation to each other. The highspirited and democratic Germans were not quick in bending their wills and in imbibing objective law; in fact, the feud which was chronicled by Tacitus held its position even in England long after the Conquest. This system of vengeance and feud occupied a large place in the Anglo-Saxon laws, as well as in other German codes; but many attempts were made to control it.

The great step toward the limitation of vengeance and the

The

1 Cf. Allen, p. 101: "Among the ancient Germans, if any one was wronged, it was the duty of his relations and friends to resent his injury, and take part in his quarrel. His adversary was in the same predicament. However questionable his conduct, he found kinsmen and associates to maintain his cause. redress which the one party demanded, the other thought it pusillanimous to grant. Violence was resorted to; retaliation followed; and a civil, or rather domestic, war ensued."

consequent feuds was the extension of the system of compositions1 over cases of killing. In the case given above, if A offered B's wergeld to C, the state guaranteed the peace to A, and forbade C to exercise vengeance. But if the wer were not paid, then C could fight his foe, as is expressed in the old proverb, "Bicge spere of síde óðer bere." This step,2 although probably not fully recognized in the earliest laws, was surely reached in the time of Ine and Alfred. The first case was only of an unfree Welshman who had slain an Englishman:

INE 74: "Si servus Waliscus Anglicum hominem occiderit; debet ille, cujus est, reddere eum domino et parentibus, aut LX sol. dare pro vita sua.

§ 1. "Si dominus ejus nolit hoc capitale pro-eo dare, liberum faciat eum, et solvant parentes illius weram occisi, si cognationem habeat liberam; si non habeat, observent eum inimici sui."

If neither the lord nor his kinsman would make a settlement, then only might vengeance be taken. And it is to be noticed that whatever duty was formerly imposed on the kin to aid in exacting vengeance seems to have been transferred under the composition system to a duty in paying the wer. But the familiar law of Alfred is more definite:

ALFR. 42 (Pr.): "Also, we decree that the man who knows his foe to be home-sitting shall not fight him before he asks satisfaction."

The same chapter then goes on to illustrate by other provisions the principle that the injured party could only proceed to vengeance after he had given his foe every opportunity to make compensation, or if his foe resisted :

§1: "If he have power to surround and besiege his foe, let him watch him during seven days, and not attack him, if he (foe) wish to remain there. If he wish to surrender and give up his arms, let him guard him unhurt thirty days, and announce it to his kinsman and friends" [i.e. in order that they might make composition for him].

§ 3. "If he have not power to besiege him within, let him go to the ealdorman and ask aid; if he be unwilling to aid him, let him go to the king before he attack his foe."

...

§ 4. " If any one comes on his foe unexpectedly, if his foe be willing to give up his arms, let him be held thirty days, and announce it to his friends. If he be unwilling to give up his arms, then may he fight him."

The preliminary procedure in which negotiation was made for the settlement is thus described:

EDM. II. 7: "First, according to folk-right, ought the slayer to give pledge to his spokesman, and the spokesman of the slayer to the kindred of the slain, that the slayer will make them full satisfaction. Then should security be given to the spokesman, that the slayer may draw nigh in peace, and himself give pledge for the wer. When he has given his wed for this, let him further find a werborh, or security for payment of the wer. After this shall have been done, let the peace (mund) of the king be raised between them." 1

Such was the aim of Anglo-Saxon law; but that its decrees were practically nugatory in regard to vengeance is shown by the necessity of subsequent laws, as well as the influence of other matters:

ETHELR. IV. 4. § 1: "If he fight before he demands his satisfaction, and live, let him pay the king's 'burhbrece' of five pounds."

The state desired to see a weakening of the family bonds as a means of diminishing the blood-vengeance, and decrees