the offender, thus giving time for passions to cool. Yet later, the adjudged compensation, if offered, must be accepted in most cases and finally in all. Such was the evolution of the tort.' "It was evidently the policy of the state to check these bloody quarrels, which continually deprived it of the services of its most active and warlike citizens." The method adopted was "making the best terms it could for the wrong-doer." "Accordingly it proceeded to determining the amount of composition for every injury. This learning of the wergeld, or the Eric-that is, the man-price -formed the largest portion of the law of Teutons and Kelts." But the laws found in early Teutonic Codes of the fifth and sixth centuries are not laws of crime, neither did they include all the penal customs followed by early Teutonic society. The oldest rules of vengeance were not recorded in written laws. What we find are records of deviations from the most archaic customs social checks and modifications of the cherished right of individual vengeance for private injury — laboriously established as customary laws of tort by social pressure. For the most part they are tariffs for bodily and other injuries, regulated, not by the gravity of the offence, but by the provocation to vengeance. Here are no provisions for the social punishment of criminals, that is, of offenders against the state; and no rules defining the penal authority of parents. We know well, however, that both the assembly of the freemen and the father in his family possessed the right to judge and used the right to punish. Probably unwritten social customs prescribed punishment for a few acts as sins against the gods, but, in general, murder, theft and most other 1 Hearn, p. 442-3 'Cæsar, vi, sec. 16. 130 The Teutonic Kingship harmful acts were not then crimes. We shall see how they became crimes in the progress of the centuries. Long continued warfare in a foreign land has always raised up a king among Teutonic peoples. At first he was purely elective, and possessed little power, except when leader of the host. But the Anglo-Saxon kingdoms were for centuries like camps in a hostile territory. All adopted a military organization, and social necessity induced a gradual consolidation of power in the king's hands; for thus military strength and efficiency were greatly increased, and the people more firmly bound together for domestic peace.' This was the social requisite for survival. The strongest, most warlike, most united states rose to dominance; the weak disappeared from history. By the end of the sixth century, the victorious Angles and Saxons had established many petty kingdoms in Britain. Some, the westernmost, were growing yearly stronger and larger at the expense of their old Celtic enemies, while others were now entirely surrounded by Germanic territory, and could expand only by Such wars at once victories over those of their own race. began, and soon became the chief source of Anglo-Saxon weakness, the main obstacle to social progress. Christian England.-Two strong forces made towards the union of these warring states into a single nation: one, enduring, the Christian Church, which formed an evertightening bond of union between Anglo-Saxon peoples; the other, the royal power, when held by some strong, victorious king, and usually passing with his death. The history of England, up to the Norman Conquest, may be regarded as a long struggle for national unity—a struggle never really successful, except temporarily, under pressure of foreign invasion. The Church was entirely victorious in its long warfare against heathendom, and its power was very 1 Kemble, ii, 23. great. During the Danish invasions all the English were united for a time under Edward the Elder (in 924) and again under Edgar (958-975). Feudalism was gaining ground. The Anglo-Saxons were advancing, though slowly and painfully, in the right direction; and social progress (new life) was, as we shall see, speedily safe-guarded by the creation and enforcement of penalties for acts newly deemed criminal. The Codes show us the increase of penalties for acts against the Church, the person and power of the king and his officers. These penalties were socially made and enforced, thus making the acts true crimes. Under weakling kings we see a reversion to individual vengeance; under strong kings an increase of penalties and crimes. New crimes took the direction of offences against the new life of society and its upward progress. Among Anglo-Saxons, the king, like every other man, was subject to the ancient legal customs of his race; the people were themselves the judges and found judgment in their own courts, with which the king had no right to interfere. Even an appeal to the king was a legal offence, punished by fine, unless justice had actually been denied in the ordinary courts. This law is re-enacted in the dooms of king after king until after the Norman Conquest. Although the king was at the summit of the social order, yet he had his price (wer-gild), and his death could be compensated for like the homicide of any other man. Not until Alfred's time did treason against the king's person become punishable with death and bótless. But, as head of the state, the king was defender of the public peace, and as such possessed certain rights with judicial and penal authority, in which he was confirmed and supported by the people. Thus he was 1 Stephen, ii, 397. 'Athelst, i, § 3, Thorpe, pp. 85-86; Edgar ii, § 2, Thorpe, p.112; Cnut, ii, § 17, Thorpe, p. 165; Wm. the Conq., i, § 43; Thorpe, p. 209. 132 The King's Peace empowered to inflict fines upon officials and even private individuals, for neglect of duty menacing the public welfare. He might even sentence to banishment and outlawry for continued breaches of the peace, if the wealth and power of the offenders seemed to put them beyond the reach of the people's courts. Early Germanic society was organized upon a basis of frith, i. e., peace; and every violation of the peace was regarded as a wrong or injury to some one." Every man's house was his castle and sacred, resting under Whoso broke this peace inhis protection, his peace.3 curred his vengeance, and later, when vengeance was very generally replaced by composition, the offence became a tort, for which damages were awarded in civil action before the gemot, by verdict of the people. The king's peace was very naturally the most sacred and far-reaching peace. We know, from a law of Aethelstan, the exact extent of the mystic circle round the king's habitation. It was "3 miles and 3 furlongs and 3 acres breadth and 9 feet and 9 palms and 9 barleycorns." At the three chief festival seasons of the year, and during the week of his coronation, the king's peace was extended to the whole people, and any breach of this peace was punished as a direct injury to him, in the The king could also "give" his peace to people's courts. individuals by his word and will, by his "hand," writ, or seal. Violations of the protection thus given brought a greatly increased punishment upon the offender-sometimes by large fines, sometimes by placing life and limbs at the king's mercy, or exposing the culprit to the dread social doom of outlawry. The people stood behind the king in all these dooms, and with him enforced the penalty. Aelthelst, iii, § 3, Thorpe, p. 92; Aelthelst, iv, § 1, Thorpe, p. 94. ♦ Edw. and Guth., § 6, Thorpe, p. 73; Alfred, ii, § 42, Thorpe, p. 40. This is very important; for it was largely through the extension of the king's authority to punish for breaches of his peace all unauthorized revenge being so considered-that individual vengeance, or fines ("bóts") for damages, became replaced by true social punishments for crime. Non-pay ment of fines decreed by the courts, whether "bóts," recompense to the individual harmed, or "wite" fines, paid to the court or to the king,' was punishable by outlawry, under all systems of Germanic law; and this was one of the earliest legal penalties for disobedience imposed by society"the connecting link between private penal law and true criminal law."3 The man who would not accept the people's verdict was put out of the law's protection. Any one could kill him with impunity. He was declared untrue to the folk ("tiht-bysig" and "folkungetryue") and to the old folk peace. The outlaw was an enemy to the whole folk (“ûtlah wio eall folc");5 and because he was an enemy to the people and the king, any one who harbored or aided him became a criminal and forfeited his possessions. Gradually the old folk peace came to be considered as the king's peace, for the king could restore the peace to an outlaw ("frioian") or inlaw him again ("inlagis"). In outlawry we see the whole state putting itself in war against the criminal who will not abide by the laws, and this is the essential fact in all punishment for crime-social vengeance against the man who wrongs society as a whole. Among Anglo-Saxons the outlaw was excommunicated by the Church, and his position was utterly dismal. 'This change was not completed till long after the Norman conquest. 'The "wite" was originally regarded as a payment for the trouble of conducting the suit. 'Cherry, p. 85-6. Also Maine, pp. 170-174. *Ethelred, i, 4, Thorpe, p. 120. The peace-breaker was "inimicus regis et omnium amicorum eius." See Athelst., ii, 20, § 7. Aethelr., i, 1, § 9. 'Athelst., ii, 20, § 3; Cnut, i, 2, § 4. Ine, § 30; Cnut, ii, §§ 13, 78. |