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.

1

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 Æthelstan (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,

'Pike, i, 59.

'Traill, ii, 168.

2

false witness, witchcraft, perjury and marketing on Sunday are socially punished by death, outlawry, forfeiture or heavy fine to the king, by mutilation, imprisonment and loss of social standing.' By Edmund's dooms (940–946) the right of private feud was yet more closely limited. None but the homicide shall bear the "faehth" (deadly feud). All his kindred shall be exempt. And if any one of the kindred of the slain take vengeance on any other than the real perpetrator, then "let him be foe to the king and all his friends and forfeit all that he owns." Unchastity of ecclesiastics was punished by forfeiture of worldly possessions and of a consecrated burial-place, unless bót was made to God. Fornication and adultery among laymen brought exclusion from consecrated ground at death, unless a fine was paid to the Church. Perjurers and those who will not pay Church tithes are to be excommunicated,3 and this ban of excommunication was re-enforced by heavy secular penalties, fines and confiscations, during Edgar's reign. Church tithes must be paid at appointed seasons. He who will not pay becomes a criminal as well as sinner. Sunday must be observed on peril of the full "wite" (fine to the king) in the doom book. These laws show a great increase in Church authority, due in great measure to Archbishop Dunstan, then the greatest man in Church and State. King Edgar (959975) begins his dooms with an ordinance that the hundred gemot shall meet every four weeks "and that every man do justice to another." By this time the cattle thief had become a true criminal, so far as laws could make him one, and all must unite in his pursuit and punishment.

He

1 Æthelst, i, 3, 4, 6, 7, 10, 14, 20, 24, 25, and iv, 6; Thorpe, pp. 85-90, and 93–5. 'Edmund, Secular Dooms, i, Thorpe, p. 105. Edmund, i, 1, 2, 4, 6, Thorpe, p. 104-105. Edgar, i, 3 and 4, Thorpe, p. III-112. Freeman, i, 63.

5 Ibid., i, 5, Thorpe, p. 112

'Thorpe, p. 109.

142

The Old Folk-Laws

who will not pursue must pay a fine to the king, and for the fourth offence, forfeit all that he has and become an outlaw.' This law and Doom 7 of the Secular Law, relating to an old offender and a man untrue to the people," show popular trial, conviction and execution of the law against true criminals. Death is the penalty for the "notorious thief," and him "who is found plotting against his lord," unless the king pardon them. The king wills "that every man be worthy of folk-right' (the common or customary law of the land), as well rich as poor, and that righteous dooms be judged to him."3 And again: "I will that secular rights stand among the Danes with as good laws as they best may choose."4 "No man must apply to the king in any suit, unless he at home may not be worthy of law or cannot obtain law;"s showing that all men were subject to the old customary laws, sprung from the will of the people and owing their chief authority to social support. The king in theory simply sanctions and defends, yet by Edgar's time the old Teutonic dooms have been so modified that half the laws relate to crimes. In Athelberght's dooms we found not one.

But in the long reign of Æthelred the Unready (9781016), especially after Dunstan's strong hand was removed by death, there was a speedy reversion to composition and laws of tort, under a weak king, in troublous times. Offences ceased to be punished as crimes and consequently the number of criminals must have decreased, while society was retrograding. The numerous ordinances, for the most part, only pray and instruct; there are many repetitions and but few commands with penalties. When any penalty is mentioned, it is almost always the "bót," or fine for tort,

1 Edgar, i, 2 and 3, Thorpe, p. 110.

Ibid., ii, 7, Thorpe, pp. 113-4.

3 Ibid., ii, 1, Thorpe, p. 112.

See Supplement to Edgar's Dooms, 2, Thorpe, p. 116. 'Edgar, ii, 2; Thorpe, p. 112.

awarded to the individual harmed. Thus, in the dooms ordained at Wantage, any breach of the peace, excepting that given by the king's own hand, is to be compounded for by "bót" only. Murder and homicide can thus be paid for by "bot" to the kindred of the slain, and no "wite," or fine for breach of the king's or folk peace is exacted. How very different from the banishment ordained for all "frith " (peace) breakers by King Aethelstan and his witan.3

Under Cnut, the great Dane, more English than the English, the old folk laws are again proclaimed and enforced, "God's justice" is exalted, and there are many ecclesiastical ordinances. Many offences are again changed from torts into crimes; new crimes are created and wise distinctions made. Death or banishment are the penalties decreed against witches, diviners, perjurers and adulteresses, against outlaws and man-slayers, notorious thieves and public robbers, unless they amend their ways.* Sheltering an excommunicated person or an outlaw, and cowardice in fleeing from military service bring death and forfeiture of goods. 5 "House-breaking and arson and open theft and open morth (secret homicide), and treason against a lord are, by the secular law, 'bótless.'" 6 Edward the Confessor was a weak king, and during his reign very little was added to existing penal legislation, but he confirmed the old dooms of his people, which have ever since been known in England as the good laws of Edward the Confessor.

In conclusion: Anglo-Saxon history reveals a progressive increase in the number of actions declared to be criminal by the laws; and since outlawry was easily enforced against all but the strongest, it is probable that society, though weakly Ibid., i, 5, Thorpe, p. 122.

Æthelred, iii, 1, Thorpe, p. 124. 'Aethelstan, iv, Thorpe, p. 93. Cnut, ii, 4, 6, Thorpe. p. 162. Ibid., ii, 65, Thorpe, p. 176.

'Ibid., ii, 67, 78, Thorpe, pp. 176. 180.