1 144 Converting Tort into Crime organized, frequently succeeded in inflicting this, or some other penalty for offences it deemed most heinous. AngloSaxon states were busy turning torts into crimes, making sins crimes for the benefit of the Christian Church, and other actions criminal for the safeguarding and upbuilding of the royal power. Every new action socially punished as crime necessitated an addition to the existing body of criminals and an increase in the amount of crime. For criminal laws are not established by a community unless there are, at the time, enough offenders to make the need for repression distinctly felt. By earliest Anglo-Saxon dooms, the man who by a passionate blow killed his serf or little son, was no more a criminal than the modern father who punishes his child for disobedience. Ordinary homicide and theft became crimes only when society recognized and punished these acts as wrongs against itself, and ceased to think of them simply as unfortunate harms to an individual, for which pecuniary damages might be sought in civil action. As fast as society declared penal offences to be bótless, it added to the existing number of crimes and therefore of criminals also. Crime is a social product, and was increasing throughout the AngloSaxon centuries, keeping pace with the growing power of the two great factors, the king and the Christian Church, making for strong national unity and internal peace-the greatest needs of the Anglo-Saxon peoples. New criminal laws safeguarded each advance in the right direction; but these laws were abrogated and crimes decreased when society was retrograding, as in Aethelred's days, by a return to laws of tort and individual vengeance. New crimes took the direction of greatest resistance to the new life-the upward development-of the people; for they were acts in opposition to the power of the king and of the Christian Church, the two strong forces making toward centralization and unity. The needs of the times demanded the creation and enforcement by society of these new prohibitions,' which were therefore neither accidental nor whimsical, but inevitable consequences of increasing complexity of social life, of growth in knowledge, intelligence and social morality. 1 Crimes—Heathen Anglo-Saxons.-Treason, cowardice, incest (death). Christian Anglo-Saxons.-Treason, cowardice, incest (Edgar, ii, 34, Cnut, 37, Alfred). Non-payment of fines decreed by court (outlawry); continual breaches of the folk peace (outlawry); harboring or aiding outlaws! (forfeiture and outlawry); all unauthorized revenge (fines); an appeal to the king for justice before seeking it in the people's court (fines); denial of justice and neglect of duty menacing the public welfare; treason against the person of the king or a lord (death); many sins punished as crimes; the notorious thief, cattle thief and public robber; house-breaking, arson, and secret homicide; false coinage; witches, diviners and adulteresses. In Edgar's time one-half the dooms relate to crimes. In Aethelberght's, not one criminal law is found. CHAPTER VII ENGLAND UNDER NORMANS AND PLANTAGENETS. 1066-1307 THE whole Anglo-Saxon period of English history was marked, as we have seen, by a long struggle for national unity, unsuccessful because of the lack of a strong central government. The inveterate Teutonic tendency to split up into little warring, independent states, proved too strong for the increasing power of native kings and of the Christian Church, and required the strong arm of a foreign conqueror and a succession of despotic rulers, resolute to enforce law and order in their dominions, before the people of England could become a united nation. Such a government England obtained in her Norman kings, who succeeded, during the next century and a half, in building up, with the aid of the common people, a strong, united kingdom. Suddenly, in the reign of John, we find that the Normans had become Englishmen, the English had become united. This great work of nation building was accomplished mainly through the unification and enforcement of more equal law (mostly criminal), by the extension of the king's peace and royal justice over all the land. The problem, in the words of Henry II., was how to make "all men equal under one strong law." First the feudal nobility, then the king himself, then the Christian Church, had to be curbed and brought under this law: the mould in which a strong nation, a free people and a constitutional kingship were run. It was no easy problem this; and the great game required many moves and many curious combinations of attack and defence, before the king was checkmated and the people won. But not the commons only; for in the long struggle, the clashing factions were united into a great, free nation; the vanquished found themselves the victors, and the beaten king was more powerful as a constitutional monarch than any of his despotic ancestors, for he could rely on the support of all his people, now that "that which touches all has become the concern of all," under more equal law, more equal justice and representative, parliamentary government. From the conquest of England (1066) to the loss of Normandy (1205), the chief constitutional fact was the union of king and people against the feudal nobility. The long conflict meant the extension and enforcement of a true criminal law, among men who had hitherto been, in large part, a law unto themselves and their dependents, because social justice could not reach so far. To secure military efficiency and some degree of order and stability, feudalism, with its multitude of petty tyrants, was a social necessity upon the continent of Europe. Even high-handed misrule was far better than anarchy, when anarchy meant destruction. But in England the time was come for better things-a time when all the clashing forms of private half-justice and tribal legalcustom should be gathered up and united into one common law, enforced over all the land by the might of king and people. From the very first Anglo-Saxon penal law was aristocratic in its tendencies. "Not only did it consecrate the barriers between classes, making a distinction between those who were dearly born' and those who were 'cheaply born,' but it raised those barriers by impoverishing the poorer folk." It taught all men to consider justice as a means of revenue for the individual and for the state, so that no one thought of giving justice for nothing; and it set a price upon almost everything. The laws were very fragmentary, and the various tariffs clashed. The free people 1 Maitland and Pollock, ii, 458. 148 The Nation's Greatest Need were themselves the judges and could administer only a simple, unprogressive customary law, which became more and more unfitted to meet the complex requirements of more active Norman times. "The great need" of England, after the Conquest, was undoubtedly (as Maitland states) that the ancient system of money compositions, bót and wer and wite, should give way before a system of true punishments.' Tort must be changed into crime, for the social welfare so demanded. This change, in its historic setting, meant the unification and enforcement of a strong criminal law over all classes; it meant in great measure the building of the nation; it meant also the rapid increase of crime and criminals. In the process we shall find the ancient rights and liberties of Englishmen preserved, strengthened, amplified. This is how it happened. William the Norman was undoubtedly a dictator, but he was a dictator under constitutional forms. He came to England as the legitimate successor to the throne. Though a usurper, he had himself elected and crowned king by the Witan, after the death of Harold, and took the kingly oath to preserve and maintain the laws and liberties of the English people. But he had other and weighty reasons for maintaining local self-government and the judicial and penal authority of the people's courts. Normandy was a feudal principality. England was but half feudalized. William wished to secure for his new kingdom the military strength and centralized authority of the feudal system, while avoiding its chief danger-already painfully apparent to him in Normandy-the massing of too great power in the hands of the leading feudatories. While abundantly rewarding all his followers, he yet scattered the estates of his greater barons throughout England, thus largely limiting their power. Also, he sought the support of the people, appearing as their de 1 Maitland and Pollock, i, 51. |