164

Royal Choice of Penalties

amount of the Anglo-Saxon fines - the bót and wer and wite. The wer of the poor ceorl, or villanus, had become £4; that of the theign £25;' and money was worth many Few men could pay the large times then what it is now.

sums demanded in composition for their offences, and there - either to "flee for it," and become were two alternatives

an outlaw, or to be sold as a slave. The outlaw forfeits everything; life and limb and all that he possesses. He becomes a criminal, even though his original offence was only a tort, for he has refused to abide by the law of the land, and is now a public enemy. In this way very many men were made criminals, and fell into the king's hands. He could choose their punishment, whether death or mutilation, branding as bad and dangerous men, or it might be exile or loss of goods. No new legislation was necessary. The Norman kings were not fast bound by ancient custom in this respect. William I. preferred mutilaHis son, Henry I., hanged tion to the death penalty. thieves taken in the act,3 and from other offenders would sometimes accept and sometimes refuse a money composition. Henry II. "hanged homicides and exiled traitors," and in his reign the loss of hand or foot was common. Very gradually during the thirteenth century, hanging came to be regarded as the fitting penalty for all felons. It is most probable that the royal judges had large discretionary power in such matters. Certainly, there was no direct legislation causing the change. But "a man who had forfeited everything for his crime could not complain if a foot was taken instead of an eye, or he was hanged instead of being beheaded.' s

1 Leg. Hen., 70, § 1, 76, § 4; Leg. William I., c. 8.

• Maitland and Pollock, ii. 458.

Wm. Malmesbury, Gesta Regum, ii, 641.

Maitland and Pollock, ii, 460.

Flor. Wig., ii, 57.

What effect had all these changes upon the amount of crime in England? For Norman days, we have, of course, no criminal statistics and but fragmentary historic records. Therefore it is impossible to prove the increase or decrease of crime by figures. We must seek the natural or inevitable results of new laws and changed conditions, enforcing such arguments, whenever possible, by historic evidence. In this search we should bear in mind two facts, revealed by a careful study of modern criminal statistics and of history in every age, namely: 1. That increased social disapprobation and repression of some form of conduct constantly results in the changing of torts into crimes, or in the creation of a crime from some action hitherto unpunished; 2. The enforcement of a new social prohibition, or of some old law hitherto unused, always means an addition to the nation's crime and criminals. Laws which seem to many as unjust encroachments upon old liberties will naturally provoke many offences among a sturdy and liberty-loving people, innately rebellious at restraint.

Main lines of social progress during the Norman age took the direction of greatly increased royal power and the unification of a more equal, more progressive system of law, enforced over all the land by the might of king and people. Readers of the earlier pages of this chapter may have been able to trace the way in which this social progress was promoted and maintained by the transfer of many actions, hitherto unpunished, or punished only as torts, into the category of true crimes; but, as the evidence is fragmentary and largely indirect, it will be well to state it more clearly. Norman kings were very stern in putting down the turbulent feudal nobility, and the people very zealously supported them in this most necessary work for social welfare. This means that the laws decreeing criminal punishment for any infringement of, or tampering with, some royal prerogative or

166

The Mirrour of Justices

right, for rebellion, robbery, riot, and possibly for maintenance (in Edward I.'s reign), were probably enforced, as they could not have been in Anglo-Saxon times, and as we know they were not during the later era of the new feudalism. The enforcement of these laws must have made many criminals among the nobles and their warlike followers, whose long resistance ended in their almost complete destruction, although wars against them were few. As Freeman writes: Henry I. "at least taught the highest and proudest of his nobles that there was a power in the land higher than their own. Where he reigned, rebellion and private war were not rights to be boasted of, but crimes against the law, which the law knew how to punish." This severity was certainly not lessened under Henry II., and in earlier years William I. and William Rufus curbed their noble feudatories with a strong hand.

Treason, in Norman times, was a very elastic crime with vague limits, capable of indefinite expansion in developing the power of the king. The Mirrour of Justices (page 21), in the thirteenth century, shows this plainly. Beside the primitive treasons, aiding the nation's enemies,' betrayal of the person of the king, the army or the realm,3 flight from battle and a few coinage and forgery offences, the crime of treason ("majestas") now included: Plotting or imagining the king's death, disinheriting the king of his realm, ravishing the queen, the king's eldest daughter, "or nurse, or king's aunt heir to the king," and also, adds the unknown author of this book: "The crime of majestas, or offence against the king, is neighbour to many other offences; for all those who commit perjury, whereby one belies one's faith to the king, fall into this offence." A large number of other treason

1 Freeman, v, 164 and note.

3

Glanvill, i, 2; Bracton, f. 118b.

"Aethelst., ii, 14; Cnut, ii, 8.

4

2 Tacitus, Germania, c. 12. Cnut, ii, 77; Leges. Henr., 13, § 12.

able crimes are also specified, all relating to dishonesty or misconduct of public officials, or assumption by them of too great power. The law of Englishry must have made punishment for secret murder much more frequent and more certain. The knives then worn by all Englishmen were prone to stab on very slight provocation, and the killing of a Frenchman after the Conquest must have been an honorable and praiseworthy act at first among the conquered English. But the heavy fines, rigorously collected from each community failing to arrest and deliver over the man-slayer to justice, were probably quite sufficient to change social approbation or sufferance of such conduct into social disappro bation and criminal prosecution. Secret killing, therefore, was probably a crime in Norman days, and from the temper of the English there must have been many criminals. The Year Books for the Plantagenet period support this belief, for a large proportion of the cases mentioned relate to prosecutions for homicide;2 showing also the great prevalence of homicide as compared to other offences in Norman times. and to the same offence in modern England. The nation has been very successful in its long struggle to crush out this form of crime.3 William the Conqueror punished very 1 The Mirrour of Justices, pp. 16–19.

Treason—In Norman Times.—Piracy by one of the king's subjects on another was held to be treason. Stephen, ii, 246. By 21 Edward III. (1348) “an appeal of treason lay for killing of malice prepense a person sent in aid of the king in his wars with certain men at arms." See case of Sir John Gerberge. Hale, i, 80-1. "In the following year John at Hill was attainted of high treason for the death of Adam de Walton: 'nuntii domini regis missi in mandatum ejus exequendum.""

2 Year Books, and Stephen, iii, 34.

3 Murder.-The original murdrum was a very heavy fine, 46 marks: 40 to the king, 6 to the kinsfolk: exacted from the hundred where the man (supposed to be a foreigner), was slain. In some cases the fine was exacted even for an accidental death. Bracton regarded this as an abuse. Surely we cannot accuse all the hundred men as being criminals. The murder fine was abolished in 1340. See 14 Edw. III., Stat. 1, c. 4. Also Maitland and Pollock, ii.

168

Extension of Criminal Law

severely the ravishing of women, probably a very common offence in a land filled with foreign soldiery.' There is very little case law on record, but after the Conquest rape was probably bótless if the woman pressed her suit, and the second Statute of Westminster (1285) made death the penalty for all cases of this offence, even though the woman did not wish to sue. This is a good example of the change It is said that William Rufus would from tort to crime.3 permit none to break the laws but himself, and we know that Henry J. sternly inflicted the death penalty upon robbers As the Old Chronicle tells us : and thieves taken in the act..

"In his reign Ralph Bassett did a fine day's work in Leicestershire, for he hanged forty-four thieves, an exploit without a precedent." Freeman believes that King Henry I. succeeded in "bringing all men, of whatever race and whatever rank, within the grasp of the royal authority," and that this "common subjection of Normans and English to the kingly power, when the kingly power alone represented law and right, did more than anything else to bind Normans and English into one nation."5 The work was accomplished mainly by the extension and enforcement of criminal law, and the increase of the nation's criminals. It was all made possible by the support the people-the body of the nation -gave the king. Was not the process a most necessary, a Does not civilization advance by most educational one?

converting tort into crime?

In the utter anarchy of Stephen's reign crime practically ceased, for society was either powerless to punish, or desired for the time nothing better than unlimited license.

1 By castration and blinding. See Anglo-Saxon Chronicle (Anno 1087); also Maitland and Pollock, ii, 489.

'Leg. William I., c. 18; Henry, 13, § 6.

'Stat. West, ii, c. 34: Britton, i, 55; Coke, Third Institute, pp. 180, 433.

A. S. Chron. (Anno

5 Freeman, v, 166.

1124), p. 376.