But in the reign of Henry II. the robber barons again became criminals, for social justice was enforced against them. The aid of the people made the triumph of law and order permanent. The increase in the reserved pleas of the crown, coupled with great improvements in legal procedure, rapidly changed tort into crime, rapidly multiplied criminals. From this time society was called "upon a very large scale and as a matter of ordinary practice" to indict its criminal members, and we learn that more and more offences were included in this charge. The initiation of a penal action was no longer left to the individual harmed or to his next of kin. If the sufferer dared not or did not wish to prosecute, society would bring the action for him. "From this time onward a statement made upon oath by a set of jurors representing a hundred, to the effect that such an one is suspected of such a crime, is sufficient to put a man upon his trial." Society accepted and supported this system of criminal procedure and held itself responsible to the king for the prosecution of its criminal members. This was very important in creating true criminal offences. Society, and not the individual harmed, became the prosecutor, and society inflicted the punishment for the sake of the general welfare. People were being trained to think of the accusation, prosecution and punishment of offenders as of great social importance-to consider the wrong done to society rather than the harm to the individual. The introduction of this indictment procedure must have led to a large increase in the number of prosecutions. It made punishment much more sure. It changed tort into crime. It must have greatly increased the amount of crime and the number of criminals. Those indicted were at once sent to the ordeal -"the judgment of God." But we find an increasing skepticism with regard to this form of trial, and note that those 1Traill, i, 291.

170

Forest Legislation

who passed the ordeal were nevertheless banished from the kingdom as dangerous suspects, forbidden to return on pain of death. Practically all who went to the ordeal, therefore, were punished as criminals. Henry II. included larceny among the crimes named at the inquest, and this was the last of the early great offences to become a plea of the crown, under cover of a phrase charging the thief with breaking the king's peace. By the 13th century ordinary wilful homicide had become legally a crime, punishable with death, and the limits of justifiable manslaughter were then so narrow that a child of four years hardly escaped death for the accidental killing of another, aged two. Death by a passionate blow was frightfully prevalent in those days, and society was slowly wakening to the idea that this was socially dangerous, and should be punished as serious crime. Probably the nation was not yet sufficiently convinced of this to enforce the penalty frequently and so make the action truly criminal, but pressure was certainly being exerted in this direction by the most intelligent portion of the community.

The forest legislation of the Normans has not yet been mentioned, for it is somewhat doubtful whether violators of these laws should be classed among the criminals, or merely as offenders against the king as an individual. Forest laws were no new thing in England, but in Anglo Saxon days every man could kill wild beasts upon his own land. William the Conqueror made hunting a royal monopoly, the exclusive privilege or business of the king and a few special friends. Forest laws were very cruel and very strictly enforced. Wealthy Englishmen seem, at first, to have been

1 Form of the inquest in criminal cases: "Do you suspect any of murder, robbery, larceny, or the like?" "This question was addressed by royal officers to selected representatives of every neighbourhood, and answered upon oath." Traill, i, 291.

Northumberland Assize Rolls, p. 323.

special sufferers. Doubtless the chase was one of their greatest pleasures, which they were loth to relinquish. In the reign of William Rufus fifty such men at one time went to the ordeal to prove their innocence.' William of Malmesbury declares that the forest tribunals punished with equal severity rich and poor, Normans and Englishmen. Henry I. is praised by the chronicler for keeping the hunting throughout his entire kingdom under his own hand.3 "Peace he made for man and deer," and he saved England from "the curse of a little Nimrod in every manor." Probably there was much good in this. At any rate the forest legislation of Henry II., that great and wise sovereign, was but little less severe than that enforced by his grandfather. But all through Norman times outlaws received much public sympathy, because of the brutal harshness of these forest laws, which, breaking up as they did the favorite sport of a sturdy and obstinate people, must have caused many offenders among both Normans and Englishmen. Can we rightly call these men criminals? Crime is any act punished by society as a wrong against itself. The forest laws and tribunals "avowedly stood outside of the common law of the land-existed only for the king's personal pleasure," and were ruled only by his personal will.4 Yet the people, in general, supported their Norman kings, and with good reason, for one tyrant was far better than many. It was better to groan occasionally under royal punishment for forest violations than to suffer the anarchy which must surely come if the wilful nobility and gentry were left unchecked to their own devices. Forest laws fell "far more heavily on the great men than on the bulk of the people," and as a means for extending the king's power,

1 Eadmer, Hist. Nov., p. 48; Freeman, v, 124. 2 Wm. of M., ii, 501.

3 Henry of Huntingdon (221 b.), after H.'s death; and William of Newburgh, i, 21.

4 Freeman, v, 455.

3 Ibid., v, 164; Henry of Huntingdon, 221 b.

unifying law, and curbing the haughty baronage, forest tribunals must have been very effective and socially beneficial. This would explain their persistent use under Henry II., whose whole reign was devoted to the extension and enforcement of more equal justice. For these reasons it seems right to count offenders against forest laws among the nation's criminals, and surely their number must have been at times very great.1

The evidence seems to warrant the belief that there was much more crime in Norman than in Anglo-Saxon England; that the amount of crime greatly increased under strong, able kings, when the nation was prosperous and advancing, and very greatly decreased under weak sovereigns, when society was sick almost unto death. The increase of crime was due, in large measure, to the amount of outlawry occasioned by heavier money penalties; to improvement in legal procedure, turning torts into crimes; to the enforcement of true social punishment for actions hitherto practically unpunished, or punished only as harms to an individual. New crime largely took the direction of acts antagonistic to the growth of royal power, or to the unification and extension of royal justice over all the land—the two main lines along which national welfare then demanded upward progress.

Although history surely proves the wise enlargement and much more sure enforcement of criminal law in Norman England, as compared with the centuries before the Conquest, yet this only throws into darker relief the weakness of social justice and the consequent small amount of crime in that earlier period. Even under Norman kings the criminal law was exceedingly inefficient. Murder, highway robbery and other crimes of violence were of common occurrence, and, "whatever the law might wish, the male

Benedict, i, 92, 94; Stubbs' Preface to Benedict, ii, lxxxiii; Select Charters, p. 149; Freeman, v, 682.

2

factor's fate was like to be outlawry rather than any more modern punishment;"' while the records reveal an alarming number of evil-doers who escaped all punishment for their misdeeds. Upon the presentment rolls of the jurors we find continually the same sad story: Malefactors came by night to the man's house and slew him and all his family, and robbed his goods. "We do not know who they were; we suspect no one." Life in Norman days must have been lamentably insecure, despite the boasts of the chroniclers. Murderers, thieves and robbers were rarely hanged, and the "hue and cry" after them was an utterly insufficient social protection. Men who had tracked cattle thieves to the county boundary generally turned home again, saying, “Let Gloucestershire folk mind Gloucestershire rogues." The justices in Eyre, who visited this county in 1221, after a long time in which criminal law had lain dormant during civil war, were told of three hundred and thirty acts of homicide, beside other offences. The best they could do in support of law and order was to hang some fourteen men, mutilate one and issue one hundred sentences of outlawry. But this again adds weight to the belief that wrong ceases to be crime when society is disorganized and at war within itself. In more peaceful times the proportion of criminals punished was much greater, although their punishment was still mainly outlawry. Thus, in 1256 the Northumberland justices heard of seventy-seven murders, for which four men were hanged and seventy-two outlawed, and seventy-eight other felonies, for which they hanged fourteen people and outlawed fiftyfour. Reports from the same county, in 1279, revealed sixty-eight murder cases, for which two men were hanged and sixty-five outlawed, and one hundred and ten other

1 Maitland and Pollock, ii, 555.

'Traill, i, 295.