The History of English Law before the Time of Edward I. Frederic William Maitland

to be paid for his offences against public order. Wíte is the usual word for a penal fine payable to the king or to some other public authority. Bót (the modern German Busse) is a more general word, including compensation of any kind. Some of the gravest offences, especially against the king and his peace, are said to be bótleás, “bootless”; that is, the offender is not entitled to redeem himself at all, and is at the king’s mercy. The distinction between wer and wíte must be very ancient; it corresponds to what is told us of German custom by Tacitus.⁷⁰

      Punishment.The only punishments, in the proper sense, generally applicable to freemen, were money fines, and death in the extreme cases where redemption with a money fine was not allowed. A credible tradition preserved in the prologue to Alfred’s laws tells us that after the conversion of the English to Christianity the bishops and wise-men “for the mild-heartedness sake that Christ taught” sanctioned the redemption by fine of offences less than that of treason against one’s lord.⁷¹ Mutilation and other corporal punishments are prescribed (but with the alternative of redemption by a heavy fine) for false accusers, for habitual criminals, and for persons of evil repute who have failed in the ordeal.⁷²

      Imprisonment occurs in the Anglo-Saxon laws only as a means of temporary security. Slaves were liable to capital and other corporal punishment, and generally without redemption. The details have no material bearing on the general history of the law, and may be left to students of semi-barbarous manners. Outlawry, at first a declaration of war by the commonwealth against an offending member, became a regular means of compelling submission to the authority of the courts, as in form it continued so to be down to [p.27] modern times.⁷³ In criminal proceedings, however, it was used as a substantive penalty for violent resistance to a legal process or persistent contempt of court.⁷⁴ Before the Conquest, outlawry involved not only forfeiture of goods to the king, but liability to be killed with impunity. It was no offence to the king to kill his enemy, and the kindred might not claim the wergild.⁷⁵ It was thought, indeed, down to the latter part of the sixteenth century, that the same reason applied to persons under the penalties appointed by the statutes of praemunire, which expressly included being put out of the king’s protection.⁷⁶

Difficulties in compelling submission to courts.It would appear that great difficulty was found both in obtaining specific evidence of offences, and in compelling accused and suspected persons to submit themselves to justice, and pay their fines if convicted. This may serve to explain the severe provisions of the later Anglo-Saxon period against a kind of persons described as “frequently accused,” “of no credit.”⁷⁷ One who had been several times charged (with theft, it seems we must understand), and kept away from three courts running, might be pursued and arrested as a thief, and treated as an outlaw if he failed to give security to answer his accusers.⁷⁸ A man of evil repute is already half condemned, and if he evades justice it is all but conclusive proof of guilt. In communities where an honest man’s neighbours knew pretty well what he was doing every day and most of the day, this probably did not work much injustice. And English criminal procedure still held to this point of view two centuries after the Conquest. It may be said to linger even now-a-days in the theoretical power of grand juries to present offences of their own knowledge.

Maintenance of offenders by great men.Several passages, and those from a period of comparatively settled government, show that great men, whose followers had committed crimes, often harboured and maintained them in open defiance of common right.⁷⁹ If it was needful for Æthelstan, the victor [p.28] of Brunanburh, to make ordinances against lawlessness of this kind, we can only think that weaker princes left it without remedy, not because the evil was less in their days, but because they had no power to amend it. The same thing was common enough in the Scottish highlands as late as the early part of the eighteenth century.⁸⁰

Why no trial by battle.Putting together these indications of a feeble executive power, we are apt to think that the absence of trial by battle from Anglo-Saxon procedure can best be explained by the persistence of extra-judicial fighting. Gundobad of Burgundy, and other Germanic rulers after him, tempted their subjects into court by a kind of compromise. It is hardly possible to suppose that their ostensible reason of avoiding perjury was the real one. Rather it was understood, though it could not be officially expressed, that Burgundian and Lombard⁸¹ freemen would submit to being forbidden to fight out of court on the terms of being allowed to fight under legal sanction, thus combining the physical joy of battle with the intellectual luxury of strictly formal procedure. It seems plausible to suppose that the mechanism of Anglo-Saxon government was not commonly strong enough to accomplish even so much. All this, however, is conjectural. There is no reason to doubt that among some Germanic tribes battle was recognized as a form of ordeal from very ancient times; we have no means of solving the ulterior question why those tribes did not include the ancestors of the Anglo-Saxons.

Special offences treason.Offences specially dealt with in various parts of the Anglo-Saxon laws are treason, homicide, wounding and assault (which, however, if committed by freemen, are more wrongs than crimes), and theft. Treason to one’s lord, especially to the king, is a capital crime. And the essence of the crime already consists in compassing or imagining the king’s death, to use the later language of Edward III.’s Parliament.⁸² The like appears in other Germanic documents.⁸³ It seems probable, however, that this does not represent any original Germanic tradition, but is borrowed from the Roman law of maiestas, of which one main head was plotting against the lives of the chief magistrates.⁸⁴ No part of the Roman law was more likely to be [p.29] imitated by the conquerors of Roman territory and provinces; and when an idea first appears in England in Alfred’s time, there is no difficulty whatever in supposing it imported from the continent. Not that rulers exercising undefined powers in a rude state of society needed the Lex Julia to teach them the importance of putting down conspiracies at the earliest possible stage. We are now speaking of the formal enunciation of the rule. On the other hand, the close association of treason against the king with treason against one’s personal lord who is not the king is eminently Germanic. This was preserved in the “petty treason” of medieval and modern criminal law.

      The crime of treason was unatonable,⁸⁵ and the charge had to be repelled by an oath adequate in number of oath-helpers, and perhaps in solemnity, to the wergild of the king or other lord as the case might be. If the accused could not clear himself by oath, and was driven to ordeal, he had to submit to the threefold ordeal,⁸⁶ that is, the hot iron was of three pounds’ weight instead of one pound, or the arm had to be plunged elbow-deep instead of wrist-deep into the boiling water.⁸⁷

Homicide.Homicide appears in the Anglo-Saxon dooms as a matter for composition in the ordinary case of slaying in open quarrel. There are additional public penalties in aggravated cases, as where a man is slain in the king’s presence or otherwise in breach of the king’s [p.30] peace. And a special application of the king’s protection is made in favour of strangers; a matter of some importance when we remember that before the time of Alfred a Mercian was a stranger in Kent, and a Wessex man in Mercia. Two-thirds of a slain stranger’s wer goes to the king. We find a rudiment of the modern distinction between murder and manslaughter, but the line is drawn not between wilful and other killing, but between killing openly and in secret. It would seem indeed that “morð” at one time meant only killing by poison or witchcraft. The offence of “morð” was unatonable, and the murderer, if ascertained, might be delivered over to the dead man’s kindred.⁸⁸

      Justifiable homicide.An outlaw might, as we have seen, be slain with impunity; and it was not only lawful but meritorious to kill a thief flying from justice.⁸⁹ An adulterer taken in flagrante delicto by the woman’s lawful husband,