THE first increase of severity noticed was against the esne, the servile. Their state of subjection rendered them easy instruments of their master's revenge; and it was therefore found proper to make some part of their punishment extend to their owner. Hence, if any man's esne killed a man of the dignity of an eorl, the owner was to deliver up the esne, and make a pecuniary payment adequate to the value of three men. If the murderer escaped, the price of another man was exacted from the lord, and he was required to show by sufficient oaths that he could not catch him. Three hundred shillings were also imposed as the compensation. If the esne killed a freeman, one hundred shillings were the penalty, the price of one man, and the delivery of the homicide; or if he fled, the value of two men, and purgatory oaths.

9

A SUCCEEDING king, exempted the killer of a thief from the payment of his were. This, however, was a mitigation that was capable of great abuse, and therefore Ina required oath that the thief was killed "sinning," or in the act of stealing, or in the act of flying on account of the theft. 10

HUMANITY dictated further discrimination. A vagrant in the woods, out of the highway, who did not cry out or sound his horn (probably to give public notice of his situation), might be deemed a thief, and slain "1; and the homicide, by affirming that he slew him for a thief, escaped all penalties. It was, however, wisely added, that if the fact was concealed, and not made known till long time after, the relations of the slave should be permitted to show that he was guiltless. 12 Mistake or malice was further guarded against by requiring that where a homicide had killed the thief in the act of flying, yet if he concealed the circumstance he should pay the penalties. 13 The concealing was construed to be presumptive proof of an unjustifiable homicide. Modern law acts on a similar presumption, when it admits the hiding of the body to be an indication

8 Wilkins, p. 7, 8. 11 Ibid. p. 12.

9 Ibid. p. 12.
12 Ibid. P.

18.

10 Ibid. p. 17.20.
13 Ibid. p. 20,

CHAP.

I.

CHAP. of felonious discretion in an infant-murderer, between the of seven and fourteen.

I.

age

IN the days of Ina, the were, or protecting valuation of an individual's life, was not uniform. The public were arranged into classes, and each class had an appropriated

were.

RANK and property seem to have been the criterion of the estimation. The were of some in Ina's time was thirty shillings: of others, 120; of others, 200.14 The same principle of protection, and of discriminating its pecuniary valuation, was applied to foreigners. The were of a Welshman, who was proprietor of a hide of land, was 120 shillings; if he had but half that quantity, it was 80; and if he had none, it was 60. 15 Hence it appears, that the wealthier a man was, the more precious his life was deemed. This method of regulating the enormity of the crime by the property of the deceased, was highly barbarous. It diminished the safety of the poor, and gave that superior protection to wealth which all ought equally to have shared.

THE were, or compensatory payment, seems to have been made to the relations of the defunct. As the exaction of the wite, or fine to the magistrate, kept the crime from appearing merely as a civil injury, this application of the were was highly equitable. But if the deceased was in a servile state, the compensation seems to have become the property of the lord. On the murder of a foreigner, two-thirds of the were went to the king, and one-third only to his son or relations: or, if no relations, the king had one half, and the gild-scipe, or fraternity to which he was associated, received the other. 16

THE curious and singular social phenomenon of the gild-scipes, we have already alluded to. The members of these gilds were made to a certain degree responsible for one another's good conduct. They were, in fact, so many bail for each other. Thus, in Alfred's laws, if a man who had no paternal relations killed another, one-third of the 16 Ibid. p.18.

14 Wilkins, p. 25.

15 Ibid. p. 20.

I.

were of the slain was to be paid by the maternal kinsman, CHAP. and one-third by the gild; and if there were no maternal kinsmen, the gild paid a moiety. On the other hand, the gild had also the benefit of receiving one-half the were, if such a man of their society was killed. 17

THE principle of making a man's society amenable for his legal conduct was carried so far, that by Ina's law, every one who was in the company where a man was killed, was required to justify himself from the act, and all the company were required to pay a fourth part of the were of the deceased. 8

THE same principle was established by Alfred in illegal associations. If any man with a predatory band should slay a man of the valuation of twelve hundred shillings, the homicide was ordered to pay both his were and the wite, and every one of the band was fined thirty shillings for being in such an association. If the guilty individual were not avowed, the whole band were ordered to be accused, and to pay equally the were and the wite. 19

THE Anglo-Saxons followed the dictates of reason in punishing in homicide those whom we now call accessories before the fact. Thus, if any one lent his weapons to another to kill with them, both were made responsible for the were. If they did not choose to pay it in conjunction, the accessory was charged with one third of the were and the wite. 20 A pecuniary fine was imposed on the master of a mischievous dog. 21

EXCUSABLE homicide was not allowed to be done with impunity. If a man so carried a spear as that it should destroy any individual, he was made amenable for the were, but excused from the wite. 22

THUS stood the laws concerning murder, up to the days of Alfred. The compact between his son Edward and Guthrun made a careful provision for the punctual payment of the were. The homicide was required to produce

CHAP. for this purpose the security of eight paternal and four maternal relations. 23

I.

IN the reign of Edmund, an important improvement took place. The legal severity against murder was increased on the head of the offending individual; but his kindred were guarded from the revenge of the family of the deceased. If the full were was not discharged within twelve months, the relations of the criminal were exempted from hostility, but on the condition that they afforded him neither food nor protection. If any supported him, he became what would now be termed an accessory after the fact; he forfeited to the king all his property, and was also exposed to the enmity of the relations of the deceased. The king also forbad any wite or homicide to be remitted. 24 And whoever revenged an homicide on any other than the criminal, was declared the enemy of the king and his own friend, and forfeited his possessions. The reason alleged by the sovereign for these and his other provisions was, that he was weary of the unjust and manifold fights which occurred. 25 The object was to extinguish that species of revenge which became afterwards known under the name of deadly feud. This was the fæhthe, the enmity which the relations of the deceased waged against the kindred of the murderer.

THOUGH the wite was all the penalty that society exacted to itself for murder, and the were all the pecuniary compensation that was permitted to the family, yet we must not suppose that murder was left without any other punishment. There seems reason to believe, that what has been called the deadly feud existed amongst them. The relations of the deceased avenged themselves, if they could, on the murderer or his kinsmen. The law did not allow it. The system of wites and weres tended to discountenance it, by requiring pecuniary sacrifices on all homicides, and of course on those of retaliation as well as others. But as all that the law exacted was the fine and the compensation, individuals were left at liberty to glut their revenge, if they chose to pay for it.

23 Wilkins, p. 54.

24 Ibid. p. 73, 74.

25 Ibid. p. 73.

I.

BUT this spirit of personal revenge was early restricted. CHAP. Ina's laws imposed a penalty of thirty shillings, besides compensation, if any one took his own revenge before he had demanded legal redress. 6 So Alfred's laws enjoined, that if any one knew that his enemy was sitting at home, yet that he should not fight with him until he had demanded redress; but he might shut his adversary up, and besiege him for seven days if he could. If at the expiration of this time the person would surrender himself, he was to have safety for thirty days, and to be given up to his friends and relations. The ealdorman was to help those who had not power enough to form this siege. If the ealdorman refused it, he was to ask aid of the king before he fought. So if any one fell accidentally in with his enemy, yet if the latter was willing to surrender himself, he was to have peace for thirty days. But if he refused to deliver up his arms, he might be fought with immediately. 27

If any one took up a thief, he not only had a reward, but the relations of the criminal were to swear, that they would not take the fæhthe, or deadly feud, for his apprehension. 28 So if any one killed a thief in the act of flying, the relations of the dead man were to swear the unceastes oath; that is, the oath of no enmity, or of not taking the fæhthe. 29

EVERY man was ordered to oppose the warfæhthe, if he was able, or could dare to attempt it.

30

EDMUND the First interfered to check this system of personal revenge, with marked severity, as before mentioned. He declared that the delinquent should bear his crime on his own head: and that if his kinsmen did not save him by paying the compensation, they should be

26 Wilkins, p. 16. 27 Ibid. p. 43, 44. 28 Ibid. p. 19.

29 Wilkins and Lye call this the unceases oath, which they interpret unmeaningly the oath not select. The reading of the Roff. MS. is unceastes, which is intelligible, and is obviously an expression synonymous with the unfæhtha oath mentioned in the preceding page. Both passages clearly mean, that the taker and killer of the thief were to be absolved from the fæhthe of his relations. 20 Ibid. p. 22.