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The England of

the trial, and the folk were the only judges of the demand. Thrice, and before good witness, had the Eegberht. summons to the folk-moot or court to be given by the accuser to the man he charged with the crime, and that at his own house, at the sunsetting, and seven days before the moot. Refusal thrice repeated on the part of the accused to hearken to the summons to make answer in the folk-moot, or to submit to its doom, was a contempt of the folk; but only after three-fold refusal was the folk's "mund" withdrawn from him; till then the wronged man who sought his own vengeance for the wrong broke the folk-frith and became a wrong-doer in his turn.

The feud and the folk.

It was thus that folk-moot and hundred-moot assumed a judicial character. Originally they were no courts of justice in the modern sense of the word; they did not decide on the truth or falsehood of the charge made, still less did they assign a punishment for wrong done. The wrong was still between man and man; its punishment, if punished it was, must be exacted by the wronged man or his kinsfolk from the wrong-doer by sheer fighting; but ere the fight could begin the leave of the folk at large had to be sought and given. The license ran in words long preserved in English law, "homini liceat pugnare, you may fight." But before such a license could be procured, it was needful that the folk should decide that the man had a right to fight; and the accused thus found himself fronted by the oath, the solemn appeal to

1 Ælfred, 42. Thorpe, "Anc. Laws," p. 91.

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2 See the collection of oaths in Thorpe, "Anc. Laws," vol. i. 179-185.

heaven. It may be that here again men looked on their fellow-men as being in the "mund," not only of the folk, but in a higher sense of the gods they served, and that, as the appearance of the accuser before the moot was a seeking for the discharge of the wrongdoer from the protection of the folk, so the oath was a seeking for his discharge from the protection of his heavenly lord and guardian. But whether such a conception, or more dim and vague ideas of awe and dread, as of a vengeance of the gods on men who wronged them by falsehood, gave birth to the oath, it was the soul of the judicial process before the folkmoot. By a fore-oath the accuser stated his charge against the accused; and if the accused met oath with oath the appeal was complete. With the truth or falsehood of the charge the folk had nothing to do: what it had to do was to judge whether the charge was of such a sort, and made in such a way, as to give the accuser fair ground for seeking amends from the accused. If such was its judgment, the folk withdrew its "mund," and suffered the two contending parties to wage their war.

But its jurisdiction was not yet exhausted. As a people interested in its own peace and order, the folk had still the right as it had the power to determine how this war should be waged. Even in the earliest days custom had thrown its bonds round the wild right of private war. It had forbidden all secret vengeance, such as poisoning, all mutilation or coldblooded cruelty, all concealment of the deed. Though

1 He might show, without oath, the wound with which he charged him, and this stood in place of the oath.

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CHAP. I.

Ecg berht.

in vengeance or self-defence a man might slay his foe The if he met him, yet "If a man slay another man in England of revenge or self-defence," ran a law which, late as the date of its embodiment in writing may be, is clearly a record of primæval usage, "let him take to himself none of the goods of the dead, neither his horse, nor helmet, nor shield, nor any money, but in wonted manner let him arrange the body of the dead man, his head to the west, his feet to the east, upon his shield, if he have it; and let him drive deep his lance, and hang there his arms, and to it rein in the dead man's steed; and let him go to the nearest vill and declare his deed to the first man he meets, that he may make proof and have defence against the kindred and friends of the man he has slain." The same web of custom threw itself round the wider warfare of the kin. As late as the days of Ælfred 2 we see the kindred of the slain man gathered, their quick secret ride over the country, the foe's house surrounded and besieged; but not for seven days, ran law or custom, must attack be made, for seven days the vengeance-seeker and his kinsfolk must watch the house, while the wrong-doer within takes counsel with them of his household whether to surrender or to fight. If within these days he chose to surrender, for thirty days more they lay about the house, while the wrong-doer sent about his friends and kinsmen to find men who would aid him in the atonement for his crime, and it was not till these were gathered that taking one of his

1 Hen. 1. 83, sec. 6. Thorpe, "Anc. Laws," i. 591.
2 LI. Ælfred, 42. Thorpe, "Anc. Laws," i. 91.
3 Ll. Eadmund, ii. 7. Thorpe, "Anc. Laws." i. 251.

The England of

house as a spokesman he gave him pledge that he CHAP. I. would make full atonement, and with this pledge the spokesman came forth to the kindred of the slain. Ecgberht. Again in their turn these gave pledge that the slayer might draw near in peace and himself give pledge for the 66 wer," or atonement for his crime. It was only when he stood before them and gave his free pledge for this payment, and strengthened it by giving security for its completion, that the feud was at an end.

reforms.

With all these bounds and limitations, however, Eadmund's the feud became more and more incompatible with the growing sense of humanity and public order. "Both I and all of us," said Eadmund in a proclamation to his people,1 "hold in horror the unrighteous and manifold fightings that exist among ourselves." It jarred too with the conception of personal responsibility that Christianity had introduced, and which was deepening as the bonds of kinship grew weaker with the progress of society. Eadmund's law, indeed, struck a heavy blow at the very principle of kinship:-" If henceforth any man slay another, let him bear the feud himself (save that by the aid of his friends and within twelve months he make amends with the full wer), to be borne as he may. If his kinsmen forsake him and will not pay for him, it is my will that all the kindred be out of feud, save the actual doer of the deed, provided that they do not give him either food or protection.. . . . Moreover, if any of the other man's kinsmen take vengeance upon any man save the actual doer of the deed, let him be foe to the king

1 Ll. Eadmund. Thorpe, "Anc. Laws," i. 246.

England of

CHAP. I. and all his friends and forfeit all that he has." 1 It The was only slowly that so great a change in custom and Egberht feeling as this law implies could be actually brought about, and the feud still remained, however hampered by reforms, the base of our criminal procedure; but its enactment shows that the change had begun, and that two conceptions from whose union our modern justice was to spring, the conception of personal responsibility for crime, and the conception of crime as committed primarily not against the individual but against the public peace, were from this time to exercise a deepening influence on national sentiment.

The

"folk's justice."

In the reforms of Eadmund however we have passed long beyond the jurisprudence of the time of Ecgberht. At the opening of the ninth century English thought was still far from our modern conceptions of justice or law, from the conception of crime as committed primarily against the public peace, as cognizable only by public authority, and as corrected by public punishment. As yet, and for centuries to come, all that either king or community attempted to do was to bring the right of private vengeance and self-protection within definite and customary bounds, to subject it to the previous sanction and permission of the folk in the folk-moot, to provide means for averting it where no good grounds existed for its exercise by solemn oath or ordeal of innocence on the part of the accused, or where such grounds really existed to provide and extend the sphere of a fixed and customary atonement in place of actual blood-shedding. Scant, however, as such a justice may seem to modern eyes, 1 Ll. Eadmund. Thorpe, "Anc. Laws," i. 249.

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