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A CASE FROM CRIMINAL LAW.
land; but without a patron of some kind they were vagabonds, whom any man might lawfully slay as thieves. Having, therefore, to protect and control a number of dependants, it was natural that the noble should attempt to withdraw them from the operation of the local courts, in which they had no voice. Special jurisdictions were hence created by the side of the townships and tithings, but with the mark-worthy difference that they were not popular, but aristocratic or feudal. Their appropriate name was the soke, and the men subject to them were soc-men. Their powers were subordinate to the county gemots; their functions were mixed; and they have survived to the present day, the shadows of ancient feudality, as courtsbaron for civil matters, and as courts-leet for the original frank-pledge purpose, the ordering of the police, by a view of the tenantry.3
The country, then, being thus divided into little police federations or jurisdictions, the next point is to understand how justice was administered in criminal cases. One or two actual cases will explain the method of procedure. During the reign of Ethelred, 995 A.D., three brothers were sitting at a feast in Oxford. Their servant, a man named Leofric, stole a halter; he was suspected, and the property found upon him; the owners proceeded to seize him, and the brothers defended him; but as the members of the frith-guild came up, two of the brothers were slain, while the third and Leofric escaped to the sanctuary of St. Helen's, where they were watched by their pursuers. We do not know what actually became of them; but their sanctuary would only give them a respite of nine days, during which if they could not escape, they must make terms with their pursuers by paying the were. If they could not pay the were, they would forfeit their
1 It was seemingly the lord's duty to maintain a recognized police in his domain, "who may lead those men who desire to seek their own."-Edward, 7; A. S. Laws, vol. i., p. 163.
2 Cod. Dip., vol. i., p. xlvi.
3 Blackstone, book iii., chap. 4; book iv., chap. 19.
4 Cod. Dip., 789.
DENIAL OF BURIAL.
freedom, or, except in Wessex, if the pursuers preferred it, their lives. But this case developes a curious feature of early English justice. The sheriff of Buckingham and the town-reeve of Oxford, who had probably come up on hearing of a breach of the peace, allowed the two slain brothers to be buried in holy ground. This was an illegal remission of an important part of the penalty, and the duke of the district accordingly reported the officers to the king, for neglect of duty. Ethelred, however, pardoned them; and, with characteristic weakness, gave Æthelwig, the sheriff, a grant of land to compensate him for the charge. In this case, where the thieves were slain in open breach of the peace, there could be no doubt as to the duty of the king's officers. But if any man were slain red hand unjustly, and in consequence denied Christian sepulture, his kinsmen always had liberty of appeal to a court composed of freemen from the neighbourhood, and presided over by the local authority. Then if the appeal were sustained, the bishop went forth at the head of a solemn procession, with holy water and incense, to take the dead man out of his grave and transfer him to hallowed earth. The offender in such cases was mulcted in a triple fine, which was paid into the bishop's hands.3
Cases where the criminal was not taken in the fact, but was only suspected, were more complicated. To understand them, it must be remembered that circumstantial evidence was impossible in early times; the police who could collect it, the advocates who could arrange it, the court that could sift it, were almost as much unknown in the tenth century as our chemical and microscopical tests. Two points were therefore regarded by the Anglo-Saxon courts as mainly decisive: the respective positions of accusers and accused, and
1 They might either be made slaves or imprisoned.-Ethelred, 7, 16; A S. Laws, vol. i., p. 333.
2 Judicia Civ. Lund., 1; Ine, 5; A. S. Laws, vol. i., pp. 105, 228. But under Edward the Confessor, the criminal was only obliged to make restitution, and could not be seized, except by the priest or the church servants.-Edw. Conf., 8; A. S. Laws, vol. i., p. 445.
Edw. Conf., 36; A. S. Laws, vol. i., p. 460.
NATURE OF COMPURGATION.
their characters in the district. The first was estimated by a graduated scale: a thane's word, for instance, was as valuable as the assertion of six ceorls; a duke's evidence might outweigh that of a whole township. The question of character was decided by the good opinion of the neighbourhood; the accused brought into court a certain number of compurgators, who swore to their belief in his innocence. The advantage of this system was that, in the case of ordinary men, it entrusted the question of their acquittal to those who would suffer hereafter if they let loose a scoundrel upon their village; its disadvantage was, that a weak or unpopular man might be crushed for want of friends, and a great man escape by the number of his following. Still it will prevent confusion to remember that compurgators were neither witnesses to fact, nor a jury, nor part of the court; indeed, evidence was commonly given by simple affirmation; and the imposition of an oath on the compurgators was certainly not from a disregard to perjury, but because the compurgators were scarcely held to incur any risk of forswearing themselves, in declaring their opinion of the man who had selected them as his guarantees."
We learn how these principles were applied from a case that occurred under Canute. A wife, by a second marriage, wishing to secure her husband's affections, administered a philtre to him, and afterwards murdered her step-son, and buried him privily. 3 But trusting that her rank would
1 Oaths, 13; A. S. Laws, vol. i., p. 183. When one Alfnoth challenged property belonging to the monastery of Ramsey, the ealdorman interrupted the case by pledging himself for the truth of the monk's statements. The court, in consideration of his high position and character, at once gave verdict for the defendant, and declared all the plaintiff's property forfeit to the king, as the penalty of a vexatious suit.-Hist. Ram., Gale, vol. iii., pp. 416, 417. For a similar case in Norman times, see Chron. Mon. de Abingdon, vol. ii., p. 229.
2 This, however, would be less applicable to cases in which property was concerned. Cod. Dip., 1237. Under the Normans perjury became so common, that it was said no man's possessions would be safe but for the duel, which was a stronger check than conscience. In civil courts, however, the oath was necessarily as to fact, not as to character.
3 Hist. Ram., Gale, vol. iii., pp. 438-441.
A TRIAL FOR MURDER.
place her above suspicion, she refused to pay the witch who had assisted her the sum covenanted. The witch in her anger went to the bishop and denounced the crime. As the case was one in which canonical laws chiefly had been violated, by the use of witchcraft, and by murder of a child, who was still in his father's power, the bishop cited husband and wife to appear before him. They at first refused to obey, and the bishop did not like to insist, as the husband, Thurkill, was a Dane of high rank. The matter, however, came to the king's ears; Canute first questioned the accused parties himself, and then ordered them to obey the bishop's citation, and clear themselves with compurgators of the crime laid to their charge. The trial took place in public, and in the open air, on account of the multitude who attended; the bishop took care that it should be held in the meadow where the child's body had been concealed; but it is not clear whether he presided in his own right over a special court, or acted in his ordinary capacity as joint-president with the sheriff of the county court. Το give greater solemnity to the proceedings, a deputation from the neighbouring convent of Ramsey attended with a box of relics. Each of the accused had to bring eleven compurgators, and the woman's were of her own sex. The man, kneeling down, with outstretched hand, first swore to his own innocence, and then proceeded to swear to his wife's, wishing to save her the necessity of an oath. Here the trial was interrupted by a miracle: Thurkill had sworn by his beard, and the beard came off in his hand.1 All were now convinced of the lady's guilt, but as she still asserted her innocence, the bishop ordered the grave of the child, which the witch had
1 The usual oath-formula would have been, "By the Lord, I am guiltless, both in deed and counsel, of the charge of which M. accuses me." And the compurgators would then swear, "By the Lord, the oath is clear and unperjured which N. hath sworn." It seems, however, that sometimes, at least in civil cases, the old Roman form of swearing was used, by which the man, casting away a stone, prayed that he might be cast out of the city and his estate, if he were consciously forswearing himself.-Leges Henrici I., v., 29; A. S. Laws, vol. i., p. 511, and note.
NATURE OF THE TESTS FOR CRIME.
pointed out, to be opened; and the murderess confessed her crime, and was ordered the appropriate penance. This would be to abstain from food as on church fasts, during a term of from four to seven years, according to the circumstances of the homicide. It is important to observe, that if the miracle had not occurred, the court would have had to decide whether or not the oath of compurgation was sufficient to clear the accused. In this case, where public feeling was violently excited, they would probably have declared it inadequate, and the ordeal by iron would then have been resorted to. Judging from later custom, even those acquitted by the ordeal might still be expelled the district, if they were not free from suspicion; but it may be questioned if this applied to any landowner who had soc of his own. Modern opinion would be scandalized by the oath of compurgation preceding the opening of the grave. Yet in fact, however suspicions might be confirmed by this verification of the witch's story, it could prove nothing more than a murder of which the witch was cognizant; and if the lady's courage had not broken down, her oath ought to have outweighed that of her accuser. It is probable, however, that under the strong excitement of the moment, her compurgators would have refused to swear for her. In this case she might still have claimed the ordeal.
To commute such a crime as murder for a fine and a penance, appears at first sight insufficient. It was the result of two principles, each more or less right in itself. The Anglo-Saxon state professed to deal only with the secu lar aspects of society; with crime as a moral or religious offence it had nothing to do; it only assessed the losses which crime entailed on individuals or the community, and enforced,
The term of penance for secret murder was four or seven years; for secret murder by magic, seven years; and for perjury in a church or on relics, four years. In this case, therefore, eleven years' punishment might be inflicted.— Ecgb. Conf., 22, 31, 34; A. S. Laws, vol. ii., pp. 149, 157, 159.
2 Ethelred, ii. "If he dare not take the oath, let him go to the triple ordeal." The principle here affirmed of cases involving property, no doubt applied to those in which life was concerned.-A. S. Laws, vol. i., p. 280.