Front Page Titles (by Subject) Chapter VIII: Crime and Tort - The History of English Law before the Time of Edward I, vol. 2
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Chapter VIII: Crime and Tort - Sir Frederick Pollock, The History of English Law before the Time of Edward I, vol. 2 
The History of English Law before the Time of Edward I. Reprint of 2nd edition, with a Select Bibliography and Notes by Professor S.F. Milsom. (Indianapolis: Liberty Fund, 2010). Vol. 2.
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Select bibliography and notes by Professor S. F. C. Milsom, published here as an appendix, was originally published in Cambridge University Press’s 1968 reissue of The History of English Law before the Time of Edward I. Reprinted by permission of Cambridge University Press.
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Crime and Tort
The twelfth century and criminal law.On no other part of our law did the twelfth century stamp a more permanent impress of its heavy hand than on that which was to be the criminal law of after days. The changes that it made will at first sight seem to us immeasurable. At the end of the period we already see the broad outlines which will be visible throughout the coming ages. What lies before us is already that English criminal law which will be fortunate in its historians, for it will fall into the hands of Matthew Hale and Fitzjames Stephen. We go back but a few years, we open the Leges Henrici, and we are breathing a different air. We are looking at a scheme of wer and blood-feud, of bót and wíte. It is one of many similar schemes and is best studied as a member of a great family. To the size of that family we now-a-days can hardly set a limit. From many ages and many quarters of the globe archaeologists and travellers are bringing together materials for the history of wer and blood-feud, while as regards our own Teutonic race a continuous and a well-proved tale can be and has been told. We shall not here retell it, and on the other hand we shall not follow the fortunes of what we may call our new criminal law beyond its earliest days. There are admirable books at our right hand and at our left; our endeavour will be to build a bridge between them.1
The Ancient Law
The old law of crime and wrong.Of the more ancient system we shall say but little. On the eve of the Norman Conquest what we may call the criminal law of England (but it was also the law of “torts” or civil wrongs) contained four elements which deserve attention; its past history had in the main consisted of the varying relations between them. We have to speak of outlawry, of the blood-feud, of the tariffs of wer and bót and wíte, of punishment in life and limb. As regards the malefactor, the community may assume one of four attitudes: it may make war upon him, it may leave him exposed to the vengeance of those whom he has wronged, it may suffer him to make atonement, it may inflict on him a determinate punishment, death, mutilation, or the like.
Outlawry in old law.Though we must not speculate about a time in which there was no law, the evidence which comes to us from England and elsewhere invites us to think of a time when law was weak, and its weakness was displayed by a ready recourse to outlawry. It could not measure its blows; he who defied it was outside its sphere; he was outlaw. He who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a “friendless man,” he is a wolf. Even in the thirteenth century, when outlawry had lost its exterminating character and had become an engine for compelling the contumacious to abide the judgment of the courts, this old state of things was not forgotten; Caput gerat lupinum—in these words the courts decreed outlawry.2 Even in the nineteenth century the king’s right to “year, day and waste” of the felon’s land remained as a memorial of the time when the decree of outlawry was a decree of fire and sword.3
Prominence of outlawry.A ready recourse to outlawry is, we are told, one of the tests by which the relative barbarousness of various bodies of ancient law may be measured. Gradually law learns how to inflict punishment with a discriminating hand. In this respect some of the Scandinavian codes, though of comparatively recent date, seem to represent an earlier stage than any to which our Anglo-Saxon law bears witness; outlawry in them is still the punishment for many even of the smaller deeds of violence. Among our English forefathers, when they were first writing down their customs, outlawry was already reserved for those who were guilty of the worst crimes.4
Blood-feud.Without actively going to war with the offender, the law may leave him unprotected against those who have suffered by his mis-deed; it may concede to them the right to revenge themselves. The slaughter of a member of one by a member of another kin has been the sign for a blood-feud. The injured kin would avenge its wrong not merely on the person of the slayer, but on his belongings. It would have life or lives for life, for all lives were not of equal value; six ceorls must perish to balance the death of one thegn. Whether or no Teutonic law in general, or the Anglo-Saxon law in particular, knew what may properly be called a legal right of blood-feud, is a question that has been disputed. Some writers, while not doubting that blood-feuds were vigorously prosecuted, seem disposed to believe that within the historic time the feud was not lawful, except when the slayer and his kinsfolk had made default in paying the dead man’s wergild, the statutory sum which would atone for his death. Others regard the establishment of these statutory sums as marking an advance, and speak of an age when the injured kin was allowed by law the option of taking money or taking blood. Without attempting to solve this problem, we may say that even in our earliest laws a price is set on life, and that in Alfred’s day it was unlawful to begin a feud until an attempt had been made to exact that sum.5 A further advance is marked by a law of Edmund. He announces his intention of doing what in him lies towards the suppression of blood-feuds. Even the slayer himself is to have twelve months for the payment of the wer before he is attacked, and the feud is not to be prosecuted against his kindred unless they make his misdeed their own by harbouring him: a breach of this decree is to be a cause of outlawry.6
The system of compositions.A deed of homicide is thus a deed that can be paid for by money. Outlawry and blood-feud alike have been retiring before a system of pecuniary compositions, of bót: that is, of betterment. From the very beginning, if such a phrase be permissible, some small of-fences could be paid for; they were “emendable.” The offender could buy back the peace that he had broken. To do this he had to settle not only with the injured person but also with the king: he must make bót to the injured and pay a wíte to the king.7 A complicated tariff was elaborated. Every kind of blow or wound given to every kind of person had its price, and much of the jurisprudence of the time must have consisted of a knowledge of these pre-appointed prices. Gradually more and more offences became emendable; outlawry remained for those who would not or could not pay. Homicide, unless of a specially aggravated kind, was emendable; the bót for homicide was the wergild of the slain.
True punishments.Along with this process and constantly interfering with it went on another, which we may call the institution of true punishments. Perhaps there never was a time in this country when the community did not inflict punishment upon, as distinguished from declaring outlawry against, certain criminals. To distinguish between these two acts may have been difficult. Outlawry was the capital punishment of a rude age. But the outlaw may at times have been reserved, even in the rudest age, for a solemn death; he was devoted to the gods, a human sacrifice.8 Tacitus tells us that in certain cases the Germans inflicted capital punishment by hanging, drowning or burying alive in a morass. The crimes that he mentions include those most hateful to a warlike folk, such as treason and cowardice, and also some misdeeds which may have been regarded as crimes against religion.9 Homicide on the other hand was “emendable” with money, or rather with horses and oxen. The influence of Christianity made for a while against punishment and in favour of “emendation” or atonement.10 The one punishment that can easily be inflicted by a state which has no apparatus of prisons and penitentiaries is death. The church was averse to bloodshed, and more especially to any curtailment of the time that is given to a sinner for repentance. The elaboration of the system of bót among the Germanic peoples is parallel to and connected with the contemporary elaboration of the ecclesiastical system of penance, which is a system of atonements. Nowhere was there a closer relation between the two than in England. Nevertheless during the best age of Anglo-Saxon law, under the kings of the West Saxon house, true afflictive punishment made progress at the expense of emendation. Æthelstan and his wise men issued decree after decree against theft.11 But this victory was hardly maintained by his successors. During the troublous times of the Danish invasions there seems to have been some retrogression; crimes that had ceased to be emendable became emendable once more, and the protests of the church against the frequent infliction of death bore fruit in legislation. Even the reign of Cnut did not turn back this wave, and on the eve of the Conquest many bad crimes could still be paid for with money.
Kinds of punishment.When punishment came it was severe. We read of death inflicted by hanging, beheading, burning, drowning, stoning, precipitation from rocks; we read of loss of ears, nose, upper-lip, hands and feet; we read of castration and flogging and sale into slavery; but the most gruesome and disgraceful of these torments were reserved for slaves.12 Germanic law is fond of “characteristic” punishments; it likes to take the tongue of the false accuser and the perjurer’s right hand. It is humorous; it knows the use of tar and feathers. But the worst cruelties belong to a politer time.
Crime and revenue.One of the many bad features of the system of pecuniary mulcts was the introduction of a fiscal element into the administration of criminal law. Criminal jurisdiction became a source of revenue; “pleas and forfeitures” were among the profitable rights which the king could grant to prelates and thegns. A double process was at work; on the one hand the king was becoming the supreme judge in all causes; on the other hand he was granting out jurisdiction as though it were so much land. In Cnut’s day the time had come when it was necessary and possible for him to assert that certain pleas, certain crimes, were specially his own; that the cognizance and the profits of them belonged only to him or those to whom he had granted an unusual favour. We get our first list of what in later days are called the pleas of the crown. “These are the rights which the king has over all men in Wessex, mund-bryce and hámsócn, forsteal and flýmena-fyrmð and fyrd-wíte . . . And in Mercia he has the same over all men. And in the Danelaw he has fyhtwíte and fyrdwíte and griðbrice and hámsócn.” Breach of the king’s special peace, his grið or mund is everywhere a plea of the crown; so also are hámsócn, the attack on a man’s house, forsteal or ambush, the receipt of fugitives, that is of outlaws, and neglect of military duty.13 After all, however, this list is but a list of the pleas that are ordinarily reserved. The king can give even these away if he pleases.
Cnut’s pleas of the crown.This catalogue of pleas of the crown may at first sight look comprehensive; in reality it covers but little ground. If it looks comprehensive this is because we read a modern meaning into its ancient terms. We may think that every crime can be esteemed a breach of the king’s peace; but breach of the king’s grið or mund had no such extensive meaning. It only covered deeds of violence done to persons, or at places, or in short seasons that were specially protected by royal power.14 Other persons as well as the king have their grið or mund; if it is broken, compensation must be made to them. The church has its peace, or rather the churches have their peaces, for it is not all one to break the peace of a “head-minster” and to break that of a parish church.15 The sheriff has his peace, the lord of a soken has his peace; nay, every householder has his peace; you break his peace if you fight in his house, and, besides all the other payments that you must make to atone for your deed of violence, you must make a payment to him for the breach of his mund.16 The time has not yet come when the king’s peace will be eternal and cover the whole land. Still we have here an elastic notion:—if the king can bestow his peace on a privileged person by his writ of protection, can he not put all men under his peace by proclamation?
Pleas of the crown in Domesday.There are many passages in Domesday Book which in a general way accord with this law of Cnut. King Edward, we are told in one passage, “had three forfeitures” throughout England, breach of his peace, forsteal, and hámfare, which seems the same as hámsócn;17 elsewhere we read of four “forfeitures” which he had throughout his realm;18 in Hereford breach of the peace, forsteal and hámfare are the reserved “forfeitures”;19 larceny, homicide, hámfare and breach of the peace are reserved in one place;20 larceny, breach of the peace and forsteal in another.21 In the land between the Ribble and the Mersey we find longer lists.22 But there certainly were franchises in which even these specially royal pleas belonged to the lord. The Abbot of Battle claimed all the royal forfeitures of twenty-two hundreds as appurtenant to his manor of Wye;23 in his enormous manor of Taunton the Bishop of Winchester had breach of the peace and hámfare;24 the king in Worcestershire had breach of the peace, forsteal, hámfare and rape, save in the lands of Westminster Abbey.25 In short, the pleas of the crown were few, and in many of the lands of the churches they did not belong to the king.
Norman pleas of the sword.It is by no means certain that the Conqueror had enjoyed in Normandy more extensive pleas and forfeitures than those which he could claim in England as the successor of St. Edward. In later days we find that, as the King of England has the pleas of the crown, so the Duke of Normandy has the pleas of the sword, placita spatae, placita gladii. When we begin to get lists of them, their number seems to be already on the increase. By a comparison of such lists we are brought to the conclusion that the placita spatae had once been few in number and of a nature very similar to those “rights over all men” that Cnut reserved for himself. Assault on a highway leading to a city or ducal castle was such a plea; from such highways one had to distinguish by-ways. What Englishmen and Danes, perhaps the Normans themselves, would have called hámsócn or hámfare was such a plea, and in Normandy the sanctity of the house extended over a distance of four perches from its walls. Then in Normandy the plough was sacred; an attack upon a man while at the plough was an offence against the duke. The English forsteal had its Norman representative in the plotted assault, assultus excogitatus de veteri odio, guet-apens. Offences against the duke’s money, and offences against his writs of protection, were pleas of the sword. When from Henry II.’s day we hear that homicide, mayhem, robbery, arson and rape belong to him, we may infer that the duke of the Normans, like the king of the English, has been making good some new and far-reaching claims. Within some of the franchises the duke was reduced to three pleas, disobedience to his summons of the army, attacks on those journeying to or from his court, of-fences that concerned his coin.26
Pleas of the crown in the Norman age.Whatever may have been the pleas and forfeitures of our Norman kings in their ancestral duchy, they seem to have made no very serious endeavour to force new law upon the conquered kingdom. They confirmed the old franchises of the churches, they suffered French counts and barons to stand in the shoes of English earls and thegns and claim the jurisdictional rights which had belonged to their dispossessed antecessores. In charter after charter regalia were showered on all who could buy them. This practice however must be looked at from two sides:—if on the one hand it deprives the king of rights, it implies on the other hand that such rights are his; that he does sell them proves that they are his to sell. As the lists of “franchises” granted in the charters grow longer and more detailed, the idea is gaining ground that no justice of a punitive kind can be exercised by any, save those to whom it has been expressly and indisputably delegated; the danger that criminal justice will be claimed as a normal appurtenance of feudal lordship is being surmounted. Then our good luck ordains that the Old English terms shall become unintelligible, so that a court of the Angevin period will be able to assert that they confer but lowly or impracticable rights.27
Criminal law in Domesday.But we will leave the pleas of the crown for a time in order to consider the general character of criminal law. There are entries in Domesday Book which show us the old rules at work, but at the same time warn us that they are subject to local variations. We see that outlawry is still regarded as the punishment meet for some of the worst crimes. We see the classification of crimes as “emendable” and “unemendable.” We see signs that the line between these two great classes has fluctuated from time to time and still fluctuates as we pass from district to district. We see that many bad crimes are still emendable. A few illustrations may be given. In Berkshire he who slew a man having the king’s peace forfeited his body and all his substance to the king; he who broke into a city by night paid 100 shillings to the king.28 In Oxfordshire he who by homicide broke the king’s peace given under his hand or seal forfeited his life and members to the king; if he could not be captured he was outlaw, and any one who slew him might enjoy the spoil; hámsócn with intent to kill or to wound or to assault brought 100 shillings to the king, while to slay a man in his own house or court caused a forfeiture of life and property to the king, with a saving for the dower of the criminal’s wife.29 At Lewes the fine for bloodshed was 7 s. 4 d.; that for rape or adultery 8 s. 4 d.; in the case of adultery both man and woman paid, the former to the king, the latter to the archbishop.30 In Worcestershire and Shropshire wilful breach of a peace given by the king’s hand was a cause of outlawry;31forsteal and hámfare could be paid for with 100 shillings; in Shropshire the fine for bloodshed was 40 shillings; in Worcestershire rape was not emendable. In Hereford-shire breach of the king’s peace was atoned for by 100 shillings, like forsteal and hámfare. In Urchinfield one could commit hámfare and slay the king’s man without having to pay more than 120 shillings to the king, and arson seems to have cost but 20 shillings. As to the Welshmen in this district, they lived Welsh law and prosecuted the blood-feud, not only against the manslayer, but also against his kin; they ravaged the lands of their enemies so long as the dead man remained unburied; the king took a third of the spoil.32 In Chester to break the king’s peace given by his hand or writ was a crime for which 100 shillings would be accepted, unless it was aggravated by homicide and hámfare, in which case outlawry followed; for mere homicide the fine was 40 shillings, for mere bloodshed 10 shillings, except during sacred seasons, when it was doubled.33 But we have given examples enough.
Criminal law in theLeges.The writer of the Leges Henrici represents the criminal law of his time as being in the main the old law, and we have no reason to doubt the truth of what he tells us. Some crimes are emendable, some are not. Unemendable are housebreach, arson, open theft, that form of aggravated homicide which is known as open morð, treason against one’s lord, breach of the church’s or the king’s hand-given peace when aggravated by homicide. These are emendable with 100 shillings: breach of the king’s special peace, obstruction of the king’s highway, forsteal, hámsócn, receipt of outlaws. In some other cases the criminal must pay his wer; in some it is doubtful whether any emendation need be accepted.34 About homicide we have elaborate tidings. Clearly a mere wilful homicide, when there has been no treachery, no sorcery, no concealment of the corpse, no sacrilege, no breach of a royal safe-conduct, is not unemendable. It still, if not duly paid for, exposes the slayer to the vengeance of the slain man’s kin. But it can be paid for. The tariff however is now very cumbrous. In the simplest case there is the wer of the slain, varying with his rank, to be paid to his kin; there is the manbót to be paid to his lord, and this varies with the lord’s rank; there is the wíte to be paid to the king or some lord who has regalia. But in all probability the offender will have run up a yet heavier bill by breaking some grið; the owner of the house will claim a griðbrice, the owner of the soken will claim fyhtwíte or blódwíte; happy will it be for our manslayer if he has committed neither hámsócn nor forsteal.35
Changes in the twelfth century.Now in England this elaborate system disappears with marvellous suddenness. For it is substituted a scheme which certainly does not err on the side of elaboration. In brief it is this:—(1) There are a few crimes with wide definitions which place life and limb in the king’s mercy. (2) The other crimes are punished chiefly by discretionary money penalties which have taken the place of the old pre-appointed wítes, while the old pre-appointed bót has given way to “damages” assessed by a tribunal. (3) Outlawry is no longer a punishment; it is mere “process” compelling the attendance of the accused.36
Disappearance ofwíteandbót.When we first begin to get judicial records the change is already complete. We have the utmost difficulty in finding a vestige of those pre-appointed “emendations” which, if we believe the writers of the Norman age, were still being exacted in their day. We can only remember one of the old fixed fines that lived on. This is the fine of sixty shillings exacted from the man who is vanquished in the judicial battle; it is the “king’s ban” of the ancient Frankish laws.37 To this we may add that the London citizens of the thirteenth century claimed as a chartered right that none of them could be compelled to pay a higher fine than his wer of a hundred shillings, and the Kentish gavelkinders still spoke of a man being obliged to pay his wer in an almost impossible case.38 The change is not due to a substitution of Norman for English law; we may see the pre-appointed bót in Normandy when we can no longer find it in England.39 The most marvellous revolution however is that which occurs in the law of homicide, for not only does wilful homicide become a capital crime—this we might have expected to happen sooner or later— but the kinsfolk of the slain lose their right to a wer and to compensation of any sort or kind. A modern statute was required to give the parentes occisi a claim for damages in an English court.40 Yet in many parts of western Europe at a comparatively recent time men have sued for a wer; nor only so, they have lawfully prosecuted the blood-feud.41
Oppressive character of the old system.But great as was the change, it begins to look less when we strive to picture to ourselves the practical operation of the old law. The sums of money that it had demanded were to all seeming enormous, if we have regard to the economic position of the great mass of Englishmen. In the books of the Norman age the wer of the mere ceorl, or villanus as he is now called, is reckoned at £4, that of the thegn, or the homo plene nobilis who fills the thegn’s place, is £25.42
In some cases the amount of a wíte seems to have been doubled or trebled by that change in the monetary system which the Conquest occasioned; Norman shillings of twelve pence were exacted instead of English shillings of four or five pence. But in other cases, in which a due allowance was made for the new mode of reckoning, the penalty was still very heavy. A wíte of £5 was of frequent occurrence, and to the ordinary tiller of the soil this must have meant ruin. Indeed there is good reason to believe that for a long time past the system of bót and wíte had been delusive, if not hypocritical. It outwardly reconciled the stern facts of a rough justice with a Christian reluctance to shed blood; it demanded money instead of life, but so much money that few were likely to pay it. Those who could not pay were outlawed, or sold as slaves. From the very first it was an aristocratic system; not only did it make a distinction between those who were “dearly born”43 and those who were cheaply born, but it widened the gulf by impoverishing the poorer folk. One unlucky blow resulting in the death of a thegn may have been enough to reduce a whole family of ceorls to economic dependence or even to legal slavery. When we reckon up the causes which made the bulk of the nation into tillers of the lands of lords, bót and wíte should not be forgotten. At any rate to ask the villanus of Henry I.’s day to pay £5 as an atonement for his crime is to condemn him to outlawry.
Arbitrary element in the old system.Then again, for a long time past there has been in the penal system a much larger element of “arbitrariness” or “discretion” than the dooms disclose to a first glance. Dr. Brunner has shown us how very many of the pure punishments, the “afflictive” punishments, have their root in outlawry.44 They are mitigations of that comprehensive penalty. The outlaw forfeits all, life and limb, lands and goods. This, as law and kingship grow stronger, puts the fate of many criminals into the king’s hands.45 The king may take life and choose the kind of death, or he may be content with a limb; he can insist on banishment or abjuration of his realm or a forfeiture of chattels. The man who has committed one of the bad crimes which have been causes of outlawry is not regarded as having a right to just this or that punishment. Under the new Norman kings, who are not very straitly bound by tradition, this principle comes to the front, and it explains an episode which is otherwise puzzling, namely, the ease with which punishments were changed without any ceremonious legislation. The Conqueror would have no one hanged; emasculation and exoculation were to serve instead.46
Henry I. would now take money and now refuse it.47 He would reintroduce the practice of hanging thieves taken in the act.48 Loss of hand and foot became fashionable under Henry II.; but we are told of him that he hanged homicides and exiled traitors.49 Very slowly in the course of the thirteenth century the penalty of death took the place of mutilation as the punishment due for felons, and this without legislation. The judges of that age had in this matter discretionary powers larger than those that their successors would wield for many centuries, and the kings could favour now one and now another punishment.50 Such changes could take place easily, because a main idea of the old law had been that by the gravest, the unemendable, crimes a man “forfeited life and member and all that he had.” It was not for him to complain if a foot was taken instead of his eyes, or if he was hanged instead of being beheaded.
Felony and Treason
Causes of the change.We have not far to seek for political, social and economic causes which in the twelfth century were making for revolution and reconstruction in the domain of criminal law. Some of them were common to many lands, others were peculiar to England. We might speak of the relaxation of the bond of kinship which was caused by the spread of vassalage,—of the presence of numerous foreigners who had no kin but the king,—of the jostle between the various tariffs, Saxon, Scandinavian, Frankish,—of the debasement of the great bulk of the peasants under a law of villeinage which gave their lords a claim upon those chattels that might otherwise have paid for their misdeeds—of the delimitation of the field of justice between church and state, which left the temporal power free to inflict punishment without first going through the ceremony of demanding an almost impossible atonement—or again, of the influence of Roman law, which made for corporal pains but would leave much to the discretion of the judge,—or lastly, of a growing persuasion that the old system of pre-appointed bót and wíte, which paid no heed to the offender’s wealth, was iniquitous. It is not for us to describe all these converging forces; it must be enough if we can detect the technical machinery by which they did their work.
How the change was effected.The general character of this process will become plain if we here repeat the words which in Bracton’s day are the almost invariable preamble of every charge of grave crime. We will suppose that Alan is going to accuse William of wounding, robbery or the like. He will say that “Whereas the said Alan was (a) in the peace of God and of our lord the king, there came the said William (b) feloniously as a felon (felonessement com felon), and (c) in premeditated assault” inflicted a wound on Alan, or robbed him of his chattels. Now here, if we have regard to past history, Alan accuses William not only of the crime of wounding or (as the case may be) of robbery, but of three other crimes, namely, (a) a breach of the king’s peace, (b) a felony, (c) forsteal, way-laying, guet-apens.51
The king’s peace.The phrase which tells how Alan was in the peace of God and of our lord the king, though it may rapidly degenerate into a “common form,” must have been originally used for the purpose of showing both that the crime in question was one of the reserved pleas of the crown and that it was a heinous, if not a bootless, crime. The allusion to the peace of God may be an echo of the treuga Dei which had at one time been enforced in Normandy, if not in England, and which, when it had attained its largest scope, comprehended many holy seasons and a long half of every week: but we do not know that it was of much importance in this country.52 Be this as it may, the words about the king’s peace have had a definite meaning; they point to a breach of the king’s grið or mund, a crime which at all events deserves the heavy wíte of a hundred shillings, and which, when coupled with homicide, has been unemendable.53 The manner in which the king’s grið or mund has been extending itself, until it begins to comprehend all places within the realm, all persons who are not outlaws and every time which is not an interregnum, we must not describe at any length.54 When the Conqueror declared that all the men whom he had brought hither were within his peace, he was spreading abroad his mund.55 Precedents from the thirteenth century suggest that in this process of generalization the king’s high-way was an useful channel. Often the appellor is supposed to say not merely that he was in the king’s peace, but also that he was on the king’s high-way when he was assaulted, and this assertion, though it has already become a mere rhetorical ornament, has assuredly had a past history:—appellors have been suffered or encouraged to declare that deeds were done on the high-way which really were done elsewhere, and the specially royal roads are losing their prerogative.56 Already in Glanvill’s day it is understood that an accuser can place an assault outside the competence of the local courts by some four or five words about the king’s peace.57
The king’s peace at its widest.But the very ease with which the king’s peace spread itself until it had become an all-embracing atmosphere prevented a mere breach of that peace from being permanently conceived as a crime of the highest order. Every action of trespass in the king’s court supposes such a breach; every convicted defendant in such an action must go to prison until he pays a fine to which the law sets no limits; and yet the day for nominal trespasses is approaching; a breach of the king’s peace may do no perceptible harm, and accusations of that offence will be freely thrown about in actions which are fast becoming merely civil actions.
Felony.It was otherwise with felony. This becomes and remains a name for the worst, the bootless crimes. Hardly a word has given more trouble to etymologists than the low Latin felo, which starting from France finds a home in many languages.58 We are now told that Coke’s guess may be right after all59 and that “of the many conjectures proposed, the most probable is that fell0¯ne-m is a derivative of the Latin fell-, fel, gall, the original sense being one who is full of bitterness or venom,” for gall and venom were closely associated in the popular mind. When the adjective felon first appears it seems to mean cruel, fierce, wicked, base.60 Occasionally we may hear in it a note of admiration, for fierceness may shade off into laudable courage;61 but in general it is as bad a word as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft. Now in the language of continental law it seems soon to have attached itself to one class of crimes, namely, those which consist of a breach of that trust and faith which should exist between man and lord. The age in which felon became a common word was the age in which the tie of vassalage was the strongest tie that bound man to man. We have seen that in England felonia threatened for a while to bear a narrow meaning and only to cover offences similar to those which at a later time were known as high and petty treasons.62 But in England and in Normandy63 something saved it from this fate and gave it a wider meaning. This something we shall probably find in the rule that the felon’s fee should escheat to his lord. The specific effect of the “words of felony” when they were first uttered by appellors, who were bringing charges of homicide, robbery, rape and so forth, was to provide that, whatever other punishment the appellees might undergo, they should at all events lose their land. The magnates saw no harm in this, though in truth the extension of felony, if it might bring them some accession of wealth, was undermining their power.64
The felonies.At all events this word, expressive to the common ear of all that was most hateful to God and man, was soon in England and Normandy a general name for the worst, the utterly “bootless” crimes. In later days technical learning collected around it and gave rise to complications, insomuch that to define a felony became impossible; one could do no more than enumerate the felonies. But if we place ourselves in the first years of the thirteenth century some broad statements seem possible. (i) A felony is a crime which can be prosecuted by an appeal, that is to say, by an accusation in which the accuser must as a general rule offer battle.65 (ii) The felon’s lands go to his lord or to the king and his chattels are confiscated. (iii) The felon forfeits life or member. (iv) If a man accused of felony flies, he can be outlawed. Conversely, every crime that can be prosecuted by appeal, and every crime that causes a loss of both lands and goods, and every crime for which a man shall lose life or member, and every crime for which a fugitive can be outlawed, is a felony.66
Import of felony.We thus define felony by its legal effects; any definition that would turn on the quality of the crime is unattainable. We may see, however, that in Bracton’s day the word imports a certain gravity in the harm done and a certain wickedness in the doer of it. The justices have been compelled to set limits to the “appeal of felony,” for sometimes not only the accuser but the accused also will be desirous of using for the settlement of trivial disputes a process which sanctifies a good open fight in the presence of a distinguished company. “Wickedly and in felony you struck the dust from my cap”—if, says Bracton, an appellor speaks thus, the justices must quash the appeal although the appellee wishes to deny the charge “by his body.”67 In the department of violence to the person a line is drawn between the wound and the bruise; “blind blows” which neither break bone nor draw blood are no sufficient foundation for a charge of felony.68 But the word is also being used to signify the moral guilt which deserves a punishment of the highest order. Homicide by felony is frequently contrasted with homicide by misadventure, homicide by self-defence and homicide committed by one who is of unsound mind.69
Pre-meditated assault.In this context the word felony is often coupled with what will in the future be another troublesome term of art, to wit, malice aforethought or malice prepense (malitia excogitata, praecogitata). This has a past as well as a future history. If we look at the words which an appellor commonly uses, we shall find that, though he does not speak of premeditated malice, he does charge his adversary with a premeditated assault (assultus praemeditatus).70 Now this, we take it, is a charge of another of the old pleas of the crown; it is a charge of way-laying, of forsteal.71 In the French Leis Williame the English forsteal is represented by agwait purpensé,72 premeditated awaiting, the guet-apens of modern French law. In Normandy the appellor spoke of aguet purpensé just where in England he spoke of assault purpensé.73 The idea on which stress is being laid is becoming a little more general than it once was; a premeditated, or as we should say intentional, assault takes the place of lying in wait, lying in ambush. A further generalization may be seen when in the thirteenth century the chancery is beginning to contrast a homicide by misadventure, which deserves a pardon, with a homicide which has been committed in felonia et per malitiam praecogitatam.74Malice afore-thought.The word malitia is more general than the word assultus; it is indeed a large word, equivalent perhaps to our wrong-doing, and a larger word than assault is necessary, because we may wish to state that the man who is being pardoned for an excusable homicide was guiltless, not only of an intentional assault, but of any act intended to do harm. In course of time the term malitia has brought many difficulties upon English lawyers. Of these we must not speak, but we believe that in this case it is rather the popular than the legal sense of the word that has changed. When it first came into use, malitia hardly signified a state of mind; some qualifying adjective such as praemeditata or excogitata was needed if much note was to be taken of intention or of any other psychical fact. When we first meet with malice prepense it seems to mean little more than intentional wrong-doing; but the somewhat weighty adjectives which are coupled with malitia in its commonest context—adjectives such as excogitata—are, if we mistake not, traces of the time when forsteal, guet-apens, waylaying, the setting of ambush, was (what few crimes were) a specially reserved plea of the crown to be emended, if indeed it was emendable, by a heavy wíte.75
The group of felonies.By the process which we have endeavoured to trace a certain group of crimes, comprising homicide, mayhem, wounding, false imprisonment, arson, rape, robbery, burglary and larceny, was broadly marked off from all the minor offences. They were felonies and unemendable crimes which deserved a judgment “of life or member”; they worked a disherison. We shall have more to say of them; but before we carry our story any further we ought to state briefly such answer as modern researches enable us to give to a general question about culpability.
Culpability in ancient law.What is the measure of culpability that ancient law endeavours to maintain? Is it high, is it low? Do we start with the notion that a man is only answerable for those results of his actions that he has intended, and then gradually admit that he is sometimes liable for harm that he did not intend, or, on the other hand, do we begin with a rigid principle which charges him with all the evil that he has done, and then do we accept first one and then another mitigation of this rule?76 There seems to be now little room for doubt that of these two answers the second is the truer. Law in its earliest days tries to make men answer for all the ills of an obvious kind that their deeds bring upon their fellows.
Causation in ancient law.Guesswork perhaps would have taught us that barbarians will not trace the chain of causation beyond its nearest link, and that, for example, they will not impute one man’s death to another unless that other has struck a blow which laid a corpse at his feet. All the evidence however points the other way:—I have slain a man if but for some act of mine he might perhaps be yet alive. Very instructive is a formula which was still in use in the England of the thirteenth century; one who was accused of homicide and was going to battle was expected to swear that he had done nothing whereby the dead man was “further from life or nearer to death.”77 Damages which the modern English lawyer would assuredly describe as “too remote,” were not too remote for the author of the Leges Henrici. At your request I accompany you when you are about your own affairs; my enemies fall upon and kill me; you must pay for my death.78 You take me to see a wild-beast-show or that interesting spectacle a madman; beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay. In none of these cases can you honestly swear that you did nothing that helped to bring about death or wound.79
Absolute liability for the effects of acts.If once it be granted that a man’s death was caused by the act of another, then that other is liable, no matter what may have been his intentions or his motives. To this principle our evidence directs us, though for an unmitigated application of it we may have to look to a prehistoric time. In a yet early age law begins to treat intentional as worse than unintentional homicide. In either case the wer is due; but in the one there can, in the other there cannot, be a legitimate feud; intentional homicide must be paid for by wíte as well as wer, unintentional by wer without wíte, at all events if the slayer, not waiting for an accusation, proclaims what he has done and proves that there was misadventure.80 We may see in curious instances a growing appreciation of moral differences which has not dared to abolish, but has tried to circumvent the ancient law. The old code of the Swabian race declares that if you are slain by the bite of my dog I must pay half your wer. In strictness your whole wer can be demanded; but if a kinsman of yours is unreasonable enough to exact this, he must submit to have the corpse of the dog hanging over his door-way until it rots and perishes.81 A parallel passage in our own Leges Henrici says that if by mischance you fall from a tree upon me and kill me, then, if my kinsman must needs have vengeance, he may climb a tree and fall upon you.82 Even when a demand for the wer is becoming obsolete, and the general rule is that he who slays another must be put to death, men are still unable to formulate a principle which will excuse any manslayer, however morally innocent he may be, unless indeed his act falls within one of a few narrow categories such as that which comprises the execution of a lawful sentence. Such manslayers as no one would wish to hang are not acquitted, but are recommended to the “mercy” of judges and princes, for the rigor iuris holds them answerable for all the effects of their actions.83
Liability for the acts of slaves and beasts.But the most primitive laws that have reached us seem to point to a time when a man was responsible, not only for all harm done by his own acts, but also for that done by the acts of his slaves, his beasts, or—for even this we must add—the inanimate things that belonged to him.84 Law which demands a “noxal surrender” of the peccant slave or ox is already a mitigation of older law which would not have let the master off so easily. As regards the delicts of slaves, various laws of the same family soon begin to go different ways, for there are here many difficult problems to be solved. However firmly we grasp the principle that a slave is a thing, we cannot help seeing that the state may with advantage treat slaves as capable of committing crimes and suffering punishments, and when the state has begun to punish the slave it begins to excuse the master, provided that he will deliver the slave to justice. The same principle can be applied with some modifications to the case of beasts. Ancient law will sometimes put the beast to death, and will not be quite certain that it is not inflicting punishment upon one who has deserved it.85 But the most startling illustrations of its rigour occur when we see a man held liable for the evil done by his lifeless chattels, for example, by his sword. If his sword kills, he will have great difficulty in swearing that he did nothing whereby the dead man was “further from life or nearer to death.” If you hand over your sword to a smith to be sharpened, see that you get it back “sound,” that is to say, with no blood-guiltiness attaching to it, for otherwise you may be receiving a “bane,” a slayer, into your house.86 But let us hear the enlightened Bracton on this matter, for old popular phrases will sometimes crop up through his rational text. “If a man by misadventure is crushed or drowned or otherwise slain, let hue and cry at once be raised; but in such a case there is no need to make pursuit from field to field and vill to vill; for the malefactor has been caught, to wit, the bane.”87 Yes, the malefactor, the bana, the slayer, has been caught; a cart, a boat, a mill-wheel is the slayer and must now be devoted to God.
The deodand.Our English law of deodands gives us a glimpse into a far off past. In 184688 we still in theory maintained the rule that any animate or inanimate thing which caused the death of a human being should be handed over to the king and devoted by his almoner to pious uses, “for the appeasing,” says Coke, “of God’s wrath.” In the thirteenth century the common practice was that the thing itself was delivered to the men of the township in whose territory the death occurred, and they had to answer for its value to the royal officers. In very early records we sometimes find that the justices in eyre name the charitable purpose to which the money is to be applied; thus the price of a boat they devote “for God’s sake” to the repair of Tewkesbury bridge,89 and the sister of a man who has been run over obtains the value of the condemned cart, since she is poor and sick.90 Horses, oxen, carts, boats, mill-wheels and cauldrons were the commonest of deodands. In English men called the deodand the bane, that is, the slayer.91 In accordance with ancient ideas this bane, we take it, would have gone to the kinsmen of the slain; the owner would have purchased his peace by a surrender of the noxal thing; but what we have said above about intestacy92 will prepare us to see that in the thirteenth century the claim of a soul which has been hurried out of this world outweighs the claim of the dead man’s kinsfolk, and in the past they will have received the bane, not as a compensation for the loss that they suffered, but rather as an object upon which their vengeance must be wreaked before the dead man will lie in peace.93 Even therefore when, as was commonly the case, the bane was a thing that belonged to the dead man, none the less it was deodand.94
Restriction of culpability.The deodand may warn us that in ancient criminal law there was a sacral element which Christianity could not wholly suppress, especially when what might otherwise have been esteemed a heathenry was in harmony with some of those strange old dooms that lie embedded in the holy books of the Christian. Also it is hard for us to acquit ancient law of that unreasoning instinct that impels the civilised man to kick, or consign to eternal perdition, the chair over which he has stumbled.95 But law which would not confess to sanctioning this instinct still finds grave difficulties in its way if it endeavours to detect and appreciate the psychical element in guilt and innocence. “The thought of man shall not be tried, for the devil himself knoweth not the thought of man”:—thus at the end of the middle ages spoke Brian C. J. in words that might well be the motto for the early history of criminal law.96 It cannot go behind the visible fact. Harm is harm and should be paid for. On the other hand, where there is no harm done, no crime is committed; an attempt to commit a crime is no crime.97 We may fairly remember in our ancestors’ favour that in their day the inference that he who kills has meant to kill, or at least to wound, was much sounder than it would be now when, the blood-feud having been suppressed and murders being rare, we have surrounded ourselves with lethal engines, so that one careless act may slay its thousands. But in truth the establishment of a reasonable standard of responsibility is a task which can only be accomplished after many experiments. A mean must be found between these two extremes—absolute liability for all harm done, and liability only for harm that is both done and intended. Even criminal law cannot be satisfied with the latter of these standards. We hang as guilty of “wilful murder by malice aforethought” the man who killed when he meant only to inflict some grievous bodily harm, and we have not even yet so precisely defined the murders which deserve death that all recommendations to the king’s “mercy” have become unnecessary. Ancient law comes but gradually to a distinction between civil and criminal liability and has no large choice of penalties. The modern judge with a convicted manslayer before him has beneath his fingers a whole gamut of punishments ranging from life-long penal servitude to a trivial fine. The doomsmen of old days must exact the wer or let the slayer go quit. To exact half a wer if there was some, but little, guilt may well have seemed an illogical compromise to the straiter sort of lawmen. And as regards civil liability, even now-a-days the rule that a man ought to pay for all the harm that he does to his neighbours will seem equitable enough to a first glance, and but a few years ago there were plausible, if insufficient, grounds for the assertion that in English courts a plea that there was neither negligence nor an intent to do harm was no answer to an action which charged the defendant with having hurt the plaintiff’s body.98 Any such ideas as the Roman culpa or our modern English negligence are but slowly fashioned. Ancient law has made a great advance when it has held that, though a wer or bót is due, there is not that intentional wrong-doing which calls for a wíte or lets loose the blood-feud.99
Mens rea.Of course the Christian church in her penitential books, which exercised a not inconsiderable influence on the parallel tariff of wíte and bót, laid stress on the mental elements in sin. Still some of the earliest of those books set up a very high standard of liability, even in foro conscientiae, for remote and unintended harm.100 This may be due in part to that nervous horror of blood which at a later time would prevent an ordained clerk from taking part in a surgical operation, but is due in part to the example set by temporal law and public opinion. We receive a shock of surprise when we meet with a maxim that has troubled our modern lawyers, namely, Reum non facit nisi mens rea, in the middle of the Leges Henrici101 among rules which hold a man answerable for all the harm that he does, and not far off from the old proverb, Qui inscienter peccat, scienter emendet. But the borrowed scrap of St. Augustine speaks only of perjury, and that any one should ever have thought of charging with perjury one who swore what he believed to be true, this will give us another glimpse into ancient law.102
Influence of Roman law.In the twelfth century the resuscitated Roman law introduced some new ideas. Men began to contrast, as Glanvill does, civil with criminal causes, to speak of dolus and culpa and casus, and to lay stress on the psychical element in crime. Bracton has borrowed from Azo many generalities about crimes and punishments; he has himself looked at Code and Digest; he has transplanted a discourse on homicide from the works of Bernard of Pavia, a distinguished canonist.103 Of homicide the canonists had by this time much to say, and much that concerned Englishmen. We must remember that, according to the clerical contention, a clerk charged with crime could be tried only by a spiritual court, and that this contention, at least so far as the felonies were concerned, was sanctioned by the law of England.104 They had therefore ample occasion for enforcing, not merely in the confessional, but by a public and coercive procedure their doctrine of the various shades of homicidal guilt, and they now had the old Roman texts before them. Some of the most renowned decretals about this matter were addressed to English prelates and dealt with English cases.105 In the thirteenth century a rudely complete table had been constructed of the various sorts of homicide; and this Bracton lifted from the famous Bernard.106 On the whole, the canonical scheme of responsibility was by no means unduly lenient; it fully acquitted the man who slew his fellow by misadventure, if, but only if, his act was in itself lawful and was also done with all due care. It could afford to define various degrees of guilt, because it could command a scale of punishments which stretched from perpetual incarceration to that mere disablement from further promotion which would be the penalty of a clerk who had been but slightly careless. For this reason in Bracton’s text we may see Bernard’s doctrine of homicide floating on the surface of, and scarcely mingling with the coarser English law, which hardly knew what to do with a manslayer who was not guiltless but did not deserve to be called a felon and put to death.
The felonies.We may now examine one by one the felonies of Bracton’s age.107
Homicide.Homicide is the crime of which there is most to be said, but the practicable English law that lies beneath the borrowed Italian trappings is rude. In a few cases homicide is absolutely justifiable and heWhen justifiable. who commits it will suffer no ill. One such case is the execution of a lawful sentence of death. Another—and this is regarded as a very similar case—is the slaying of an outlaw or a hand-having thief or other manifest felon who resists capture. Only under local custom on the wild Welsh march may one slay an outlaw who makes no resistance.108 The furthest point to which we have seen this class of cases stretched is marked by a judgment of 1256. A lunatic chaplain had broken into a house by night; a servant of the householder struck him on the head so that he died; the justices suffered the slayer to go quit.109 Bracton in his text would allow a man to slay a housebreaker, if to do so was a necessary act of self-defence; but in his margin he noted a case of this kind in which the slayer was pardoned by the king.110 There was need in 1293 for a statute to say that in certain circumstances a forester or parker was to be acquitted of the death of a trespasser whom he was endeavouring to arrest and slew in the endeavour.111 In 1532 there was need for a statute to say that a person who killed any one who attempted to rob him in his own house or on or near the high-way should not incur a forfeiture of his goods.112 Altogether in our common law the sphere of justifiable homicide was very narrow, and the cases which fell within it were those which in old times would have been regarded less as cases of legitimate self-defence than as executions, for the fur manifestus had been ipso facto an outlaw.113
Misadventure and self-defence.The man who commits homicide by misadventure or in self-defence deserves but needs a pardon. Bracton cannot conceal this from us,114 and it is plain from multitudinous records of Henry III.’s reign. If the justices have before them a man who, as a verdict declares, has done a deed of this kind, they do not acquit him, nor can they pardon him, they bid him hope for the king’s mercy.115 In a precedent book of Edward I.’s time a justice is supposed to address the following speech to one whose plea of self-defence has been endorsed by the verdict of a jury: “Thomas, these good folk testify upon their oath to all that you have said. Therefore by way of judgment we say that what you did was done in self-defence; but we cannot deliver you from your imprisonment without the special command of our lord the king; therefore we will report your condition to the king’s court and will procure for you his special grace.”116
Pardons for homicide.On the patent rolls of Henry III. pardons for those who have committed homicide by misadventure, in self-defence, or while of unsound mind, are common. Their form is the following:— Whereas we have learnt by an inquest taken by so and so (sometimes it is taken by the sheriff in full county court)— or Whereas our justices in their eyre in such a county have informed us after an inquest taken before them—that Nicholas of Frackenham slew Roger of Mepham by misadventure and not by felony or malice aforethought— or that William King killed Ralph de le Grave in self-defence and not of malice aforethought, for that the said Ralph ran upon a lance that William was holding— or that Walter Banastre, intending to chastise his son Geoffrey, wounded him by misadventure and not by felony in the arm so that he died— or that Maud who is in prison for slaying her two sons killed them in a fit of madness and not by felony or malice aforethought— or that Alexander of Gathurst aged twelve killed Helowise daughter of John le Hey aged less than eleven by misadventure and not by felony or malice aforethought— or that Alan Blount imprisoned by our bailiffs of Lincoln for suspicion of robbery died from the severity of the imprisonment and not by the act of Adam Williamson—now we have pardoned to him the suit which pertains to us for the said death (or, in appropriate cases, the outlawry promulgated against him), and have granted him our firm peace, but so that he shall stand to right in our court if any one (or, if any of the kinsfolk of the slain) desires to complain against him.117
Practice in cases of excusable homicide.From these pardons we learn that sometimes a person charged with homicide obtained a writ from the king ordering the sheriff, or the coroners, to take an inquest as to whether there was felony or misadventure, while at other times the justices in eyre had an accused person before them and took a similar inquest. In either case, if the jurors gave a favourable verdict, a pardon was granted. In 1278 the procedure was reformed by the Statute of Gloucester.118
No more writs for inquests were to be granted, but the accused was to appear before the justices and “put himself upon the country for good and ill.” In case the jurors returned a verdict of “misadventure” or “self-defence,” the justices were to report the case to the king, who would, said the statute, if it pleased him, take the accused into his grace. This change had the effect of bringing all these cases under the eye of the justices and apparently of keeping in prison men who in former times might have obtained a speedier pardon. The statute is far from suggesting that these pardons were already “pardons of course,” though such they became in a later age. In one respect however our law increased its severity. So far as we can see, the homicide who obtained a pardon on the score of misadventure or self-defence (unless he had fled on account of his deed), did not in Henry III.’s time incur that forfeiture of his chattels which was inflicted upon him in after days.119 But very often he had fled, and this, so it seems to us, may have enabled our ever needy kings to establish forfeiture as a general accompaniment of the “pardon of course.” According to the rigour of the law such a forfeiture might have been exacted even in the year 1828.120
Liability and misadventure.A misinterpretation of the statute of Marlborough led some lawyers of a later age, among whom was Coke, to believe that before the year 1267 the man who killed another in self-defence or by misadventure was hanged.121 Their error has been sufficiently exposed by modern writers, who however have been too loud in their exclamations over its absurdity.122 The clause in question dealt, not with the crime of homicide, but with the murdrum, the murder-fine exacted from the hundred. It declared that this was not to be levied when a death occurred by misadventure. In so doing it overruled a contrary custom of some shires which in a recent famine had become intolerable—there were so many starved corpses to be paid for.123
This however, even when rightly interpreted, will give us food for reflection. An accidental death has been paid for by a murdrum, by a fine, a portion of which under the law of the Norman age went to the kindred of the dead man. Before we laugh at Coke let us look at a body of law which stands very near our own. The earliest of the Norman custumals declares in the plainest words that the man who kills his lord by misadventure must die; he will escape the torment of being “drawn,” but he must die.124 And what, let us ask, could an Englishman have done if about the year 1180 he had been appealed of homicide and had desired to urge that it was the result of misadventure? At that time he would have had no right to put himself upon a jury “for good and ill,” and we see no trace of his being able to set up the misadventure by way of “exception.”125 We believe that he must have gone to battle, and that, vanquished in battle, his life and members would have been in the king’s mercy.
The pardon and the offended kin.The king could not protect the manslayer from the suit of the dead man’s kin. Even when the pardon was granted on the score of misadventure, this suit was saved by express words. Proclamation was made in court inviting the kin to prosecute, but telling them that they must come at once or never.126 What could the kin do in such a case? They could make themselves extremely disagreeable; they could extort money. In Henry III.’s day Mr. Justice Thurkelby was consulted by a friend who had obtained a pardon, but was being appealed. The advice that the expert lawyer gave was this:—You had better go to battle; but directly a blow is struck cry “Craven” and produce your charter; you will not be punished, for the king has given you your life and members.127
History of misadventure.We do not say that the law of England was ever committed to the dogma that he who slays by misadventure must be put to death. We take the truth to be this:—Far into the twelfth century the main theory of the law still was that an intentional homicide could be paid for by wer and wíte; but there were exceptions which devoured the rule, and, under cover of charges of felony, guet-apens and breach of the king’s peace, intentional homicide became an unemendable crime to be punished with death or mutilation. What to do with cases of misadventure, the law did not see. In the past many or all of them had given occasion for a wer, if not for a wíte or a blood-feud. There was nothing for it but “mercy”; the king himself must decide in each case whether life and limb shall be spared. Meanwhile the law of wer, being no longer applicable if there was felony, perished for lack of sustenance, and the parentes occisi were reduced to getting what they could by threats of an appeal.128 That a man who kills another in self-defence should require a pardon will seem to us even more monstrous than that pardons should be needed where there has been misadventure, for the “misadventure” of this age covers many a blameworthy act. But the author of the Leges Henrici, if we read him rightly, would demand a wer from the self-defender,129 and our law when she puts self-defence on a par with misadventure is accompanying her French sister. In France, as in England, throughout the later middle ages and far on into modern times the king’s lettres de grâce were granted to those who had slain a man per infortunium vel se defendendo.130 We are not dealing with an insular peculiarity.
Homicide by young children.It is with difficulty that even a child can escape the hard law. “Reginald aged four by misadventure slew Robert aged two; the justices granted that he might have his life and members because of his tender age.”131 A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide.132
Limits of misadventure and self-defence.The records of this time are so curt that we can frame no severe theory as to the boundary that divided felonious homicide from homicide by misadventure; only this we may notice, that the one word “misadventure” (Lat. infortunium) does duty both in cases in which no human agency, unless it be the sufferer’s own, has brought an untimely death upon him, so that there is nothing for justice to do but to exact a deodand, and also in cases in which the act of another has intervened and there is need for a pardon. Then again, in cases of the latter sort we never hear of “negligence” or of any similar standard of liability, though just once by the way we see a boy, who frightened a horse which threw and killed its rider, sent back to gaol pro stultitia sua.133 As to the limits of pardonable defence, we may guess that they were somewhat wide and that a man might “without felony” slay in defence of his own life or that of his wife or of his lord or of any member of his household;134 but there could be little law about this, for all depended upon the king’s “grace.” On the other hand, anything like vengeance or the prosecution of a feud, even against the homicide, would have been sternly suppressed. There are signs that the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair or either of them, but might emasculate the adulterer.135
Homicide unemendable.By this time it was law, except perhaps in the Welsh marches,136 that if the king could not absolve a slayer from the suit of the kinsfolk of the slain, they on the other hand could not absolve him from the king’s suit or save him from the gallows. In 1221 a Basset was hanged after he had made his peace with the family of the dead man,—a peace that was ratified by a marriage and sanctioned by the sheriff—and the dead man’s widow was amerced for discontinuing her appeal.137 Still to the end of our period an appeal rather than an indictment is the normal procedure against criminals. Some offences are punished far more heavily when conviction has been secured by an appeal than when the offender is arraigned at the king’s suit.138
Murder.Every homicide that is neither justifiable nor yet excusable as the result of misadventure or self-defence, is in Bracton’s age felonious; also it is conceived as having been perpetrated by “premeditated assault” or by “malice aforethought”;139 also it earns the punishment of death—usually death by hanging; but this will be aggravated by “drawing” if there has been petty treason, or, in other words, if a man has slain his lord, a servant his master, a wife her husband. If we leave out of sight this additional torment for traitors, we may say that our law knows but one degree of criminal homicide; it does not yet know the line that will divide “murder” from “manslaughter.”140 This is somewhat strange, for from of old the Germanic peoples have commonly treated under the head of morth a few aggravated kinds of homicide which were unemendable crimes, while mere open and intentional slaying was emendable. The word morth, which was known to Normans as well as to Englishmen,141 seems to imply concealment, in particular the hiding away of the dead body.142 But in our twelfth century a levelling process was at work; it made “unemendable” all homicide that was regarded as worthy of heavy punishment. In Latin and French forms (murdrum, murdre) the old morth lived on, and in Glanvill’s day one had still to distinguish that secret homicide which is murdrum from a mere homicidium. As the prosecutor for a murdrum only a near kinsman of the slain may appear, while any one connected with the slain by blood, homage or lordship may take action if there has been open homicide.143 The point of the distinction seems to be this, that normally an appellor must declare that he saw the crime committed, but that, this being impossible in the case of a murdrum, very close kinsmen are allowed to take action without protesting that they were eye-witnesses of the deed.144 This distinction soon dropped away, for more and more the words about eye-sight became a “common form” which every appellor was expected to utter and from which no appellor shrank; also the vassal was slowly losing his right to bring an appeal for the death of his lord.145
The murder fine.In this region therefore the old term had no further part to play. It had also, however, found a place for itself in those cases in which under the Conqueror’s law146 the hundred paid a fine when a foreigner was slain and the slayer was not produced. This fine and its cause were alike known as a murdrum: it was a fine occasioned by a secret homicide, a homicide secret in this sense that no one was brought to justice as its author. In every eyre of the thirteenth century numerous murdra were exacted and a jurisprudence of murdra was evolved.147 We will notice only a few salient points.148 The original murdrum was a sum of 46 marks, of which 40 went to the king, 6 to the kinsfolk of the slain;149 but our earliest rolls show us that this must have been a crushing penalty, for the sums actually demanded are much smaller;150 no part of them, so far as we can see, goes to the kinsfolk. Large tracts of England, chartered boroughs and other “liberties,” were quit of the murdrum; it was unknown in some of the northern counties. The odd presumption that every slain man was a foreigner had been firmly established; the hundred had to pay unless his Englishry was proved by the testimony of his kinsfolk. In some counties a murdrum was exacted by custom in case of accidental death; Bracton regarded this as an abuse, and, as already said, it was abolished.151
Murder in later history.This then became for a while the one and only meaning of murder; but probably in the popular mind that word still stood vaguely for homicide of the very worst kind.152 In 1340 a statute,153 which abolished the murder fine, set the word free from the purpose that it had been serving, and at a later time by a process which it is not for us here to trace “wilful murder by malice aforethought” became the name for an aggravated kind of felonious homicide which was excluded from the benefit of clergy and was to be contrasted with the felonious but “clergyable” crime of man-slaughter.154
Suicide.As to suicide Bracton seems to have had many doubts, and at one time he was for giving the name felo de se only to a criminal who killed himself in order to escape a worse fate. We think that the practice of exacting a forfeiture of goods in every case in which a sane man put an end to his own life was one that grew up gradually, and that thus the phrase felonia de se gained an ampler scope. We have seen before now that a similar forfeiture of the goods of one who died obstinately intestate was imminent for a while.155
Wounding etc.Of the other felonies there is much less to be said. Wound, mayhem, or imprisonment might be made the foundation of an appeal by the sufferer and the convicted appellee “forfeited life and member,” that is to say, the justices might inflict the punishment of death or any other of the recognized penalties.156 As a matter of fact the appellee seldom, if ever, lost life and seldom lost member; still we can cite a case from 1221 in which a man who had wounded another in the arm and had been defeated in the judicial combat underwent a horrible mutilation.157 Britton holds that there should be strict retaliation—member for member, wound for wound, imprisonment for imprisonment;158 but here he is hebraizing and introducing an element that is foreign to the law of our race.159 Already there was room for unpractical speculation. Appeals for wounds had not been uncommon; but the justices seem to have taken delight in quashing them as informal.160 The appeal having been quashed, they arraigned the appellee at the king’s suit; if he was convicted, he suffered no worse than imprisonment and fine.161 Also about the middle of the thirteenth century the growth of the action of trespass afforded the injured party an alternative and preferable mode of procedure. Saying nothing of felony, he would sue for damages, and Britton strongly advised him to do so.162 Thus once more instead of vengeance he could obtain, to use the old phrase, a sufficient bót, but a bót the amount of which was no longer fixed by law. The new procedure became so much more popular than the old that all “offences against the person,” except homicide, dropped out of the list of felonies.163 Our law, if it had once been too severe, became much too mild, and was at times tempted to retrace its steps by aid of the maxim that the will manifested in a murderous assault may be taken for the deed.164 Little learning collected round these crimes in the age that is before us. The justices had a certain discretion in deciding whether there was a wound sufficient to support an appeal.165 The distinction between wound and mayhem was of procedural importance. The man who had been maimed, that is, who had been deprived of the use of a member which would be serviceable in a fight,166 was not bound to offer or accept battle. In such case one or other of the parties was sent to the ordeal, until the Lateran Council of 1215 abolished that mode of trial; in later days the appellee had to submit to the verdict of a jury.167 We may gather from a case which occurred in 1225 that a mayhem committed in self-defence was justifiable;168 the strict rules that were applied to homicide were relaxed when there was no death.
Rape.The crime which we call rape had in very old days been hardly severed from that which we should call abduction; if it had wronged the woman it had wronged her kinsmen also, and they would have felt themselves seriously wronged even if she had given her consent, and had, as we should say, eloped.169 Traces of this feeling may be found at a late time; but rape in the sense of violentus concubitus is soon treated as a crime for which the woman and only the woman can bring an appeal. Probably from the Conquest onwards it was deemed a bootless crime if she pressed her suit.170 Famous words have told us of the Conqueror’s severe treatment of an of-fence which may have been but too common in a land overrun by foreign soldiers.171 The characteristic punishment of castration, often coupled with blinding, was considered appropriate to it; but a story, which to our regret is told in a reputable chronicle, shows us Ranulf Glanvill satisfying a private grudge by sending a man to the gallows for abduction.172 Bracton reserves the gravest punishment, namely blinding and castration, for cases in which the appellor has been deflowered; in other cases some corporal chastisement falling short of loss of limb should be inflicted; but he looks back to a time when every rape was a capital offence.173 Concerning these matters we can find little “case-law.” Appeals of rape were often brought in the thirteenth century; but they were often quashed, abandoned or compromised.174 Glanvill in a curious passage protested that the appeal must not be so used as to force a noble man or noble woman into a disparaging union;175 but, as a matter of fact, an appeal of rape was not unfrequently the prelude to a marriage.176 The judges seem to have thought that if the woman was satisfied, public justice might be satisfied. She could prosecute her ravisher and use “words of felony”; but if she made no appeal and the man was arraigned at the king’s suit, then imprisonment and fine were a sufficient punishment.177 In 1275 the first Statute of Westminster gave the woman forty days for her appeal and fixed the punishment of an indicted ravisher at two years’ imprisonment to be followed by ransom at the king’s pleasure. Ten years later the second Statute of Westminster provided a judgment of life and member for all cases of rape, even though the woman was content not to sue, and thenceforward this crime fell into the ranks of those felonies which, whether prosecuted by appeal or by indictment, were punished by death.178
Arson.The crime which we call arson and which our ancestors called bœrnet was mentioned by Cnut as one of the bootless crimes;179 ancient law is wont to put it in the same class with “manifest” theft.180 It naturally finds a place in the list of felonies.181 We are told that the punishment was death by burning,182 and are able to vouch a case from John’s day in which this punishment was inflicted;183 but the fully developed common law substituted the gallows for the stake. The thing that is burnt must be a “house”; but this word has a large meaning;184 already in 1220 we find the burning of a barn that was full of corn treated as felony.185 This crime is of some interest as being one of the first in which the psychical element, the intention, becomes prominent. At a very early time men must distinguish between fires that are and fires that are not intended.186
Burglary.“A burglar,” says Coke, “is by the common law a felon, that in the night breaketh and entreth into the mansion house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.”187
Though there are ancient elements in this definition, it does not seem exactly to fit the crime that the men of the thirteenth century knew as burglaria. Britton gives the name of burglars to “those who feloniously in time of peace break churches or the houses of others, or the walls or gates of our cities or boroughs”; he thus omits that “by night” which is essential in after times; he also excuses the hungry man who enters the house of another for victuals worth less than twelve pence.188 Unless we are mistaken, there was no well marked form of appeal for burglary, nor was that crime mentioned in the Assizes of Henry II.189 The words which describe it first come to the front in presentments made by jurors, and we are not satisfied that a nocturnal crime is always indicated.190 The old word hámsocn was still being used by appellors who complained of robbery committed in their houses;191 it found a permanent home in the legal vocabulary of Scotland. Hámsocn or hámfare had been a reserved plea of the crown and a bad crime; some aggravated form of it known as húsbrice had been stigmatized by Cnut as bootless.192 The thought that crimes committed at night are to be punished more severely than similar crimes committed by day was not far from our ancestors,193 but we can as yet give no precise account of the genesis of burglary.
Robbery.In later times robbery is regarded as an aggravated kind of theft.194 In old law the two crimes are kept apart; the one is the open, the other the secret crime. There is an ethical distinction between them; theft is far more dishonourable than robbery.195 We imagine that this difference was still felt in the thirteenth century; Bracton has to argue that the robber is a thief.196 Appeals of robbery were common, and some of those against whom they were brought, though guilty, would hardly have been called thieves. Often enough their motive has been no desire for dishonest gain, but vengeance or the prosecution of a feud, and the horse or sword or cloak was seized in a scuffle. Again, in Glanvill’s day robbery was a royal, while theft was a vicecomital plea. Many an ancient trait still clung to the action for theft; it was an actio dupli, in which the plaintiff might recover twice the value of what he had lost.197 How ever, by this time the robator and the latro198 were being placed in one class, that of “felons.” According to Bracton, the sentence for robbery was sometimes death, sometimes mutilation;199 a little later death by hanging was the invariable punishment.200
Larceny.Theft or larceny (latrocinium) is treated by Bracton as though it were a crime which stood in a different class from that which comprises robbery and the other felonies.201 He seems hardly to know that “appeal of larceny” which became fashionable at a later time, nor do we find appeals of larceny, as distinguished from robbery, on the earliest plea rolls. What he knows is the Old English actio furti, and of this we have spoken in another place.202 Only by slow degrees was larceny becoming a plea of the crown; hand-having larceny or manifest theft was still within the competence of the hundred courts and of such seignorial courts as enjoyed the franchise of infangthief. Larceny became a plea of the crown under cover of a phrase which charged the thief with breaking the king’s peace; to all appearance it was the last of the great crimes to which that elastic phrase was applied. This was natural, for to say of the thief that he has broken the king’s peace is to say what is hardly true until those words have acquired a non-natural meaning. However, Henry II. had comprehended larceny within the net of that new indictment-procedure which he introduced.203 The old action of theft, which might rightly be used against an honest man, and which was, at least in some cases, an action for double value,204 was becoming obsolete, and the loser of the stolen goods might thank his stars if he was able to get them back again, so keen was the king in pursuit of “the chattels of felons.”205 Larceny then takes its place among the felonies that are prosecuted by appeal or by indictment.
Punishment of larceny.As to the thief’s punishment, many old systems of law have at one time or another drawn two lines: they have distinguished between great and petty theft, and between manifest and non-manifest theft.206 He who is guilty of a great and manifest theft is put to death in a summary fashion; other thieves receive a much milder punishment; they escape with bót and wíte, and the bót often represents the value of the stolen thing multiplied by two, three or some higher number.207 In England both an old English and an old Frankish tradition may have conspired to draw the line between “grand” and “petty” larceny at twelve pence.208 Though the old dooms sometimes speak as if every “open,” that is, manifest, theft were bootless,209 we take it that during the Norman period only a theft that was both manifest and great was absolutely beyond all hope of emendation.210 Henry I., we are told, decreed that all thieves taken in the act should be hanged,211 and in his reign, as all know, Ralph Basset did a fine day’s work in Leicestershire, for he hanged forty-four thieves, an exploit without a precedent.212 But the punishment fluctuated between death and mutilation. In the thirteenth century manifest grand larceny was a capital crime; the sentence was often pronounced in local courts and was frequently executed by the pursuer or “sakeber”213 who struck off the thief’s head or precipitated him from a rock into the sea.214 But all grand larceny was becoming a capital crime; the distinction between the fate of the manifest and that of the non-manifest thief was becoming a matter of procedure. The one after a summary trial, that was hardly a trial at all, was put to death by hanging or in some fashion sanctioned by antique custom; the other, tried and sentenced by the king’s justices, went to the gallows.
Manifest theft.Some would explain the difference between the treatment of “hand-having” and that of other thieves by referring us to an age when the state was yet too weak to interfere with the vengeance done on those who were captured in flagrant delict, or to an age when the punishment of the criminal was measured less by his culpability than by the resentment of the injured man.215 But we doubt whether we can wholly acquit our forefathers of the less logical idea that half-proven guilt is proven half-guilt.216 In 1166 Henry II., when he was introducing the indictment, or sworn communal accusation, into our criminal procedure, declared that the thief or robber who was taken “in seisin” and who was of bad repute was to “have no law”; other men indicted of theft were to go to the ordeal swearing that they had not to their knowledge stolen to the value of five shillings—a fairly high sum—since the beginning of the reign. He who was foul at the ordeal was to lose a foot; ten years afterwards a hand also was taken.217 A new accusatory process was being tried, and for a while men were not certain that it was as just or as cogent as the appeal in which the accuser risked his body.218 Even in the next century we may find that people who had stolen what was worth more than twelve pence were allowed to abjure the realm or suffered but the loss of a thumb; the justices, it is plain, had a considerable choice of punishments.219 But the line drawn at a shillings-worth reappears and our law at length stands committed to the rule that he who steals more than this must be hanged.
Petty larceny.As to petty larceny, this is punished sometimes by a whipping, sometimes by pillory or tumbrel, sometimes by loss of an ear. One ear may be taken for a first, another for a second offence, while the gallows awaits those who have no more ears to lose.220 A man who has lost an ear in honourable warfare will sometimes obtain an explanatory charter from the king, for it is dangerous as well as shameful to go about earless. Under local custom the thief is sometimes forced to do the executioner’s work; his ear is nailed to a post and he may set himself free by the use of the knife.221 Folk are saying that the limit of twelve pence allows a man to steal enough to keep himself from starvation for eight days without being guilty of a capital crime; they are also boasting, rightly or wrongly, that the law of England is milder than that of France.222
Definition of larceny.Bracton borrowed from the Institutes a definition of theft, but he modified it and omitted what did not suit him.223 There can we think be little doubt that the “taking and carrying away,” upon which our later law insists, had been from the first the very core of the English idea of theft.224 “He stole, took and carried away”: this is the charge made against the thief.225 The crime involves a violation of possession; it is an offence against a possessor and therefore can never be committed by a possessor.226 For this reason it is that one cannot steal “pigeons, fish, bees or other wild animals, found in a wild condition”; but it is otherwise “if they have been feloniously stolen out of houses, or, if they are tame beasts, out of parks.”227 Some of the decisions of a later day about “things capable of being stolen” were probably dictated by a desire to mitigate law that had become too severe.228 We can, for example, cite from the year 1200 a charge of stealing title-deeds.229 In the old days slaves could be stolen, but we hear nothing of stolen villeins, and no one seems to have ever supposed that land could be stolen.230 Bracton, as his habit is, insists on the mental factor; there must be an animus furandi.231 Nevertheless, we believe that in the past any one who without due legal formalities took a chattel from another’s possession ran a great risk of being treated either as a robber or as a thief.232 Britton supposes a man going to replevy his beasts. He who has got them claims them as his own. What is to be done? The hue is to be levied and an appeal of robbery is to be begun.233 The man who has unceremoniously taken what is his own may escape the gallows, but he loses irreparably the thing that he has taken.234 Old law, if we may so say, did not wish to put every open taking on a par with robbery, or every secret taking on a par with theft. But how to try the thought of man? The distrainor who did not observe all the complex rules of the code of distress was lucky if he extricated his neck from the noose.235 An old book tells us that concealing the king’s chattels is equivalent to theft,236 and later writers speak of a concealment of treasure trove as akin both to treason and to larceny.237 But the king “was prerogative.”238
Treason contrasted with .We have yet to speak of treason. In later times the crimes known to our law were classified as (1) treasons, high or petty, (2) felonies, (3) misdemeanours; and several important characteristics marked off high treason from all other crimes. For one thing, it earned a peculiarly ghastly punishment. For another, it was “unclergyable,” while every felony was “clergyable” unless some statute had otherwise ordained.239 Thirdly, while the felon’s land escheated to his lord, the traitor’s land was forfeited to the king. This last distinction influenced the development of the law. Kings wished to extend treason at the expense of felony; the magnates resisted. A lord whose tenant had, for example, slain a king’s messenger was much concerned that this offence should be felony, not treason. In the one case he would get an escheat; in the other case, far from getting an escheat, he would lose seignorial dues, unless the king took pity on him, for the king would hold the traitor’s land and no one can be the king’s lord.240
Contrast between treason and felony a novelty.These distinctions, however, become plain but slowly. It had indeed long been felt that hanging was too good a death for one who killed his lord. He should perish in torments to which hell-fire will seem a relief.241 This is the origin of that “drawing” which forms the first part of the penalty for high and petty treason. The malefactor was laid on the ground and tied to a horse which dragged him along the rough road to the gibbet. The hurdle that we afterwards hear of may be introduced of mercy; we suspect that originally it fulfilled its object by securing for the hangman a yet living body.242 In course of time the law was not content with this in the graver cases of high treason. It demanded drawing, hanging, disembowelling, burning, beheading, quartering. But there are many signs that it attained the full height of its barbarity by trying to punish one man for many capital crimes. The famous traitors of Edward I.’s day, David of Wales and William Wallace, had in the sight of Englishmen committed all crimes against God and man and were to suffer four or five different deaths.243
Points of difference between treason and felony.Again, a distinction between “clergyable” and “unclergyable” crimes was not in the thirteenth century a main outline of the criminal law. The benefit of clergy was as yet a privilege of ordained clerks, and was but slowly showing its impotence to shield them from charges of high treason.244 Lastly, if we are not mistaken, the rule that gave the felon’s land to his lord, the traitor’s to the king, was the compromise of a struggle. It is ignored or slurred over in the law books.245 John, however, was compelled to promise that after year and day the land of one who was convicted of felonia should be surrendered to his lord.246 On the other hand, the terrae Normannorum, the lands of the Normans who had renounced their allegiance, and who in English eyes were traitors, remained in the king’s hand to the profit of his exchequer.247 The words of the Great Charter, to which we have just now referred, had an important effect. If there was any crime which would give the offender’s land not to his lord but to the king, that crime could not be a mere felonia. Some term was wanted which would specify the cases in which seignorial must yield to royal claims, and though “words of felony” were habitually used where there was a charge of high treason,248 and though men were slow to forget that every treason is a felony,249 still felony was soon contrasted with treason, and such words as proditio, traditio, seditio and seductio become prominent. Ultimately proditio triumphs in our law Latin and becomes a sacramental term; but traditio, traitio,250trahison, treason triumph in French and English, while seditio and seductio gradually disappear, and felony no longer alludes, as once perhaps it did, to a breach of fealty.251
Treason and the statute of 1352.Treason has a history that is all its own. While as yet the felonies were being left to unenacted common law, treason became in 1352 the subject of an elaborate statute. This statute, though in all probability it preserved a great deal of the then current doctrine, became the whole law of treason for after times; every word of it was weighed, interpreted and glossed by successive generations. Our task therefore is hard if we would speak of treason as it was before the statute, for we have no unbroken stream of legal tradition to guide us.252
Early history of treason.Treason is a crime which has a vague circumference, and more than one centre. In the first place, there is the centre that is to this day primarily indicated by the word betray. In the earliest days to which we can go back the man who aided the enemies of his own tribe was hanged; probably his death was sacrificial.253 This element is well marked in our old books; it is the seditio exercitus vel regni, a betraying of the army or of the realm.254 When our law crystallizes in the famous statute, “adhering to the king’s enemies” finds a natural place in the list of high treasons. Flight from battle stands as a capital crime in the laws of Cnut and the Leges Henrici, and the coward’s lands go to his lord or to the king.255 The bond of fealty is another centre. To betray one’s lord was already in Alfred’s day the worst of all crimes; it was the crime of Judas; he betrayed his lord.256 Then a Roman element entered when men began to hear a little of the crimen laesae maiestatis.257 Less emphasis was thrown upon the idea of betrayal, though such terms as traditio, proditio, seditio are always pointing back to this,—and plotting against the king’s life or the lord’s life became prominent.258 In marked contrast to the general drift of our old criminal law, the crime was in this case found, not in a harmful result, but in the endeavour to produce it, in machination, “compassing,” “imagining.” The strong feudal sentiment claimed as its own this new idea; the lord’s life, as well as the king’s, is to be sacred against plots or “imaginations.” In the twelfth century another wave of Romanism was flowing. The royal lawyers began to write about laesa maiestas, to paint in dark colours the peculiar gravity of the crime, to draw a hard line between the king and mere lords.259 But they could not altogether destroy the connexion between vassalship and treason; men were not yet ready to conceive a “crime against the state.” Petty treason perpetrated against a lord was but slowly marked off from high treason perpetrated against the king; and in much later days our law still saw, or spoke as if it saw, the essence of high treason in a breach of the bond of “ligeance.”260
Elements of treason.Meanwhile, in this feudal stage of its history, treason gathered round it and embraced some offences which can be regarded as the vilest breaches of the vassal’s troth, such as adultery with the lord’s wife, violation of his daughter, forgery of his seal. Glanvill and Bracton at the suggestion of civilians would like to institute a crimen falsi.261 But English law was not ready for this. The only forgery that it was prepared to treat with great severity was forgery of the king’s seal or of the seal of the forger’s lord; and these it dealt with under the name of treason.262 Under the same head were brought the clipping of the king’s coin and the making of counterfeit money.263 The crimes of the moneyers had long been severely punished: frequently by loss of a hand,264 under Henry II. by various mutilations.265 That issuing bad or clipping good money should be a capital offence will not surprise us. The inclusion of these offences in the class of high treasons seems due to Roman influence;266 they were regarded, however, not as mere frauds fraught with grave harm to the community, but also and chiefly as the invasion of a specially royal right which our kings had jealously guarded, and any tampering with the king’s image and superscription on seal or coin was assimilated to an attack upon his person.
Treason by levying war.In the statute of 1352 there is an item which every modern reader will expect to find there. To “levy war against our lord the king in his realm”—this should certainly be an act of high treason. Nevertheless we believe that this is the newest item in the catalogue. So long as the feudal sentiment was at its strongest, men would not have been brought to admit in perfectly general terms that the subject who levies war against the king is a traitor. The almost slavish obedience that a vassal owes to his lord is qualified by a condition: if a lord persistently refuses justice to his man, the tie of fealty is broken, the man may openly defy his lord, and, having done so, may make war upon him.267 Kings of England who were homagers of the kings of France might by their own mouths have been sentencing themselves to shame, and even to shameful death, had they declared that in no case whatever could a vassal without treason levy war upon a king in his realm. Edward III. was the first of our kings since the Conquest who could afford to make such a declaration, for, being in his own eyes king of France, he owed homage to nobody. Earlier kings of England had levied war against the kings of France in the realm of France, and the cause of war was often enough one which arose in France and one which would in no wise have concerned a mere king of England. Could they mete the acts of their barons by a measure other than that by which they meted their own acts? Was not the case of a Count of Britanny who was Earl of Richmond sufficiently parallel to that of a King of England who was Duke of Aquitaine? For two centuries after the Conquest, the frank, open rebellions of the great folk were treated with a clemency which, when we look back to it through intervening ages of blood, seems wonderful.268 Henry II., for example, spared the rebels of 1173, though he had thoroughly subdued them and had been within an ace of losing his kingdom.269 Never was there anything that we could call a proscription of defeated partizans. The Dictum of Kenilworth shines out in startling contrast to the attainders of the fifteenth century. In part perhaps we may account for this by saying, if this be true, that men became more cruel as time went on; but also we ought to see that there had been a real progress, the development of a new political idea. Treason has been becoming a crime against the state; the supreme crime against the state is the levying of war against it. A right, or duty, of rising against the king and compelling him to do justice can no longer be preached in the name of law; and this is well.270
Compass of treason in the thirteenth century.Although during the thirteenth century treason may have been a vague enough crime, such stories as have come down to us do not entitle us to say that many persons, except the Jewish money-clippers,271 suffered for it. A fomenter of civic sedition would sometimes be hanged in an exceedingly summary fashion: witness the fate of William Fitz Osbert in 1196,272 and of Constantine Fitz Athulf in 1222.273 The severest doctrine that we hear is that he who knows of a plot against the king and does not at once reveal it is himself guilty of treason.274 We may see perhaps that a wide scope might be given to the phrase which condemned those who “imagined” the king’s death. One Peter of Wakefield was hanged for predicting that by next Ascension-day John would no longer be king;275 under James I. he would have suffered a similar punishment for a similar prophecy.276 To declare that there was no king’s peace, as the king was among his enemies in Wales and would never return,—this also seems treason in John’s reign.277 It was of treason that Robert de Montfort appealed, and by battle convicted, Henry of Essex, and though the real charge against the royal standard-bearer was in our eyes a charge of cowardly flight from battle, we are told in a significant way by a chronicler, who had the tale from Henry’s own lips, that he was also accused of having cried aloud that the king was slain.278 Betraying the king’s secrets to his enemies and thus “adhering” to them was treason under Edward I.279 Any one who grossly insulted the king might have found that the law of treason was expansive. Walter de Clifford, who in 1250 had been guilty of making a royal process-server eat writ and wax, was, we are told, in peril of a judgment of death and disherison, but, making humble submission, escaped with a heavy fine.280 A case that was much discussed at the time, and has at intervals been discussed ever since, arose in 1305, when after a long hesitation Nicholas Segrave was declared worthy of death for having deserted the king’s army in Scotland and summoned an adversary to meet him in battle before the French king’s court, thus “subjecting the realm of England to the king of France.”281 Any one who understands the relationship between Edward and Philip will understand why our king wished to secure the conviction of a baron whose conduct seemed to imply that an appeal “for default of justice” lay from the English to the French court. The conviction having been secured, the king was merciful; Segrave was bound to render himself to prison if called upon to do so; soon afterwards he was pardoned. This is one of the very few early cases of treason which have what we can call a political interest. Even into the statute of 1352 and the controversy that preceded it we may too easily introduce modern notions. There had, we may be sure, been no debate about the legitimate limits of political agitation. The king wanted forfeitures; the lords wanted escheats. Some of the king’s justices had been holding for treason mere murders and robberies—for example, the murder of a king’s messenger—which should, so the magnates thought, bring lands to them instead of destroying their seignories.282 A rude compromise was established.283
Accessories before the fact.Ancient law has as a general rule no punishment for those who have tried to do harm but have not done it. The idea of punishment is but slowly severed from that of reparation, and where no harm is done there is none to be repaired. On the other hand, it is soon seen that harm can be done by words as well as by blows, and that if at A’s instigation B has killed C, then A is guilty of C’s death.284 Anglo-Saxon law knows the ræ´d-bana as well as the dæ´d-bana, the slayer by rede as well as the slayer by deed. In Bracton’s day there was a common proverb that met this case.285 The man who has commanded or counselled a murder has committed no crime until there has been a murder; but when the murder is committed he is guilty of it. The law of homicide is wide enough to comprise not only him who gave the deadly blow and those who held the victim, but also those who “procured, counselled, commanded or abetted” the felony. On the other hand, we already meet with the rule that the accessory cannot be brought to trial until the principal has been convicted or outlawed.286 This rule lived on into modern times, when it looked absurd enough and did much mischief.287 It was the outcome of strict medieval logic. If you convict the accessory while the principal is neither convicted nor outlawed, you beg a question that should not be begged. The law will be shamed if the principal is acquitted after the accessory has been hanged. The modes by which guilt and innocence were proved were, or had lately been, sacral and supernatural processes which could not be allowed a chance of producing self-contradictory results. What should we think of the God who suffered the principal to come clean from the ordeal after the accessory had blistered his hand? Hence a complex set of rules which permit the escape of many accessories.288
Accessories after the fact.The accessories of whom we have been speaking are “accessories before the fact.” Our law was beginning to give the name “accessories after the fact” to those who “receive, relieve, comfort or assist” the felon. Such persons deserve the same punishment that he has earned. The crime of receiving outlaws or thieves was among the oldest and was severely handled by ancient law. Often the receiver suffered the punishment that was meet for him whom he had received.289 Under the Assizes of Henry II. the receivers of murderers, robbers and thieves incur the penalty which is ordained for murder, robbery and theft.290 In Bracton’s day it was a capital or unemendable crime to receive a felon or outlaw knowing him to be such.291 Roman law could be cited in favour of the principle that there is a parity of guilt between the receiver and the received.292 The same principle is applied to those who voluntarily allow a prisoner to escape; if he was guilty, they are participators in his guilt. On prisoners for crime who broke prison the law of Bracton’s day was exceedingly severe; death was their punishment, even though they were innocent of the crime for which they were imprisoned and that crime was not capital.293 A statute of 1295 mitigated this rigour by declaring that the prison-breaker should not have judgment of life or member, unless that was the judgment provided for the offence which was the cause of his incarceration.294 Old law is apt to treat an escape from prison as a confession. What need has it of further witness?295
Review of the felonies.If now we glance back over the ground that we have lately traversed, we see that towards the end of the thirteenth century our law knows only some seven crimes which it treats as very grave, namely, treason, homicide, arson, rape, robbery, burglary, and grand larceny, to which we may perhaps add breach of prison. For all these the punishment is death: in general death by hanging, but for petty treason a man shall be drawn as well as hanged and a woman shall be burnt,296 while, at least in the worst cases, high treason demands a cumulation of deaths. Three other crimes, namely, wounding, mayhem and imprisonment, have been called felonies, and perhaps might be still treated as such if the injured man brought an appeal; but they are fast falling into the category of minor crimes. High treason may be somewhat elastic and it covers some forgeries, the making of counterfeit money and the clipping of coin. But we cannot call this list comprehensive or cruel. Its rude leniency we shall only perceive when we have spoken of the fashion in which the minor crimes were punished.
Classification of offences.When the felonies are put on one side, we find hardly anything that can be called either a classification of punishable acts, or a general doctrine about them. In later days, as is well known, the following scheme is fashioned:—
Then with the punishable offence we contrast the tort which gives rise to a civil action, though the tort may also be, and very often is, a punishable offence. Torts again fall into two classes, and only those which involve some violence—the violence may be exceedingly small—are known as trespasses.
Trespass in the wide sense.In the thirteenth century we see but the germs of this scheme. Trespass (transgressio) is the most general term that there is; it will cover all or almost all wrongful acts and defaults. Every felony, says Bracton, is a trespass, though every trespass is not a felony.298 In a narrower sense therefore trespass is used as a contrast to felony.299 The word misdemeanour belongs as a term of art to a much later age. In the past even the gravely punishable offences have been contemplated from the point of view of the person who has been wronged. Thus
Only by slow degrees is the procedure which begins, not with the complaint of “the party grieved,” but with a communal accusation (indictment or presentment), becoming a prominent part of the law’s machinery. Henry II. had set it going only against “murderers, robbers and thieves and the receivers of such.” In a later ordinance he spoke of arson and forgery.301 We have already seen that there were crimes which were treated as felonies if there was an appeal, but as trespasses if there was only an indictment.302 However, long before the beginning of Edward I.’s reign, numerous of-fences that are no felonies are being punished upon indictment or presentment, while many others are being punished in the course of civil actions. We shall perhaps breathe the spirit of the age if we say that—
Minor punishments.To this table we shall return, but meanwhile a few words must first be said of the punishments that are inflicted. These are in the main two, namely, (i) amercement, (ii) indefinite imprisonment redeemable by fine.
Amercements.Thousands of amercements are being inflicted by courts of all kinds. The process is this:—So soon as the offender’s guilt is proved, the court declares that he is in mercy (in misericordia). If it be a royal court, he is in the king’s, if it be a county court, he is in the sheriff’s, if it be a seignorial court, he is in the lord’s mercy. Thereupon, at least in the local courts, the offender “waged” an amercement, that is to say, he found gage or pledge for the payment of whatever sum might be set upon him when he should have been amerced. For as yet he had not been amerced (amerciatus). At the end of the session some good and lawful men, the peers of the offender (two seem to be enough) were sworn to “affeer” the amercements. They set upon each offender some fixed sum of money that he was to pay; this sum is his amercement (amerciamentum).303
History of amercement.In the thirteenth century amercements are being inflicted right and left upon men who have done very little that is wrong. The sums that they have to pay are small, and most men in England must have expected to be amerced at least once a year. Therefore this punishment could not be very terrible. Nevertheless it seems to have its origin in a heavy penalty. We can hardly doubt that at first the declaration that a man is in the king’s or the lord’s mercy implies that the king or lord may, if he pleases, take all his goods. Henry II.’s treasurer has told us this explicitly.304 We have here again what Dr. Brunner calls an offshoot of outlawry.305 In the old days of fixed wites there were offences which put life and limb, lands and goods “in the king’s mercy.”306 As the differentiating process went on, there came into existence offences which put the offender’s goods in the king’s mercy, but not his life, limb or lands. Feudalism multiplied these offences. Many of the smaller misdeeds were regarded as exhibitions of an infidelitas, which, however, did not amount to a felonia. Also the Norman kings wielded a large power of “banning” misdeeds, that is of declaring that certain offences would bring down the king’s “full forfeiture” on the heads of the guilty, and they were not always careful to explain what this “full forfeiture” was.307 The Conqueror and Rufus had made free use of the notion that many of the smaller offences,—those which did not amount to perfidia or scelus,—put the whole of the offender’s chattels at the king’s mercy. Henry I. when he was buying the crown had to promise an abandonment of this doctrine and a return to the old English system of pre-appointed wites.308 This promise, like many other promises, he broke, and we may be glad that he did not keep it. The amercement marks an advance in the theory and practice of punishment. A basis for arbitrary or “unliquidated” wites had thus been found, and in course of time men began to see that arbitrary wites—if they be not oppressively used—are far more equitable than the old fixed penalties. Account can now be taken of the offender’s wealth or poverty, of the provocation that has been given him, of all those “circumstances of the particular case” that the rigid rules of ancient law had ignored. So the misericordia, when the central power is strong, begins to devour the old wites.
Restriction of amercement.We hear of attempts to establish some fixed maximum for the amercement. Becket alleged that there was such a maximum in every county, and that the law of Kent knew no amercement higher than forty shillings.309 In both the England and the Normandy of Glanvill’s day the rule had grown up that the amercement was to be “affeered” by the oath of lawful men.310 The oldest Norman custumal is very instructive, for it still regards this punishment as being in strictness a forfeiture of all chattels. The function of the sworn affeerers is to declare what goods the offender has. In the case of a knight the duke is to have all, except his arms, destrier, palfrey and rouncey, his ploughs and beasts of the plough, his seed-corn and victuals enough for a year. So too the roturier’s victuals, team and arms are spared. But there also seem to be maximum amercements varying with the wrong-doer’s rank; the baron will not have to pay more than a hundred pounds, nor the roturier more than five shillings.311 Parallel to this lies the famous passage in Glanvill which saves for the amerced his “honourable contenement.”312 Then the Great Charter decreed that all amercements were to be set or “affeered” by good men of the neighbourhood; that earls and barons were to be amerced by their peers; that amercements should vary with the gravity of the offence; that the knight’s contenement, the merchant’s merchandise, the villein’s wainage should escape.313 The amercement became the most flexible and therefore it could be the smallest of all punishments. Threepenny amercements were common in the local courts.314
Imprisonment.The use of imprisonment as a punishment,—more especially if it be imprisonment for a definite period fixed by the sentence,—is a sign of advancing civilisation. Of prisons, as of places of detention for those who are not yet condemned, we begin to read in the tenth century, and sometimes the law requires that a man shall be kept in gaol for forty days before his kinsfolk may redeem him.315 Imprisonment would have been regarded in these old times as an useless punishment; it does not satisfy revenge, it keeps the criminal idle, and, do what we may, it is costly. If the man guilty of a bad offence is to be neither killed nor mutilated, he should be sold, or forced to sell himself, into slavery as a wíte-þeów, so that thus the bót or wer that is due from him may be raised.316 After the Conquest we hear no more of this penal servitude, and for a while we hear little of imprisonment as an ordinary punishment, though the Norman kings will sometimes keep in prison rebels or enemies whom, for one reason or another, they do not put to death. Henry II. had to provide for the erection of a gaol in every county; but these gaols were wanted chiefly for the detention of the indicted who had not yet gone to the ordeal.317 Detentive imprisonment was by this time becoming common and the old “stocks” were no longer an adequate engine. For example, the appellor who would not prosecute his appeal was in Glanvill’s day thrown into prison to make him change his mind.318 The exchequer had its prison, and already there was some classification of the inmates; some were in durance vile, others were merely confined within the ambit of the walls.319 Bracton speaks as though a prison were never a place of punishment; but he is borrowing from Ulpian, and by his time penal incarceration was being inflicted.320
Punitive imprisonment.In a few cases men could be sent to gaol for definite periods. Henry II. ordained that recognitors who perjured themselves in a grand assize should be kept in prison for a year at least.321 Under Henry III.’s charter the punishment for a breach of forest law was to be a year’s imprisonment, after which the malefactor had to find sureties for good behaviour or abjure the realm.322 We believe, however, that imprisonment for a fixed term was in all cases regarded as having its origin in some definite assize or ordinance; in other words it was not thought of as “a common law punishment.” The statutes of Edward I. made a great change in this province of law; they freely distributed short terms of imprisonment.323 Even in these cases, however, the imprisonment was as a general rule but preparatory to a fine. After a year or two years the wrong-doer might make fine; if he had no money, he was detained for a while longer.324
Fines.It is, however, with an indefinite imprisonment that we are chiefly concerned. In the thirteenth century the king’s justices wield a wide and a “common law” power of ordering that an offender be kept in custody. They have an equally wide power of discharging him upon his “making fine with the king.” We must observe the language of the time. In strictness they have no power to “impose a fine.” No tribunal of this period, unless we are mistaken, is ever said to impose a fine. To order the offender to pay so much money to the king—this the judge may not do. If he did it, he would be breaking or evading the Great Charter, for an amercement should be affeered, not by royal justices, but by neighbours of the wrong-doer. What the judges can do is this:—they can pronounce a sentence of imprisonment and then allow the culprit to “make fine,” that is to make an end (finem facere) of the matter by paying or finding security for a certain sum of money. In theory the fine is a bilateral transaction, a bargain; it is not “imposed,” it is “made.” Now, so far as we can see, the justices of Henry III.’s reign used their power of imprisonment chiefly as a means of inflicting pecuniary penalties. The wrong-doer but rarely goes to prison even for a moment. On the plea roll the Custodiatur which sends him to gaol is followed at once by Finem fecit per unam marcam (or whatever the sum may be), and then come the names of those who are pledges for the payment. The justices do not wish to keep him in gaol, they wish to make him pay money. Such a system would sometimes be abused when the king desired to crush an enemy,325 but, after looking through many rolls, it seems to us that normally the fines were light, much lighter than the wites of old times.326 The causes for fines were now very numerous, and the king preferred a power of inflicting many small penalties to that of demanding heavy sums in a few grave cases.
Other minor punishments.There are three or four other punishments which deserve a passing word. A complete forfeiture of all chattels is insisted on when a man “flies for a felony,” even if he has not committed it.327 True exile is unknown; but the criminal who has taken sanctuary abjures the realm and occasionally, by way of grace, other criminals are allowed to do the like. Now and again we hear of a man compelled to abjure a town.328 Manorial courts will sometimes decree a removal from the village; probably the delinquent in such a case is a villein. In the boroughs a loss of “liberties” or franchises is sometimes denounced against peccant burgesses; or they may have to abjure their trades or their crafts. Pillory and tumbrel seem to be reserved almost exclusively for bakers and alewives who break the assizes of bread and beer.329 Bracton speaks of whipping,330 and it became a “common law” punishment for misdemeanours; we do not remember a case of his time in which it was inflicted, except as an ecclesiastical penance.
Procedure against minor offences.We can now speak briefly of the offences that were punished by amercement or by imprisonment, remembering that as a general rule imprisonment really means fine. We have said that there were three main modes of procedure.
(1) Civil actions.1. Offences punished in the course of civil actions. Every tort, nay, every cause of civil action, was a punishable offence. Every vanquished defendant, even though the action was “real” or was contractual, had earned punishment. At the least he had been guilty of an unjust detention (pro iniusta detentione). In the lower courts he could only be—but he would be—amerced. By the king’s court he might even be imprisoned. This would be his fate if he had broken the king’s peace with force and arms, if he had infringed a “final concord” made in the king’s court, if he had falsely disputed his own deed, if he had relied on a forged charter, if he had intruded on the king or disobeyed a writ of prohibition.331 A plaintiff too might be imprisoned, if, for example, he had failed in the endeavour to reduce a freeman to villeinage.332 But every defeated plaintiff could be amerced “for a false claim.” Incidentally too any falsehood (falsitas), that is, any fraudulent misuse of the machinery of the law, would be punished by imprisonment.333 Then again every default in appearance brought an amercement on the defaulter and his pledges. Every mistake in pleading, every miskenning or stultiloquium, brought an amercement on the pleader if the mistake was to be retrieved.334 A litigant who hoped to get to the end of his suit without an amercement must have been a sanguine man; for he was playing a game of forfeits.335
(2) Presentments in turn and leet.2.Offences punished upon presentment in the local courts. The process of presentment had been introduced into the local courts by Henry II., but only, so it seems, for the purpose of collecting accusations of grave offences. However, in course of time many other presentments were made there. A general understanding seems to have allowed the sheriff in his “turns” and the lords of franchises in their “leets” to demand presentments about any matter that concerned the king’s rights or his peace. “Articles of the Turn” or “Articles of the View of Frankpledge” were drawn up. The different copies which have come down to us, though they bear one general character, differ in many details. They leave us doubting whether any of them had received a solemn sanction from the central power.336 In part their object is to collect accusations of felonies which will come before the king’s justices; of this purpose we need say no more. But also they ask for charges of minor offences which are dealt with on the spot by a summary procedure leading to amercements. These offences are most miscellaneous. There are the minor acts of violence, brawls, affrays, bloodshed. There are some minor acts of dishonesty, such as taking other people’s pigeons, or knowingly buying stolen meat or stolen clothes. There are nuisances, especially the straitening of highways—these can be summarily redressed or “addressed.” There are those never ceasing breaches of the assizes of bread and beer.
Presentments in seignorial courts.As yet we know more of the seignorial courts and the borough courts than of courts in which the sheriff presided. In the seignorial courts the presentment was used indiscriminately as a means for punishing by amercement all the small breaches of peace and order, even abusive words, and all breaches of the manorial custom; it gave the lord a tight grip on his villein tenants. In the boroughs, as they grew in wealth and independence, the presentment might secure the punishment of the forestaller who raised the price of goods and of the cook who sold unsound victuals, it might even protect a nascent commercial policy.337 Altogether the local tribunals seem to have been allowed a large liberty in the infliction of amercements.
(3) Presentment in the eyre.3. Offences punishable upon presentment before the king’s justices. The justices in eyre of the thirteenth century carry with them a list of interrogatories, known as the Articles of the Eyre (Capitula Itineris), which are to be addressed to the local juries. This list grows longer and longer.338 When we have put on one side the questions which deal with the felonies, we still have before us a miscellaneous mass. We find, however, three main groups of articles. One consists of those which desire information about the king’s proprietary rights, escheats, wardships and so forth. These do not lead to any punishment or any trial. Information is all that is wanted; it will hereafter be used in various ways. Another group asks for tales about the assumption or misuse of “franchises.” Here again, as a general rule, information is all that is immediately wanted. When the justices’ rolls come to the king’s treasury, his advisers will consider whether writs of Quo warranto should not be issued for the recall of liberties that have been abused.339 A third and a large group of articles relates to the official misdoings of royal officers, sheriffs, coroners and bailiffs. Sometimes the justices will at once declare that the offender is in mercy or must be kept in custody. More often they seem to be content with having got a charge which will be used against him in an administrative, rather than in a strictly judicial way. When, for example, he renders his accounts at Westminster he will find that all that he has extorted from the people he owes to the king.
Misdemeanours.These three groups being exhausted, we perceive that only by slow degrees and in a hap-hazard way do any inquiries about ordinary and non-official crimes that are less than felonies steal their way into the articles. A very large part of the justices’ work will indeed consist of putting in mercy men and communities guilty of a neglect of police duties. This, if we have regard to actual results, is the main business of the eyre—for the amount of hanging that is done is contemptible. But the justices collect in all a very large sum from counties, hundreds, boroughs, townships and tithings which have misconducted themselves by not presenting, or not arresting criminals. With the coroners’ rolls and the sheriffs’ rolls before them, they have a check upon the presenting jurors, and probably no single “community” in the county will escape without amercement. There are a few offences which are specially brought to the notice of the commissioners by the articles. If bread and beer are left to humbler courts, wine and cloth are under the protection of the king’s justices. But neither in the articles nor on the eyre rolls of Henry III.’s reign—and it is of that time that we are speaking—do we see any general invitation to present, or many actual presentments of, those crimes which are the typical misdemeanours of the fully developed common law.
Penal damages.Useful though this laborious scheme of presentments may have been,—useful because it revealed abuses, because it served as a check upon sheriffs and lords, because it reminded every man of his always neglected police duties—the law did not place much reliance upon it as an engine of punishment. We are now in the act of passing from the sphere of criminal to that of civil justice, and therefore let us notice that under Edward I. a favourite device of our legislators is that of giving double or treble damages to “the party grieved.” They have little faith in “communal accusation” or in any procedure that expects either royal officials or people in general to be active in bringing malefactors to justice. More was to be hoped from the man who had suffered. He would move if they made it worth his while. And so in a characteristically English fashion punishment was to be inflicted in the course of civil actions: it took the form of manyfold reparation, of penal and exemplary damages.340
Actions for damages.But we have gone too fast. An “action for damages” was a novelty. By an action for damages we mean one in which the plaintiff seeks to obtain, not a fixed bót appointed by law, but a sum of money which the tribunal, having regard to the facts of the particular case, will assess as a proper compensation for the wrong that he has suffered. We repeat that this was a novelty. We may doubt whether Glanvill ever presided at the hearing of such an action.341
Damages and specific relief.This may for a moment seem strange. In later days we learn to look upon the action for damages as the common law’s panacea, and we are told that the inability of the old courts to give “specific relief” was a chief cause for the evolution of an “equitable jurisdiction” in the chancery. But when we look back to the first age of royal justice we see it doing little else than punishing crime and giving “specific relief.” The plaintiff who goes to the king’s court and does not want vengeance, usually goes to ask for some thing of which he is being “deforced.” This thing may be land, or services, or an advowson, or a chattel, or a certain sum of money; but in any case it is a thing unjustly detained from him. Or, may be, he demands that a “final concord” or a covenant may be observed and performed, or that an account may be rendered, or that a nuisance may be abated, or that (for sometimes our king’s court will do curiously modern things) a forester may be appointed to prevent a doweress from committing waste.342 Even the feoffor who fails in his duty of warranting his feoffee’s title is not condemned to pay damages in money; he has to give equivalent land. No one of the oldest group of actions is an action for damages.
Damages as supplementary relief.Moreover, the practice of giving damages even as a supplement for specific relief is one that we may see in the first stage of its growth. It makes its appearance in an influential quarter, in the popular assize of novel disseisin. Glanvill’s text shows us the embryo. The writ which begins the action commands the sheriff “to cause the tenement to be reseised of the chattels taken in it” by the disseisor, and “to cause the tenement with the chattels to be in peace” until the hearing of the cause.343 So the disseisee is to recover the chattels as well as the land of which he has been dispossessed; but even this is specific relief. We further learn, however, that the disseisee can obtain the “fruits” of the tenement from the disseisor, and we are left to imagine that, if he cannot get the corn or hay itself, he may be able to get money instead.344 In a few years all had changed; Bracton has noticed the change.345 The sheriff was no longer expected to “reseise the tenement” of the abstracted chattels; the recognitors in the assize were being told to estimate in money the dampna which the disseisee had suffered. Along with the land he now “recovered” a sum of money assessed as a compensation for the wrong done him.346 Long the novel disseisin remained the only action in which both land and damages could be obtained; slowly in the course of the thirteenth century our legislators multiplied the cases in which this double remedy was to be had.347
Growth of actions for damages.When the sacred “freehold” was not concerned, the hands of the justices were freer. They could award damages as a subsidiary remedy in actions of detinue, debt and the like.348 The assize of novel disseisin suggested to them a method of assessing pecuniary compensation: the verdict of a jury. To find the exact place at which they first crossed the narrow line which divides an action for mere damages from an action in which damages may be given as complementary to the recovery of a specific thing or specific debt would be a toilsome task.349 Here it must suffice that one by one there came into existence actions in which the plaintiff could obtain nothing but a money compensation assessed by justices or jurors. In this context we may mention the action for vee de naam (de vetito namii) brought against a distrainor, who, though he has now given back the beasts, has been guilty of detaining them “against gage and pledge”; also those frequent actions brought against men who have persisted in going to the ecclesiastical tribunals after receipt of a royal prohibition.350 But there is one all-important action which is stealing slowly to the front, the action of trespass (de transgressione) against those who to a plaintiff’s damage have broken the king’s peace with force and arms. Though early precedents may be found for it, this fertile mother of actions was only beginning her reign in the last years of Henry III. Her progeny throve and multiplied, until a time came when, the older forms having been neglected, an action for damages, an action which traced descent from the breve de transgressione, seemed to be almost the only remedy offered by the common law.351
The days before “damages.”What did men before they had this action? What did they in Glanvill’s day? For one thing, we suspect that they uttered “words of felony” upon slight provocation. For another thing, the old action of theft could be used for the recovery of goods from an honest hand, and a twofold bót could sometimes be obtained.352 As to blows and bruises, we take it that they sued for some pre-appointed bót in the local courts. The king was not to be troubled with such trifles. The early disappearance from English law of the pre-appointed bót is remarkable. The sister-law of Normandy after Bracton’s death still knew a tariff for the minor acts of violence—five shillings for a slap, eighteen for a knock-down blow, thirty-six for a wound; but this tariff, simple when compared with those of older days, apparently obtained only among the roturiers, and the compensation due to a knight was a suit of armour.353 Unfortunately the records of our local courts do not begin until the influence of Westminster is supreme and its action for damages is well known throughout the country; still we should not be surprised to find that the doomsmen of the hall-moots when they assigned damages for a blow or a “villein word” were guided by traditional and half-forgotten tariffs and thought but little of “the circumstances of the particular case.”354
Actions of trespass.The writs of trespass are closely connected with the appeals for felony. The action of trespass is, we may say, an attenuated appeal. The charge of felonia is omitted; no battle is offered; but the basis of the action is a wrong done to the plaintiff in his body, his goods or his land “by force and arms and against the king’s peace.” In course of time these sonorous words will become little better than a hollow sound; there will be a trespass with force and arms if a man’s body, goods or land have been unlawfully touched. From this we may gather that the court had never taken very seriously the “arms” of the writ or fixed a minimum for the “force” that would beget an action. Still the action was aimed at serious breaches of the king’s peace, and, so far as we can see, the court in Henry III.’s reign was seldom, if ever, troubled with “technical trespasses” or claims for “nominal damages.”355 If we take the plaintiffs at their word, there have been force enough and arms enough. There has been a marauding foray; a few years earlier it would have given rise to a batch of appeals for wounds and robbery.356 Even when we have made allowance for the froth of “common form,” we see that there are often some twenty defendants, and this tells a tale of deliberate violence, of rapine and pillage.357 Edward I. when he introduced this action into Wales set forth in strong words its punitive and exemplary character.358
Limits of trespass.In the days when the writ of trespass was taking a foremost place in the scheme of actions, the king’s court had its hands full if it was to redress and punish the wrongs done by gentlemen who at the head of armed bands of retainers ravaged the manors of their neighbours. We must not therefore expect to find cases which indicate the limits of trespass. We may guess that some self-defence was permissible,359 while all self-help, unless it took the form of the timely ejectment of a disseisor, was strictly prohibited. Also we may guess that this somewhat terrible action could not have been used against those who were not to be charged with any assault on a person, entry on land or asportation of goods, but were guilty of some misfeasance while engaged in a lawful operation. In later days, slowly and with difficulty, the court gave an action against the clumsy smith who lames the horse that he is shoeing, against the stupid surgeon who poisons the wound that he should cure.360 Such persons could not be charged with breaking the king’s peace by force and arms. We may well doubt whether Bracton or any contemporary lawyer would have told them that they had committed no tort, we may perhaps doubt whether they could not have been successfully sued in some of the local courts; but the king’s justices were not as yet busied with these questions, and such records of the lowlier tribunals as are in print do not hold out much encouragement to the investigator who is in search of a medieval law of negligence, though he might find some rules, probably severe rules, about damage done by straying cattle, goring oxen, biting dogs and fire.361 Hardly a germ is to be found of any idea which will answer to the Roman culpa or become our modern negligence.362
Master’s liability.In the dominance over our growing law of torts exercised by an action which came of a penal stock we may find an explanation of a debated episode of legal history, namely, the genesis of “employer’s liability.”363 In order to clear the field, we may take for granted that the man who commands a trespass, which is committed in obedience to his command, is himself a trespasser. About this our law of the thirteenth century and of much earlier times had no doubt whatever. From of old the “rede-bane” had been as guilty as the “deed-bane.”364 What is done by a man’s command may be imputed to him as though it were his own act. From the grave crimes we may argue a fortiori to the minor offences, though the law in all cases observed that strict rule of logic which required that a principal should be convicted or outlawed before an accessory was put on his trial.365 All this, however, lies beside our present mark, for we would raise the question as to the liability of superiors for torts which they have not commanded but which have been committed by their inferiors.
Recent history of master’s liability.Now it would seem that our present doctrine about the liability of a master for a tort committed by a servant who was “acting within the scope of his employment” can hardly be traced in any definite shape beyond the Revolution of 1688.366 Before that date there lie several centuries, comprising the age of the Year Books and the days of Tudors and Stuarts, during which exceedingly few hints are given to us of any responsibility of a master for acts that he has not commanded,367 and, when our new rule is first taking shape, we see it working under cover of phrases which still thrust command to the forefront, phrases which teach that a master is liable for acts that he has “impliedly,” as well as for those which he has “expressly” commanded.
Liability of slave-owner and house-father in old law.On the other hand, it is hardly to be doubted that, if we go back far enough, we shall see a measure of responsibility far severer than that which we now apply to “masters” or “employers,” applied to some superiors. A man was absolutely liable for the acts of his slaves—though some penal consequences he might be able to escape by a noxal surrender—and a householder was in all probability liable for what was done by the free members of his household. A lord, on the other hand, could not be charged with the acts of his free “men,” his tenants or retainers, who formed no part of his family. The most that could be expected of him was that he should produce them in court so that they might “stand to right” if any one accused them. Then already in the dim age that lies behind the Norman Conquest we seem to see the lords reducing their liability. In Cnut’s day they would, if they could, ignore the difference between their slaves and those numerous free, but very dependent tenants who would soon be called villani.368 At a yet earlier time the duty of producing their freemen in court had been slipping from their shoulders. They had been allowed to substitute for it the duty of keeping their men in groups, such that each group would be solidly liable for the production of all its members.369 At the end of the twelfth century almost every vestige of the lord’s liability had disappeared. Anything that we could call slavery was extinct. The mere relationship between lord and villein did not make the one responsible for the acts of the other. The lord was not even bound to produce his villein in court. The villeins were in frankpledge. As to the liability of the groups of pledges, we may perhaps see traces of a rule which would, not merely subject the tithing to an amercement if it failed to produce an accused member, but would exact from it a recompense for the wrong that he had done.370 But in the thirteenth century the tithing has only to produce members charged with felony, and, if it makes default, it is merely amerced.
House-father’s liability in Bracton’s day.Any theory therefore that would connect our “employer’s liability” with slavery has before it a difficult task. Between the modern employer and the slave-owner stand some centuries of villeinage, and the medieval lord was not liable for the acts of his villein. A more hopeful line of tradition may lie within the household. The householder of Bracton’s day was bound to produce any member of his mainpast or household who was accused of felony, and, failing to do so, was amerced, but only amerced. We may detect, however, some scattered traces of a civil liability for wrongs, and very possibly other traces would be found were the rolls of our local courts systematically perused. In a book of precedents for pleas in manorial courts which comes from the last half of the thirteenth century we find that a defendant, who is charged with the act of two men who cut stubble in the plaintiff’s close, pleads that these men were not of his mainpast but labourers hired from day to day.371
Tort, crime and master’s liability.The king’s courts, however, were approaching the field of tort through the field of crime. A criminal procedure which aimed solely at pure punishment, at loss of life or member, was being established, and the time had long gone by when a man could be made to answer for such an act as homicide if he had neither done nor taken part in, nor commanded, nor counselled the deed:— quia quis pro alieno facto non est puniendus, said Edward I.372 To exact a wer from the slayer’s master had been possible; to send the master to the gallows—no one wished to do that. In Henry III.’s day disseisin was still for the king’s court the one interesting misdeed that did not involve felony, and it is only about disseisin and wrongful distraint that Bracton has given us anything that can be called a doctrine of employer’s liability. If we understand him rightly, he holds that if X’s servants are guilty of disseising A, then X cannot at once be charged with a disseisin; but it is his duty to make amends to A, and if X after the facts have been brought to his knowledge refuses to make amends, then he is a disseisor and can be sued. It is our misfortune that in this context we read only of disseisin and wrongful distraint, for these are wrongs of subtraction, and it is easy to say that if a man, when he knows what has happened, refuses to give up the land or beasts that his underlings have grabbed for him, he ratifies or “avows” their act and becomes a participator in the wrong. We are not sure that Bracton means more than this.373 What he would have said had the wrong consisted, not in the subtraction of a thing for the master’s use, but in some damage to person, lands, or goods, we cannot say for certain, but we imagine that he would have absolved the master if he neither commanded nor ratified the wrongful act. The only action to which such damage could have given rise was the penal quare vi et armis. Soon after his day this action came to the fore and for some centuries it reigned over our law of torts. Throughout the Year Books men are “punished” for trespasses, and, when we are to be told that an action of trespass will not lie against the master, we are told that the master is not to be “punished” for his servants’ trespasses— quia quis pro alieno facto non est puniendus.374
Identification of master and servant.That our common law in thus sparing the master from civil li-ability was not in full harmony with current morality is possible;375 and the local courts may have continued to enforce an old doctrine about the mainpast; but we gravely doubt whether there was any wide discrepancy between the law of the king’s court and common opinion, and in particular we cannot believe that either law or morality was guilty of any theory of “identification.”376 We see this best in the case in which there was most temptation towards such a theory, the case of husband and wife. Lawyers were always ready to proclaim that husband and wife are one, but, as already said, they never threw much real weight upon this impossible dogma.377 Of course we do not expect to hear that they hanged the husband for the wife’s felonies:378 but they held that wrongs done by the wife died with her. So of wrongs done by the monk; you cannot sue the abbot after the offender’s death. But further, if we look for the best legal ideas of the thirteenth century to Edward I.’s statutes, we shall see no “identification” of the servant with the master and, what is more, no very strong feeling in favour of “employer’s liability.” It is true that a sheriff is in some cases absolutely responsible for the acts of his underlings, in particular he must account to the king for all that they receive;379 but we are never safe in drawing inferences about general principles from the rigorous law that is meted out to royal officers or royal debtors.380 We see, however, that the lords of franchises are not made responsible for all the unauthorized acts of their bailiffs. If such a lord is guilty of taking outrageous toll, his franchise is to be seized into the king’s hands; but if his bailiff does the like without commandment, the bailiff must pay double damages and go to prison for forty days.381
Respondeat superior.To us however at this moment the chief interest of these statutes lies in their introduction of the phrase Respondeat superior. In no case does this phrase point to an absolute liability of the superior for wrongs done by the inferior, or even for those done “in the course of his employment.” In all cases it points to a merely subsidiary liability of the superior, which can only be enforced against him when it is proved or patent that the inferior cannot pay for his own misdeed.382 This indicates, as we believe, what has first and last been one of the main causes of “employer’s liability.” Should we now-a-days hold masters answerable for the uncommanded torts of their servants if normally servants were able to pay for the damage that they do? We do not answer the question; for no law, except a fanciful law of nature, has ever been able to ignore the economic stratification of society, while the existence of large classes of men “from whom no right can be had” has raised difficult problems for politics and for jurisprudence ever since the days of Æthelstan. However, our common law when it took shape in Edward I.’s day did not, unless we are much misled, make masters pay for acts that they had neither commanded nor ratified. Had it done so, it would have “punished” a man for an offence in which he had no part.383
Damage and injury.Besides trespasses in the narrow sense of the word, namely, wrongs which give birth to the action quare vi et armis, our law knows many other wrongs which are redressed in civil actions. But these are, at least for the more part, infringements of proprietary rights or of seisin, and the actions for them are, in the phrase that Bracton adopts, rei persecutoriae. To what we have said of them in various parts of this book we must here add nothing. The action, however, for the abatement of a nuisance deserves a word, because it gave Bracton occasion to use a phrase that afterwards became famous. The nuisance (nocumentum) that is to be actionable must do both “damage” and “injury.” If I erect a mill upon my land and so subtract customers from your mill, I do you damage, but no injury. We see here an incipient attempt to analyze the actionable wrong; few similar attempts will be made for many years to come.384
We must now remark some notable defects in our nascent “law of torts.”
Deceit.Protection against unlawful force has reached, at least in theory, a high stage of perfection while protection against fraud is yet in its infancy. In the thirteenth century our king’s court had in general no remedy for the man who to his damage had trusted the word of a liar. Already in John’s day it knew a writ of deceit (breve de deceptione);385 but for a long time the only cause which will justify the issue of such a writ is a deceit of the court (deceptio curiae). The defendant is to answer, not only the private person whom he has defrauded, but also and in the first instance the king; he is charged with having in some fashion or another “seduced” or deceived the court. In modern terms we may say that the cause of action is no mere fraud, but a fraudulent perversion of the course of justice. Common as examples of “deceit” are the cases in which there is personation, the bringing or defending of an action in the name of one who has given no authority for the use of his name. Common also is the case of the attorney who colludes with his client’s adversary. In these and similar cases the person who is defrauded can obtain sometimes a money compensation, sometimes a more specific remedy, the collusive proceedings being annulled; but the punitive element in the action is strong; the defendant has deceived the court and should be sent to gaol; he must answer the king as well as “the party grieved.” We must wait for a later age before we shall see the court extending the action of deceit beyond these narrow limits, and giving in a general way relief to those who have suffered by placing faith in a lie.386
Fraud as a defence.We can hardly suppose that in this case lowlier tribunals were doing the work that the king’s court left undone. Even as a defence we seldom read of fraud. Bracton indeed can speak of the exceptio doli, just as he can speak of the exceptio which is founded on metus;387 but, while we should have no difficulty in finding cases which illustrate a growing doctrine of “duress,”388 it would not be easy to come by instances in which a defendant relies upon fraud, except where the fraud consists in an abuse of the machinery of the law. Taking the execution of a charter as the typical “act in the law,” we are warranted in believing that the person whose seal it bore might defend himself by alleging that he was tricked into sealing an instrument of one kind while he thought that it was an instrument of another kind.389 In later days he might have said in such a case that the charter was “not his deed”;390 but the English exceptio doli seems to have stopped here. In truth the law would hardly allow that a man could protect himself against a document which bore the impress of his seal, even though he was ready to assert that the seal had been affixed without his authority and by the fraudulent act of another.391 Our law,—though quite willing to admit in vague phrase that no one should be suffered to gain anything by fraud,392 —was inclined to hold that a man has himself to thank if he is misled by deceit:—“It is his folly.”
Defamation.The king’s court gave no action for defamation. This in our eyes will seem both a serious and a curious defect in the justice that it administered. What is usually accounted the first known instance of such an action comes from the year 1356, and even in that instance the slander was complicated with contempt of court.393 In 1295 a picturesque dispute between two Irish magnates had been removed to Westminster, and Edward I.’s court declared in solemn fashion that it would not entertain pleas of defamation; in the Irish court battle had been waged.394 At the end of the middle ages we may see the royal justices beginning to reconsider their doctrine and to foster an “action on the case for words”; but they were by this time hampered by the rival pretensions of the courts Christian.395 The tribunals of the church had been allowed to punish defamation as a sin, and the province which had thus been appropriated by the canonists was not very easily recovered from them until the Protestant reformation had weakened their hands.396
Defamation in the local courts.We should be much mistaken, however, if we believed that the temporal law of the middle ages gave no action to the defamed. Nothing could be less true than that our ancestors in the days of their barbarism could only feel blows and treated hard words as of no account. Even the rude Lex Salica decrees that if one calls a man “wolf” or “hare” one must pay him three shillings, while if one calls a woman “harlot,” and cannot prove the truth of the charge, one must pay her forty-five shillings.397 The oldest English laws exact bót and wíte if one gives another bad names.398 In the Norman Custumal it is written that the man who has falsely called another “thief” or “manslayer” must pay damages, and, holding his nose with his fingers, must publicly confess himself a liar.399 Shame was keenly felt. In almost every action before an English local court of the thirteenth century the plaintiff will claim compensation, not only for the damage (damnum) but also for the shame (huntage, hontage, dedecus, pudor, vituperium) that has been done him,400 and we may suspect that in the king’s court this element was not neglected when compensation was awarded.401 But further, we find that in the local courts, not only were bad words punished upon presentment in a summary way, but regular actions for defamation were common.402 We may gather that in such an action the defendant might allege that his words were true; veritas non est defamatio.403 We may gather that the English for meretrix was actionable, though an interchange of this against the English for latro left one shilling due to the man.404 We already hear that a slander was uttered “of malice aforethought,” and sometimes a plaintiff alleges “special damage.”405 But until further researches have been made among the records of our manorial courts, we shall know little of the medieval law of defamation. Probably in this matter those courts did good enough justice, and for this reason it was that no royal writ was devised for the relief of the slandered.406 In later days, when the old moots were decaying, the ecclesiastical procedure against the sin of defamation seems to have been regarded as the usual, if not the only, engine which could be brought to bear upon cases of libel and slander, and in yet later days the king’s court had some difficulty in asserting its claims over a tract of law that it had once despised.407
Wrongful prosecution.Wrongful prosecution may be regarded as an aggravated form of defamation. It is a wrong of which ancient law speaks fiercely. In England before the Conquest a man might lose his tongue or have to redeem it with his full wer if he brought a false and scandalous accusation.408 Probably the law only wanted to punish the accuser who made a charge which he knew to be false; but it had little power of distinguishing the pardonable mistake from the wicked lie, and there was a strong feeling that men should not make charges that they could not prove. Roman influence would not tend to weaken this feeling. The law of the later empire required that any one bringing a criminal charge should bind himself to suffer in case of failure the penalty that he had endeavoured to call down upon his adversary.409 So soon as our judicial records begin, we see that an amercement is inflicted upon every unsuccessful plaintiff pro falso clamore suo, whatever may have been the cause of his failure. In the appeal of felony the appellor, vanquished in battle, still pays the old wíte of sixty shillings to the king.410 For a time, however, appeals were being encouraged, and we may see an appellor excused from punishment quia pugnavit pro Rege.411 Under Edward I. the tide turned, and a statute decreed that if the appellee was acquitted, his accuser should lie in prison for a year and pay damages by way of recompense for the imprisonment and infamy that he had brought upon the innocent. This statute is a typical piece of medieval legislation. It desires to punish malicious appeals; it actually punishes every appeal that ends in an acquittal.412 Even before this statute an acquitted appellee may have had an action against his accuser.413 A few years later it was necessary to invent the writ of conspiracy for use against those who were abusing the new process of indictment.414 In time past the offence of false judgment had been often placed beside that of false accusation; but even in Edgar’s day the doomsman could free himself from punishment by swearing that he knew no better doom than that which he had pronounced.415 By slow degrees the charge of false judgment became a means of bringing the decisions of the inferior courts before the supreme tribunal; it ceased to import moral blame, though it would lead to an amercement or in some cases to the suppression of a “liberty.”
Forgery.To account for the lenient treatment that forgers and perjurers received at the hands of our fully-grown common law is by no means easy. Forgery and perjury were common enough in the twelfth and thirteenth centuries. The escape of forgery from the catalogue of the felonies must have been narrow; Henry II. seems to put it on a par with arson, robbery and murder.416 We have clear evidence that in 1221 a Jew who forged what purported to be a deed of the Prior of Dunstable was only saved from the gallows by a large payment made to the king.417 Glanvill speaks as though the crimen falsi stood among the grave crimes.418 But when once the royal lawyers have brought the counterfeiting of the king’s seal or the king’s money within the compass of high treason, they apparently think that they have done almost enough, though for a short while we hear that for a man to counterfeit his lord’s seal is treason.419 Fleta speaks of infamy, pillory and tumbrel in connexion with this offence. 420 So far as we can see, however, forgery was dealt with but incidentally and in the course of civil actions, and was merely a cause for an imprisonment redeemable by fine. What is more, the offence that is thus hit is not exactly that which we call forgery; it is not “the making of a false document with intent to defraud”; rather it is the reliance on a false document in a court of law.421 Civil procedure was not adapted for the purpose of tracing the false document to its source; and we have not observed any action based upon a fraud committed by forgery. Apparently a statute of 1413 was needed to give such a remedy.422 Severe legislation does not begin until 1563.423 Meanwhile a vast deal of harm must have been done by the negligent lenience of the law. The plea Nient mon fet was freely used by honourable gentlemen, while monks and burgesses did not scruple to impose upon the king’s court would-be charters of the Anglo-Saxon time which had not even the dubious merit of cleverness.
Perjury.Very ancient law seems to be not quite certain whether it ought to punish perjury at all. Will it not be interfering with the business of the gods?424 If a punishment is inflicted, this is likely to be the loss of the right hand by which the oath was sworn. Then the church asserted her interest in this sin. In Cnut’s day the man who swore falsely upon a relic lost his hand or redeemed it with half his wer, and this ransom was divided in equal shares between his lord and the bishop.425 The growing claims of the church tended to abstract this offence from the lay power, and at the same time tended to reduce even the moral guilt of a periurium, for this name was being given, not only to false assertory oaths but to those breaches of promissory oaths which the church was striving to draw within the pale of her jurisdiction.426 Then at the same time a different stream of events was tending to make the temporal law careless of oaths, except oaths of one special kind, namely, the oaths of assize-recognitors. The main weight of the probative procedure of the king’s courts was being thrown upon the oaths, not of the parties, nor of witnesses adduced by them, but of jurors. In most cases, however, even these jurors stood in no terror of a law against perjury, for the rule was established that if both the parties to the litigation had voluntarily “put themselves” upon a jury, neither of them could complain of the verdict. On the other hand, “assizes,” as distinct from “juries,” are the outcome not of consent but of ordinance. An assize therefore may be attainted, that is to say, the verdict of the twelve men can be brought before another set of twenty-four men and the twelve will be punished and their verdict reversed if the twenty-four disagree with them.427 The punishment for the false twelve looks upon paper a heavy punishment.428 They are to be imprisoned and to lose their chattels; also they “lose the law of the land,” that is to say they cease to be “oath-worthy.” As a matter of fact we may sometimes see attainted jurors escaping with moderate fines.429 The law seems to have no procedure which directly strives to distinguish among untrue verdicts those which are sworn with a knowledge of their falsehood. Bracton feels the gravity of this distinction, but leaves its application to the discretion of the justices, who should not deal very harshly with those who from ignorance or stupidity have sworn the thing that is not.430 Here we may see one of the difficulties that beset a law against perjury. We do not want to punish with equal severity all persons who swear oaths that are untrue; but how to try their thoughts?
Perjury and the church.During the rest of the middle ages the perjury of jurors seems to have been the only form of perjury that was punished by the lay courts, and this was punished only in a casual, incidental fashion in the course of attaints which were regarded mainly as a means for reversing untrue verdicts.431 But in the twelfth and thirteenth centuries jurors were not the only men who swore in court. True that as yet no sworn evidence was laid before a jury; but still a principal swearer with his train of oath-helpers was often to be seen. For his and their immunity, for the consequent contempt into which compurgation fell and for the wide-spread immorality that its degradation occasioned, we can only account by saying that perjury was a sin cognizable by the ecclesiastical courts.432 We may see a few evanescent traces of an old practice whereby a swearer was “levied from his oath.”433 His outstretched hand was seized, the charge of perjury made and battle offered. All this soon disappeared, for perjury, including breach of promissory oaths, was claimed by the ecclesiastical forum. A miserable jealousy blunted the edges of those two swords of which men were always speaking; neither power would allow the other to do anything effectual. The church could not keep up the character of the compurgators in her own courts. To say of a man that he was a common swearer before the ordinary was to blast his character.434 And so our ancestors perjured themselves with impunity.
The sexual sins.Some other crimes which old law had treated with great severity were appropriated by the church and so escaped from lay justice. Almost the whole province of sexual morality had been annexed. Rape it is true was punished—though not always very severely— by the temporal courts,435 and in the manorial hall-moots the old fine for fornication, the leger-wíte, was often exacted from the girl or from her father, but the payment of it, like the payment of merchet, was commonly regarded as a mark of villeinage. But fornication, adultery, incest and bigamy were ecclesiastical offences, and the lay courts had nothing to say about them, if we disregard the trifling leger-wíte and some police discipline for common prostitutes who plied their trade in the neighbourhood of the king’s house or among the clerks of Oxford.436 If the church had left the matter to laymen, it is probable that some of these crimes would have been sternly, if not savagely, punished.437 But the canonists had made such a capricious mess of the marriage law that the names of incest, bigamy and adultery had lost half their sting. Sometimes these offences were punished in the courts Christian by whipping and other bodily penances;438 too often they were paid for with money. The church may take credit for an attempt to establish equality between the adulterous husband and the adulterous wife; but the outcome of this effort was rather a mitigation of her than an aggravation of his guilt.
Heresy.It remains for us to speak of an offence of which few Englishmen were guilty, and about which therefore our courts seldom spoke. The first English statute that denounced the penalty of death against heretics was passed in the year 1401.439 Whether before that statute the law that was in force in our land demanded or suffered that such persons should be burnt is a question that has been eagerly debated; on it in the days of Elizabeth and James I. depended the lives of Anabaptists and Arians; it has not yet lost its interest; but it is a question that buzzes in a vacuum, for until Lollardy became troublesome there was too little heresy in England to beget a settled course of procedure. In order to understand the controversy we must first look abroad.
Heresy on the Continent.On the mainland of Europe obstinate heresy had long before the date of our statute been treated as a crime worthy of death by burning. There is still some doubt among scholars as to the legal history of this punishment, in particular as to the abiding influence of ordinances issued by the first Christian emperors. They dealt separately with divers heretical sects; they condemned the Manicheans to death merely for being Manicheans; they did not pronounce this pain against heretics in general, but to teach heretical doctrines or frequent heretical assemblies was a capital crime.440 After the barbarian invasions and the final disappearance of the Arian heresy the western church enjoyed a long repose; but the law against the Manicheans was still being copied as part of the Lex Romana.441 A change came in the eleventh century; the Cathari appeared upon the scene and with strange rapidity their doctrines spread over Italy and southern Gaul. What we may call the medieval period of persecution begins early in that century. In the year 1022 heretics were put to death at Toulouse and at Orleans;442 we see a Norman knight active in bringing the canons of Orleans to the stake.443 Upon what theory of the law their judges acted we do not precisely know; but it is to be remembered that the medieval heretic was very generally suspected, nor always wrongly, of being a Manichean. The renewed study of Justinian’s code confirmed men in their persuasion that Manicheanism is a capital crime, and an ingenious combination of the texts that were preserved in that book would serve to prove that other heretics were in no better case.444 The prevailing doctrine seems to have been that law human and divine demands the death of the obdurate heretic, and this doctrine was enforced by church and state, except where heresy was so pestilent that there was need for a holy war, rather than for judicial decisions. At length there was definite legislation. In the Lateran Councils of 1179 and 1215 the church uttered her mind. The impenitent heretic when convicted by the ecclesiastical court is to be handed over to the lay power for due punishment. The church does not mention, does not like to mention, the punishment that is due; but every one knows what it is.445 The spiritual judge will even go through the form of requesting that the victim’s life may be spared, in order that the “irregularity” of blood-guiltiness may be decently avoided; but the lay prince who pays heed to this request will be guilty of much worse than an irregularity.446 Then, early in the thirteenth century, constitutions of that unorthodox emperor Frederick II. spoke out plainly and fiercely against heretics,447 and, being promulgated and confirmed by papal bulls, they were received as law even in countries which lay beyond the limits of the empire. They became, as it were, a common law for the western church.448
England and continental heresy.These things concern us, for when in the fifteenth century the English canonist Lyndwood had to answer the question, Why are heretics burnt? his reply was in effect, “Because certain constitutions of Frederick II. have been sanctioned by a decretal of Boniface VIII. which is part of the body of the Canon Law.”449 We must also remember that Englishmen of the thirteenth century, however orthodox they themselves might be, had heard much of heresy as of a terrible reality. They had praised the “just cruelty” of Philip of Flanders;450 they had watched the excesses of that “hammer of heretics” Robert le Bugre;451 already in 1214 King John had sent out from England strict orders for the suppression of heresy in his French dominions;452 repentant Cathari from Languedoc were frequent pilgrims to the shrine of St. Thomas;453 the ill-fated Raymond of Toulouse had married a daughter of our Henry II.; our great Earl of Leicester was the son of the ruthless crusader. A king of En gland, who held Gascony and had claims on the Quercy, was interested in the doings of papal inquisitors;454 the machinery of English law was employed to enforce in England sentences of confiscation which had been pronounced in the south of France.455
Heresy in England.But we must speak of sentences passed in England.456 The first heretics that we read of were some thirty foreigners; they seem to have been Flemings and to have belonged to some offshoot of the Catharan sect. They were condemned in a provincial council held at Oxford in or shortly before 1166 and were relinquished to the secular arm. By the king’s orders they were whipt, branded in the face and exiled; some of them perished of cold and hunger; they made, it is said, but one convert here, and she recanted.457 Then the Assize of Clarendon decreed that none should receive any of their sect and that any house in which they were entertained should be pulled down.458 This is said to be the first law issued by any medieval prince against heretics;459 it was mild; the voice of the universal church had not yet spoken in the Lateran Councils. Then we are told that in 1210 an Albigensian was burnt in London; we are told this and no more.460 A better attested case follows. In 1222 Stephen Langton held a provincial council at Oxford, and there he degraded and handed over to the lay power a deacon who had turned Jew for the love of a Jewess. The apostate was delivered to the sheriff of Oxfordshire, who forthwith burnt him. That sheriff was the unruly Fawkes of Breauté, then at the height of his power. His prompt action seems to have surprised his contemporaries; but it was approved by Bracton,461 who however did not write until after the constitutions of the Emperor Frederick had received the approval of the pope, and the church was deeply committed to the infliction of capital punishment. In the same council the cardinal archbishop condemned to “immuration,” that is, to close and solitary imprisonment for life, two of the laity, a man who had given himself out to be the Saviour of men, a woman who had called herself His Virgin Mother. All this seems to have been done in strict accordance with the continental procedure; the penitent fanatics were immured, the impenitent lover was burnt.462 In 1240 the Dominicans at Cambridge arrested a Carthusian who would not go to church, said that the devil was loose and reviled the pope. The sheriff was ordered to take him from the hands of the Preaching Friars and bring him to Westminster. He was brought before the legate Otto, among whose assessors we may see the Hostiensis of canonical fame. What became of this man we do not know; but he said some things about the holy father which made the legate blush and amused Matthew Paris.463 A little earlier the Dominicans were arresting heretics in Yorkshire and had to be told that this was the sheriff’s business.464 But even the trained scent of the Preachers could find little heresy in England, and they themselves were soon developing opinions which earned condemnation.465
Heresy in English text-books.As to the text writers, Glanvill has no word of heresy; Bracton approves the fate of the apostate deacon;466 Fleta holds that apostates, sorcerers “and the like” should be drawn and burnt, while Christians who marry with Jews should be buried alive;467 Britton would burn renegades and miscreants, and so would his glossator;468 the author of the Mirror, who is at times frantically orthodox, treats apostasy, heresy and sorcery as the crime of laesa maiestas divina, treason against the heavenly King; according to him the punishment of heresy is fourfold, excommunication, degradation, disherison, incineration.469 He holds too that heresy can be prosecuted by way of appeal in a temporal court and talks much nonsense about this matter. Britton admits an inquiry “of sorcerers and sorceresses, of apostates and heretics” among the articles of the sheriff’s turn; Fleta in this context speaks only of sorcerers and apostates.470 In other copies of the articles we find no such inquiry.471 All this suggests that lawyers, with an increasing horror, but no real experience, of heresy, think themselves at liberty to speculate about what ought to be done if heretics appear. According to the canon law the lay prince who determined a cause of heresy would be almost as guilty as would be he who refused to aid and complete the justice of the church.472
Later cases of heresy.We must carry our history a little further. In 1324 Richard Ledrede, a Franciscan friar who had become Bishop of Ossory, instituted a vigorous prosecution against certain sheep of his flock who were suspected of the heresy that consists of witchcraft. The chief offenders eluded him; they were of kin to men very powerful in Ireland who obstructed his efforts. At one time he was himself cast into prison. Incarceration stimulated his zeal. At length he triumphed. In the presence of the justiciar, chancellor and treasurer he tried his heretics. One miserable woman he caused to be flogged until she made an absurd confession about demonolatry and so forth. She and others remaining impenitent were committed to the flames, while in proper inquisitorial style the bishop condemned the penitent to wear crosses on their garments. The case is exceedingly interesting. We see on the one hand that the Anglo-Irish law was utterly unprepared to deal with heretics; it had no proper process for arresting the suspects and keeping them arrested; we see also that the king’s judges and officers disliked the bishop’s proceedings—not the less because he was an intruding Englishman;—but we see on the other hand that they had to give way, that they quailed before a prelate who resolutely flourished in their faces the imperious decretal of Boniface VIII. We have some satisfaction in reading that at a later time he himself was accused of heresy—perhaps the heresy of the “Spiritual” Franciscans—and was driven from his diocese.473 We are told that among the Minorites who in 1330 were martyred for resisting the decrees of John XXII. some were burnt in England “in a wood”; but this story needs confirmation.474
No English procedure apt for cases of heresy.The chief lesson that we learn from Bishop Ledrede’s proceedings, namely that in England there was no machinery aptly suited for the suppression of heresy, is enforced by the case of the Templars. Edward II. urged on by Clement V., who had become the tool of Philip the Fair, suffered the admission into England of papal inquisitors and the use of torture. The Order was dissolved, the knights were dispersed, their wealth was confiscated; but, though the usual tales of devil-worship were told, they were not convicted and there was no burning.475
English law and heresy.Such are the principal cases of heresy that we find before the days of the Lollards. If now we ask what law about heresy was in force in England, we must in the first place answer that according to the law of the catholic church the man convicted by the bishop of his diocese as an impenitent or a relapsed heretic was to be delivered over to the secular power. We must add that the officer or the prince, who neglected to do what was implied in the bishop’s sentence, was liable to excommunication, while if he persisted in his contumacy for a year, he himself was a heretic.476 To ask what was the law of our temporal courts about this matter is to ask what would have been done in a case unprecedented or touched by very few precedents. The answer will vary from reign to reign, from pontificate to pontificate. If we ask it in the middle of the fourteenth century, when our parliaments were entering on a course of anti-Roman legislation, when statutes of Provisors and Praemunire were being passed, when the papacy in its Babylonish captivity had fallen from its high estate, when the theories of Ockham and Marsiglio were in the air, when England had repudiated her feudal dependence on Rome, when heresy no longer meant some strange, dualistic faith which rejected the Christian creeds, when Franciscans were heretics in the eyes of Dominicans, and Spirituals were heretics in the eyes of Conventuals, we may give a tolerant answer:—we see Wycliffe favoured at court and dying in peace at Lutterworth. But if we ask the same question at an earlier time, in Henry III.’s day, when the fate of the Counts of Toulouse was not forgotten, when the papacy was yet grand and terrible, when it could strike down an emperor the wonder of the world, when the flagrant heresy was Catharism, which to the popular mind implied devil-worship and nameless vices, when there were plausible and modern reasons for the doctrine that England was a papal fief, then we must say that the sheriff, the judge, the king, who neglected to enforce the church’s law about this spiritual crime, would have been a bold man.
The writ for burning heretics.To the smaller, the technical, question “whether there was a writ de haeretico comburendo at common law?” we must reply that no one has yet produced any such writ older than that which was made in the parliament of 1401 for the burning of William Sawtre, and that the events of that year, which we must not here discuss, suggest first that no such writ had theretofore been issued, secondly that the orthodox party was anxious that Sawtre should be burnt “at common law” (that is to say, without any aid from the statute which they were on the point of obtaining), and thirdly that they had their way.477 We must also remember that according to the doctrine of the canon law no such writ was requisite; the sheriff or other officer who received the “relinquished” miscreant would be bound to burn him and would run a risk of excommunication if he waited for orders.478 Under Elizabeth and James I., when there were no statutes which punished heresy with death, Sawtre’s case and the case of the apostate deacon were the two precedents on which our lawyers based their theory that the writ lies at common law, though not as a writ “of course.” Of the legality of the flames which then burnt the bodies of Arians and Anabaptists we must here say nothing, but assuredly it was hard to find any logical theory which would send heretics to death and yet not admit that papal decretals were still valid law in England.479
Sorcery.Closely connected with heresy is sorcery; indeed it is probable that but for the persecution of heretics there would have been no persecution of sorcerers. Here again therefore we find some difficulty in stating the law of England as it was in the twelfth and thirteenth centuries, for heresy was not troublesome and therefore we read little of diabolic arts.480
History of sorcery.The first Christian emperors had made savage laws against magicians and the like, and these, preserved in the Code, did much harm in after ages.481 The Bible too enshrined that hideous text, “Thou shalt not suffer a witch to live.”482 The Anglo-Saxon dooms, like the parallel folk-laws of the continent, have a good deal to say about sorcery;483 the remnants of heathen rites were regarded as devil-worship, and in England the successive swarms of Norsemen were but slowly weaned from their old faith. Even Cnut had to legislate against the witchcraft which is heathenry.484 But when once the western world had been safely won by the catholic religion and there was no longer any fear of a relapse into paganism, there came a time of toleration for those who dabbled in the black arts.485 Doubtless if they compassed criminal ends by their practices, if, for example, they slew a man by maltreating a waxen image of him— and few doubted that such things were possible—they would be hanged or burnt.486 Again, the mere practice of their arts was sinful; but no very severe measures would be taken if they did not obtrude themselves upon the notice of the church. The exact boundary between the legitimate and the illegitimate sciences was vague; astrology hovered on the border line. A little harmless necromancy would be met by blame that was tinctured by awe and admiration; bishops and even popes, it was whispered, had trifled with the powers of evil. In Henry I.’s day Archbishop Gerard of York was reputed a necromancer, and, when he died a sudden death with a book of astrology under his pillow, his body could not find burial in his cathedral; but then he had taken the wrong, the unclerical, side in the strife about investitures. It was not until the thirteenth century was at an end that the church began in various parts of the world a stringent prosecution of sorcerers. This grew out of the warfare against heresy. The sorcerer is a heretic and should be punished as such: John XXII. made this plain.487
Sorcery in English law-books.In Edward I.’s day our English lawyers seem to have adopted the opinion that sorcerers ought to be burnt.488 Britton and Fleta declare that an inquiry about sorcerers is one of the articles of the sheriff’s turn;489 but this is not borne out by other evidence.490 A little later we read that it is for the ecclesiastical court to try such offenders and to deliver them over to be put to death in the king’s court, but that the king himself “as a good marshal of Christianity” may proceed against them if he pleases.491
Cases of sorcery in England.Of actual cases we see but very few. In 1209 one woman appealed another of sorcery in the king’s court; the accused purged herself by the ordeal of iron.492 In 1279 a Northumbrian jury made the following curious presentment:—“An unknown woman, who was a witch (sortilega), entered the house of John of Kerneslaw at the hour of vespers and assaulted the said John because he signed himself with the cross above the candles when the Benedicite was said. And the said John defended himself as against the devil (tanquam de diabolo) and struck the witch with a staff so that she died. And afterwards by the judgment of the whole clergy she was burnt. Then John went mad, and, when he had recovered his wits and remembered what he had done, he fled.” Upon this presentment the judgment is that, since John is not suspected of any felony, he may return if he pleases, but that his chattels are forfeited for the flight.493 Edward I.’s treasurer, Walter Langton, Bishop of Lichfield, was accused before the pope of murder and adultery. A charge of sorcery, homage to Satan and the foul kiss was thrown in; but he cleared himself with compurgators. Another royal clerk, Adam of Stratton, was believed to have preserved nail-parings and other nasty things in a cabinet, which he made away with when he was arrested for offences less dubious than sorcery.494 The miserable beings whom the Bishop of Ossory sent to the stake were sorcerers as well as heretics; one of them was the first witch burnt in Ireland.495 The bishop showed an all too close familiarity with the latest decretals. Many of the phenomena which characterize the witch trials of a later day appear already in this case—the hell-broth brewed from miscellaneous filth and the rest of it. Sorcery and devil-worship were charged against the Templars; but in England, as already said, they could not be convicted even after torture. In 1325 upwards of twenty men were indicted and tried in the King’s Bench for having perpetrated a murder by tormenting a waxen image; the jury acquitted them.496 In 1371 a man was brought before the King’s Bench having been arrested in Southwark with a dead man’s head and a book of sorcery in his possession. No indictment was found against him and he was let go; but the clerks made him swear that he never would be a sorcerer, and the head and book were burnt on Tothill at his cost.497 But all this means very little.
Sorcery in later times.A change came in the fifteenth century. In 1406, soon after our first statute against heretics, Henry IV. empowered the Bishop of Norwich to arrest sorcerers and witches, and to keep them in prison after conviction until further order.498 By this time a witch could be tried and burnt under the statute against heretics. Also the king’s council began to take notice of sorcery, and accusations thereof were used for political purposes.499 The epidemic which was raging on the continent reached our shores; but it came here late and mild. Where there is no torture there can be little witchcraft. Statutes were made by Henry VIII. and Elizabeth which condemned various forms of sorcery as crimes to be punished by the temporal courts;500 but these statutes were neither so severe nor so comprehensive as the canon law; they seem to have been occasioned by attempts to use divination for purposes that were regarded as treasonable,501 and very few people were done to death by them. A bloodier statute was passed by that erudite demonologist James I.;502 but it was left for the Puritans in the moment of their triumph to enforce with cruel diligence this statute and the written law of God. The days of the Commonwealth were the worst days for witches in England.503
But we have transgressed our limits. The thirteenth century seems to have been content to hold as an academic opinion that sorcerers, being heretics, ought to be burnt, if convicted by the courts of Holy Church;504 but no serious effort was made to put this theory into practice. Sorcery is a crime created by the measures which are taken for its suppression.
Unnatural crime.The crime against nature seems to have had a somewhat similar history.505 It was so closely connected with heresy that the vulgar had but one name for both.506 Possibly an old Germanic element appears when Fleta speaks of the criminal being buried alive;507 but we are elsewhere told that burning is the due punishment,508 and this may betray a trace of Roman law.509 It was a subject for ecclesiastical cognizance, and apparently there was a prevailing opinion that, if the church relinquished the offenders to the secular arm, they ought to be burnt.510 As a matter of fact we do not believe that in England they were thus relinquished; in the twelfth century Anselm had been compelled to deal less severely with a prevailing vice.511 The statute of 1533 which makes it felony affords an almost sufficient proof that the temporal courts had not punished it and that no one had been put to death for it for a very long time past.512
Inefficiency of criminal law.We must not end this chapter without recording our belief that crimes of violence were common and that the criminal law was exceedingly inefficient. The justices in eyre who visited Gloucester in 1221 listened to an appalling tale of crime which comprised some 330 acts of homicide. The result of their visitation was that one man was mutilated, and about 14 men were hanged, while about 100 orders for outlawry were given. As the profits however of the minor offences, chiefly the offences of “communities,” they raised some £430 by about 220 fines and amercements.513 The period of which they took note was long and comprised a time of civil war. But even in quiet times few out of many criminals came to their appointed end. In 1256 the justices in Northumberland heard of 77 murders; 4 murderers were hanged, 72 were outlawed. They heard of 78 other felonies, for which 14 people were hanged and 54 were outlawed. In 1279 their successors in the same county received reports of 68 cases of murder, which resulted in the hanging of 2 murderers and the outlawry of 65, while for 110 burglaries and so forth 20 malefactors went to the gallows and 75 were left “lawless,” but at large.514 Thus, after all, we come back to the point whence we started, for, whatever the law might wish, the malefactor’s fate was like to be outlawry rather than any more modern punishment.
[p. 523,] side-note, should read “Treason contrasted with felony.”
[1 ] The principal books which enable us to trace our modern law of crimes, from the later middle ages onwards, are Staundford, Les Plees de Corone; Coke, Third Institute; Hale, Pleas of the Crown (for historical purposes this is one of the very best of our legal text-books); Blackstone, Comment. vol. iv; J. F. Stephen, History of the Criminal Law; Pike, History of Crime in England. For the old Germanic law, Wilda, Strafrecht der Germanen, is still an excellent book; but the whole subject is now covered by Brunner, Deutsche Rechtsgeschichte. Two valuable essays by the same writer on Outlawry and Responsibility for Unintentional Misdeeds are included in his Forschungen. Henderson, Verbrechen und Strafen in England, Berlin, 1890, has collected valuable materials for the Norman period of English law. Post, Bausteine für eine allgemeine Rechtswissenschaft, 1880-81, describes the nascent criminal law of many rude peoples.
[2 ] Select Pleas of the Crown (Selden Soc.), p. 47. Y. B. 20-21 Edw. I. p. 237: “crié Wolveseved.”
[3 ] Brunner, Abspaltungen der Friedlosigkeit, Forschungen, p. 444; Post, Bausteine, i. 164.
[4 ] When outlawry has been reduced from the level of punishment or warfare to that of a mere “process” against the contumacious, another movement begins, for this “process” is slowly extended from the bad crimes to the minor offences, and in England it even becomes part of the machinery of purely civil actions.
[5 ] Alfred, c. 42.
[6 ] Edmund, ii. 1. As to the earlier but parallel Frankish legislation, see Brunner, D. R. G. ii. 529-31; it did not meet with permanent success.
[7 ] Tacitus, Germ. c. 12: “pars multae regi vel civitati, pars ipsi qui vindicatur vel propinquis eius exsolvitur.” Some of the German nations reckon the sum due to the king as a part of the whole composition, in accordance with these words of Tacitus; others, including the English, distinguish more clearly the wíte from the bót.
[8 ] Brunner, D. R. G. i. 173-77.
[9 ] Germ. c. 12: “Licet apud concilium accusare quoque et discrimen capitis intendere. distinctio poenarum ex delicto. proditores et transfugas arboribus suspendunt, ignavos et imbelles et corpore infames coeno ac palude iniecta insuper crate mergunt. diversitas supplicii illuc respicit, tamquam scelera ostendi oporteat dum puniuntur, flagitia abscondi.”
[10 ] Brunner, D. R. G. ii. 609. See the Introduction to Alfred’s laws, 49 § 7.
[11 ] See especially Æthelst. iv. 6.
[12 ] Schmid, Gesetze, p. 656.
[13 ] Cnut, ii. 12-15.
[14 ] See Pollock, The King’s Peace, Oxford Lectures, p. 68.
[15 ] Æthelr. viii. 5; Cnut, i. 3.
[16 ] Ine, 6; Alf. 39; Leg. Henr. 81 §§ 3, 4.
[17 ] D. B. i. 252 (Shropshire): “has iii. forisfacturas habebat in dominio rex E. in omni Anglia extra firmas.”
[18 ] D. B. i. 238 b (Alvestone): “et omnes alias forisfacturas preter illas iiij. quas rex habet per totum regnum.”
[19 ] D. B. i. 179.
[20 ] D. B. i. 61 b (Cheneteberie).
[21 ] D. B. i. 10 b (Romenel).
[22 ] D. B. i. 269 b: “praeter has vi. pace infracta, forsteal, heinfara, et pugna quae post sacramentum factum remanebat, et si constrictus iusticia prepositi alicui debitum [non?] solvebat, et si terminum a preposito datum non attendebat.” Ibid. p. 270: “praeter vi. has, furtum, heinfare, forestel, pacem regis infractam, terminum fractum a preposito stabilitum, pugnam post sacramentum factum remanentem.” The pugna quae remanet post sacramentum factum is perhaps a blood-feud prosecuted after the oath of peace has been sworn.
[23 ] D. B. i. 11 b: “De xxii hundredis pertinent isti manerio saca et soca et omnia forisfactura quae iuste pertinent regi.”
[24 ] D. B. i. 87 b.
[25 ] D. B. i. 172.
[26 ] See Très Ancien Coutumier, ed. Tardif, especially cap. 15, 16, 35, 53, 58, 59, 66, 70. The frequent mention of the house, the plough and the highway as specially within the duke’s protection, suggests a time when there was no general rule that homicide and all other serious deeds of violence were ducal pleas. Delisle, Bibliothèque de l’École des chartes, 3me Série, vol. iii. p. 108, says that before the thirteenth century “les hautes justices” were rarely found in the hands of the Norman lords. In Rot. Cart. 19 is a charter of 1199 granted by John to the Bishop of Lisieux, in which the king reserves “tantummodo tria placita quae de spata vocantur . . . videlicet de summonicione exercitus nostri, de via curiae nostrae, et de moneta.” As to the peace of the plough, see Wilda, Strafrecht, 246; it seems to have been well enough known to the Scandinavian laws.
[27 ] The author of the Leges Henrici in c. 10 endeavours to collect the pleas of the crown. Already the long, disorderly list extends beyond Cnut’s doom and the testimony of Domesday Book. But there has not yet been much generalization.
[28 ] D. B. i. 56 b.
[29 ] D. B. i. 154 b.
[30 ] D. B. i. 26.
[31 ] D. B. i. 172: “utlaghe iudicatur”; 252, “utlagus fiebat.”
[32 ] D. B. i. 179.
[33 ] D. B. i. 262 b.
[34 ] Leg. Henr. 12: “Quaedam non possunt emendari, quae sunt: husbreche, et bernet, et openthifthe, et eberemorth, et hlafordswike, et infractio pacis ecclesiae vel manus regis per homicidium. Haec emendantur c. solidis: grithebreche, stretbreche, forestel, burchbreche, hamsokna, flymonfirma.” What exactly this writer meant by burchbreche, it is difficult to say; see Schmid, Gesetze, s.v. bohr-bryce. By open theft is meant hand-having theft, furtum manifestum. The word morð seems to imply secrecy; it is homicide committed secretly, poisoning being the typical case. Then open morð is committed by one who is guilty of morð and is taken in the act. See Schmid, Gesetze, p. 633.
[35 ] Leg. Henr. cc. 71-94. See above, vol. i. p. 114. In Leg. Henr. 80 § 11, we see traces of a “constructive” jurisprudence of hámsócn. To chase a man into a mill or a sheep-fold is hámsócn.
[36 ] What we have called the new criminal law is stated for popular purposes in Dial. de Scac. ii. 16: “Quisquis enim in regiam maiestatem deliquisse deprehenditur, uno trium modorum iuxta qualitatem delicti sui regi condemnatur: aut enim in universo mobili suo reus iudicatur, pro minoribus culpis; aut in omnibus immobilibus, fundis scilicet et redditibus, ut eis exheredetur; quod si pro maioribus culpis, aut pro maximis quibuscunque vel enormibus delictis, in vitam suam vel membra.” This is too simple, but is not far from the truth, and is a marvellous contrast to the chaos of the Leges Henrici.
[37 ] Leg. Henr. 59 § 15; Glanvill, ii. 3; Note Book, pl. 592, 1460. In practice sixty shillings and a penny are paid. The penny we cannot explain. The author of the Mirror (Seld. Soc.), p. 110, who supposes that the sixty shillings go to the victor, adds a halfpenny for a purse to hold the money. For the bannus Regis of Frankish law, see Brunner, D. R. G. ii. 35.
[38 ] London charter of Hen. I. c. 7. Liber Albus, i. 111, 115: Of pledges who do not produce a man accused of crime it is said “iudicatur unusquisque a sa were, scilicet, in misericordia centum solidorum.” Consuetudines Kantiae, Statutes, i. 225.
[39 ] Somma, p. 204; Ancienne coutume, c. 85, ed. de Gruchy, p. 195.
[40 ] Lord Campbell’s Act, Stat. 9-10 Vict. c. 93.
[41 ] Günther, Wiedervergeltung, i. 207. The blood-feud seems to have lived longest in Friesland, Lower Saxony, and parts of Switzerland, where it was prosecuted even in the sixteenth century.
[42 ] Leg. Henr. 70 § 1; 76 § 4; Leg. Will. i. c. 8. See Schmid, Gesetze, p. 676.
[43 ] Ine, 34 § 1.
[44 ] Forschungen, 444.
[45 ] Wihtræd, c. 26. Already in this very ancient set of laws we read that if a thief is taken in the act, the king may decree that he shall be put to death, or sold over seas, or suffered to redeem himself by his wer. So in Ine, c. 6, if a man fights in the king’s house, it is for the king to decide whether he shall have life or no.
[46 ] Laws of William (Select Charters), c. 10: “Interdico etiam ne quis occidatur aut suspendatur pro aliqua culpa, sed eruantur oculi, et testiculi abscidantur.” We use too mild a word if we speak of “blinding.” The eyes were torn out.
[47 ] Will. Malmesb. Gesta Regum, ii. 487.
[48 ] Flor. Wig. ii. 57.
[49 ] Diceto, i. 434: “homicidae suspendio punirentur, proditores damnarentur exilio, levioribus in flagitiis deprehensi truncatione membrorum notabiles redderentur.”
[50 ] Select Pleas of the Crown (Selden Soc.), pl. 77. On a roll of 1202 it is said of a woman “et ideo meruit mortem, sed per dispensationem eruantur ei oculi.”
[51 ] Ancienne coutume de Normandie, c. 74 (75), ed. Gruchy, p. 177; Somma, p. 184: “In omni enim sequela quae fit ad damnamentum membrorum debet in clamore exprimi quod illud, super quo appellatio movetur, factum est cum felonia in pace Dei et Ducis.” Bracton, f. 138, 144, 146. In early enrolments many of the appellor’s phrases are omitted or represented by etc. We must not assume that he did not mention felony because this word is not on the roll.
[52 ] See above, vol. i. p. 82. In the Normandy of Henry I. the effect of breaking the peace of the church as well as the peace of the duke by homicide was that the bishop got nine pounds out of the forfeited chattels of the offender: Très ancien coutumier (ed. Tardif), p. 66. In England at that time the bishop in such a case may have been able to claim five pounds: Leg. Henr. 11 § 1. At a later date we find that in London assaults committed within the octaves of the three great festivals were treated as graver offences than other assaults: Munim. Gildh. i. 56.
[53 ] Leg. Henr. 12 §§ 1, 2; 35 § 2.
[54 ] See Pollock, The King’s Peace, Oxford Lectures, p. 65; Liebermann, Leges Edwardi, p. 63. Select Pleas of the Crown, pl. 84: a crime committed between Richard’s death and John’s coronation is said to have been done “after the peace of our lord the king, then duke of Normandy and lord of England, had been sworn.”
[55 ] Laws of William (Sel. Charters), c. 3. Henry II. in his Coronation Charter, c. 12, says, “Pacem firmam in toto regno meo pono et teneri amodo praecipio.”
[56 ] See e.g. Bracton, f. 144: “sicut fuit in pace domini Regis in tali loco, vel sicut ivit in pace domini Regis in chimino domini Regis.” The king’s hand-given or hanselled grið was also useful. Bracton, f. 138: “et contra pacem domini Regis ei [appellatori] datam.” Select Pleas of the Crown, pl. 104: in 1211 a wounded man obtains the king’s peace from the king’s serjeant; this is mentioned as an aggravation of a subsequent attack upon him by his enemy. In Edward III.’s day to slay a royal messenger, who according to old ideas would have been specially within the king’s grið, was accounted by some to be no mere felony, but high treason: Hale, P. C. i. 81.
[57 ] Glanvill, i. 2: “nisi accusator adiciat de pace domini Regis infracta.” For the importance of these words see Select Pleas of the Crown, pl. 21, 31, 88, 172.
[58 ] Oxford English Dictionary, s.v. felon.
[59 ] Co. Lit. 391. Blackstone, iv. 95, speaks scornfully of Coke’s endeavour, and himself favours Spelman’s fee-lon (pretium feodi). In Y. B. 21-22 Edw. I. p. 355, a judge speaks as though felony and venom were connected in his mind. Henry III. tells the pope that the Bishop of Ely is behaving treasonably, “non oblitus antiquam suae mentis et fellitam malitiam”: Foedera, i. 155.
[60 ] The relation of the English adjective fell to felon is explained in Oxf. Dict.
[61 ] The editors of the Oxf. Dict. give a few instances of this use.
[62 ] See above, vol. i. pp. 321-23; Blackstone, Comment. iv. 96. After Leg. Henr. 43 § 7; 46 § 3; 53 § 4, one of the first occurrences of felonia is in Ass. Northampt. c. 1: an accused person who comes clean from the ordeal may remain in the country unless he is defamed of murder “vel alia turpi felonia,” in which case he must abjure the realm. It would seem therefore that every robbery or the like, if already a felonia, is not a turpis felonia.
[63 ] See the passage from the coutumier cited above, p. 485, note 51.
[64 ] The rule that an attainder for wilful homicide or the like will always involve disherison seems not to have been fully established even in 1176. See above, vol. i. p. 483, note 194.
[65 ] Bracton, f. 141: “Item nullum appellum, nisi fiat mentio de felonia facta.” Were we to begin by saying that the felonies are a species of “indictable offences” we should mislead a student of thirteenth century law. There are several felonies that are not indictable felonies. This will become plain hereafter. See Britton, i. 98.
[66 ] Glanvill, xiv. 1: “Si vero per huiusmodi legem super capitali crimine fuerit quis convictus, ex regiae dispensationis beneficio tam vitae quam membrorum suorum eius pendet iudicium, sicuti in ceteris placitis de felonia.” Bracton, f. 137: “et si appellatus victus fuerit capitalem subibit sententiam cum exheredatione et omnium bonorum suorum amissione, et sicut esse debet in omni vel quolibet genere feloniae.” The difficulties in the way of a definition of felony are stated by Blackstone, Comment. iv. 97, and Stephen, Hist. Crim. Law, ii. 192. Blackstone says: “Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny: and it is possible that capital punishments may be inflicted and yet the offence be no felony, as in the case of heresy by the common law . . . And of the same nature was the punishment of standing mute.” Sir J. F. Stephen writes: “It is usually said that felony means a crime which involved the punishment of forfeiture, but this definition would be too large, for it would include misprision of treason which is a misdemeanour. On the other hand, if felony is defined as a crime punishable with death, it excludes petty larceny which was never capital, and includes piracy which was never felony.” These objections, however, disappear if we take our stand about the year 1200, and in accordance with the spirit of the time speak, not of “crimes punishable with death,” but of crimes for which a man “forfeits life or member.” Men may lose their ears for petty larceny (Britton, i. 61); if they are let off with minor punishments this is regarded as an act of mercy. Possibly the petty larcener’s lands did not escheat; in later times they did not; but a freeholder of this age was in general above the temptations of petty larceny. Of piracy the law as yet knew nothing. Any act that would afterwards have been “misprision of treason” would almost certainly have been called and treated as treason. The peine forte et dure in its inception was not regarded as a punishment; it was mere process. Excusable homicide was sharply contrasted with felonious homicide. If heresy was punishable with death, the English temporal courts had nothing to do with this. As to “self-murder,” we doubt whether the law of 1200 called this felony. Of these points we shall speak below. We are not concerned to exclude high or petty treason from our definition of felony. Every treason was a felony. For this reason we say that the felon’s lands go either to the lord or—this is the case in high treason—to the king. We believe that we are right in saying that about the year 1200 men were not outlawed for crimes falling short of felony. The extension of outlawry to smaller offences, in particular, trespass contra pacem Regis, was just taking place in Bracton’s day. He sees (f. 127 b, 441) that a minor outlawry is being developed and that this is parallel to the minor excommunication. The passage on f. 127 b (“Facta autem . . . humana”) is marginal. On the whole in the thirteenth century, though there might be some small anomalies, the gulf between the felonies and the minor offences was broad and deep.
[67 ] Bracton, f. 101 b, 102. Select Pleas of the Crown, pl. 35: in 1202 the justices refuse to hear an appeal which charges a mere trespass on land; “appellum de pratis pastis non pertinet ad coronam Regis.” Many entries suggest that an appeal of felony often has its origin in a dispute about proprietary rights.
[68 ] Bracton, f. 144 b.
[69 ] Britton, i. 113: “Ou il porra dire, qe tut feist il le fet, neqedent ne le fist il mie par felonie purpensé, mes par necessité defendaunt sei . . . ou par mescheaunce en akune manere e sauntz felonie penser (al. purpensé).” See the pardons cited below, p. 503. Already in 1214 we find “per infortunium et non per feloniam”; Select Pleas of the Crown, pl. 114. The wickedness of felony is made evident by the common phrase nequiter et in felonia; but, while the in felonia became essential and sacramental, the nequiter was never, so far as we are aware, an indispensable phrase. The “special instigation of the devil” is a late ornament.
[70 ] Bracton, f. 138, 141 b, 144, 144 b: “in assultu praemeditato.” Select Pleas of the Crown, pl. 88 (ad 1203).
[71 ] Schmid, Gesetze, Glossar, s.v. forsteal; Brunner, D. R. G. ii. 563.
[72 ] Leg. Will. i. c. 2. Already in D. B. i. 269 we have “homicidium et furtum et heinfar [hámfare] praecogitata.”
[73 ] Somma, p. 184; Ancienne coutume, c. 74 (75), ed. Gruchy, p. 176: “cum agueito praecogitato”: “en aguet pourpensé.”
[74 ] See the pardons of which instances are given below, p. 503.
[75 ] If we are right, the guet-apens which in modern French law raises a mere meurtre to the dignity of an assassinat, is first cousin to the malice aforethought which characterizes our English murder; both go back to days when waylaying is a specially heinous crime and a cause for royal interference. For the French guet-apens, see Viollet, Établissements, i. 238. In England the course of development is this:—a charge of forsteal or (Leg. Will.) agwait purpensé becomes an ordinary part of every appeal in the form assault purpensé, assultus praemeditatus; a slight change makes this the malitia praemeditata (excogitata) of a chancery formula that is quite common before the end of Henry III.’s reign. The three terms agait, assaut ou malice purpensé are brought together into one phrase on the Parliament Roll for 1389; Rot. Parl. iii. 268. See Stephen, Hist. Crim. Law, iii. 41-42; but we cannot think that there is any connexion between the malitia of this formula and the odium et atia of the famous writ. As to malice (malitia), this creeps into records and law-books as a vague word expressive of intentional wrong-doing; but (though it would exclude harm done by misadventure) it lays no strong emphasis on the intention, and makes no special reference to spite or hatred. See e.g. Bracton, f. 138 b, line 8; Note Book, pl. 687; Britton, i. 67, 83, 87, 89, 91. It was becoming common in Edward I.’s reign; but had, so it seems to us, first become prominent in the numerous pardons that were granted to those who were manslayers by misadventure or in self-defence. As to forsteal, this word perdured in the practice of local courts, which had nothing to do with grave crimes, and from the sense of way-laying it passed to that of lying in wait for merchants who are bringing goods to the town so that the price of victuals is enhanced.
[76 ] See Brunner, Absichtslose Missethat, Forschungen, 487; Post, Bausteine, i. 230; Wigmore, Responsibility for Tortious Acts, Harv. L. R., vii. 315, 383, 441. Mr. Wigmore has made a very full collection of early English cases bearing on this question.
[77 ] Leg. Hen. 90 § 11: “quod per eum non fuerit vitae remotior morti propinquior.” Bracton, f. 141 b: “per quod remotior esse debeat a vita et morti propinquior.” Note Book, pl. 1460: “nec per ipsum fuit morti appropiatus nec a vita elongatus.” Munim. Gildh. i. 105: “Iuravit . . . quod numquam ipsam Isabellam verberavit, unde puer, de quo fecit aborsum, propinquior fuit morti et remotior a vita.” Brunner, Forschungen, p. 495, gives a similar formula from the Icelandic Grágás.
[78 ] Leg. Hen. 88 § 9.
[79 ] Leg. Hen. 90 § 11.
[80 ] Brunner, Forschungen, 500-505.
[81 ] Brunner, Forschungen, 492; Lex Alaman. Mon. Germ. Leges, iii. p. 39.
[82 ] Leg. Hen. 90 § 7. We read of an exactly similar judgment given of late years in Abyssinia; Parkyns, Life in Abyssinia, London, 1868, pp. 366-67, cited by Günther, Wiedervergeltung, i. 13.
[83 ] For French medieval law, see Brunner, op. cit. 493-94, and Esmein, Histoire de la procédure criminelle, p. 255. Post, Bausteine, i. 233, says that this idea, namely, that homicide by misadventure deserves pardon, still prevails in Chinese law.
[84 ] Brunner, op. cit. 507-523.
[85 ] Brunner, op. cit. 519, and D. R. G. ii. 556. On the continent the trial and formal punishment of beasts have been known in recent times; but there is some dispute as to how far this is due to the sanctity attached by bibliolaters to the archaic Hebrew Law contained in Genesis, ix. 5, and Exodus, xxi. 28-32. See Laws of Alfred, Introduction, 21.
[86 ] Laws of Alfred, 19 § 3; Leg. Henr. 87 § 2, 3; 90 § 11. Brunner, Forschungen, 521. The Ripuarian Law, adopted in Leg. Henr. 90 § 6, says that if a beam of mine or the like kills a man, I need not pay for him, unless I take the “auctor interfectionis,” this man-slaying log, into my service.
[87 ] Bracton, f. 116: “cum malefactor captus sit, scilicet la bane.”
[88 ] Stat. 9-10 Vic. c. 62. For the law of deodands, see Bracton, f. 122; Fleta, p. 37; Britton, i. 14, 15, 39; Staundford, P. C. f. 20; Coke, Third Inst. 57; Hale, P. C. i. 419; Stephen, Hist. Crim. Law, iii. 77.
[89 ] Gloucestershire Pleas, pl. 230. One record gives “dentur deo ad pontem,” another “dentur ponti pro deo.”
[90 ] Ibid. pl. 113. In pl. 118 a man having been killed by his own cart, its price is given to his children pro deo. In pl. 298 a horse is given to a poor man who was once its owner.
[91 ] Munim. Gildh. i. 98: “de praedicto equo, qui fuit banum praedicti garcionis.” In the A.-S. laws bana is the usual word for a slayer. Bracton, f. 116.
[92 ] See above, vol. ii. p. 373.
[93 ] Brunner, D. R. G. ii. 558.
[94 ] In the oldest records we see no attempt to distinguish the cases in which the dead man was negligent from those in which no fault could be imputed to him, and the large number of deodands collected in every eyre suggests that many horses and boats bore the guilt which should have been ascribed to beer. A drunken carter is crushed beneath the wheel of his cart; the cart, the cask of wine that was in it and the oxen that were drawing it are all deodand: Northumberland Assize Rolls, p. 96. Bracton, f. 136 b, apparently thought it an abuse to condemn as deodand a thing that had not moved; he would distinguish between the horse which throws a man and the horse off which a man stupidly tumbles, between the tree that falls and the tree against which a man is thrown. We do not see these distinctions in the practice of the courts.
[95 ] Holmes, Common Law, p. 11; Wigmore, Harvard Law Rev. vii. p. 317, note 8.
[96 ] Y. B. 7 Edw. IV. f. 2 (Pasch. pl. 2). So Hale, P. C. i. 429, speaking of witchcraft: “it cannot come under the judgment of felony, because no external act of violence was offered whereof the common law can take notice, and secret things belong to God.”
[97 ] Brunner, D. R. G. ii. 558-64.
[98 ]Stanleyv. Powell , 1 Q. B. 86. See the cases collected by Mr. Wigmore in Harvard Law Rev. vii. 456: also Pollock, Torts, 5th ed. 129 ff.
[99 ] Kovalevsky, Droit coutumier Ossétien, pp. 294-304, gives a most interesting account of what until lately were causes of blood-feud among these inhabitants of the Caucasus. Homicide by misadventure or in self-defence was avenged or paid for at the full price. So if A’s sheep were pasturing on the mountain side, and one of them dislodged a stone which killed B, this was just cause for a feud. If a stolen gun went off in the hands of the thief who was carrying it away and killed him, the thief’s kin had a just feud against the owner of the gun (p. 295).
[100 ] Brunner, Forschungen, p. 504.
[101 ] Leg. Hen. 5 § 28.
[102 ] As to the mens rea: Coke, Third Inst. 6, gives “Et actus non facit reum nisi mens sit rea.” Coke knew the Red Book of the Exchequer which contains the Leges Henrici where the maxim stands “Reum non facit nisi mens rea.” The original source is S. Augustinus, Sermones, No. 180, c. 2 (Migne, Patrol. vol. 38, col. 974): “Ream linguam non facit nisi mens rea.” This passes into the Decretum, c. 3, C. 22, qu. 2. The author of the Leges took it from some intermediate book in which the linguam may possibly have disappeared. In some Year Books of the fourteenth century we find our lawyers appealing to a far more dangerous maxim, Voluntas reputabitur pro facto. See Coke, Third Instit. 5; Stephen, Hist. Crim. Law, ii. 222. This was we believe due to the fact that, owing to the disuse of appeals, our criminal law had become far too lenient in cases of murderous assaults which did not cause death. We must not here discuss this matter, but we believe that the adoption, even for one limited purpose, of this perilous saying was but a momentary aberration. Our old law started from the other extreme:—Factum reputabitur pro voluntate.
[103 ] Bracton, f. 104 b, 105. This is partly from Azo, Summa C. (de poenis) 9, 47; but Bracton keeps his eye on Dig. 48, 19, and makes a cento of passages from that title.
[104 ] See above vol. i. pp. 465 ff.
[105 ] cc. 6, 9, 13, X. 5, 12. The last of these canons = Calendar of Papal Registers, ed. Bliss, i. 9.
[106 ] Bracton, f. 120 b. This general discussion of homicide seems to be taken with some changes from Bernardi Papiensis Summa Decretalium (ed. Laspeyres, Ratisbon, 1861), p. 219. The texts are collated in Bracton and Azo, p. 225.
[107 ] Once for all we may say that of the Mirror of Justices we shall take no notice. Its account of criminal law is so full of fables and falsehoods that as an authority it is worthless.
[108 ] Bracton, f. 128 b.
[109 ] Northumberland Assize Rolls (Surtees Soc.), 94. We imagine that in this case the prisoner was fortunate. Staffordshire Collections, vol. vi. pt. 1, p. 258: in 1293 A and B by night pursue a flying thief; each mistakes the other for the malefactor; B wounds A; then A kills B; the justices send A back to prison to await a pardon.
[110 ] Bracton, f. 144 b. The words “sicut coram rege . . . perdonavit mortem” are marginal in the best ms Staffordshire Collections, iv. p. 215: in 1272 one who has beheaded a flying robber is acquitted.
[111 ] 21 Edw. I. st. 2 (Statutes, i. p. 111); Stephen, Hist. Crim. Law, iii. 37. In 1236 there was a controversy between the king and the magnates about the right to arrest and imprison men who were found doing wrong in parks and preserves. This is reported in Stat. Merton. c. 11. Just at that time the king had pardoned a forester of the Earl of Ferrers, who had slain a malefactor in self-defence; but the king expressly protested that this was an act of grace and not of justice. See Note Book, pl. 1216.
[112 ] Stat. 24 Hen. VIII. c. 5; Stephen, Hist. Crim. Law, iii. 39.
[113 ] Brunner, Forschungen, 458. We do not think that in the thirteenth century a homicide in self-defence would have been justifiable, even though it was perpetrated in the endeavour to prevent a felony. See Northumberland Assize Rolls, 85: a man attempting rape assaulted a woman; she drew a small knife and killed him; she fled; her father offers the justices forty shillings for a permission that she may return to the peace; they receive the fine and will speak to the king.
[114 ] Bracton, f. 134: “Tenetur etiam [Rex] aliquando de gratia concedere ei vitam et membra, ut si per infortunium vel se defendendo hominem interfecerit.” Ibid. f. 104 b: “crimen homicidii, sive sit casuale vel voluntarium, licet eandem poenam non contineant, quia in uno casu rigor, in alio misericordia.” Contrast these with the romanesque passages on f. 120 b, 136 b.
[115 ] The practice is illustrated by Select Pleas of the Crown (Selden Soc.), pl. 70, 114, 188; Gloucestershire Pleas, pl. 15, 53, 362; Note Book, pl. 1084, 1216; Northumberland Assize Rolls, pp. 85, 94, 98, 111, 323, 343, 348, 361-3; Y. B. 30-31 Edw. I. 511, 513, 529. When a presentment of homicide by misadventure is made against a man who has fled, the roll sometimes says that he may come back if he will, though his chattels are forfeited; we do not think that this dispenses him from the necessity of procuring a pardon. He has not been tried and therefore has not been acquitted.
[116 ] La Corone pledee devant justice: Camb. Univ. Libr. Mm. i. 27, f. 129.
[117 ] Our instances are from the unprinted Patent Rolls of 20, 30, 40 Henry III. There is generally an express statement to the effect that there was no felonia, or no malitia excogitata. Occasionally the pardon is granted at the instance of some great one; e.g. Rot. Pat. 40 Hen. III. m. 3, the king at the request of his daughter, the Queen of Scotland, pardons a chaplain who has committed homicide per infortunium.
[118 ] Stat. Glouc. c. 9; Coke, Second Inst. 315; Stephen, Hist. Crim. Law, iii. 37. We are not persuaded by the commentators that this statute had anything to do with the writ de odio et atia. The writs which directed an inquest where there was alleged misadventure or alleged self-defence said nothing of odium et atia. But of the writ de odio et atia we shall speak in the next chapter.
[119 ] See the cases cited above on p. 502, note 115. Foster, Discourse of Homicide, ch. iv. Stephen, Hist. Crim. Law, iii. 38-40.
[120 ] Stat. 9 Geo. IV. c. 31, sec. 10; Stephen, Hist. Crim. Law, iii. 77; the old law however had fallen into desuetude. Justices allowed jurors to find a man “not guilty,” instead of giving a special verdict about misadventure or self-defence.
[121 ] Y. B. 21 Edw. III. f. 17 (Hil. pl. 23); Coke, Second Inst. 148.
[122 ] Hale, P. C. i. 425; Foster, Discourse of Homicide, ch. iv; Blackstone, Comment. iv. 188; Stephen, Hist. Crim. Law, iii. 42.
[123 ] Bracton, f. 135; Oxford Petition of 1258, c. 21; Provisions of Westminster, c. 22; Stat. Marlb. c. 25; Maitland, Gloucestershire Pleas, p. xxx; Chadwyck Healey, Somersetshire Pleas, p. lx.
[124 ] Très ancien coutumier (ed. Tardif), p. 30; “si homo dominum suum occiderit, nisi per infortunium hoc contigerit, detractus suspendatur, et, si per infortunium, morte puniatur.”
[125 ] Bracton, f. 141, suggests a good many “exceptions” that the appellee may plead; but none of them meets this case. Britton, i. 113 and Fleta, 49, allow a special plea of misadventure or self-defence.
[126 ] Northumberland Assize Rolls, 98 (ad 1256): “Et quia dominus Rex concessit ei pacem suam dummodo ipse staret recto, sicut praedictum est, interrogatum est semel, bis, ter, si aliquis ex parentibus eiusdem Uctredi vel aliquis alius velit sequi versus eum, modo veniant, vel nunquam. Et quia non est aliquis qui versus eum velit sequi, ideo Petrus inde quietus, et conceditur ei firma pax.”
[127 ] La Corone pledee devant justice: Camb. Univ. Libr. Mm. i. 27, f. 124.
[128 ] Select Pleas of the Crown (Selden Soc.), pl. 102. In 1208 the kinsfolk of the dead man receive the substantial sum of 40 marks; besides this, one of them is to be made a monk or canon at the expense of the offender, and the slayer is to serve seven years in the Holy Land for the good of the dead man’s soul. This treaty is sanctioned by the king and recorded on a plea roll, but probably in this case there had been wilful homicide. Ibid. pl. 47: the king pardoning a homicide bids his justices do what they can to make peace between the slayer and the parentes interfecti. But the kinsfolk no longer have a legal right to a wer.
[129 ] Leg. Hen. 80 § 7; 87 § 6.
[130 ] Esmein, Histoire de la procédure criminelle, p. 255. See also Viollet, Établissements, i. 233.
[131 ] Northumberland Assize Rolls, 323.
[132 ] Y. B. 30-31 Edw. I. p. 511. See Wigmore, Harv. L. R. vii. 447; Hale, P. C. i. 20-29.
[133 ] Munim. Gildh. i. 97.
[134 ] To this effect see Britton, i. 113.
[135 ] For the old law see Alfred, 42 § 7; Leg. Will. i. 35 (which may be romanizing); Leg. Henr. 82 § 8. Matthew Paris, Chron. Maj. v. 35, tells how in 1248 a case of mutilation induced Henry III. to decree as law “ne praesumat quis, nisi pro con iuge, adulterum membris mutilare genitalibus.” See Select Pleas of the Crown, pl. 87: in an appeal of wounds the appellee pleads that he found the appellor in his bed room intending his shame. Rot. Cl. i. 126: in 1212 King John orders that A who has emasculated B is to have his land restored to him, if an inquest finds that B committed adultery with A’s wife after being forbidden to visit her.
[136 ] Note Book, pl. 1474.
[137 ] Gloucestershire Pleas, pl. 101.
[138 ] Britton, i. 98: “There are also some felonies where no other execution follows at our suit than such as takes place in trespasses, as in mayhems, wounds and imprisonment; and there are others where judgment of death ensues, as well at our suit as another’s, as in felonies for the death of a man, rape, arson, robberies and others.” When Britton wrote, rape had lately passed from the one class to the other. In Bracton’s day (f. 143) there were some who thought that if, when an appeal had been quashed, the appellee was arraigned at the king’s suit, his punishment should only be a fine.
[139 ] This appears from the forms of pardon. See above, vol. ii. p. 503.
[140 ] The one instance in which we have seen a trace of this line is the story told by Thomas Wykes (Ann. Monast. iv. 233-35). In 1270 the Earl of Warenne and Alan de la Zouche were litigating before the justices in Westminster Hall. From words they came to blows and Warenne’s retainers grievously wounded Alan so that after a while he died. Warenne was allowed to make his peace on paying 5000 marks to the king and 2000 to the wounded man and on swearing with fifty compurgators that the deed was done “non ex praecogitata malitia . . . sed ex motu iracundiae nimis accensae.” Here we already have the contrast between “malice aforethought” and a “sudden falling out”; but apparently we have rather an act of grace than a judicial sentence.
[141 ] Très ancien coutumier, p. 29: He who slays his son wilfully (inique) is exiled, but not put to death; but he who murders (murdrierit) his son is burnt. Ibid. p. 64: “homicidium sive clam factum fuerit, quod lingua Dacorum murdrum dicitur, sive palam.”
[142 ] Brunner, D. R. G. ii. 627. Jostice et Plet (Documents inédits), p. 290.
[143 ] This point seems to have escaped the attention of commentators; it can be brought out by a few italics. Glanvill, xiv. 3: “Duo autem sunt genera homicidii. Unum est quod dicitur murdrum, quod nullo vidente, nullo sciente clam perpetratur . . . ita quod mox non assequatur clamor popularis . . . In huiusmodi autem accusatione non admittitur aliquis nisi fuerit de consanguinitate ipsius defuncti . . . Est et aliud homicidium quod . . . dicitur simplex homicidium. In hoc etiam placito non admittitur aliquis accusator ad probationem, nisi fuerit mortuo consanguinitate coniunctus, vel homagio, vel dominio, ita ut de morte loquatur sub visus sui testimonio.” We see the same distinction in the Ancienne coutume de Normandie, c. 70 (69), ed. de Gruchy, 172; Somma, p. 178. The nearest kinsman can bring an appeal of murder; a vassal may bring an appeal of homicide, but must have been present at his lord’s death.
[144 ] See Bracton, f. 125.
[145 ] Select Pleas of the Crown, pl. 80, 89, 197, appeals for the death of a lord; pl. 76, appeal for the death of a fellow-vassal; pl. 121, appeal by A for the death of B whom A had sent on a message. Britton, i. 109, still allows the appeal to be brought by one who has done homage to, or been in the household of, the slain. In Select Pleas, pl. 29 [ad 1202] we seem to have a decision that even a brother of the dead man must allege that he witnessed the deed. This would over-rule Glanvill’s distinction.
[146 ] See above, vol. i. p. 97.
[147 ] Bracton, f. 135. It is evident that there were many diversities of practice. Bracton, for example, would excuse the hundred if it could name, though it could not produce, the slayer. Certainly some other judges did not hold this opinion.
[148 ] For more, see Liebermann, Leges Edwardi, p. 108; Chadwyck Healey, Somersetshire Pleas, p. lviii.
[149 ] Leg. Will. iii. 3; Leg. Will. i. 22; Leg. Henr. 91; Leg. Edw. 15, 16.
[150 ] Pike, History of Crime, i. 454; also e.g. Gloucestershire Pleas, pp. 118 ff.
[151 ] See above, vol. ii. p. 505.
[152 ] In the Assize of Clarendon murdrator is freely used. Perhaps it here covers all felonious homicide.
[153 ] 14 Edw. III. st. 1, c. 4.
[154 ] For the later history, see Stephen, Hist. Crim. Law, iii. 40, 43-45.
[155 ] See above, vol. ii. p. 376. Bracton, f. 150, speaks of suicide. Some sentences in this chapter are marginal additiones and seem to betray a fluctuating mind. Gloucestershire Pleas, (ad 1221), pl. 22: a case of suicide is presented; the township must answer for the chattels; but a loquendum is entered on the roll, which shows that the king is to be consulted. At a little later date the suicide’s goods are always forfeited; Northumberland Assize Rolls, 83, 113, 338, 345. For later law, see Hale, P. C. i. 411; for Norman law, Ancienne coutume, c. 21, ed. de Gruchy, p. 56; Somma, p. 56.
[156 ] Bracton, f. 144-46. Observe what he says of the punishment for castration (f. 144 b): “sequitur poena aliquando capitalis, aliquando perpetuum exilium cum omnium bonorum ademptione.”
[157 ] Gloucestershire Pleas of the Crown, pl. 87: “Thomas devictus est et obcecatus et ementulatus.”
[158 ] Britton, i. 123-24; cf. Fleta, p. 59.
[159 ] Brunner, D. R. G. ii. 589. Long ago King Alfred (Laws, Introduction, c. 19) had copied the Hebraic rule from Exodus, but without intending to enforce it. When crude retaliation appears in a medieval code, the influence of the Bible may always be suspected. What we may call characteristic punishment, e.g. castration for adultery, or loss of a hand for forgery, is a very different thing. See Günther, Idee der Wiedervergeltung (Erlangen, 1889).
[160 ] For appeals of mayhem or wounds, see Select Pleas of the Crown, pl. 4, 9, 11, 24, 37, 41, 54, 79, 87, 155; Gloucestershire Pleas, pl. 87, 434; Note Book, pl. 134, 259, 346, 511, 548, 592, 943, 1084, 1697. Any one who looks through these cases will see that little comes of a great deal of talk.
[161 ] Bracton, f. 144; Britton, i. 98, 123. Northumberland Assize Rolls, p. 117: an appeal of wounding having been quashed, the appellee is arraigned and convicted at the king’s suit; “custodiatur pro transgressione.” So Munim. Gildh. i. 90: in 1244 three men convicted of a murderous assault are fined but one mark, being poor. Staffordshire Collections, iv. 210: in 1272 a man is fined a half-mark for a wound.
[162 ] Britton, i. 123-24. Bracton, f. 145 b, already knows the civil action for wounds or imprisonment. See Northumberland Assize Rolls, pp. 49, 108 (ad 1256), for early instances.
[163 ] Blackstone, Comment. iv. 206, 314; Stephen, Hist. Crim. Law, iii. 108.
[164 ] See above, vol. ii. p. 499, note 102.
[165 ] Bracton, f. 145.
[166 ] Glanvill, xiv. 1; Bracton, f. 145; Britton, i. 123; Fleta, p. 58.
[167 ] Select Pleas of the Crown, pl. 4, 11, 24; Glanvill, xiv. 1; Bracton, f. 142 b.
[168 ] Note Book, pl. 1084.
[169 ] Brunner, D. R. G. ii. 666. For the treatment of violentus concubitus in A.-S. Law, see Alfred, 11, 18, 25, 26. Bracton, f. 147, in a marginal additio cites what he supposes to be an ancient English doom denouncing a punishment of life and member where Alfred would have been content with a 60 shilling bót. We know nothing of the source whence he obtained this passage.
[170 ] Leg. Will. i. c. 18; Leg. Henr. 13 § 6.
[171 ] A.-S. Chron. vol. ii. p. 355 (ad 1087).
[172 ] Gesta Henrici (Benedict), i. 314-15; Hoveden, ii. 286.
[173 ] Bracton, f. 147-48 b. In the precedent books we find as words of common form “abstulit ei virginitatem suam” or “pucellagium suum.” On f. 127 b Bracton says that the man guilty of rape may even be sentenced to death if he fled for his crime.
[174 ] Select Pleas of the Crown, pl. 7, 96, 141, 166; Gloucestershire Pleas, pl. 4, 16, 76, 102, 155, 179, 341, 426; Northumberland Assize Rolls, pp. 92, 94, 109, 111, 122, 329.
[175 ] Glanvill, xiv. 6.
[176 ] Bracton, f. 148, with Glanvill’s text before him, alters it and seems to allow that the low-born woman can force the high-born ravisher to marry her. Très ancien coutumier, p. 41. For actual cases, see Select Pleas of the Crown, pl. 7; Northumber-land Assize Rolls, p. 111; Coke, Third Inst. 181. Bracton, f. 147 b, has a romantic tale about King Robert of France. Its origin we have not found.
[177 ] Northumberland Assize Rolls (ad 1256), p. 92, the ravisher is fined one mark; p. 94, a similar fine; (ad 1279) p. 329, a fine of four marks; Somersetshire Pleas, pl. 963: a fine of two marks.
[178 ] Stat. West. I. c. 13; Stat. West. II. c. 34; Britton, i. 55; Coke, Third Inst. 180, 433; Hale, P. C. i. 627; Blackstone, Comment. iv. 212. It does not seem to us correct to say that by the first of the two statutes “the punishment for rape was mitigated.” Rape, like mayhem, wounding and false imprisonment, was in Henry III.’s day a crime which could be prosecuted by appeal with “words of felony,” and, if so prosecuted, it would be punished by mutilation, at least where there was defloration and the woman would make no peace. On the other hand, if the ravisher was arraigned at the king’s suit, he would, like the wounder or imprisoner, be punished merely by fine and imprisonment, and we may see very small fines inflicted. The first of the two statutes gave the woman a longer time than she had previously enjoyed for her appeal, and also provided that the ravisher, if arraigned at the king’s suit, should remain in prison for at least two years before making fine. The statute law is not fluctuating; the first statute is a step towards the second. See Y. B. 30-31 Edw. I. p. 499. The unprinted tract La Corone pledee devant justice says that blinding without emasculation was inflicted if the criminal’s wife intervened in his favour.
[179 ] Cnut, ii. 64; Leg. Henr. 12 § 1. See also Æthelst. ii. 6 § 2 and Schmid, App. xiii, also Schmid, Glossar. s.v. bœrnet.
[180 ] Brunner, D. R. G. ii. 657.
[181 ] Bracton, f. 146 b.
[182 ] Britton, i. 41.
[183 ] Gloucestershire Pleas, pl. 216.
[184 ] Coke, Third Inst. 67; Hale, P. C. i. 567.
[185 ] Select Pleas of the Crown, pl. 203. Britton, i. 41, speaks of the burning of corn as well as of the burning of houses.
[186 ] Brunner, D. R. G. ii. 545-46, 654. Bracton, f. 146 b, expatiates on the mala conscientia that is necessary for this crime; he contrasts it with negligentia. In early indictments malice aforethought (malitia praecogitata) appears; Coke, Third Inst. 66. For more of arson, see Coke, loc. cit.; Hale, P. C. i. 566; Blackstone, Comment. iv. 220; Stephen, Hist. Crim. Law, iii. 188.
[187 ] Coke, Third Inst. 63. See also Hale, P. C. i. 547; Blackstone, Comment. iv. 223; Stephen, Hist. Crim. Law, iii. 150.
[188 ] Britton, i. 42.
[189 ] The term in burgeria will sometimes appear in an appeal of robbery; Select Pleas of the Crown, pl. 122.
[190 ] Select Pleas of the Crown, pl. 6, 8; Gloucestershire Pleas, pl. 62, 139, 346, 362; Northumberland Assize Rolls, pp. 90-1, 95-7 etc. If all these robberies were nocturnal, where are the presentments of robberies perpetrated by day?
[191 ] Select Pleas of the Crown, pl. 60, 86.
[192 ] Cnut, ii. 64; Leg. Henr. 12 § 1. See Schmid, Glossar. s.v. húsbrice, and Brunner, D. R. G. ii. 653. The distinction seems to be between a mere invasio domus and an infractura domus. The first beginning of an attack on a house would be hámsocn, e.g. if a stone were thrown at the door: Leg. Henr. 80 § 11.
[193 ] Brunner, ii. 646, 655. Bracton, f. 144 b, speaks of hamsokne in close connexion with the fur nocturnus. Coke, Third Inst. 63, has two curious cases from Edward I.’s time which speak of crimes committed inter canem et lupum; we have seen the same phrase on an unprinted roll. See also Gross, Coroner’s Rolls, pp. 1, 6, 16. Ducange, s.v. canis, says that entre chien et loup means at an hour when the wolf cannot be distinguished from the dog.
[194 ] Coke, Third Inst. 68; Hale, P. C. i. 532; Blackstone, Comment. iv. 243; Stephen, Hist. Crim. Law, iii. 149. See the attempted definitions in the Cambridge gloss on Britton, i. 55.
[195 ] Brunner, D. R. G. ii. 647.
[196 ] Bracton, f. 150 b, introducing from Instit. 4, 2, pr. the question “Quis enim magis alienam rem invito domino contrectat quam qui vi rapit?”
[197 ] Glanv. i. 2; xiv. 8. Dial. de Scac. ii. 10. We see no reason for doubting the truth of Bishop Richard’s account of the action for theft. The recovery of double value may for a moment look Roman; but it was known to Anglo-Saxon and to Frankish law (Brunner, D. R. G. ii. 643), and the author of the dialogue speaks of it in popular terms (solta et persolta) which he has to explain. The Conqueror had decreed that one who bought cattle in secret must be prepared solvere et persolvere, i.e. to pay double value. See Laws of William (Select Charters), c. 5.
[198 ] Ass. Clarend. passim. It is somewhat curious that latrocinium expels furtum from the technical language of the law.
[199 ] Bracton, f. 146 b.
[200 ] Britton, i. 119. In the fully developed common law robbery was a capital crime, though the thing taken was not worth a shilling; Hale, P. C. i. 532.
[201 ] Bracton, f. 150 b.
[202 ] See above, vol. ii. p. 164 ff. As to the actions open to an owner of chattels see Ames, History of Trover, Harv. L. R. vol. xi. We regret that these learned articles only come to our hands as this sheet goes to press.
[203 ] Ass. Clarend. passim.
[204 ] Dial. de Scac. ii. 10.
[205 ] See above, vol. ii. pp. 165-71; Y. B. 30-31 Edw. I. pp. 513-15, 527.
[206 ] It will be convenient to use the Roman term manifest. In England one had spoken (Cnut, ii. 64) of open þýfð (which exactly translates furtum manifestum); or one had said that the thief was captured æt hæbbendre handa (Æthelst. ii. 1). In the thirteenth century one said that he was handhabende and bachberende, that he was seisitus de latrocinio, or that he was taken with the mainour (cum manuopere) or with the pelf (pelfra). The learned saw substantially the same distinction in Instit. 4, 1, 3, and spoke of furtum manifestum; but there is here no borrowing from Roman law, which, as it stands in the Institutes, demands no more than a fourfold bót even in case of manifest theft.
[207 ] Brunner, D. R. G. ii. 637; Dareste, Études d’histoire du droit, 299. For England, see Schmid, Gesetze, Glossar. s.v. Diebstahl and Dial. de Scac. ii. 10.
[208 ] Brunner, D. R. G. ii. 640.
[209 ] Cnut. ii. 64; Leg. Hen. 12 § 1.
[210 ] This appears from the story of Ailward told in Materials for the Life of Becket, i. 156; Bigelow, Placita, 260; Stephen, Hist. Crim. Law, i. 78. Even the hand-having thief does not forfeit life or member if the goods are of small value.
[211 ] Flor. Wig. ii. 57 (ad 1108): “ut si quis in furto vel latrocinio deprehensus fuisset suspenderetur.” Sir James Stephen, Hist. Crim. Law, i. 458, was mistaken when he supposed this story to rest upon Hoveden’s testimony; this is noticed by Henderson, Verbrechen und Strafen, p. 15. Henry’s ordinance seems to have spoken only of hand-having thieves.
[212 ] A.-S. Chron. vol. ii. p. 376 (ad 1124).
[213 ] See above, vol. ii. p. 167.
[214 ] Northumberland Assize Rolls, p. 70: “consuetudo comitatus talis est, quod quamcito aliquis capiatur cum manuopere, statim decolletur, et ipse qui sequitur pro catallis ab ipso depridatis, habebit catalla sua pro ipso decollando.” Other case of decollation, ibid. pp. 73, 79, 80, 84 etc. In Hengham Parva, ed. 1616, p. 80, various customary punishments are mentioned. In some sea-port towns the criminal was tied to a stake below high-water mark and left to drown. At Winchester he was mutilated, at Dover precipitated from a cliff. See Green, Town Life, i. 222. Burying alive seems to have been practised at Sandwich, Lyon, Dover, ii. 301. See also Akerman, Furca et Fossa, Archaeologia, xxxviii. 54.
[215 ] Maine, Ancient Law, ch. x; Dareste, Études d’histoire du droit, 299-301.
[216 ] It is further to be remembered that among some barbarous folks, which are not utterly lawless, successful theft is regarded with tolerance, if not admiration, and gives rise to a mere claim for the restoration of the goods, while “manifest theft” is unsuccessful theft and exposes the thief to a beating. See Post, Bausteine, i. 288; Kovalevsky, Droit Ossétien, p. 341.
[217 ] Ass. Clarend. cc. 1, 12; Ass. North. c. 1.
[218 ] There is an instructive parallel in the history of the canon law. The man who is convicted, not upon an accusatio, but under the new inquisitio, is not to suffer the full punishment. Esmein, Histoire de la procédure criminelle, p. 76; Biener, Beiträge zur Gesch. d. Inquisitions-Processes.
[219 ] Note Book, pl. 1723, 1725 (ad 1226): a woman who had stolen a piece of canvas was discharged because of its small value; afterwards she cut a purse containing 3s. 6d., and, though taken with the purse, she only lost her thumb.
[220 ] Bracton, f. 151 b; Fleta, pp. 54-56; Britton, i. 56, 61, 119. Stat. West. I. c. 15 helps to fix the limit at a shilling; petty larceny “que ne amonte a la value de xii. deniers,” is a bailable offence.
[221 ] Green, Town Life, i. 222.
[222 ] See the Cambridge gloss on Britton, i. 56.
[223 ] Bracton, f. 150 b: “Furtum est secundum leges contrectatio rei alienae fraudulenta cum animo furandi, invito illo domino cuius res illa fuerit.” Instit. 4, 1, 1 from Dig. 47, 2, 1 § 3 (Paulus): “Furtum est contrectatio rei fraudulosa [lucri faciendi gratia] vel ipsius rei vel etiam usus eius possessionisve.” The bracketed words are not in the Institutes. See Stephen, Hist. Crim. Law, iii. 131.
[224 ] Brunner, D. R. G. ii. 638, says of the continental folk-laws that they require an asportation (auferre) as essential to theft.
[225 ] Britton, i. 115: “embla et prist et amena.”
[226 ] See above, vol. ii. pp. 164-78, where we have discussed the English actio furti; also Ames, History of Trover, Harv. L. R. xi. 277, 374. Curia Regis Rolls, No. 569, m. 31 (Norfolk eyre of 53 Hen. III.): jurors find that the prisoner kept (custodivit) the sheep of T and sold one of the sheep of his lord; also that another prisoner kept the sheep of W and of R and, having lost two of R’s lambs, gave R one of W’s sheep. The Court adjudges that this is not mere latrocinium, but orders that the accused be imprisoned for the transgressio. They make, or one of them makes, fine with one mark.
[227 ] Britton, i. 122. Brunner, D. R. G. ii. 639, cites the Ripuarian law, “non hic re possessa sed de venationibus agitur.”
[228 ] Stephen, Hist. Crim. Law, iii. 142-45.
[229 ] Select Pleas of the Crown, pl. 82 (ad 1200): “et cartas de terris suis in roberia asportavit.”
[230 ] Brunner, D. R. G. ii. 639, 648.
[231 ] Bracton, f. 150 b; “sine animo furandi non committitur.”
[232 ] See above, vol. ii. p. 175. Y. B. 33-35 Edw. I. p. 503: “One R because his rent was in arrear took his farmer’s corn and carried it off and did what he pleased with it; and he was hanged for that deed.”
[233 ] Britton, i. 138.
[234 ] Britton, i. 116. Sir James Stephen, Hist. Crim. Law, iii. 133, says, “If the appellee could prove that the horse was his own, and that he lost him, it is difficult to see why he should not keep him after retaking him.” Britton gives the reason:—“for we will that men proceed by judgment rather than by force.” One or two modern decisions have lost sight of this principle.
[235 ] This seems to be the point of Ailward’s case, cited above, p. 519, note 210. Ailward breaks a house in the process of distraining his debtor, gets treated as a hand-having thief, is mutilated and has need of a miracle. See also note 232 above.
[236 ] Leg. Henr. 13 § 5: “Dominica captalia regis celata pro furto habeantur.”
[237 ] Glanvill, i. 2; xiv. 2; Bracton, f. 119 b: “quasi crimen furti.”
[238 ] Britton, i. 60, speaks as though cheating, e.g. by selling brass for gold, could be treated as felony. At present this statement is unsupported.
[239 ] There may be some doubt as to two crimes, (1) insidiatio viarum et depopulatio agrorum, (2) wilful burning of houses; Hale, P. C. ii. 333.
[240 ] Hale, P. C. i. 254: “Where land comes to the crown by attainder of treason all mesne tenures of common persons are extinct; but if the king grants it out, he is de iure to revive the former tenure, for which a petition of right lies.”
[241 ] Leg. Henr. 75 § 1. The comatio et excoriatio is the German Strafe zu Haut und Haar: Brunner, D. R. G. ii. 605-6.
[242 ] Blackstone, Comment. iv. 92: “Usually (by connivance at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement.” In 33 Lib. Ass. f. 200, pl. 7, the judge expressly forbids the use of an alleviating hurdle. Of Thomas de Trubleville executed in 1293 we are told in Ann. Wigorn. (Ann. Monast. iv. 523) that “super corium bovinum tractus, ne concito moreretur . . . suspendebatur.” For stories recorded by the chroniclers, see Henderson, Verbrechen und Strafen, 16-18. See also Select Pleas of the Crown, pl. 179; Très ancien coutumier, p. 30.
[243 ] Therefore mere drawing and hanging remained the punishment for petty treason, and for counterfeiting the coin; perhaps a counterfeitor of the great seal could be let off with this. See Hale, P. C. i. 187. In 1238 a man who attempted the king’s life was drawn, hanged, beheaded, quartered; Mat. Par. Chron. Maj. iii. 498. According to Ann. Dunstapl. 294, David of Wales was drawn for treason, hanged for homicide, disembowelled for sacrilege, beheaded and quartered for compassing the king’s death. So Wallace was drawn for treason, hanged for robbery and homicide, disembowelled for sacrilege, beheaded as an outlaw and quartered for divers depredations. See his sentence in Y. B. 11-12 Edw. III. (ed. Pike), p. 171, and the editor’s preface, pp. xxix–xxxiv. The evisceration and quartering however occur already in the sentence of William de Marisco executed in 1242; Mat. Par. Chron. Maj. iv. 196.
[244 ] See above, vol. i. pp. 465-72.
[245 ] See e.g. Bracton, f. 118 b; Britton, i. 40.
[246 ] Charter, 1215, c. 32: “Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi per unum annum et unum diem, et tune reddantur terrae dominis feodorum.”
[247 ] See Staundford, Prerog. Regis, c. 12; and see above, vol. i. p. 488. Most of the traitors of the twelfth century were tenants in chief or the vassals of rebellious tenants in chief, and the king could claim their lands either as king or as lord. The defection of the Normanni raised a new question on a large scale.
[248 ] Bracton, f. 119. Britton, i. 100: “felounosement cum feloun et traytouressement cum traytre.”
[249 ] Coke, Third Inst. 15: “In ancient time every treason was comprehended under the name of felony, but not e contra; and therefore a pardon of all felonies was sometimes allowed in case of high treason.” Hale, P. C. i. 179.
[250 ] Très ancien coutumier, p. 30.
[251 ] As to seditio and seductio, see Hale, P. C. i. 77. In mss of this time they seem to be used interchangeably and as though they were really but one word.
[252 ] 25 Edw. III. stat. 5, cap. 2. Briefly stated, the statute declares the following to be treasons:—(1) to compass or imagine the death of the king, his queen or eldest son; (2) to defile the king’s wife or his eldest unmarried daughter or his eldest son’s wife; (3) to levy war against the king in his realm; (4) to be adherent to his enemies, giving them aid and comfort; (5) to counterfeit the king’s great or privy seal or money; (6) to bring false money into the realm; (7) to slay certain officers or justices being in their places doing their offices. See Hale, P. C. i. 87-252; Stephen, Hist. Crim. Law, ii. 248-97.
[253 ] Tacitus, Germania, c. 12; Brunner, D. R. G. ii. 685-87.
[254 ] Glanvill, i. 2: “ut de nece vel seditione personae domini Regis vel regni vel exercitus.” Bracton, f. 118 b: “ad seditionem domini Regis vel exercitus sui.” We believe that in these passages the best rendering for seditio is, not sedition, but betrayal.
[255 ] Cnut, ii. 77; Leg. Henr. 13 § 12. See Schmid, Gesetze, Glossar, s.v. fyrd.
[256 ] Alfred, Introduction, 49 § 7. Dante’s placing of Brutus and Cassius in the same extreme of infamy is the well-known high-water mark of this doctrine; its adoption by Fra Angelico in a Last Judgment now in the Museum at Berlin shows that this was no mere private imperialist opinion of the poet’s.
[257 ] Brunner, D. R. G. ii. 688.
[258 ] Æthelr. v. 30; vi. 37, mention only the king; Cnut, ii. 57, speaks also of the lord; Leg. Henr. 75 § 2. In old times the king had a wergild; but before we draw inferences from this we must remember both that a wergild was exacted when the slaying was unintentional, and that the price set on the king was no less than £240. Hardly in any case could such a sum be raised, except when the death of the king of one folk could be charged against another folk, as when Ine obtained a heavy sum from the men of Kent for the death of Mul. See A.-S. Chron. (ad 694), p. 66, and the note to Thorpe’s translation.
[259 ] Bracton, f. 118 b: “est enim tam grave crimen istud quod vix permittitur heredibus quod vivant.”
[260 ] Bracton, having laesa maiestas before his eyes, says nothing of “treason” against a lord. In one place however, f. 105, he says, “Igne concremantur qui saluti dominorum suorum insidiaverint.” Here he is copying, but with notable omissions, from Dig. 48, 19, 28 § 11: “Igni cremantur plerumque servi qui saluti dominorum suorum insidiaverint, nonnunquam etiam liberi plebeii et humiles personae.” He holds therefore that to plot against one’s lord’s life is a capital crime. We imagine that this crime would have been punished in England rather by drawing and hanging than by burning. See Select Pleas of the Crown, pl. 179; Très ancien coutumier, p. 30. Britton, i. 40, seems to be the first writer who talks expressly of high (or rather great) and petty treasons; with him to “procure” the death of one’s lord is great treason, and one is hanged and drawn for forging one’s lord’s seal or committing adultery with his wife. By 1352 a change had taken place, or else a change was effected by the statute of that year; “treason” against any one but the king is always “petty,” and only exists where a servant (not vassal) actually kills (not compasses to kill) his master (not lord), or a wife her husband, or a clerk his prelate. See Hale, P. C. i. 378.
[261 ] Glanvill, xiv. 7; Bracton, f. 119 b.
[262 ] Britton, i. 41; Fleta, p. 32.
[263 ] Glanvill. xiv. 7; Bracton, f. 119 b.
[264 ] Æthelst. ii. 14; Æthelr. iii. 8, 16; Cnut, ii. 8; Leg. Henr. 13 § 3.
[265 ] Flor. Wigorn. ii. 57 (ad 1108); Henr. Huntingd. 246 (ad 1125).
[266 ] Cod. 9, 24, 2. The Roman idea of maiestas includes a religious element; falsifying Caesar’s image is a kind of sacrilege.
[267 ] See for Angevin law, Viollet, Établissements, i. 180. In England the high-water mark of the purely feudal conception of treason is Stephen’s conduct after the siege of Exeter in 1136. He spared the garrison, having listened to the plea that they had never sworn fealty to him but were the men of Baldwin de Redvers; Gesta Stephani, 27; Henr. Huntingd. 257.
[268 ] Are not the cases of Waltheof and William of Eu almost the only cases in which a high-born rebel loses either life or limb by judicial sentence? As to Waltheof, see above, vol. i. p. 98. In the case of William of Eu we have a rare example of a regular appeal of treason and a trial by battle. The garrison of a castle taken in flagrant delict was sometimes hanged out of hand, and the chief rebels were sometimes kept in prison even until they died, but their imprisonment was rather “a measure of state” than the outcome of a sentence.
[269 ] It must be to this that Diceto refers when (see above, vol. ii. p. 484, note 49) he speaks as though mere exile were the punishment of treason.
[270 ] The famous passage inserted in Bracton’s book, f. 34, by his own or some other hand, comes near to a declaration that it may be the right and duty of the barons to rise against the king. The change in the treatment of rebels cannot be put down to the insecure titles of the Lancastrian, Yorkist and Tudor kings. Every king from the Conqueror to Henry III. had to fight against insurgents, and in many cases the insurrection was headed by his son or brother.
[271 ] Ann. Dunstapl. 279 (ad 1278): two hundred and eighty Jews hanged in London, and many elsewhere, for clipping.
[272 ] Palgrave, Rot. Cur. Reg. vol. i, Introduction; Stubbs, Const. Hist. i. 547; Hoveden, iv. 6; Diceto, ii. 143; Gervase, i. 532.
[273 ] Mat. Par. Chron. Maj. iii. 73; Ann. Waverl. 297; Ann. Dunstapl. 79.
[274 ] Bracton, f. 118 b. Therefore our law needs no such crime as the “misprision of treason” of later days. For a relevant story, see Ann. Dunstapl. 97.
[275 ] Mat. Par. Chron. Maj. ii. 535, 547.
[276 ] Compare the fate of Williams, the author of Balaam’s Ass; Stephen, Hist. Crim. Law, ii. 306.
[277 ] Select Pleas of the Crown, pl. 115.
[278 ] Jocelin of Brakelonde (Camd. Soc.), p. 52.
[279 ] Oxford City Documents, p. 204 (ad 1285): “Magister Nicholaus de Wautham contra fidelitatem suam et contra foedus suum et ligeitatem . . . seditiose ut seductor se confederavit Guydoni de Monteforti et Emerico fratri suo et Lewelino quondam principi Walliae inimico domini Regis; et venit ad curiam do-mini Regis et moram in eadem curia fecit ut privatus et specialis curiae praedictae, insidiando et explorando secreta domini Regis et ea quae . . . explorare potuit . . . inimicis domini Regis . . . nuntiavit . . . et parti ipsorum adhaesit.” The Montforts had slain Henry of Almain and Edward regarded them as deadly foes.
[280 ] Mat. Par. Chron. Maj. v. 95. At least one similar case occurs in the early history of the Court of Chancery. By that time the notion of contempt as a distinct offence was available.
[281 ] Rot. Parl. i. 172; Memoranda de Parliamento, 1305, pp. lxxvi, 255. See on this Hale, P. C. i. 79; Stephen, Hist. Crim. Law, i. 147; ii. 245. The record does not expressly say that the offence was treason.
[282 ] See the cases from the first half of the fourteenth century in Hale, P. C. i. 76-82, and Stephen, Hist. Crim. Law, ii. 245-47.
[283 ] Stephen, Hist. Crim. Law, iii. 247, says, “Probably the great importance of the Act of Edward [III.] as a protection to what we should now call political agitation and discussion, was hardly recognized till a much later time.” With this we heartily agree. But what Sir James Stephen rightly calls the “extreme leniency of the statute” was not due altogether to the fact that in 1352 Edward was powerful, popular and secure. The gaps in the statute which were afterwards supplied by “construction” were gaps natural to our old law. It had started from the principle that an attempt to do harm is no offence. Very early, under Roman influence, it had admitted one exception to this rule, namely, that a plot against the king’s life is a crime; but for centuries it was extremely unwilling openly to extend this to plots for imprisoning or deposing or coercing the king. “The thought of man shall not be tried.”
[284 ] Brunner, D. R. G. ii. 565. Æthelr. viii. 23; Leg. Henr. 85 § 3.
[285 ] Bracton, f. 142: “Dicitur enim vulgariter quod satis occidit qui praecipit.” On the other hand, f. 139: “ubi factum nullum, ibi forcia nulla, nec praeceptum nocere debet cum iniuria non habet effectum.”
[286 ] Bracton, f. 128, 139; Note Book, pl. 1548.
[287 ] Stephen, Hist. Crim. Law, ii. 232.
[288 ] There are many niceties that we must pass by. Persons who, as we should say, were principals in the second degree, were said to be appealed not de facto but de vi or de forcia, and hence they are often spoken of as being the vis and the forcia of the chief malefactor. You cannot bring them to trial by your appeal until he has been convicted or outlawed. If, as is possible, several appellors bring appeals against several appellees for one death, each appellee is charged with at least one deadly wound, “ita quod de plaga illa mortuus esset si aliam non haberet”; Select Pleas of the Crown, pl. 197; Note Book, pl. 1460. For the later law as to accessories see Hale, P. C. i. 612-26.
[289 ] Brunner, D. R. G. ii. 575; Schmid, Gesetze, Glossar, s.v. flýmena-fyrmð.
[290 ] Ass. Clar. c. 1, 2 : “robator vel murdrator vel latro vel receptor eorum.”
[291 ] Bracton, f. 128 b.
[292 ] Bracton, f. 128 b: “et ad hoc facit lex C. de iis qui latrones et maleficos occultant, 1. prima [= Cod. 9, 39, 1] ubi dicitur quod eos qui se cum alieni criminis reo occultando eum sociarunt, par ipsos et reos poena expectet.” Bracton’s reading of the text was not quite that which is now received and here given. Très ancien coutumier, p. 33: “si captus fuerit fugitivus in domo alicuius, receptator omnia catalla sua amittet, ni forte membrorum vel vitae incurret periculum.” See Viollet, Établissements, i. 251.
[293 ] Bracton, f. 24.
[294 ] 23 Edw. I.; Statutes, i. 113.
[295 ] See Select Pleas of the Crown, pl. 154, 155, 199, 201.
[296 ] Women were sometimes burnt for felony; Select Pleas of the Crown, pl. 191; Munim. Gildh. i. 101, a woman burnt for arson.
[298 ] Bracton, f. 119 b: “utrum scilicet sit ibi felonia vel transgressio, quia quaelibet transgressio dici non debet felonia, quamvis e converso.”
[299 ] Bracton, f. 125: “quodlibet factum non contineat sub se feloniam quamvis aliquando continet iniuriam et transgressionem.” Britton, i. 105: “soit trespas ou felonie.” Tort again is a large, loose word. Britton, i. 77, heads a chapter on some of the smaller offences presented in the eyres by the title De plusours tortz. Coke, Second Inst. 170, 418, has remarked the large sense which trespass bears in our oldest statutes.
[300 ] Even these classes, as we have seen above, are not mutually exclusive. The wounded man has a choice between an appeal of felony and an action for damages. Bracton often uses actio as a very general word capable of including an appeal. See e.g. f. 103 b.
[301 ] Ass. Clarend. and Ass. Northampt. See above, vol. i. p. 162.
[303 ] This old procedure yet lives in the game of forfeits. A forfeiture (forisfactura) having been committed, a wed is given, which is afterwards redeemed when the amercement is affeered by good and lawful children.
[304 ] Dial. de Scac. lib. ii. c. 16.
[305 ] Forschungen, 465.
[306 ] D. B. ii. 7: “Quidam clericus . . . iudicatus est esse in misericordia regis et de omni cessu suo et de corpore suo.”
[307 ] See e.g. Laws of William (Sel. Charters), cc. 9, 10: “Ego prohibeo . . . super plenam forisfacturam meam.”
[308 ] Coronation Charter, c. 8: “Si quis baronum sive hominum meorum forisfecerit, non dabit vadium in misericordia pecuniae suae, sicut faciebat tempore patris mei vel fratris mei, sed secundum modum forisfacti ita emendabit sicut emendasset retro a tempore patris mei, in tempore aliorum antecessorum meorum. Quod si perfidiae vel sceleris convictus fuerit, sicut iustum fuerit, sic emendet.” A germ of (1) treason, (2) felony, (3) misdemeanour, may be seen in (1) perfidia, (2) scelus, (3) forisfactura.
[309 ] William FitzStephen (Materials for the Life of Becket, iii.), p. 62.
[310 ] Glanvill, ix. 11.
[311 ] Très ancien coutumier, p. 45. It must be remembered that Norman money is worth much less than English money. Compare the very similar rules in Dial. de Scac. lib. ii. c. 14, as to the chattels that may not be sold for the satisfaction of a debt due to the crown.
[312 ] Glanvill, ix. 11; Bracton, f. 116 b. The origin and exact meaning of the term contenement seem to be very obscure. See Oxford Engl. Dict.
[313 ] Articles of the Barons, c. 9; Charter, 1215, c. 20.
[314 ] In the Anglo-Saxon dooms a general forfeiture of “all that one has” begins to recur with increasing frequency as time goes on. See Schmid, Gesetze, p. 657. But this is confined to grave crimes. For “contempts” of king or lord these dooms have a special wite, the oferhýrnes, or in Leg. Henr. overseunessa. See Schmid’s Glossary under these words. The king’s oferhýrnes was however the very serious mulct of 120 (Saxon) shillings. The first stages in the development of the amercement are, we imagine, rather Frankish than English; they may be found in a forfeiture of goods for the elastic offence of infidelitas. The “très ancien coutumier de Normandie” is here of the utmost value. Already in Henry I.’s charter for the Londoners we have a promise that the citizen who is adjudged in misericordia pecuniae shall not have to pay more than his wer of 100 shillings. This points to heavy amercements, for £5 is a large sum. In Glanvill’s day however men are always falling into the king’s mercy in the course of civil actions. The transition from a loss of all chattels exceptis excipiendis to a very moderate amercement was much easier in the twelfth century than it would be now. If a Norman knight of that age lost all his goods, except arms, horses, ploughs, beasts of the plough, seed-corn and victuals for a year, he might still be far from ruin. At some time or another a fixed tariff “for the amerciament of the nobility” was allowed to develop itself in England; a duke paid £10, an earl £5, and so forth. See Coke, Second Inst. 28. Nobles were amerced by their “peers,” the barons of the exchequer.
[315 ] Schmid, Gesetze, p. 657.
[316 ] Brunner, D. R. G. ii. 594.
[317 ] Ass. Clarend. c. 7.
[318 ] Glanvill, i. 32.
[319 ] Dial. de Scac. lib. ii. c. 21.
[320 ] Bracton, f. 105 (= Dig. 48. 19. 8.[?] § 9): “carcer ad continendos et non ad puniendos haberi debet.”
[321 ] Glanvill, ii. 19.
[322 ] Forest Charter, 1217, c. 10.
[323 ] See e.g. Stat. West. I. cc. 9, 13, 15, 20, 29, 31, 32.
[324 ] As a typical case we may take Stat. West. I. c. 9. The bailiff of a franchise who makes default in the pursuit of felons shall be imprisoned for one year and shall then make grievous fine, and, if he has not wherewithal, he shall be imprisoned for another year.
[325 ] See e.g. Note Book, pl. 770, where the ex-treasurer, Bishop of Carlisle, is amerced at 100 marks for unlawful distraint.
[326 ] Northumberland Assize Rolls, 92, 94: in two cases a man convicted of rape is fined one mark (13s. 4d.) and is at once set free on finding sureties for payment. So Munim. Gildh. i. 90: three men guilty of murderous assault are fined one mark and liberated: they were poor.
[327 ] Bracton, f. 125. This is common on the eyre rolls.
[328 ] Note Book, pl. 1179: a Jew who has fornicated with a Christian woman must abjure the realm; the partner of his guilt abjured the town of Bristol. Bracton, f. 136 § 4, speaks in romanesque terms of exile; he is thinking of abjuration and of outlawry. Liber de Antiquis Legibus, p. 70: in 1260 certain barons abjured England for a year and went into exile in Ireland.
[329 ] Britton, i. 61: petty theft is punished by an hour of pillory. Ibid. p. 41: the forger also may be pilloried.
[330 ] Bracton, f. 151 b, in case of petty theft.
[331 ] Note Book, pl. 187, 256, 286, 351, 384, 496, 498, 566, 583, 1105. Y. B. 20-21 Edw. I. p. 41.
[332 ] Northumberland Assize Rolls, pp. 46-47.
[333 ] Note Book, pl. 10, 208, 342, 788, 980, 1443, 1633, 1946.
[334 ] Note Book, pl. 298; Britton, i. 101.
[335 ] Très ancien coutumier, p. 57, where we learn that already in the twelfth century a Norman baron compared the procedure of the duke’s court to a boys’ game.
[336 ] The set given in the Statutum Walliae (Stat. i. 57) seems to be the only one which comes to us from an authoritative source. See also the apocryphal Statute de Visu Franciplegii (Stat. i. 246); Fleta, p. 112; Britton, i. 179; The Court Baron (Seld. Soc.), pp. 71, 93; and see the Articles for the London Wardmotes, Munim. Gildh. i. pp. 257, 259, 337.
[337 ] See Leet Jurisdiction in Norwich (Selden Soc.). In London at a later day we find a tariff ordained for small breaches of the peace: for a blow with the fist, 2s. or eight days in Newgate; for drawing blood, 3s. 4d. or twelve days; for drawing a weapon, 6s. 8d. or fifteen days; for drawing blood with a weapon, 20s. or forty days: Munim. Gildh. i. 475.
[338 ] The Articles of 1194 and 1198 are given by Hoveden, iii. 263; iv. 61. Then see the Articles of 1227 for an eyre in the Cinque Ports, Rot. Cl. vol. ii. p. 213, and Bracton, f. 117 b. Then see Bracton, f. 116, and Ann. Burton, p. 330, for a later set, and Statutes, vol. i. p. 233, for a yet later. The articles for the London eyre of 1244 are in Munim. Gildh. i. 79; those for the eyre of 1321 are in Munim. Gildh. ii. 347; the latter are fully seven times as long as the former and fill fifteen octavo pages.
[339 ] For the practice of Edward I.’s day, see Britton, i. 76. In some cases proceedings were taken upon the presentment; in others a writ was necessary.
[340 ] Double damages appear in a crude form in Stat. Mert. c. 6: if a male ward marries without the lord’s consent, the lord may hold the land for an additional period so as to obtain twice the value of that “marriage” of which he has been deprived. Then in Stat. West. I. cc. 15, 17, 19, 24, 26, 27, 30, 32, 35, double and treble damages are lavishly distributed. A good example of heavy punishment inflicted in a civil action is given by Stat. West. II. c. 35; an action for “ravishment of ward” may lead to the perpetual imprisonment of the defendant. It is just possible that actions for manyfold damages were suggested by what the Institutes (4. 6. 21) say of actiones conceptae in duplum, triplum, quadruplum. But Bracton, f. 102, had slurred over this passage, and we believe that the general drift of the romano-canonical influence was by this time in favour of a strict separation of criminal from civil causes and an ex officio prosecution of crimes.
[341 ] Glanvill, x. 13, holds that if a thing that has been lent perishes in the borrower’s hands, he is bound to return its rationabile pretium. He then asks how this is to be assessed, and gives no answer.
[342 ] Note Book, pl. 56; Bracton, f. 316.
[343 ] Glanvill, xiii. 33.
[344 ] Glanvill, xiii. 38, 39.
[345 ] Bracton, f. 186 b § 7: “illud hodie non observatur.”
[346 ] Already in 1200; Select Civil Pleas, pl. 4.
[347 ] Stat. Merton, c. 1, damages for the doweress, for widows are favoured persons; Stat. Marlb. c. 16, damages against the lord in the mort d’ancestor, for he is almost as guilty as a disseisor; Stat. Glouc. c. 1, a very general enactment.
[348 ] Some of the continental folk laws know what seems to be an established bót for delay in payment, which is called dilatura, or wirdira; Brunner, D. R. G., ii. 624.
[349 ] Select Civil Pleas, pl. 86: in 1201 we have a claim for mere damages.
[350 ] The writs in Glanvill, xii. 12, 15, which touch replevin suppose that the chattels are still in the distrainor’s hands and the action aims at specific relief. The action (xii. 22) for impleading in court Christian may at first have aimed only at punishment. But soon we see the action against a distrainor who has given up the chattels; Note Book, pl. 477. The action on a prohibition is brought for damages; ibid. pl. 1423. Damages can be obtained in actions of “mesne”; ibid. pl. 390, 506; but even here again the plaintiff is thought of as claiming specific relief, “acquittance” from a burden. For a long time the plaintiff in an action of covenant is usually seeking possession of a tenement. On the whole we seem to be right in regarding two actions, viz. novel disseisin and trespass, as the chief, though not the only, channels by which damages
[351 ] As to trespass, see above, vol. ii. p. 113. After looking through some un-printed rolls, we feel entitled to say that this action was still uncommon in 1250, but was quite common in 1272.
[352 ] See above, vol. ii. p. 519.
[353 ] Somma, p. 204; Ancienne coutume, c. 85, ed. de Gruchy, p. 195. For Anjou, see Viollet, Établissements, i. 245.
[354 ] In Leg. Will. i. 10, a wounded man, besides the bót for the wound, receives a sum of money fixed by his own oath. This our French text calls sun lecheof. The Latin text says lichfe quantum scilicet in curam vulneris expendit. Schmid would make this into líc-feoh, body-money. But Dr. Murray tells us that it is very probably lœ´ce-feoh, léce-feoh, the leech fee. With the Leis Williame should be compared a curious clause in the Preston custumal: Dobson and Harland, History of Preston Gild, p. 76. In the Lombard laws the wounder in addition to the price of the wound must pay mercedes medici, “the doctor’s bill”; Brunner, D. R. G., ii. 613; Palgrave, Commonwealth, p. cxi. In Leg. Henr. 39. 84, there are exceedingly curious passages which show that in the twelfth century the man who sued for a bót when he had been beaten was regarded with contempt. Some courts would in such a case exact a wíte from the stricken as well as the striker. This is justified by a batch of proverbs: “Ubi unus non vult, duo non certant; et omnis unlaga frater est alterius; et qui respondet stulto iuxta stultitiam suam similis est eius.” The first of these phrases means that it takes two to make a quarrel. But at any rate it is dirty to ask a bót for dry blows.
[355 ] In 1279 a man recovers six pence for a blow on the head; Northumberland Assize Rolls, p. 351.
[356 ] Britton, ii. 123, advises the wounded man to bring an action of trespass, though an appeal of felony is open to him.
[357 ] Northumberland Assize Rolls, p. 162: an action of trespass for burning a mill is brought against 128 defendants.
[358 ] Stat. Wall. c. xi (Statutes, i. 66): “Ita quod castigatio illa sit aliis in exemplum et timorem praebeat delinquendi.”
[359 ] Self-defence could be pleaded even in an appeal of mayhem: Note Book, pl. 1084.
[360 ] Ames, History of Assumpsit, Harv. L. R. ii. pp. 2-4.
[361 ] As to these matters, see Wigmore, Responsibility for Tortious Actions, Harv. L. R. vii. 315, 383, 441. As to fire, see the Chester custom in Domesday Book, i. 262 b: “Si ignis civitatem comburebat, de cuius domo exibat emendabat per iij. oras denariorum et suo propinquiori vicino dabat ij. solidos.” Apparently the liability is absolute.
[362 ] Though Bracton can speak of culpa (e.g. f. 155, “nec dolus nec culpa”), this word is not received. As to negligentia, which Bracton, f. 146, uses in connexion with fire, this seems to have as its precursors stultitia, insipientia (Note Book, pl. 1249), Fr. folie.
[363 ] See the two learned articles on Agency by Mr. Justice Holmes, Harv. L. R. iv. 346: v. 1.
[364 ] See above, p. 533.
[365 ] Placit. Abbrev. 129 (Linc.); Rot. Parl. i. 24-25. In later days it was otherwise; the commander of a trespass could be treated as a principal, or, in other words, the rule as to principal and accessory was confined to cases of felony.
[366 ] The principal cases and dicta are conveniently collected by Mr. Wigmore in Harv. L. R. vii. 330, 383.
[367 ] Y. B. 2 Hen. IV. f. 18 (Pasch. pl. 6), a case relating to the custody of fire, seems to be the most important case in the Year Books.
[368 ] Cnut, II. 20 § 1.
[369 ] Æthelstan, iii. 7. We believe that this text points to the origin of frank-pledge; but this much-debated point cannot be discussed here.
[370 ] Leg. Edw. Conf. c. 20. But this is not high authority.
[371 ] The Court Baron (Selden Soc.), pp. 36, 38, 53; Harvard Law Rev. vii. 332-33. Leg. Henr. 66 § 7: “Si manupastus alicuius accusetur de furto, solus paterfamilias emendare potest, si velit, fracta lege sine praeiurante.” We read this to mean that the housefather may if he pleases defend an accusation for theft brought against his mainpast. The nature of his oath indicated by the last words of the clause we cannot here discuss. The householder of Cnut’s day was bound to produce a member of his family accused of crime and, failing to do so, had to pay the accused man’s wer to the king, a far heavier penalty than an amercement of the thirteenth century; Cnut, ii. 31; Leg. Henr. 41 § 6.
[372 ] Stat. West. ii. c. 35.
[373 ] Bracton, f. 158 b, 171, 172 b, 204 b. On the whole what Bracton says hardly goes beyond an application of the maxim Ratihabitio retrotrahitur, which he quotes, and which was current among the lawyers of Edward I.’s time; Y. B. 30-31 Edw. I. p. 129. See also Note Book, pl. 779, 781. Somersetshire Pleas, pl. 1427, 1437, 1497, cases heard by Bracton. These cases do not clearly indicate any other principle.
[374 ] Harv. L. R. vii. 387-91. The usual dictum in the sixteenth century is that if I send my servant to make a distress and he misuses the thing that he takes, I shall not be “punished.”
[375 ] Mr. Wigmore, Harv. L. R. vii. 384, sees for a century after 1300 “an under-current of feeling” in favour of the master’s liability.
[376 ] Mr. Justice Holmes, Harv. L. R. iv. 354 and v. 1, ascribes to this fiction a greater efficacy than we can allow it, at all events within the sphere of tort.
[377 ] See above, p. 423. Y. B. 32-33 Edw. I. p. 474: “the act of the wife is the act of the husband.”
[378 ] Gloucestershire Pleas, pl. 244. In 1221 a husband escapes with a fine of a half-mark for not having produced a wife accused of arson.
[379 ] Stat. West. I. c. 19: “And let every sheriff beware that he have a receiver for whom he will answer, for the king will betake himself for all [money received] against the sheriff and his heirs.”
[380 ] Down to Henry II.’s day the exchequer would seize the chattels of knights to satisfy a debt due from their lord to the king. Dial. de Scac. ii. 14. Respondeat inferior.
[381 ] Stat. West. I. c. 31. See also cc. 9, 15. In 1256 Northumbrian jurors present that the bailiff of Robert de Ros arrested a man and kept him in prison for two days. “Postea quia praedicti iuratores dicunt super sacramentum suum quod ostensum fuit praedicto Roberto de Ros de praedicta captione, et ipse illam emendare noluit, ideo praedictus Robertus in misericordia et constabularius capiatur.” See Northumberland Assize Rolls, 115. The constable’s act is not attributed to the castellan; he only became guilty when he refused to release the prisoner.
[382 ] Stat. West. H. c. 2: When beasts are replevied, the sheriff is to exact security for their return to the distrainor in case a return is awarded. If any exact pledges in any other form, he shall answer for the price of the beasts, and if a bailiff does this “et non habeat unde reddat, respondeat superior suus.” Stat. West. II. c. 11: When an accountant is committed to gaol, if the keeper allows him to escape, the keeper must pay double damages. If the keeper cannot pay, “respondeat superior suus.” Articuli super Cartas (28 Ed. I.), c. 18: An escheator must answer for waste committed by a subescheator, if the latter cannot pay for it. Stat. West. II. c. 43: The conservators of the liberties of the Templars and Hospitallers appoint subordinates to hold ecclesiastical courts, in which men are sued for matters cognizable in the king’s courts. If the obedientiaries of the order offend in this matter, “pro facto ipsorum respondeant sui superiores ac si de proprio facto suo convicti essent.” This last case is analogous to the others, for the obedientiary, being civilly dead, cannot be sued. See also the ordinance as to the liability of the sheriff’s clerk; Statutes, i. 213. The liability of the county to the king for sums due from the coroner is of the same kind, a subsidiary liability; see Fourth Institute, 114, where Coke speaks of Respondeat superior. But in the case of communities we come upon a different idea; the community is liable for wrongs done by any member of it in the prosecution of communal interests.
[383 ] Bogo de Clare’s case (1290), Rot. Parl. i. 24, is important. Action against Bogo by a summoner of an ecclesiastical court who has been ill treated by members of Bogo’s mainpast and compelled to eat certain letters of citation. Action dismissed, because plaintiff does not allege that Bogo did or commanded the wrong. Thereupon, because this wrong was done within the verge of the palace, the king takes the matter up and Bogo has to produce all his familia; but after all he is dismissed as the offenders cannot be found.
[384 ] As to the phrase damnum absque iniuria, see Pollock, Law of Torts, 5th ed. p. 142. Bracton, f. 221, 24 b, 45 b, 92 b, contrasts iniuria with damnum. For him in this context (see f. 45 b) iniuria is omne id quod non iure fit. Our transgressio or trespass has a fate similar to that of the Roman iniuria. It will stand for omne id quod non iure fit (see above, p. 536), but under the influence of the quare vi et armis begins to signify in particular one group of actionable wrongs. Then tort was a very wide word. The formula of defence shows us Fr. tort et force = Lat. vis et iniuria and, by means of a Scottish Book (Leges Quatuor Burgorum, Statutes of Scotland, i. p. 338), we may equate this with an Eng. wrong and unlaw. So far as we have observed, iniuria is hardly ever used (except by Bracton in a few romance passages) to stand for anything narrower than omne id quod non iure fit. Thus all our terms are at starting very large and loose; still no medieval lawyer would have been guilty of that detestable abuse of injury that is common among us now. One of the few words descriptive of wrong that obtains a specific sense in the age with which we are dealing is Lat. nocumentum, Fr. nuisance.
[385 ] Select Civil Pleas, pl. 111 [ad 1201].
[386 ] Placit. Abbrev. p. 62 Buck.; p. 106 Kent; Note Book, pl. 10, 208, 500, 645, 1173, 1184, 1946; Reg. Brev. Orig. f. 112; Fitz. Nat. Brev. p. 96; Fitz. Abr. Disceit. The following is an interesting instance: Coram Rege Roll, Mich. 9-10 Edw. I. (No. 64) m. 46 d (unprinted): Adam is attached to answer the king and Christiana, Adam’s wife, why by producing a woman who personated Christiana he levied a fine of Christiana’s land, “et unde praedicta Christiana queritur quod praedictus Adam praedictam falsitatem et deceptionem fecit ad exheredationem suam et deceptionem curiae domini Regis manifestam . . . unde dicit quod deteriorata est et dampnum habet ad valentiam centum librarum.” Adam, unable to deny the charge, goes to gaol.
[387 ] Bracton, f. 396 b, 398 b.
[388 ] Note Book, pl. 182, 200, 229, 243, 750, 1126, 1643, 1913; Bracton, f. 16 b.
[389 ] Bracton, f. 396 b: “Item si per dolum, ut si donatorius fecit sibi cartam de feoffamento, ubi fecisse debuit cyrographum de termino.” Fleta, p. 424.
[390 ] Y. B. 30 Edw. III. f. 31. For later law, see Thoroughgood’s Case, 2 Coke’s Reports, 9 a.
[391 ] Glanvill, x. 12: “et suae malae custodiae imputet si damnum incurrat per sigillum suum male custoditum.” The rule takes a milder form in Bracton, f. 396 b, Fleta, p. 424, and Britton, i. 163, 165.
[392 ] Reg. Brev. Orig. f. 227: “et fraus et dolus nemini debent patrocinari.” Placit. Abbrev. p. 237 (26 Edw. I.): “cum contemptus, fraus et dolus in curia Regis nemini debent subvenire.”
[393 ] Lib. Ass. f. 177, pl. 19 (30 Edw. III.).
[394 ] Rot. Parl. i. 133: “et non sit usitatum in regno isto placitare in curia Regis placita de defamationibus.”
[395 ] Y. B. 22 Edw. IV. f. 20 (Trin. pl. 47); f. 29 (Mich. pl. 9); 12 Hen. VII. f. 22 (Trin. pl. 2).
[396 ]Circumspecte Agatis, Statutes, vol. i. p. 101; Articuli Cleri, Statutes, vol. i. 171. See Palmerv.Thorpe, 4 Coke’s Reports, 20 a.
[397 ] Lex Salica, tit. 30 (Hessels and Kern, col. 181); Brunner, D. R. G. ii. 672.
[398 ] Hloth. and Ead. c. 11.
[399 ] Ancienne coutume, cap. 86 (ed. de Gruchy, p. 197); Somma, p. 207: “nasum suum digitis suis per summitatem tenebit.” For Anjou, see Viollet, Établissements, i. 243.
[400 ] Select Pleas in Manorial Courts (Selden Soc.), pp. 13, 56, 138 ff.; The CourtBaron (Selden Soc.), passim, especially p. 47, where even in an action of debt the plaintiff requires amends for shame as well as for damage. We may believe that the same formula had been used in the king’s court, but that the practice of expressly asking a compensation for disgrace died out in the first half of the thirteenth century. Select Civil Pleas, pl. 183: in John’s reign the Bishop of Ely has wronged the Abbot of St. Edmunds, doing him shame to the amount of £100 and damage to the amount of 100 marks.
[401 ] Thus when in 1256 Robert de Ros has to pay £20 in damages for having driven off to his castle two oxen and two horses belonging to the Prior of Kirkham, it is clear that he is not making compensation merely for “pecuniary damage.” See Northumberland Assize Rolls, pp. 43-44.
[402 ] Select Pleas in Manorial Courts, pp. 19, 36, 82, 95, 109, 116, 143, 170; The Court Baron, pp. 48, 57, 61, 125, 133, 136.
[403 ] Select Pleas in Manorial Courts, p. 82.
[404 ] The Court Baron, p. 133.
[405 ] Rolls of the court of the Hundred of Wisbech, now in the Bishop’s Palace at Ely, 34 Edw. I. (ad 1306): “J. G. queritur de T. R. de placito quare . . . adivit Magistrum Gerardum de Stuthburi, Magistrum negotiorum Terrae Sanctae, apud Ely, et clericos suos ibidem, et ipsum J. accusavit malitia praecogitata, dicendo quod ipse J. debuit perturbasse negotium Terrae Sanctae, contradicendo ne quis legaret anulos et firmacula in subsidium Terrae Sanctae, per quam accusationem dictus J. fuit summonitus coram clericis praedicti Magistri . . . et adiudicatus fuit ad purgationem suam cum quinta manu . . . pro qua purgatione redimenda dictus J. solvit xiij. denarios et ulterius expendidit catalla sua ad valentiam iij. solidorum, ad damp-num suum dimidiae marcae etc.”
[406 ] Bracton, f. 155, but in Roman phrase, speaks of an action for injurious words as a possibility: “Fit autem iniuria, non solum cum quis pugno percussus fuerit . . . vero cum ei convitium dictum fuerit, vel de eo factum carmen famosum et huiusmodi.”
[407 ] If we were dealing with the law of the later middle ages, we should have to speak of the statutes against scandalum magnatum; Stat. West. I. c. 34; 2 Ric. II. stat. 1, c. 5; 12 Ric. II. c. 11. See Rot. Parl. iii. 168-70; Cromwell’s case, 4 Coke’s Reports, 12 b.
[408 ] Edgar, iii. 4; Cnut, ii. 16; Leg. Henr. 34 § 7. See Schmid, Gesetze, p. 563; Brunner, D. R. G. ii. 675.
[409 ] Günther, Wiedervergeltung, i. 141.
[410 ] See above, vol. ii. p. 481.
[411 ] Note Book, pl. 1460.
[412 ] Stat. West. II. c. 12.
[413 ] Select Civil Pleas (temp. Joh.), pl. 181: action by an acquitted appellee against one who procured the appeal.
[414 ] Articuli super Cartas, c. 10; Statutes, vol. i. pp. 145, 216; Rot. Parl. i. 96. Coke, Sec. Inst. 383-84, 562, says that before the Edwardian statutes the appellee had an action for damages and the writ of conspiracy was already in existence. He relies however upon the fables in the Mirror.
[415 ] Edgar, iii. 3; Cnut, ii. 15 § 1; Leg. Will. i. 13, 39; Leg. Henr. 13 § 4.
[416 ] Ass. Northampt. c. 1.
[417 ] Ann. Dunstapl. 66; the record of this curious case is printed by Cole, Documents illustrative of Eng. Hist., p. 312.
[418 ] Glanvill, xiv. 7.
[419 ] Bracton, f. 119 b; Britton, i. 40, 41, 25; Fleta, 32.
[420 ] Fleta, p. 63 (falsely numbered).
[421 ] See e.g. Note Book, pl. 934: A litigant produces a charter which he says is twenty-four years old. The justices see from the state of the wax that it is not three years old. He is committed to gaol. Y. B. 20-21 Edw. I. p. 331: imprisonment for production of a false tally.
[422 ] Stat. 1 Hen. V. c. 3.
[423 ] Stat. 5 Eliz. c. 14. For more of forgery at common law, see Coke, Third Instit. 169; Blackstone, Comment. iv. 247; Stephen, Hist. Crim. Law, iii. 180. The Star Chamber did much to supplement the meagre common law.
[424 ] Brunner, D. R. G. ii. 681. Kovalevsky, Droit coutumier Ossétien, p. 324.
[425 ] Cnut, ii. 36; Leg. Henr. 11 § 6. Schmid, Gesetze, Glossar. s.v. Meineid.
[426 ] See above, vol. ii. p. 198. The author of the Mirror would make every kind of official misdeed a perjury, as being a breach of the offender’s oath of fealty. This is ridiculous but instructive.
[427 ] It seems perfectly clear from Bracton’s text (especially f. 290 b) and the practice of his time that only an assisa could be attainted, never a iurata, unless perhaps one that had given a verdict against the king. Note Book, pl. 1294; Y. B. 21-22 Edw. I. 331. Bracton will not allow an attaint of a grand assize. See also 21-22 Edw. I. p. 429. But we learn from Glanvill, ii. 19, that the ordinance which established that assize had specially provided a punishment for jurors. We shall return to the at-taint in our next chapter.
[428 ] Glanvill, ii. 19; Bracton, f. 292 b.
[429 ] Note Book, pl. 917.
[430 ] Bracton, f. 289. See also f. 292, and Britton, ii. 228.
[431 ] Stephen, Hist. Crim. Law, iii. 240.
[432 ] Bracton, f. 290 b: “satis est enim quod Deum expectent ultorem.” Britton, ii. 227.
[433 ] See above, vol. ii. p. 169.
[434 ] Munim. Gildh. i. 475: Witnesses in the civic court must be “gentz de bone fame, et ne pas comune seutiers ne proeves devaunt lez ordinaires au Seint Poule ne aillours.”
[435 ] See above, vol. ii. p. 513.
[436 ] Fleta, p. 69. Edward I. ordained that no “femme coursable” should dwell within the city of London: Munim. Gildh. i. 283. The London citizens used to arrest fornicating chaplains and put them in the Tun as night-walkers; in 1297 the bishop objected and the practice was forbidden: ibid. ii. 213. At a later time severe by-laws were made for the punishment of prostitutes, bawds, adulterers, and priests found with women: ibid. i. 457-59. In 1234 the king ordered the expulsion of prostitutes from Oxford: Prynne, Records, ii. 445.
[437 ] For adultery and incest in Anglo-Saxon and other old Germanic laws, see Brunner, D. R. G. ii. 662-66; Schmid, Gesetze, Glossar. s.v. Ehebruch, Sibleger. As to the mutilation of the man who commits adultery with another man’s wife, see above, p. 513. German law of a later time still enforced this punishment: Günther, Wiedervergeltung, i. 261. We even hear from northern Switzerland of a bigamist being cut in half: ibid. p. 262. The worst forms of incest had been punished by death: Brunner, D. R. G. ii. 665. A queer story about the treatment of a fornicator by the woman’s friends stands in Placit. Abbrev. 267.
[438 ] Regist. Palat. Dunelm. ii. 695: in 1315 a woman guilty of incestuous adultery is to be whipt six times round the market-place at Durham and six times round the church at Auckland.
[439 ] Stat. 2 Hen. IV. c. 15.
[440 ] Tanon, Histoire des tribunaux de l’inquisition en France, 127-33; Cod. Theod. 16. 5; Cod. Iust. 1. 5; Lex Rom. Visig. ed. Hänel, pp. 256-58.
[441 ] Tanon, op. cit. 135.
[442 ] Tanon, op. cit. 13.
[443 ] C. Schmidt, Histoire de la secte des Cathares, p. 30.
[444 ] Tanon, op. cit. 130, 460.
[445 ] Tanon, op. cit. 462.
[446 ] Tanon, op. cit. 473.
[447 ] Tanon, op. cit. 147. These constitutions extend over the years 1220-39.
[448 ] We have been relying on the work of M. Tanon; see especially pp. 441-63. An opposite opinion treats Frederick’s constitutions as the first laws which punish heresy with death, and regards as the outcome of arbitrary power or of political necessities, the numerous cases of an earlier date in which heretics were burnt. According to this theory the decisive step was taken in the year 1231 when Gregory IX. published with his approval a constitution issued by Frederick in 1224. See Ficker, Die gesetzliche Einführung der Todesstrafe für Ketzerei, in Mittheilungen des Instituts für oesterreichische Geschichtsforschung, i. 179; Havet, L’hérésie et le bras séculier, Bibl. de l’École des chartes, vol. xli. pp. 488, 570, 603; Havet, Œuvres, ii. 117; also Lord Acton, Eng. Hist. Rev. iii. 776. The question is difficult because to the last the canon law never says in so many words that death is to be inflicted: it merely does this indirectly by approving the pious edicts of the emperor.
[449 ] Lyndwood, Provinciale, de Haereticis (5. 5) c. Reverendissimae,ad v.Poenas in iure (ed. 1679, p. 293): “Sed hodie indistincte illi qui per iudicem ecclesiasticum sunt damnati de haeresi, quales sunt pertinaces et relapsi, qui non petunt misericordiam ante sententiam, sunt damnandi ad mortem per saeculares potestates, et per eos debent comburi seu igne cremari, ut patet in quadam constitutione Frederici quae incipit Ut commissi § Item mortis [= Const. of March 1232, Mon. Germ., Leges, ii. 288], et in alia constitutione ipsius quae incipit Inconsutilem § Contra tales [= Const. of 22 Feb. 1239, Mon. Germ., Leges, ii. 327]; quae sunt servandae, ut patet, e. ti. Ut inquisitionis in prin. li. 6 et c. fi. e. ti. [= cc. 18, 20 in Sexto 5. 2].” See Stephen, Hist. Cr. Law, ii. 448. Lyndwood does not think that the imperial constitutions as such are of force in England; but a constitution approved by the text of the Canon Law is a different matter. Sir James Stephen, p. 441, is wrong in thinking that Lynd-wood’s Frederick was Barbarossa.
[450 ] Ralph of Coggeshall, p. 122; Lea, History of the Inquisition, i. 112.
[451 ] Mat. Par. Chron. Maj. iii. 361, 520.
[452 ] Rot. Pat. Joh. p. 124.
[453 ] Lea, Hist. Inquis. ii. 31.
[454 ] For the inquisition in the Quercy, see Lea, op. cit. ii. 30.
[455 ] Rot. Pat. 20 Hen. III. m. 11 d. de vinis et catallis Ernaldi de Peregorde. Rot. Pat. 26 Hen. III. pt. 1. m. 15, de Stephano Pelicer de Agenensi. These writs are referred to by Hale, P. C. i. 394, as if they related to sentences pronounced in England; but they do not. The first of them orders the arrest at Boston fair of wines belonging to Arnaud de Périgord who, as the king hears, has been convicted of heresy. The second of them orders the bailiffs of Bristol to restore to Stephen Pelicer certain goods of his that have been arrested, he having produced letters of the Bishop of Agen and Arnaud guardian of the Friars Minor in Agen—the name of the famous Bernard de Cauz is here written but cancelled—testifying that he (Stephen) is not suspected of heresy. For a case in which Edward I.’s seneschal in Gascony had trouble with the inquisitors about some relapsed Jews, see Langlois, Le règne de Philippe le Hardi, 221.
[456 ] See Makower, Const. Hist. of Church, pp. 183 ff.
[457 ] Will. Newburgh, i. 131; Ralph of Coggeshall, 122; Diceto, i. 318; Mapes, De Nugis, 62; Schmidt, Histoire de la secte des Cathares, i. 97; Lea, Hist. Inquis. i. 113; Havet, Bibl. de l’École des chartes, xli. 510; Stubbs, Const. Hist. iii. 365.
[458 ] Ass. Clarend. c. 21. The destruction of houses plays a large part in the procedure against heretics on the continent; Tanon, op. cit. 519; Lea, op. cit. i. 481.
[459 ] Lea, op. cit. i. 114. Already in 1157 a synod at Reims had threatened the heretics with branding and banishment: Hefele, Conciliengeschichte, ed. 2, v. 568.
[460 ] Liber de Antiquis Legibus, p. 3: “Hoc anno concrematus est quidam Ambigensis apud Londonias.”
[461 ] Bracton, f. 123 b.
[462 ] Maitland, The Canon Law in England, Essay vi. In 1240 a relapsed Jew was in prison at Oxford awaiting trial by the bishop: Prynne, Records, ii. 630. As to “immuration,” see Tanon, op. cit. 485: “Toutes ces prisons [the prisons in which heretics were confined] étaient désignées sous le nom particulier du mur, murus, la mure, la meure, et les prisonniers sous celui d’emmurés, immurati, en langue vulgaire emmu-rats.” See also Lea, op. cit. i. 486.
[463 ] Prynne, Records, ii. 560; Mat. Par. Chron. Maj. iv. 32.
[464 ] Prynne, Records, ii. 475.
[465 ] Rashdall, Universities, ii. 527.
[466 ] Bracton, f. 123 b, 124.
[467 ] Fleta, p. 54. His words are “contrahentes vero cum Judaeis vel Judaeabus.” In 1236 a Jew who had sexual intercourse with a Christian woman had to abjure the realm, while she was put to penance and abjured the town of Bristol; Note Book, pl. 1179.
[468 ] Britton, i. 42.
[469 ] Mirror, pp. 59, 135. The comparison of heresy to treason is found in a decretal of Innocent III. of 1199; c. 10, X. 5, 7.
[470 ] Britton, i. 179; Fleta, p. 113.
[471 ] See Stat. Walliae (Statutes, i. 57); and the apocryphal statute De visu franciplegii (ibid. p. 246); The Court Baron, pp. 71, 93.
[472 ] c. 18 in Sexto, 5. 2.
[473 ] See Proceedings against Dame Alice Kyteler (Camden Society, ed. Wright); Lea, Hist. Inquis. i. 354; iii. 456; Dict. Nat. Biog. Lederede, Richard. On pp. 23, 27 of the Proceedings we see the bishop producing “Extra de haereticis, Ut Inquisitionis,” that is to say, the decretal of Boniface VIII. which appears as c. 18 in Sexto, 5. 2.
[474 ] Chron. de Melsa, ii. 323. The text may be corrupt; an execution “in quadam sylva” would be very strange. See on this passage, Stubbs, Const. Hist. ii. 492, and compare Lea, op. cit. iii. 77.
[475 ] Lea, op. cit. iii. 298-301.
[476 ] cc. 9. 13, X. 5. 7; c. 18 in Sexto, 5. 2.
[477 ] Stubbs, Const. Hist. iii. 357-58; Stephen, Hist. Cr. Law, ii. 445-50.
[478 ] Coke, 12 Reports, 56, admits this: “and if the sheriff was present, he might deliver the party convict to be burnt without any writ de haeretico comburendo.”
[479 ] The discussion may be traced thus:—Fitzherbert, Natura Brevium, 269; Coke, 5 Reports, 23 a; 12 Reports, 56, 93 (not a book of high authority); 3rd Inst. 39; State Trials, v. 825; Hale, P. C. i. 383-410; Blackstone, Comm. iv. 44; Stephen, Hist. Cr. Law, ii. 437-69; Stubbs, Const. Hist. iii. 365-70; Stubbs, Lectures, 328-29; Lea, Hist. Inquis. i. 221-22; Makower, Verfassung der Kirche, Berlin, 1894, pp. 193 ff. The theory which would draw a distinction between a conviction before the ordinary and a conviction before a provincial council is founded only on what happened in two isolated cases, that of Sawtre and that of the apostate deacon; it has no warrant in medieval canon law. Again, the theory which holds that a cause of heresy is beyond the competence of the bishop’s official rests, we believe, on a mistranslation of some words used by Lyndwood. As to this point, see L. Q. R. xiii. 214.
[480 ] As to the whole of this subject, see Lea, Hist. Inquis. vol. iii. ch. vi. vii. The association of magic with heresy and rebellion was part of the imperial Roman heritage of the Church. Such charges were constantly made against the early Christians.
[481 ] Cod. Theod. 9. 16; Lex Rom. Visigoth. (ed. Hänel), p. 186; Cod. Iust. 9. 18.
[482 ] Exod. xxii. 18.
[483 ] Lea, op. cit. iii. 420; Brunner, D. R. G. ii. 678.
[484 ] Cnut, ii. 4.
[485 ] Lea, op. cit. iii. 422.
[486 ] Leg. Hen. 71. See Schmid’s note on invultuatio, Gesetze, Glossar. p. 617; Brunner, D. R. G. ii. 679.
[487 ] Lea, op. cit. iii. 453.
[488 ] Fleta, p. 54; Britton, i. 42, and the note from the Cambridge ms.
[489 ] Britton, i. 179; Fleta, p. 113.
[490 ] See above, vol. ii. p. 575.
[491 ] Note on Britton, i. 42.
[492 ] Placit. Abbrev. 62. It is possible that the charge was not of mere sorcery but of murder or mayhem effected by sorcery.
[493 ] Northumberland Assize Rolls (Surt. Soc.), 343.
[494 ] Barth. Cotton, 172.
[495 ] See above, vol. ii. p. 576.
[496 ] Proceedings against Alice Kyteler, Introduction, p. xxiii, where the record is printed.
[497 ] Y. B. 45 Edw. III. f. 17 (Trin. pl. 7).
[498 ] Proceedings against Alice Kyteler, Introduction, p. x, from the Patent Roll.
[499 ] Ibid. pp. xi–xx. Lea, op. cit. iii. 466-68. As to the witch of Eye, see also Coke, Third Inst. 44.
[500 ] Stat. 33 Hen. VIII. c. 8 (ad 1541), repealed by 1 Edw. VI. c. 12; Stat. 5 Eliz. c. 16 (ad 1562). See as to these statutes Stephen, Hist. Cr. Law, ii. 431.
[501 ] Francis Hutchinson, Essay on Witchcraft (1718), pp. 173-76.
[502 ] Stat. 1 Jac. I. c. 12; Stephen, Hist. Cr. Law, ii. 433.
[503 ] Hutchinson, op. cit. 49: “In this collection, that I have made, it is observable, that in 103 years from the statute against witchcraft in 33 Hen. VIII. till 1644, when we were in the midst of our civil wars, I find but about 15 executed. But in the 16 years following while the government was in other hands, there were 109, if not more, condemned and hanged.”
[504 ] Coke, Third Inst. 44 and Hale, P. C. i. 383 take this to have been the law.
[505 ] Coke, Third Inst. 58; Blackstone, Comm. iv. 215; Stephen, Hist. Cr. Law, ii. 429.
[506 ] Lea, Hist. Inquis. i. 115, also Oxford English Dictionary.
[507 ] Fleta, p. 54.
[508 ] Britton, i. 42 and the note from the Cambridge ms.
[509 ] Cod. Theod. 9. 7. 3. This passes into common knowledge through Lex Romana Visigothorum; see Hänel’s ed. p. 178.
[510 ] Lea, Hist. Inquis. iii. 256.
[511 ] Letters of Anselm, Migne, Patrol. vol. clix. col. 95; Eadmer, p. 143.
[512 ] Stat. 25 Hen. VIII. c. 6: “forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the laws of this realm.”
[513 ] Gloucestershire Pleas, ed. Maitland.
[514 ] Page, Northumberland Assize Rolls, pp. xviii–xix.