obviously cannot apply to free landowners, who would have been included in a tithing, and could not have been thus compulsorily commended to a lord. Where a man is slain as a thief, the relatives are to clear him, if they can', inasmuch as they would have a right to pursue the slayer and claim the compensation for their kinsman's death. Again it is provided that if a lord has so many dependents that he cannot personally exercise a due supervision over them, he shall appoint efficient reeves or bailiffs in his several manors, to be answerable to him. And if need be, the bailiff shall cause twelve relatives of any man whom he cannot trust, to enter into sureties for him2.

Eádmund permitted the mag to avoid the consequences of their kinsman's act, by refusing to abet him in his feud3. I imagine that this law must be taken in connection with that of Eadwearda, and that it implies a total desertion of the criminal by his kindred, with all its consequences, viz. loss of liberty to him, and of his wergyld to them. The troubled time of Edelred, "the ill-advised," supplies another attempt to secure peace by holding the relatives strictly and personally responsible: in his law we find it enacted, "If breach of the peace be

Edelst. i. § 11. Thorpe, i. 204.

2 "Ut omnis homo teneat homines suos in fideiussione sua contra omne furtum. Si tunc sit aliquis qui tot homines habeat quod non sufficiat omnes custodire, praeponat sibi singulis villis praepositum unum, qui credibilis sit ei, et qui concredat hominibus. Et si praepositus alicui eorum hominum concredere non audeat, inveniat xii plegios cognationis suae qui ei stent in fideiussione." Edelst. ii. § 7. Thorpe, i. 217. • Eádm. ii. § 1. • Eádw. ii. § 9.

committed within a town, let the inhabitants of the town go in person, and take the murderers, alive or dead, or their nearest of kin, head for head. If they will not, let the ealdorman go; if he will not, let the king go; if he will not, let the whole district be in a state of war1." Though this perhaps is less a settled rule of law than the convulsive effort of an authority striving in vain to maintain itself amid civil discords and the horrors of foreign invasion, it still consecrates the old principle, and returns to the true basis on which Anglosaxon society was founded, namely treaties of peace and mutual guarantee between the several parties that made up the State.

Such were the means by which the internal peace of the land was attempted to be secured, and it is evident that better could hardly have been devised in a state of society where population was not very widely dispersed, and where property hardly existed, save in land, and almost equally unmanageable cattle. The summary jurisdiction of our police magistrates, our recognizances and bail and binding over to keep the peace, are developements rendered necessary by our altered circumstances; but these are nevertheless institutions of the same nature as those on which our forefathers relied. The establishment of our County-courts, in which justice goes forth from man to man, and without original writ from the Crown, is another step toward the ancient principle of our jurisprudence, in the old Hundred.

1 Æðelr. ii. § 6. Thorpe, i. 286.

A further inquiry now arises, as to the basis upon which all calculations as to satisfaction between man and man were founded; in other words to the system of Wergylds and its various corollaries : this will form the subject of a separate chapter.

267

CHAPTER X.

FÆ'HDE. WERGYLD.

THE right of private warfare, technically called fæhðe or feud', was one which every Teutonic freeman considered inalienable; and which, coupled with the obligations of family, was directly derived from his original position as a freeman2: it was the privilege which he possessed before he consented to enter into any political bond, the common term upon which all freemen could meet in an equal form of polity. It was an immediate corollary from that primæval law of nature, that each man may provide for his own defence, and use his own energies to secure his own well-being, and the quiet possession of his life, his liberty and the fruits of his labour. History and tradition both assure us that it did exist among the tribes of the North; and it is reasonable to suppose that it must have done so, especially in any case where we can conceive separate families and households to have maintained at all an independent position toward one

1 Fæhoe is etymologically derived from fá, a foe: it is the state or condition of being fá with any one. "Gif hwá ofer cæt stalige sy he fá wið done cyning and ealle his freónd." "If after that, any one steal, be he foe (at feud) with the king, and all that love him."

2 Tacit. Germ. xxii.

another. Where no imperium yet exists, society itself possesses only a ius belli against its own several members; and if neighbours will not be neighbourly, they must be coerced into peace (the great and first need of all society and the condition of its existence) by alliance of the many against the few, of the orderly and peaceful against the violent and lawless. This right of feud then lies at the root of all Teutonic legislation; and in the Anglosaxon law especially it continues to be recognized long after an imperial power has been constituted, and the general conservancy of the peace has been committed to a central authority. It admits as its most general term, that each freeman is at liberty to defend himself, his family and his friends; to avenge all wrongs done to them, as to himself shall seem good; to sink, burn, kill and destroy, as amply as a royal commission now authorizes the same in a professional class, the recognized executors of the national will in that behalf. Now it is obvious that such a power, exercised in its full extent, must render the formation of an orderly society difficult, if not impossible. The first problem then is to devise means by which private vengeance may be regulated, private wrong atoned, the necessity of each man's doing himself right avoided, and the general state of peace and security provided for. For, setting aside the loss to the whole community which may arise from private feud, the moral sense of men may be shocked by its results: an individual's own estimate of the satisfaction necessary to atone for the injury done to him, may lead to