The Frisians, a tribe of the Germans, had never advanced beyond this wild and imperfect state of society; and the right of private revenge still remained among them unlimited and uncontrolled.[*] But the other German nations, in the age of Tacitus, had made one step farther towards completing the political or civil union. Though it still continued to be an indispensable point of honor for every clan to revenge the death or injury of a member, the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference. He obliged the person maimed or injured, and the relations of one killed, to accept of a present from the aggressor and his relations,[**] as a compensation for the injury.[***] and to drop all farther prosecution of revenge. That the accommodation of one quarrel might not be the source of more, this present was fixed and certain according to the rank of the person killed or injured, and was commonly paid in cattle, the chief property of those rude and uncultivated nations.
[* LL. Fris. tit. 2, apud Lindenbrog. p. 491.]
[** LL. Æthelb, sect. 23. LL. Ælf. sect. 27]
[*** Called by the Saxons “maegbota.”]
A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered: it satisfied then pride by the submission which it expressed: it diminished their regret for the loss or injury of a kinsman by their acquisition of new property; and thus general peace was for a moment restored to the society.[*]
But when the German nations had been settled some time in the provinces of the Roman empire, they made still another step towards a more cultivated life, and their criminal justice gradually improved and refined itself. The magistrate, whose office it was to guard public peace, and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, or to his family, he thought himself entitled to exact a fine, called the “fridwit,” as an atonement for the breach of peace, and as a reward for the pains which he had taken in accommodating the quarrel. When this idea, which is so natural, was once suggested, it was willingly received both by sovereign and people. The numerous fines which were levied, augmented the revenue of the king; and the people were sensible that he would be more vigilant in interposing with his good offices, when he reaped such immediate advantage from them; and that injuries would be less frequent, when, besides compensation to the person injured, that they were exposed to this additional penalty.[**]
[* Tacit, de Mor. Germ. The author says, that the
price of the composition was fixed; which must have been by
the laws, and the interposition of the magistrates.]
[** Besides paying money to the relations of the
deceased, and to the king, the murderer was also obliged to
pay the master of a slave of vassal a sum, as a compensation
for his loss. This was called the “manbote” See Spel. Gloss,
in verb. Fredum, Manbot.]
This short abstract contains the history of the criminal jurisprudence of the northern nations for several centuries. The state of England in this particular, during the period of the Anglo-Saxons, may be judged of by the collection of ancient laws, published by Lambard and Wilkins. The chief purport of these laws is not to prevent or entirely suppress private quarrels, which the legislators knew to be impossible, but only to regulate and moderate them. The laws of Alfred enjoin, that if any one know that his enemy or aggressor, after doing him an injury, resolves to keep within his own house and his own lands[*] he shall not fight him, till he require compensation for the injury. If he be strong enough to besiege him in his house, he may do it for seven days without attacking him; and if the aggressor be a willing, during that time, to surrender himself and his arms, his, adversary may detain him thirty days, but is afterwards obliged to restore him safe to his kindred, “and be content with the compensation.” If the criminal fly to the temple, that sanctuary must not be violated. Where the assailant has not force sufficient to besiege the criminal in his house, he must apply to the alderman for assistance; and if the alderman refuse aid the assailant must have recourse to the king; and he is not allowed to assault the house till after this supreme magistrate has refused assistance. If any one meet with his enemy, and be ignorant that he was resolved to keep within his own lands he must, before he attack him, require him to surrender him self prisoner, and deliver up his arms; in which case he may detain him thirty days; but if he refuse to deliver up his arms it is then lawful to fight him. A slave may fight in his master’s quarrel: a father may fight in his son’s with any one except with his master.[**]
It was enacted by King Ina, that no man should take revenge for an injury till he had first demanded compensation, and had been refused it.[***]
[* The addition of these last words is Italics
appears necessary from what follows in the same law.]
[** IL. Ælf. sect. 28. Wilkins, p. 43.]
[*** LL. Inae sect. 9]
King Edmond, in the preamble to his laws, mentions the general misery occasioned by the multiplicity of private feuds and battles; and he establishes several expedients for remedying this grievance. He ordains that if any one commit murder, he may, with the assistance of his kindred, pay within a twelvemonth the fine of his crime; and if they abandon him, he shall alone sustain the deadly feud or quarrel with the kindred of the murdered person: his own kindred are free from the feud, but on condition that they neither converse with the criminal, nor supply him with meat or other necessaries: if any of them, after renouncing him, receive him into their house, or give him assistance, they are finable to the king, and are involved in the feud. If the kindred of the murdered person take revenge on any but the criminal himself, after he is abandoned by his kindred, all their property is forfeited, and they are declared to be enemies to the king and all his friends.[*] It is also ordained that the fine for murder shall never be remitted by the king,[**] and that no criminal shall be killed who flies to the church, or any of the king’s towns;[***] and the king himself declares, that his house shall give no protection to murderers, till they have satisfied the church by their penance, and the kindred of the deceased by making compensation.[****] The method appointed for transacting this composition is found in the same law.[*****]
These attempts of Edmond, to contract and diminish the feuds, were contrary to the ancient spirit of the northern barbarians, and were a step towards a more regular administration of justice. By the salic law, any man-night, by a public declaration, exempt himself from his family quarrels: but then he was considered by the law as no longer belonging to the family; and he was deprived of all right of succession, as the punishment of his cowardice.[******]