[492]. Eádm. ii. § 1.
[493]. Eádw. ii. § 9.
[494]. Æðelr. ii. § 6. Thorpe, i. 286.
CHAPTER X.
FǼHÐE. WERGYLD.
The right of private warfare, technically called fǽhðe or feud[[495]], 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 freeman[[496]]: 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 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 the commission of a wrong on his part, greater than any he hath suffered; nor can the strict rule of “an eye for an eye, and a tooth for a tooth,” be applied, where the exaction of the penalty depends upon the measure of force between appellant and defender.
In the feeling then of the omnipotence of the State, for paramount purposes, over all the several individuals whose proximity to one another necessarily caused the existence between them of relations, amicable or hostile, the Teutonic nations set themselves the task of regulating the Right of Feud. They could not entirely abrogate it, for it was the very basis of that freedom which enabled every man to enter into a contract or engagement as to the mode of its exercise; but they defined, and as far as possible limited, its sphere and the extent of its action.
The natural right of every man to do himself justice to the extent of his own estimate[[497]], seems early to have received so much check as could be given by the establishment of a lex talionis,—life for life, and limb for limb. The eorl who captured the thane Imma, in the seventh century, could say to him, “I might justly put thee to death, because my kinsmen fell in the battle wherein thou wert made prisoner[[498]];” and this principle was recognized even in the later legislation, after what we may call a legal commutation of this right had been established: the ordinance respecting oaths to be administered says, “A twelfhynde man’s oath stands for six ceorls’ oaths; because if a man should avenge a twelfhynde man, he will be fully avenged on six ceorls, and his wergyld will be six ceorls’ wergylds[[499]].” The Teutonic nations generally avoided the inconveniences of such a system by making the State itself the arbitrator between the parties; that is, by establishing a tariff at which injuries should be rated, and committing to the State the duty of compelling the injured person to receive, and the wrongdoer to pay, the settled amount. It thus engaged to act as a mediator between the conflicting interests, with a view to the maintenance of the general peace: it assured to the sufferer the legal satisfaction for his loss; it engaged to his adversary that, upon due payment of that legal satisfaction, he should be placed under the public guarantee and saved from all the consequences of feud. For doing this, the State claimed also some remuneration; it imposed a fine, called sometimes fredum, from frið, peace, or bannum from its proclamation (bannan)[[500]], over and above the compensation between man and man. And this is obviously what Tacitus means when he says[[501]], “They are bound to take up both the enmities and the friendships of a father or relative. Nor are their enmities implacable; for even homicide is atoned for by a settled number of flocks or cattle, and the whole house receives satisfaction,—a useful thing for the state, for feuds are dangerous in exact proportion to freedom.” And again, “A portion of the fine goes to the king or state, a part to him whose damages are to be assessed, or to his relatives.” Only where the State would not, or could not, as may sometimes have happened, undertake this duty, did the right of private warfare again resume its course, and the family relations recover their pristine importance. The man who presumes to fight, before he has in vain appealed to all the recognized authorities for redress, is liable, under Ælfred’s law, to severe punishment, except in one important case, which involved the maintenance of the family itself, to secure which alone the machinery of the State exists[[502]]. But where the offender refuses to avail himself of the means of peaceful settlement which society has provided for him, the person injured may make war upon him, and have the assistance of the State in so doing. The most general expression of this right is found in a proverbial formula retained in the law of Eádweard the Confessor, and which may be said to comprise all the law of the subject: it says, “Let amends be made to the kindred, or let their war be borne;” whence the English had the proverb, ‘Bicge spere of síde óðer bere,’ that is to say, Buy off the spear or bear it[[503]]. The mode however of applying this general right was not left to individual caprice. The following regulations made by successive kings will explain very fully the practice and the theory of Feud or War. Ælfred ordains, “That the man who knows his foe to be homesitting fight not, before he have demanded justice of him. If he have power enough to beset his foe, and besiege him in his house, let him keep him there for seven days, but not attack him, if he will remain within-doors. If then, after seven days, he be willing to surrender, and to give up his weapons, let him be kept safe for thirty days, and let notice of him be given to his kinsmen and friends.... But if the plaintiff have not power enough of his own to besiege his foeman, let him ride to the ealdorman and beg aid of him: and if the ealdorman will not aid him, let him ride to the king before he fights. In like manner if a man come accidentally upon his foe, and without previous knowledge of his homestaying; if the foe will surrender his weapons, let him be kept safely for thirty days, and let notice be given to his friends. If he will not surrender his weapons, he may lawfully be attacked. But if he be willing to surrender and to deliver up his weapons, and after that, any one attack him, let him pay wer and wound, as well he may, and fine, and have forfeited his mǽgship[[504]]. We also declare that it is lawful war, for a man to fight for his lord, if any one attack his lord: and so also may the lord fight for his man. And in like manner a man may fight for his born kinsman, if any wrongfully attack him, except against his own lord: that we allow not. And it is lawful war if a man find another with his wedded wife within closed doors, or under one covering, or with his daughter born in wedlock, or his sister born in wedlock, or his mother who was given to his father as a wedded wife[[505]].”
The inconveniences of this state of society induced Eádmund, about the middle of the tenth century, to release the kindred from the consequences of fǽhðe: he thus commences his secular laws:
“Eádmund the king makes known to all the people, old and young, that are in his dominion, what I have deliberated with the counsel of my Witan, both ordained and laic. First how I might best promote Christianity. Then seemed it to us first most needful that we should most firmly preserve peace and harmony among ourselves, throughout all my dominion. Both I, and all of us, hold in horror the unrighteous and manifold fightings that exist among ourselves: we have therefore decreed: If henceforth any one slay another, let him bear the feud himself, unless by the assistance of his friends, and within twelve months, he make amends with the full wer, be he born as he may. But if his kindred forsake him, and will not pay for him, it is my will that all the kindred be unfáh [out of feud] except the actual perpetrator; provided that they do not give him either food or protection. But if afterwards any of the kindred harbour him, he shall be liable in all that he possesses to the king[[506]] and bear the feud with the kindred, because they had previously forsaken him. But if any of the other kindred take vengeance upon any man save the actual perpetrator, let him be foe to the king and all his friends, and forfeit all that he has[[507]].”
It is probable that this right thus reserved to the kindred of deserting their guilty kinsman, was not often exercised, nevertheless the subsequent laws of Æðelred and Cnut[[508]] may be considered to have been understood in connexion with it, and subject to its limitations.