legislators added, indeed, a proviso, which we have dropped: "unless he flies or defends himself."k They introduced another mitigating principle, which we still attend to in practice, though not in theory; this was, that no youth under fifteen should be executed. The same exception of his flight or resistance was here also added; his punishment was to be imprisonment, and bail was to be given for his good behaviour. If his relations would not give the bail, he was to go into slavery. If he afterwards stole, he might be hanged.m The many provisions made for the public purchases of goods before witnesses, or magistrates, seem to have arisen partly from the frequency of thefts in those days, and partly from the severity with which they were punished. To escape this, it was necessary that every man, and especially a dealer in goods, should be always able to prove his legal property in what he possessed. Hence in Athelstan's laws, it is enacted, that no purchases above twenty pennies should be made outside the gate; but that such bargains should take place within the town, under the witness of the port gerefa, or some unlying man, or of the gerefas in the folc-gemot." CHAPTER IV. Adultery. THE criminal intercourse between the sexes is not punished among us as a public wrong committed against the general peace and order of society. No personal punishments, and no criminal prosecutions can be directed against it, although the most trifling assault and the most inconsiderable misdemeanour are liable to such consequences. It is considered by us, if unaccompanied by force, merely as a matter of civil injury, for which the individual must bring an action and get what damages he can; and even this right of action is limited to husbands and fathers; and the latter sues under the guise of a fiction, pretending to have sustained an injury by having lost the service of his daughter. Our Saxon legislators did not leave the punishment of this intercourse to the will and judgment of individuals. But they enacted penalties against it as a public wrong, always punishable when it occurred. In the amount of the penalty, however, they followed one of the great principles of their criminal legislation, k Ibid. p. 70. 1 Ibid. m Ibid. n Ibid. p. 58. and varied it according to the rank of the female. The offence with a king's maiden incurred a payment as high as to kill a freeman, which was fifty shillings; with his grinding servant half that sum, and with his third sort twelve shillings. With an earl's cupbearer the penalty was twelve shillings, which was the same that attached if a man killed another in an earl's town. With a ceorl's cupbearer, six shillings was the fine, fifty scættas for his other servant, and thirty for his servant of the third kind.b Even the poor servile esne was protected in his domestic happiness. To invade his connubial rights incurred the penalty of a double compensation. Forcible violation was chastised more severely. If the sufferer was a widow, the offender paid twice the value of her mundbyrd. If she were a maiden, fifty shillings were to be paid to her owner, whether father or master, and the invader of her chastity was also to buy her for his wife at the will of her owner. If she was betrothed to another in money, he was to pay twenty shillings; and if she was pregnant, in addition to a penalty of thirty-five shillings, a further fine of fifteen shillings was to be paid to the king.d The next laws subjected adulterers to ecclesiastical censure and excommunication, and enjoined the banishment of foreigners who would not abandon such connections. The pecuniary penalties were also augmented. The laws remained in this state till the time of Alfred, when some new modifications of correction were introduced. He governed the punishment of adultery by the rank of the husband. If he was a twelfhynd-man, the offender paid one hundred and twenty shillings. If a syxhynd-man, one hundred shillings. If a ceorl, forty shillings. This was to be paid in live property; but no man was to be personally sold for it. But the most curious part of Alfred's regulations on this subject was the refinement with which he distinguished the different steps of the progress towards the completion of the crime. To handle the neck of a ceorl's wife incurred a fine of five shillings. To throw her down, without further consequences, occasioned a penalty of ten shillings; and for a subsequent commission of crime, sixty shillings. But as we now allow the previous misconduct of the wife to mitigate the amount of the damages paid by the adulterer; so Alfred and his witan provided, that if the wife had transgressed before, the fines of her paramour were to be reduced a half." For the rape of a ceorl's slave, five shillings were to be paid the owner, and sixty shillings for the wife. But the violence of a theow on a fellow-slave was punished by a personal mutilation.i CHAPTER V. The Were and the Mund. As the WERE and the MUND are expressions which occur frequently in the Saxon laws, it may be useful to explain what they mean. Every man had the protection of a were and the privilege of a mund. The were was a legal valuation of an individual, varying according to his situation in life. If he was killed, it was the sum his murderer had to pay for the crime-if he committed crimes himself, it was the penalty which, in many cases, he had to discharge. The were was therefore the penalty by which his safety was guarded, and his crimes prevented or punished. If he violated certain laws, it was his legal mulct; if he were himself attacked, it was the penalty inflicted on others. Hence it became the measure and mark of a man's personal rank and consequence, because its amount was exactly regulated by his condition in life. The king's were geld or were payment was thirty thousand thrymsas, or one hundred and twenty pounds; an etheling's was fifteen thousand; a bishop and ealdorman's, eight thousand; a holde's and heh-gerefa's, four thousand; a thegn, two thousand, or twelve hundred shillings; a ceorl's, two hundred and sixty-six thrymsas, or two hundred shillings, unless he had five hides of land at the king's expeditions, and then his were became that of a thegn. The were of a twelfhynd-man was one hundred and twenty shillings, of a syxhynd-man was eighty shillings, and of a twyhynd-man thirty shillings." A Welshman's were who had some land, and paid gafol to the king, was two hundred and twenty shillings; if he had only half a hide of land, it was eighty shillings; and if he had no land, but was free, it was seventy shillings.b The amount of a person's were determined even the degree of his legal credibility. The oath of a twelfhynd-man was equal to the oaths of six ceorl's; and if revenge was taken for the murder of a twelfhynd-man, it might be wreaked on six ceorls. i Wilkins, p. 40. a Ibid. p. 25, 71, 72. b Ibid. c lbid. To be deprived of this were was the punishment of some crimes, and then the individual lost his greatest social pro tection. The mundbyrd was a right of protection or patronage which individuals possessed for their own benefit and that of others. The violation of it towards themselves, or those whom it sheltered, was punished with a severity, varying according to the rank of the patron. The king's mundbyrd was guarded by a penalty of fifty shillings. That of a widow of an earl's condition was equally protected, while the mund of the widow of the second sort was valued at twenty shillings, of the third sort at twelve shillings, and of the fourth sort at six shillings. If a widow was taken away against her consent, the compensation was to be twice her mund. The penalty of violating a ceorl's mund was six shillings. This privilege of the mund seems to be the principle of the doctrine, that every man's house is his castle. d The mund was the guardian of a man's household peace, as the were was of his personal safety. If any one drew a weapon where men were drinking, and the floor was stained with blood, besides forfeiting to the king fifty shillings, he had to pay a compensation to the master of the house for the violation of his mundbyrd.e CHAPTER VI. Their Borh, or Sureties. THE system of giving sureties, or bail, to answer an accusation, seems to have been coeval with the Saxon nation, and has continued to our times. In one of our earliest laws, it was provided, that the accused should be bound over by his sureties to answer the crime of which he was accused, and to do what the judges should appoint. If he neglected to find bail, he was to forfeit twelve shillings.* These bail were not to be taken indiscriminately; for the laws of Ina enact, that the bail might be refused if the magistrate knew that he acted right in the refusal. Felonies are not bailable now; in the Anglo-Saxon times it was otherwise. If a man was accused of theft he was to find borh, or sure ties; if he could not do this, his goods were taken as security. If he had none he was imprisoned till judgment. When a homicide pledged himself to the payment of the were, he was to find borh for it. The borh was to consist of twelve sureties; eight from the paternal line, and four from the maternal.d If a man was accused of witchcraft, he was to find borh to abstain from it. If a man was found guilty of theft by the ordeal, he was to be killed, unless his relations would save him by paying his were and ceap-gyld, and give borh for his good behaviour afterwards. But the most curious part of the Saxon borh was not the sureties which they who were accused or condemned were to find, to appear to the charge or to perform the judgment pronounced; but it was the system, that every individual should be under bail for his good behaviour. It has been mentioned that Alfred is stated to have divided England into counties, hundreds, and tithings; that every person was directed to belong to some tithing or hundred; and that every hundred and tenth were pledged to the preservation of the public peace, and answerable for the conduct of the inhabitants. Of this statement, it may be only doubted whether he divided England into counties or shires. These divisions certainly existed before Alfred. The shire is mentioned in the laws of Ina;h and we know that the counties of Kent, Essex, Sussex, existed as little kingdoms from the first invasion of the Saxons. Of the other counties, we also find many expressly mentioned in the Saxon history anterior to Alfred's reign. It may however be true, that he may have separated and named some particular shires, and this partial operation may have occasioned the whole of the general fact to be applied to him. The system of placing all the people under borh originated from Alfred, according to the historians; but we first meet with it clearly expressed in the laws in the time of Edgar. By his laws it is thus directed: "Every man shall find and have borh, and the borh shall produce him to every legal charge, and shall keep him; and if he have done any wrong and escapes, his borh shall bear what he ought to have borne. But if it be theft, and the borh can bring him forward within twelve months, then what the borh paid shall be returned to him." This important and burthensome institution is thus again repeated by the same prince: "This is then what I will; that every man be under borh, both in burghs and out of them; and c Wilkins, p. 50. d Ibid. p. 54. • Ibid, p. 57. f Ibid. p. 65. i Ibid. p. 78. |