24 English and Continental Backgrounds
assessing damages in civil wrongs. Nearly every kind of
wrong was righted by a fine, in origin a commutation of
the old blood feud into money payment that antedates
Christianity and was probably worked out very slowly
in primitive Germanic history. The fines had by this
time become so elaborated and definitely fixed by custom,
that, in imposing them, the court used little-, if any, dis-
cretionary power. If a free man was slain, the slayer had
to pay a fine, called the wer, to the dead man's kin, the
amount of the wer being determined by the victim's rank
in society.1 A fine which was a compensation for any
other wrong was paid to the injured party, and was called
the bot. Probably, in its broadest sense, the bot included
the wer, the fundamental idea being that it was a private
compensation proportioned to the injury done. The bot
was not a penalty. But in the case of most crimes, a fine,
called wile, was also paid to the state, this fine being of a
penal character.2 In the shire court, part of this latter
went to the ealdorman, part to the king, and perhaps
something also to the sheriff. Under the later and
stronger kings, as the sphere of the royal peace extended,
the size and number of the fines going directly to the king
were growing rapidly, and there was perhaps approach-
ing, however distantly, the idea that a crime is an offence
malice aforethought, but was mixed up with primitive horror of witchcraft,
or of poisoning as probably connected with witchcraft; it was not avoid-
able, not a fair fight. The tariff of fines went into great minutiae with re-
spect to every kind of wound or mutilation.
1 There was probably a relation between wer and landholding. The
unfree did not have a perfect kin to swear for them in oath-helping or be
responsible for their wer. A man could not attain to a full wer till he held
land and could point to a number of generations of landholding kin back of
him. The wer was paid in cattle, and those only possessed cattle who had
the tribal rights in land. The wer of the ordinary freeman was usually one
hundred head of cattle, reckoned as two hundred gold shillings. These
were the "two-hundred men " spoken of so often in Anglo-Saxon law. The
thegns were the typical " twelve-hundred men/' The higher nobles, prel-
ates and princes, had much higher wers.
2 A fine of this sort indicates a more mature society than the com-
pensatory boL But the write was ancient and had undergone change. It
may have been at first a fee to the court, later appropriated by the king;
or it may have been compensation for a real or supposed violation of the
king's protection, later extended in a routine way to all cases.