In obedience to this all-pervading tendency of organization, the barbarian tribes which overthrew the Roman Empire based their institutions on two general principles—the independence of the individual freeman and the solidarity of the family group—and on these were founded their simple forms of jurisprudence. As the criminal was not responsible to the state, but to the injured party, personal punishments were unknown, and the law made no attempt to decree them. All that it could do was to provide rude courts before which a plaintiff could state his case, and a settled tariff of pecuniary compensation to console him for his sufferings.[12] If he disdained this peaceful process, he was at liberty to assemble his kindred and friends, and exact what satisfaction he could with sword and axe. The offender, moreover, could not legitimately refuse to appear when summoned before the _mallum_, or judicial assembly of the tribe; nor could he, as a rule, claim the right of armed defence, if the complainant preferred to receive the money payment provided for the offence of which he might prove his antagonist guilty.
This _wer-gild_ was in no sense a fine inflicted as a punishment for guilt, but only a compensation to induce the injured party to forego his right of reprisals, and the interest which society felt in it was not in the repression of crime, but in the maintenance of peace by averting the endless warfare of hostile families. An Anglo-Saxon proverb, quoted approvingly in the laws of Edward the Confessor, as collected by William the Conqueror, says: “Bicge spere of side oðer bere”—Buy off the spear from thy side or endure it.[13] The application of the system is to be seen in the minute and complex tariffs of crime which form so large a portion of the barbarian codes. Every attempt against person and property is rated at its appropriate price, from the theft of a sucking pig to the armed occupation of an estate, and from a wound of the little finger to the most atrocious of parricides. To what extent this at last was carried may be seen in the Welsh codes, where every hair of the eyelash is rated at a penny.[14]
This system introduced into legal proceedings a commercial spirit which seems strangely at variance with the savage heroism commonly attributed to our barbarian ancestors. In the translation by Mr. Dasent of the old Icelandic Saga of Burnt Njal is vividly set forth the complex procedure which arose from the development of these principles, whereby suits could be sold and assigned by one party to another, and a plaintiff with a promising claim for damages would part with it to some speculator who undertook the chances of the suit; or, if the prospects were not encouraging, he would pay some shrewd lawyer or mighty warrior to prosecute it in his stead. As either party in the primitive Icelandic code could at any moment interrupt the proceedings with a challenge to single combat, or a powerful pleader might collect his friends for a raid on the Althing, and thus break up the court, this traffic in suits was a speculation well fitted to vary the monotony of a sea-rover’s life on shore.