20 George E. Howard, 



if). — TJic Frith or Folic s Peace. 



Few things in the history of legal ideas are more remark- 

 able than this protracted struggle of the state with the clan 

 for supremacy : her cautious, almost painful, advance from 

 the position of a mere referee to that of a sovereign, clothed 

 with power to punish all transgressions of right or of the 

 peace as offences against herself, requiring centuries of 

 patient watchfulness for its accomplishment. Gradually, 

 however, the conception of a common public peace — the 

 English /nV/^, the volksfriede of the German writers — was 

 evolved. Various were the expedients and makeshifts, some 

 of them as curious as they are instructive, through which the 

 state sought to eke out and expand her authority. Of these 

 the more important may be conveniently arranged in three 

 groups. 



The first group comprises a great variety of rules which 

 are prescribed in the ancient law-books and have as their 

 common object tJie restriction of the sphere of self-redress. 

 By these are carefully defined the persons by whom, the times 

 when, and the circumstances under which, reparation may be 

 sought. 1 Savage forms of punishment are forbidden. Thus 

 the avenger may not poison or torture his foe.^ If he slay 

 him in sudden anger or in defence of his life or his goods, he 

 must not conceal the deed. The law requires that he shall 

 proclaim it before his neighbors, unless he would "make 



gilds, arose in the necessity of supplementing by artificial association the family 

 (clan) compact, at a time when it was in process of dissolution, and when the 

 authority of the state was not as yet adequate to take its place : The Origin 

 of Gilds, Ixix, Ixxiv, Ixxix, Ixxxvi, ci ff. Cf. Kemble, Saxons, I, 258, 231. 

 Brentano's view is criticised by Gross, GiMz Mercatoria, 8, note 2. Cf. Spencer, 

 Principles of Sociology, II, 468 ff.; Ochenkoski, Etiglands wirthschaftliche Ent- 

 wickeluttg, 54 ff.; Winzer, Die detitschen Bruderschafteji des Mittelalters, 24 ff.; 

 Hartwig, Untersuchungen ilber die ersten Anfdnge des Gildemvesens, 163. See 

 also Seligman, Tivo Chapters on the Mediaval Guilds of England : Publications 

 of the Am. Econ. Association, II, 397-8: "The dissolution of the bond of kinship 

 furthered, but certainly did not produce the early guilds." 



1 Wilda, Strafrecht, 162. 2 Wilda, Strafrecht, 158. 



254 



