to knock you down or kill you if I can! That was a sanction, and a
perfectly good one; and the question that arose, therefore, was not at
all as to penalty for the law-breaker; it was whether there should be
a penalty for the law-breaker's being killed. That is the reason they
didn't have to have any penalty! In those days if there was a custom
that a certain tribe had a certain pasture, and a man of another tribe
pastured his cattle in that pasture, the first man would go to him and
they would have a fight, and if he killed him he would be, as we say,
arrested; then the matter would be inquired into by the kin of the
murdered man or neighbors, and if the killer could prove that the
murdered man had committed a breach of the law, he went off scot
free--so, as a matter of fact he would to-day, if it were justifiable
homicide. In other words, it was a question of whether it was
justifiable homicide; and that brought in the question what the
law was, and it was usually only in that way. For the law was but
universal custom, and that custom had no _sanction_; but for breach
of the custom anybody could make personal attack, or combine with his
friends to make attack, on the person that committed the breach, and
then, when the matter was taken up by the members of both tribes, and
finally by the Witenagemot as a judicial court, the question was, what
the law was; and if it was proved, for instance, that the law was that
there _was_ private property in that pasture belonging to the man who
committed the murder he went off scot free. That was the working of
the old Anglo-Saxon law, and it was a great many centuries before the
notion of law changed in their minds from that. And this "unwritten
law" perdures in the minds of many of the people to-day.

So it was that the Witenagemot--this Great Council of the realm--was
primarily judicial, in the first instance always judicial; that is, it
never made new laws. It got together to try people for the breach of