Others by accident might
have escaped; and this apparently miraculous escape
had great weight in confirming* the authority of this
trial.
have escaped; and this apparently miraculous escape
had great weight in confirming* the authority of this
trial.
Edmund Burke
It appears by the ancient Saxon laws, that the
bishop was the chief acting person in this court. The
reverence in which the clergy were then held, the
VOL. VII. 20
? ? ? ? 306 ABRIDGMENT OF ENGLISH HISTORY.
superior learning of the bishop, his succeeding to the
power and jurisdiction of the Druid, all contributed
to raise him far above the ealdorman, and to render
it in reality his court. And this was probably the
reason of the extreme lenity of the Saxon laws. The
canons forbade the bishops to meddle in cases of
blood. Amongst the ancient Gauls and Germans
the Druid could alone condemn to death; so that
on the introduction of Christianity there was none
who could, in ordinary course, sentence a man to
capital punishment: necessity alone forced it in a
few cases.
Concerning the right of appointing the Alderman
of the Shire there is some uncertainty. That he was
anciently elected by his county is indisputable; that
an alderman of the shire was appointed by the crown
seems equally clear from the writings of King Alfred.
A conjecture of Spelman throws some light upon this
affair. He conceives that. there were two aldermen
with concurrent jurisdiction, one of whom was elected by the people, the other appointed. by the king.
This is very probable, and very correspondent to the
nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the
ordinary business of the nation was then transacted,
the state would have hardly differed from a pure democracy. Besides, as the king had in every county
large landed possessions, either in his demesne, or to
reward and pay his officers, he would have been in a
much worse condition than any of his subjects, if he
had been destitute of a magistrate to take care of his
rights and to do justice to his numerous vassals. It
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 307
appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year
only, and that the royal alderman held his place at
the king's pleasure. This latter office, however, in
process of time, was granted for life; and it grew
afterwards to be hereditary in many shires.
We cannot pretend to say when the Sheriff came to be substituted in the place of the
Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from
the nature of the thing itself. As several persons
of consequence enough to obtain by their interest or
power the place of alderman were not sufficiently
qualified to perform the duty of the office, they contented themselves with the honorary part, and left
the judicial province to their substitute. * The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was
in his manor, for the same reasons officiated by his
deputy, the shire-reeve. This is the origin of the
Sheriff's Tourn, which decided in all affairs, Sheriff's
civil and criminal, of whatever importance, Tourn.
and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow
of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to
* Sheriff in the Norman times was merely the king's officer, not
the earl's. The earl retained his ancient fee, without jurisdiction;
the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either
immediately or mediately, and therefore his officer governed.
? ? ? ? 308 ABRIDGMENT OF ENGLISH HISTORY.
the court there being left nothing more than the cog,
nizance of pleas under forty shillings, unless by a particular writ or special commission. But by what
steps such a revolution came on it will be our business hereafter to inquire.
Witenage- The Witenagemote or Saxon Parliament,
mote. the supreme court, had authority over all
the rest, not upon any principle of subordination,
but because it was formed of all the rest. In
this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and
greater thalnes, with the other officers of the crown. *
So far as we can judge by the style of the Saxon
laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly,
at least whilst it acted deliberatively. It is true that
great numbers of all ranks of people attended its session, and gave by their attendance, and. their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in
the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This
may be explained by considering the analogy of the
inferior assemblies. All persons, of whatever rank,
attended at the county courts; but they did not go
there as judges, they went to sue for justice,- to be
informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at
the Witenagemotes, not to make laws, but to attend
at the promulgation of the laws; t as among so free
* How this assembly was composed, or by what right the members
sat in it, I cannot by any means satisfy myself. What is here said
is, I believe, nearest to the truth.
t Hence, perhaps, all men are supposed cognizant of the law.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 309
a people every institution must have wanted much of
its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in
these early times the commons sat, as they do at
this day, by representation from shires and boroughs;
and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such
appearances as no other explanation can account for.
To the reign of Henry the Second, the citizens and
burgesses were little removed from absolute slaves.
They might be taxed individually at what sum the
king thought fit to demand; or they might be discharged by offering the king a sum, from which, if
he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted
with severity, and even cruelty. A great difference
is made between taxing them and those who cultivate
lands: because, says my author, their property is
easily concealed; they live penuriously, are intent
by all methods to increase their substance, and their
immense wealth is not easily exhausted. Such was
their barbarous notion of trade and its importance.
The same author, speaking of the severe taxation,
and violent method of extorting it, observes that it is
a very proper method, - and that it is very just that
a degenerate officer, or other freeman, rejecting his
condition for sordid gain, should be punished beyond
the common law of freemen.
I take it that those who held by ancient demesne
did not prescribe simply not to contribute to the
expenses of the knight of the shire; but they pre
? ? ? ? 310 ABRIDGMENT OF ENGLISH HISTORY.
scribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of
no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of
the same kind in the Saxon times, when they were
of more repute. It is certain that many places now
called boroughs were formerly towns or villages in
ancient demesne of the king, and had, as such, writs
directed to them to appear in Parliament, that they
might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of
summoning them. This appears by sufficient records. And it appears by records also, that it was
much at the discretion of the sheriff what boroughs
he should return; a general writ was directed to
him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to
Parliament were quite passed over, and others, never
considered as such before, were returned. What is
called the prescription on this occasion was rather a
sort of rule to direct the sheriff in the execution of
his general power than a right inherent in any boroughs. But this was long after the time of which
we speak. In whatever manner we consider it, we
must own that this subject during the Saxon times
is extremely dark. One thing, however, is, I think,
clear from the whole tenor of their government, and
even from the tenor of the Norman Constitution
long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 311
the members held their seats were far from being
exactly ascertained. The Judicia Civitatis Londonice
afford a tolerable insight into the Saxon hMethod of
making and executing laws. First, the king called
together his bishops, and such other persons as he
thought proper. This council, or Witenagemote,
having made such laws as seemed convenient, they
then swore to the observance' of them. The king sent
a notification of these proceedings to each Burgmote,
where the people of that court also swore to the observance of them, and confederated, by means of
mutual strength and common charge, to prosecute
delinquents against them. Nor did there at that
time seem to be any other method of enforcing new
laws or old. For as the very form of their government subsisted by a confederacy continually renewed,
so, when a law was-made, it was necessary for its ex-. ecution to have again recourse to confederacy, which
was the great, and I should almost say the only, principle of the Anglo-Saxon government.
What rights the king had in this assembly is a
matter of equal uncertainty. * The laws generally
run in his name, with the assent of his wise men,
&c. But considering the low estimation of royalty
in those days, this may rather be considered as the
voice of the executive magistrate, of the person who
compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems. the law was digested'by the king or his
council for the assent of the general assembly. That
* Debet etiam rex omnia rite facere in regno, et per judicium procerum regni. -Debet. . . . justitiam per consilium procerum regni
sui tenere. - Leges Ed. 17.
? ? ? ? 312 ABRIDGMENT OF ENGLISH HISTORY.
order is now reversed. All these things are, I think,
sufficient to show of what a visionary nature those
systems are which would settle the ancient Constitution in the most remote times exactly in the same
form in which we enjoy it at this day, - not considering that such mighty changes in manners, during
so many ages, always must produce a considerable
change in laws, and in the forms as well as the powers of all governments.
We shall next consider the nature of the laws
passed in these assemblies, and the judicious manner of proceeding in these several courts which we
have described.
The Anglo-Saxons trusted more to the
Saxon laws.
strictness of their police, and to the simple
manners of their people, for the preservation of peace
and order, than to accuracy or exquisite digestion of
their laws, or to the severity of the punishments
which they inflicted. * The laws which remain to us
of that people seem almost to regard two points only:
the suppressing of riots and affrays, --and the regulation, of the several ranks of men, in order to adjust
the fines for delinquencies according to the dignity
of the person offended, or to the quantity of the
offence. In all other respects their laws seem very
imperfect. They often speak in the style of counsel
as well as that of command. In the collection of
laws attributed. to Alfred we have the Decalogue
* The non-observance of a regulation of police was always heavily
punished by barbarous nations; a slighter punishment was inflicted
upon the commission of crimes. Among the Saxons most crime's
were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids, -to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 818
transcribed, with no small part of the Levitical law;
in the same code are inserted many of the Saxon
institutions, though these two laws were in all respects as opposite as could possibly be imagined.
These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude institutions of an unlettered people had attained-an height which the united
efforts of necessity, learning, inquiry, and experience
can hardly reach to in many ages. We must add,
that, although as one people under one head there
was some-resemblance in the laws and customs of
our Saxon ancestors throughout the kingdom, yet
there was a considerable difference, in many material points, between the customs of the several
shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some
of which custom, that caused them, has abrogated;
others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.
The Saxoil laws, imperfect and various as they
were, served in some tolerable degree a people who
had by their Constitution an eye on each other's
concerns, and decided almost all matters of any
doubt'amongst them by methods which, however
inadequate, were extremely simple. They judged
every controversy either by the conscience of the
parties, or by the country's opinion of it, or what
they judged an appeal to'Providence. They were
unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of
those critical rules by which evidence is sifted, the
true distinguished from the false, the certain from
? ? ? ? 314 ABRIDGMENT OF ENGLISH HISTORY.
the uncertain. Originally, therefore, the defendant
Purgation in the suit was put to his oath, and if on
byoath oath he denied the debt or the crime with
which he was charged, he was of course acquitted.
But when the first fervors of religion began to decay,
and fraud and the temptations to fraud to increase,
they trusted no longer to the conscience of the party.
They cited him to an higher tribunal,- -the immediate judgment of God. Their trials were so many conjurations, and the magical ceremonies of barbarity
and heathenism entered into law and religion. This
supernatural method of process they called God's
B Dome; it is generally known by the name
By ordeal.
of Ordeal, which in the Saxon language signifies the Great Trial. This trial was made either by
fire or water: that by fire was principally reserved
for persons of rank; that by water decided the fate
of the vulgar; sometimes it was at the choice of the
party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honor, was brought forth into the church upon
the day of trial; and it was there again consecrated
to this awful purpose by a form of service still extant.
A solemn mass was performed; and then the party
accused appeared, surrounded by the clergy, by his
judges, and a vast concourse of people, suspended
and anxious for the event; all that assisted purified
themselves by a fast of three days; and the accused,
who had undergone the same fast, and received the
sacrament, took the consecrated iron, of about a
pound weight, heated red, in his naked hand, and in
that manner carried it nine feet. This done, the
hand was wrapped up and sealed in the presence of
the whole assembly. Three nights being passed, the
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 315
seals were opened before all the people: if the hand
was found without any sore inflicted by the fire, the
party was cleared with universal acclamation; if on
the contrary a raw sore appeared, the party, condemned by the judgment of Heaven, had no further
plea or appeal. Sometimes the accused walked over
nine hot irons: sometimes boiling water was used;
into this the man dipped his hand to the arm. The
judgment by water was accompanied by the solemnity of the same ceremonies. The culprit was thrown
into a pool of water, in which if he did not sink, he
was adjudged'guilty, as though the element (they,said) to which they had committed the trial of his
innocency had rejected him.
Both these species of ordeal, though they equally
appealed to God, yet went on different principles.
In the fire ordeal a miracle must be wrought to acquit the party; in the water a miracle was necessary
to convict him. Is there any reason for this extraordinary distinction? or must we resolve it solely into
the irregular caprices of the human mind? The
greatest genius which has enlightened this age seems
in this affair to have been carried by the sharpness of
his wit into a subtilty hardly to be justified by the
way of thinking of that unpolished period. Speaking of the reasons for introducing this method of
trial, " Qui ne voit," says he, " que, chez un peuple exerce d aanier des armes, la peau rude et calleuse ne devoit pas recevoir assez l'impression du fer chaud,. pour qu'il y parat trois jours apre's. -Et s'il y paroissoit, c'etoit une marque que celui qui faisoit l'6preuve
4toit un effimin6e. " And this mark of effeminacy, he
observes, in those warlike times, supposed that the man
has resisted the principles of his education, that he is
? ? ? ? 316 ABRIDGMENT:OF ENGLISH HISTORY.
insensible to honor, and regardless of the opinion of
his country. But supposing the effect of hot iron to
be so slight even on the most callous hands, of which,
however, there is reason to doubt, yet we con hardly.
admit this reasoning, when we consider that women
were subjected to this fire ordeal, and that no other
women than those of condition could be subjected to
it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might
have avoided this proof, if they could' find a cliampion to combat in their favor; and he thinks a just
presumption might be formed against a woman of
rank who was so destitute of friends as to find no
protector. It must be owned that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall
we reconcile all this with: the custom of the AngloSaxons, among whom the ordeal was in constant use,
and even for women, without the alternative of the
combat, to which it appears this people were entire
strangers? What presumption can arise from the
event of the water ordeal, in which no callosity of
hands, no bravery, no skill in arms, could be in any
degree serviceable? The causes of both may with
more success be sought amongst the superstitious
ideas of the ancient Northern world. Amongst the
Germans the administration of the law was in the
hands of the priests or Druids. * And as the Druid
worship paid the highest respect to the elements of
* The Druids judged not as magistrates, but as interpreters of the
will of Heaven. (' Ceterum neque animadvertere, neque vincire, neque verberare quidem, nisi sacerdotibus permissum; non quasi in pcenam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German. 7.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 317
fire and water, it was very natural that they who
abounded with so many conjurations for the discovery of doubtful facts or future events should make
use of these elements in their divination. It may
appear the greater wonder, how the people came to
continue so long, and with such obstinacy, after the
introduction of Christianity, and in spite of the fre.
quent injunctions of the Pope, whose authority was
then much venerated, in the use of a species of proof
theinsufficiency of which a thousand examples might
have detected. But this is perhaps not so unaccountable. Persons were not put to this trial, unless
there was pretty strong evidence against them, something sufficient to form what is equivalent to a corpus delicti; they must haye been actually found guilty by the duodecemvirale judicium, before they
could be subjected in any sort to the ordeal. It
was in effect showing the accused an indulgence
to give him this chance, even such a chance as it
was, of an acquittal; and it was certainly much
milder than the torture, which is used, with full
as little certainty of producing its end, among the
most civilized nations. And the ordeal without question frequently operated by the mere terror. Many
persons, from a dread of the event, chose to discover
rather than to endure the trial. Of those that did
endure it, many must certainly have been guilty.
The innocency of,some who suffered could never be
known with certainty.
Others by accident might
have escaped; and this apparently miraculous escape
had great weight in confirming* the authority of this
trial. How long did we continue in punishing innocent people for witchcraft, though experience might,
to thinking persons, have frequently discovered the
? ? ? ? 3i8 ABRIDGMENT OF ENGLISH HISTORY.
injustice of that proceeding! whilst to the generality a thousand equivocal appearances, confessions
from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion. Compurga- To avoid as much as possible this seti'o. vere mode of trial, and at the same time
to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime,
or charged in a civil complaint, appeared in court
with some of his neighbors, who were called his Compurgators; and when on oath he denied the charge,
they swore that they believed his oath to be true. *
These compurgators were at first to be three; afterwards five were required; in process of time twelve
became necessary. j As a man might be charged
by the opinion of the country, so he might also be
discharged by it: twelve men were necessary to find
him guilty, twelve might have acquitted him. If
opinion supports all government, it not only supported in the general sense, but it directed every
minute part in the Saxon polity. A man who did
not seem to have the good opinion of those among
whom he lived was judged to be guilty, or at least
capable of being guilty, of every crime. It was upon this principle that a man who could not find
the security of some tithing or friborg for his behavior,$ he that was upon account of this universal
* Si quis emendationem oppidorum vel pontium vel profectionem
militarem detrectaverit, compenset regi cxx solidis,. . . . vel purget se, et nominentur ei xiv, et eligantur xi. - Leges Cnuti, 62.
i Si accusatio sit, et purgatio male succedat, judicet Episcopus. --
Leges Cnuti, 53.
$ Every man not privileged, whether he be paterfamilias, (heorth
? ? ? ? ABRIDGMENT OF ENGLISH HISfORY. 319
desertion called Friendless Man, was by our ancestors condemned to death, -a punishment which the
lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved: a
circumstance which strongly marks the genius of
the Saxon government.
On the same principle from which the tri- Trial by the
al by the oath of compurgators was derived, Country.
was derived also the Trial by the Country, which
was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great
importance, it was put in the full Shiremote; and if
the general voice acquitted or condemned, decided
for one party or the other, this was final in the cause.
But then it was necessary that all should agree: for
it does not appear that our ancestors, in those days,
conceived how any assembly could be supposed to
give an assent to a point concerning which several
who composed that assembly thought differently.
They had no idea that a body composed of several
could act by the opinion of a small majority. But
experience having shown that this method of trial
was tumultuary and uncertain, they corrected it by
the idea of compurgation. The party concerned was
no longer put to his oath, -he simply pleaded; the
compurgators swore as before in ancient times; therefore the jury were strictly from the neighborhood, and
fest,*) or pedissequa, (folghere,t) must enter into the hundred and
tithing, and all above twelve to swear he will not be a thief or consenting to a thief. - Leges Cnuti, 19.
* Heorthfeste, - the same with Husfastene, i. e. the master of a family, from the
Saxon, Hearthfeest, i. e. fixed to the house or hearth.
t The Folgheres, or Folgeres, were the menial servants or followers of the Husfastene, or Housekeepers. - Bracton, Lib. III. , Tract. 2, cap. 10. Leges Hen. I. cap. 8.
? ? ? ? 320 ABRIDGMENT OF ENGLISH HISTORY.
were supposed to have a personal knowledge of the
man and the fact. They were rather a sort of evidence than judges: and from hence is derived that
singularity in our laws, that most of our judgments
are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither
are our juries bound, except by one particular statute, and in particular cases, to observe any positive
testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings-out of
our jurisprudence. The Saxons were extremely imperfect in their ideas of law, -- the civil institutions
of the Romans, who were the legislators of mankind,
having never reached them. The order of our courts,
the discipline of our jury, by which it is become so
elaborate a contrivance, and the introduction of a
sort of scientific reason in the law, have been the
work of ages.
As the Saxon laws did not suffer any transaction,
whether of the sale of land or goods, to pass but in
the shire and before witnesses, so all controversies
of them were concluded by what they called the scyre
witness. * This was tried by the oaths of the parties,
by vivd voce testimony, and the producing of charters
and records. Then the people, laity and clergy,
whether by plurality of votes or by what other means
is not very certain, affirmed the testimony in favor of one of the claimants. Then the proceeding
was signed, first by those who held the court, and
then by the persons who affirmed the judgment, who
also swore to it in the same manner. t
* Si quis terram defenderit testimonio provinciae, &c. - Leges Cnuti, 76: And sethe land gewerod hebbe be scyre gewitnesse. t See, in Madox, the case in Bishop of Bathes Court. See also
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 321
The Saxons were extremely moderate Prnishin their punishments. Murder and treason ment
were compounded, and a fine set for every offence.
Forfeiture for felony was incurred only by those that
fled. The punishment with death was very rare,with torture unknown. In all ancient nations, the
punishment of crimes was in the family injured by
them, particularly in case of murder. * This brought
deadly feuds amongst the people, which, in the German nations particularly, subsisted through several
generations. But as a fruitless revenge could answer
little purpose to the parties injured and was ruinous
to the public peace, by the interposal of good offices
they were prevailed upon to accept some composition
in lieu of the blood of the aggressor, and peace was'
restored. The Saxon government did little more
than act the part of arbitrator between the contending parties, exacted the payment of this composition,
and reduced it to a certainty. However, the king,
as the sovereign of all, and the sheriff, as the judicial
officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs
gave rise to, the Christian religion confirmed. Yet
was it not altogether so imperfect as to have no
punishment adequate to those great delinquencies
Brady, 272, where the witnesses on one side offer to swear, or join
battle with the other.
* Parentibus occisi fiat emendatio, vel guerra eorum portetur;
unde Anglicb proverbium habetur, Bige spere of side, oththe beer:
id est, Eme lanceam a latere, aut fer. -Leges Ed. 12.
The fines on the town or hundred.
Parentes murdrati sex marcas haberent, rex quadraginta. [This
different from the ancient usage, where the king had half. ] Si parentes deessent, dominus ejus reciperet. Si dominum non haberet, felagus ejus, id est, fide cum eo ligatus. -Leges Ed. 15. VOL. VII. 21
? ? ? ? 322 ABRIDGMENT OF ENGLISH HISTORY.
which tend entirely to overturn a state, public robbery, murder of the lord. *
Originof suc- As amongst'the Anglo-Saxons government
cession. depended in some measure upon land-property, it will not be amiss to say something upon their manner of holding and inheriting their lands. It
must not be forgot that the Germans were of Scythian original, and had preserved that way of life and those peculiar manners which distinguished the parent nation. As the Scythians lived principally by pasturage and hunting, from the nature of that way
of employment they were continually changing their
habitations. But even in this case some small degree
of agriculture was carried on, and therefore some sort
of division of property became necessary. This division was made among each tribe by its proper chief. Annual But their shares were allotted to the sevproperty. eral. individuals only for a year, lest they should come to attach themselves to any certain habitation: a settlement being wholly contrary to the genius of the Scythlian manners.
Campestres melius Scytha3,
Quorum plaustra vagas rite trahunt domos,
Vivunt, et rigidi Getae,
Immetata quibus jugera liberas
Fruges et Cererbm ferunt,
Nec cultura placet longior annuq.
* Purveyance. Vide Leges Cnuti, 67.
Si quis intestatus ex hac vita decedat, sive sit per negligentiam
ejus, sive per mortem subitaneam, tune non assumat sibi dominus
plus possessionis (mehta) ipsius quam justum armamentum; sed post
mortem possessio (vehtgescyft) ejus quam justissime distribuatur
uxori et liberis, et propinquis cognatis, cuilibet pro dignitate quee ad
cum pertinet. - Leges Cnuti, 68.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 323
This custom of an annual property probably continued amongst the Germans as long as they remained in their own country; but when their conquests carried them into other parts, another object besides the possession of the land arose, which obliged them to
make a change in this particular. In the distribution of the conquered lands, the ancient possessors
of them became an object of consideration, and the
management of these became one of the principal
branches of their polity. It was expedient towards
holding them in perfect subjection, that they should
be habituated to obey one person, and that a kind
of cliental relation should be created between them;
therefore the land, with the slaves, and the people in
a state next to slavery, annexed to it, was Estatesfor
bestowed for life in the general distribution. life.
When life-estates were once granted, it seemed a natural consequence that inheritances should Inheritance.
immediately supervene. When a durable
connection is created between a certain man and a
certain portion of land by a possession for his whole
life, and when his children have grown up and have
been supported on that land, it seems so great an
hardship to separate them, and to deprive thereby
the family of all means of subsisting, that nothing
could be more generally desired nor more reasonably
allowed than an inheritance; and this reasonableness
was strongly enforced by the great change wrought
in their affairs when life-estates were granted. Whilst
according to the ancient custom lands were only
given. for a year, there was a rotation so quick that
every family came in its turn to be easily provided for,
and had not long to wait; but the children of a tenant for life, when they lost the benefit of their father's
? ? ? ? 324 ABRIDGMENT OF ENGLISH HISTORY.
possession, saw themselves as it were immured upon
every side by the life-estates, andperceived no reasonable hope of a provision from any new arrangement. These inheritances began very early in England. By a law of King Alfred it appears that they were then of;a very ancient establishment: and as
such inheritances were intended for great stability,
Book-land they fortified them by charters; and therefore they were called Book-land. This was
done with regard to the possession of the better sort:
the meaner, who were called ceorles, if they did not
live in a dependence on some thane, held their small
portions of land as an inheritance likewise, - not by
olk-land. charter, but by a sort: of prescription. This
was called Folk-landI These estates of inheritance, both the greater and the meaner, were
not fiefs; they were to all purposes allodial, and
had hardly a single property of a feud; they descended equally to all the children, males and females, according to the custom of gavelkind, a custom absolutely contrary to the genius of the feudal tenure; and whenever estates were granted in the
later Saxon times by the bounty of the crown with
an intent that they should be inheritable, so far were
they from being granted with the complicated load
of all the feudal services annexed, that in all the
charters of that kind which subsist they are bestowed with a full power of alienation, et liberi ab
omni seculari gravamine. This was the general condition of those inheritances which were derived from
the right of original conquest, as well to all the soldiers as to the leader; and these estates, as it is said,
were not even forfeitable, no, not for felony, as if that
were in some sort the necessary consequence of an
? ? ? ? ABRIDGMENT OF -ENGLISH HISTORY. 325
inheritable estate. So far were they from resembling
a fief. But there were other possessions Saxonfiefs.
which bore a nearer- resemblance to fiefs,
at least in-their first feeble and infantile state of
the tenure, thai those inheritances. which were held
by an absolute right in the proprietor. The great
officers who attended the court, commanded. armies,
or distributed justice must necessarily be paid and
supported; but in what manner could they be paid?
In money they could not, because there was very
little money then in Europe, and scarce any part of
that little came into the prince's coffers. The only
method of paying them was by. :allotting lands for
their subsistence whilst they remained in. his service. For this reason, in the original distribution,
vast tracts of land were left in the hands of the king.
If any served the king in a military command, his
land may be said to: have been in some sort held by
knight-service. If the tenant was in an office about
the king's person, this gave rise to sergeantry; the
persons who cultivated his lands may be considered
as holding by socage. -But the long: train of services
that made afterwards the learning of the. tenures were
then not thought of, because these feuds, if we may
so call them, had not then come to be inheritances,which circumstance of inheritance gave rise to the whole feudal system. With the Anglo-Saxons the
feuds continued to the last but a sort of pay or salary
of office. The trinoda necessitas, so much spoken of,
which was to attend the king in his expeditions, and
to contribute to the building of bridges and repair of
highways, never'bound the lands by way of tenure,
but as a political regulation, which equally affected
every class and condition of men and every species
of possession.
? ? ? ? 826 ABRIDGMENT OF ENGLISH HISTORY.
The manner of succeeding to lands in
Gavelkind.
England at this period was, as we have observed, by Gavelki'nd,- an equal distribution amongst
the children, males and females. The ancient Northern nations had but an imperfect notion of political power. That the possessor of the land should be the
governor of it was a simple idea; and their schemes
extended but little further. It was not so in the
Greek and Italian commonwealths. In those the
property of the land was in all respects similar to
that of goods, and had nothing of jurisdiction annexed to it; the government there was a merely political institution. Amongst such a people the
custom of distribution could be of no ill consequence, because it only affected property. But gavelkind amongst the Saxons was very prejudicial; for, as government was annexed to a certain possession
in land, this possession, which was continually changing, kept the government in a very fluctuating state:
so that their civil polity had in it an essential evil,
which contributed to the sickly condition in which the Anglo-Saxon state always remained, as well as to its final dissolution.
? ? ? ? BOOK III.
CHAPTER I.
VIEW OF THE STATE OF EUROPE AT THE TIME OF THE
NORMAN INVASION.
BEFORE the period of which we are going to
treat, England was little known or considered
in Europe. Their situation, their domestic calamities, and their ignorance circumscribed the views and politics of the English within the bounds of their own
island. But. the Norman conqueror threw down all
these barriers. The English laws, manners, and maxims were suddenly changed; the scene was enlarged; and the communication with the rest of Europe,
being thus opened, has been preserved ever since in
a continued series of wars and negotiations. That
we may, therefore, enter more fully into the matters
which- lie before us, it is necessary that we understand the state of the neighboring continent at the time when this island first came to be interested in
its affairs.
The Northern nations who had overran the Roman
Empire were at first rather actuated by avarice than
ambition, and were more intent upon plunder than
conquest; they were carried beyond their original
purposes, when they began to form regular governments, for which they had been prepared by no just ideas of legislation. For a long time, therefore, there
was little of order in their affairs or foresight in
? ? ? ? 328 ABRIDGMENT OF ENGLISH HISTORY.
their designs. The Goths, the Burgundian s, the
Franks, the Vandals, the Suevi, after they had prevailed over the Roman Empire, by turns prevailed
over each other in continual wars, which were carried on upon no principles of a determinate policy,
entered into upon motives of brutality and caprice,
and ended as fortune and rude violence chanced to
prevail. Tumult, anarchy, confusion, overspread the
face of Europe; and an obscurity rests upon the
transactions of that time which suffers us to discover
nothing but its extreme barbarity.
Before this cloud could be dispersed, the Saracens,
another body of barbarians.
bishop was the chief acting person in this court. The
reverence in which the clergy were then held, the
VOL. VII. 20
? ? ? ? 306 ABRIDGMENT OF ENGLISH HISTORY.
superior learning of the bishop, his succeeding to the
power and jurisdiction of the Druid, all contributed
to raise him far above the ealdorman, and to render
it in reality his court. And this was probably the
reason of the extreme lenity of the Saxon laws. The
canons forbade the bishops to meddle in cases of
blood. Amongst the ancient Gauls and Germans
the Druid could alone condemn to death; so that
on the introduction of Christianity there was none
who could, in ordinary course, sentence a man to
capital punishment: necessity alone forced it in a
few cases.
Concerning the right of appointing the Alderman
of the Shire there is some uncertainty. That he was
anciently elected by his county is indisputable; that
an alderman of the shire was appointed by the crown
seems equally clear from the writings of King Alfred.
A conjecture of Spelman throws some light upon this
affair. He conceives that. there were two aldermen
with concurrent jurisdiction, one of whom was elected by the people, the other appointed. by the king.
This is very probable, and very correspondent to the
nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the
ordinary business of the nation was then transacted,
the state would have hardly differed from a pure democracy. Besides, as the king had in every county
large landed possessions, either in his demesne, or to
reward and pay his officers, he would have been in a
much worse condition than any of his subjects, if he
had been destitute of a magistrate to take care of his
rights and to do justice to his numerous vassals. It
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 307
appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year
only, and that the royal alderman held his place at
the king's pleasure. This latter office, however, in
process of time, was granted for life; and it grew
afterwards to be hereditary in many shires.
We cannot pretend to say when the Sheriff came to be substituted in the place of the
Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from
the nature of the thing itself. As several persons
of consequence enough to obtain by their interest or
power the place of alderman were not sufficiently
qualified to perform the duty of the office, they contented themselves with the honorary part, and left
the judicial province to their substitute. * The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was
in his manor, for the same reasons officiated by his
deputy, the shire-reeve. This is the origin of the
Sheriff's Tourn, which decided in all affairs, Sheriff's
civil and criminal, of whatever importance, Tourn.
and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow
of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to
* Sheriff in the Norman times was merely the king's officer, not
the earl's. The earl retained his ancient fee, without jurisdiction;
the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either
immediately or mediately, and therefore his officer governed.
? ? ? ? 308 ABRIDGMENT OF ENGLISH HISTORY.
the court there being left nothing more than the cog,
nizance of pleas under forty shillings, unless by a particular writ or special commission. But by what
steps such a revolution came on it will be our business hereafter to inquire.
Witenage- The Witenagemote or Saxon Parliament,
mote. the supreme court, had authority over all
the rest, not upon any principle of subordination,
but because it was formed of all the rest. In
this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and
greater thalnes, with the other officers of the crown. *
So far as we can judge by the style of the Saxon
laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly,
at least whilst it acted deliberatively. It is true that
great numbers of all ranks of people attended its session, and gave by their attendance, and. their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in
the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This
may be explained by considering the analogy of the
inferior assemblies. All persons, of whatever rank,
attended at the county courts; but they did not go
there as judges, they went to sue for justice,- to be
informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at
the Witenagemotes, not to make laws, but to attend
at the promulgation of the laws; t as among so free
* How this assembly was composed, or by what right the members
sat in it, I cannot by any means satisfy myself. What is here said
is, I believe, nearest to the truth.
t Hence, perhaps, all men are supposed cognizant of the law.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 309
a people every institution must have wanted much of
its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in
these early times the commons sat, as they do at
this day, by representation from shires and boroughs;
and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such
appearances as no other explanation can account for.
To the reign of Henry the Second, the citizens and
burgesses were little removed from absolute slaves.
They might be taxed individually at what sum the
king thought fit to demand; or they might be discharged by offering the king a sum, from which, if
he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted
with severity, and even cruelty. A great difference
is made between taxing them and those who cultivate
lands: because, says my author, their property is
easily concealed; they live penuriously, are intent
by all methods to increase their substance, and their
immense wealth is not easily exhausted. Such was
their barbarous notion of trade and its importance.
The same author, speaking of the severe taxation,
and violent method of extorting it, observes that it is
a very proper method, - and that it is very just that
a degenerate officer, or other freeman, rejecting his
condition for sordid gain, should be punished beyond
the common law of freemen.
I take it that those who held by ancient demesne
did not prescribe simply not to contribute to the
expenses of the knight of the shire; but they pre
? ? ? ? 310 ABRIDGMENT OF ENGLISH HISTORY.
scribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of
no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of
the same kind in the Saxon times, when they were
of more repute. It is certain that many places now
called boroughs were formerly towns or villages in
ancient demesne of the king, and had, as such, writs
directed to them to appear in Parliament, that they
might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of
summoning them. This appears by sufficient records. And it appears by records also, that it was
much at the discretion of the sheriff what boroughs
he should return; a general writ was directed to
him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to
Parliament were quite passed over, and others, never
considered as such before, were returned. What is
called the prescription on this occasion was rather a
sort of rule to direct the sheriff in the execution of
his general power than a right inherent in any boroughs. But this was long after the time of which
we speak. In whatever manner we consider it, we
must own that this subject during the Saxon times
is extremely dark. One thing, however, is, I think,
clear from the whole tenor of their government, and
even from the tenor of the Norman Constitution
long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 311
the members held their seats were far from being
exactly ascertained. The Judicia Civitatis Londonice
afford a tolerable insight into the Saxon hMethod of
making and executing laws. First, the king called
together his bishops, and such other persons as he
thought proper. This council, or Witenagemote,
having made such laws as seemed convenient, they
then swore to the observance' of them. The king sent
a notification of these proceedings to each Burgmote,
where the people of that court also swore to the observance of them, and confederated, by means of
mutual strength and common charge, to prosecute
delinquents against them. Nor did there at that
time seem to be any other method of enforcing new
laws or old. For as the very form of their government subsisted by a confederacy continually renewed,
so, when a law was-made, it was necessary for its ex-. ecution to have again recourse to confederacy, which
was the great, and I should almost say the only, principle of the Anglo-Saxon government.
What rights the king had in this assembly is a
matter of equal uncertainty. * The laws generally
run in his name, with the assent of his wise men,
&c. But considering the low estimation of royalty
in those days, this may rather be considered as the
voice of the executive magistrate, of the person who
compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems. the law was digested'by the king or his
council for the assent of the general assembly. That
* Debet etiam rex omnia rite facere in regno, et per judicium procerum regni. -Debet. . . . justitiam per consilium procerum regni
sui tenere. - Leges Ed. 17.
? ? ? ? 312 ABRIDGMENT OF ENGLISH HISTORY.
order is now reversed. All these things are, I think,
sufficient to show of what a visionary nature those
systems are which would settle the ancient Constitution in the most remote times exactly in the same
form in which we enjoy it at this day, - not considering that such mighty changes in manners, during
so many ages, always must produce a considerable
change in laws, and in the forms as well as the powers of all governments.
We shall next consider the nature of the laws
passed in these assemblies, and the judicious manner of proceeding in these several courts which we
have described.
The Anglo-Saxons trusted more to the
Saxon laws.
strictness of their police, and to the simple
manners of their people, for the preservation of peace
and order, than to accuracy or exquisite digestion of
their laws, or to the severity of the punishments
which they inflicted. * The laws which remain to us
of that people seem almost to regard two points only:
the suppressing of riots and affrays, --and the regulation, of the several ranks of men, in order to adjust
the fines for delinquencies according to the dignity
of the person offended, or to the quantity of the
offence. In all other respects their laws seem very
imperfect. They often speak in the style of counsel
as well as that of command. In the collection of
laws attributed. to Alfred we have the Decalogue
* The non-observance of a regulation of police was always heavily
punished by barbarous nations; a slighter punishment was inflicted
upon the commission of crimes. Among the Saxons most crime's
were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids, -to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 818
transcribed, with no small part of the Levitical law;
in the same code are inserted many of the Saxon
institutions, though these two laws were in all respects as opposite as could possibly be imagined.
These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude institutions of an unlettered people had attained-an height which the united
efforts of necessity, learning, inquiry, and experience
can hardly reach to in many ages. We must add,
that, although as one people under one head there
was some-resemblance in the laws and customs of
our Saxon ancestors throughout the kingdom, yet
there was a considerable difference, in many material points, between the customs of the several
shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some
of which custom, that caused them, has abrogated;
others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.
The Saxoil laws, imperfect and various as they
were, served in some tolerable degree a people who
had by their Constitution an eye on each other's
concerns, and decided almost all matters of any
doubt'amongst them by methods which, however
inadequate, were extremely simple. They judged
every controversy either by the conscience of the
parties, or by the country's opinion of it, or what
they judged an appeal to'Providence. They were
unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of
those critical rules by which evidence is sifted, the
true distinguished from the false, the certain from
? ? ? ? 314 ABRIDGMENT OF ENGLISH HISTORY.
the uncertain. Originally, therefore, the defendant
Purgation in the suit was put to his oath, and if on
byoath oath he denied the debt or the crime with
which he was charged, he was of course acquitted.
But when the first fervors of religion began to decay,
and fraud and the temptations to fraud to increase,
they trusted no longer to the conscience of the party.
They cited him to an higher tribunal,- -the immediate judgment of God. Their trials were so many conjurations, and the magical ceremonies of barbarity
and heathenism entered into law and religion. This
supernatural method of process they called God's
B Dome; it is generally known by the name
By ordeal.
of Ordeal, which in the Saxon language signifies the Great Trial. This trial was made either by
fire or water: that by fire was principally reserved
for persons of rank; that by water decided the fate
of the vulgar; sometimes it was at the choice of the
party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honor, was brought forth into the church upon
the day of trial; and it was there again consecrated
to this awful purpose by a form of service still extant.
A solemn mass was performed; and then the party
accused appeared, surrounded by the clergy, by his
judges, and a vast concourse of people, suspended
and anxious for the event; all that assisted purified
themselves by a fast of three days; and the accused,
who had undergone the same fast, and received the
sacrament, took the consecrated iron, of about a
pound weight, heated red, in his naked hand, and in
that manner carried it nine feet. This done, the
hand was wrapped up and sealed in the presence of
the whole assembly. Three nights being passed, the
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 315
seals were opened before all the people: if the hand
was found without any sore inflicted by the fire, the
party was cleared with universal acclamation; if on
the contrary a raw sore appeared, the party, condemned by the judgment of Heaven, had no further
plea or appeal. Sometimes the accused walked over
nine hot irons: sometimes boiling water was used;
into this the man dipped his hand to the arm. The
judgment by water was accompanied by the solemnity of the same ceremonies. The culprit was thrown
into a pool of water, in which if he did not sink, he
was adjudged'guilty, as though the element (they,said) to which they had committed the trial of his
innocency had rejected him.
Both these species of ordeal, though they equally
appealed to God, yet went on different principles.
In the fire ordeal a miracle must be wrought to acquit the party; in the water a miracle was necessary
to convict him. Is there any reason for this extraordinary distinction? or must we resolve it solely into
the irregular caprices of the human mind? The
greatest genius which has enlightened this age seems
in this affair to have been carried by the sharpness of
his wit into a subtilty hardly to be justified by the
way of thinking of that unpolished period. Speaking of the reasons for introducing this method of
trial, " Qui ne voit," says he, " que, chez un peuple exerce d aanier des armes, la peau rude et calleuse ne devoit pas recevoir assez l'impression du fer chaud,. pour qu'il y parat trois jours apre's. -Et s'il y paroissoit, c'etoit une marque que celui qui faisoit l'6preuve
4toit un effimin6e. " And this mark of effeminacy, he
observes, in those warlike times, supposed that the man
has resisted the principles of his education, that he is
? ? ? ? 316 ABRIDGMENT:OF ENGLISH HISTORY.
insensible to honor, and regardless of the opinion of
his country. But supposing the effect of hot iron to
be so slight even on the most callous hands, of which,
however, there is reason to doubt, yet we con hardly.
admit this reasoning, when we consider that women
were subjected to this fire ordeal, and that no other
women than those of condition could be subjected to
it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might
have avoided this proof, if they could' find a cliampion to combat in their favor; and he thinks a just
presumption might be formed against a woman of
rank who was so destitute of friends as to find no
protector. It must be owned that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall
we reconcile all this with: the custom of the AngloSaxons, among whom the ordeal was in constant use,
and even for women, without the alternative of the
combat, to which it appears this people were entire
strangers? What presumption can arise from the
event of the water ordeal, in which no callosity of
hands, no bravery, no skill in arms, could be in any
degree serviceable? The causes of both may with
more success be sought amongst the superstitious
ideas of the ancient Northern world. Amongst the
Germans the administration of the law was in the
hands of the priests or Druids. * And as the Druid
worship paid the highest respect to the elements of
* The Druids judged not as magistrates, but as interpreters of the
will of Heaven. (' Ceterum neque animadvertere, neque vincire, neque verberare quidem, nisi sacerdotibus permissum; non quasi in pcenam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German. 7.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 317
fire and water, it was very natural that they who
abounded with so many conjurations for the discovery of doubtful facts or future events should make
use of these elements in their divination. It may
appear the greater wonder, how the people came to
continue so long, and with such obstinacy, after the
introduction of Christianity, and in spite of the fre.
quent injunctions of the Pope, whose authority was
then much venerated, in the use of a species of proof
theinsufficiency of which a thousand examples might
have detected. But this is perhaps not so unaccountable. Persons were not put to this trial, unless
there was pretty strong evidence against them, something sufficient to form what is equivalent to a corpus delicti; they must haye been actually found guilty by the duodecemvirale judicium, before they
could be subjected in any sort to the ordeal. It
was in effect showing the accused an indulgence
to give him this chance, even such a chance as it
was, of an acquittal; and it was certainly much
milder than the torture, which is used, with full
as little certainty of producing its end, among the
most civilized nations. And the ordeal without question frequently operated by the mere terror. Many
persons, from a dread of the event, chose to discover
rather than to endure the trial. Of those that did
endure it, many must certainly have been guilty.
The innocency of,some who suffered could never be
known with certainty.
Others by accident might
have escaped; and this apparently miraculous escape
had great weight in confirming* the authority of this
trial. How long did we continue in punishing innocent people for witchcraft, though experience might,
to thinking persons, have frequently discovered the
? ? ? ? 3i8 ABRIDGMENT OF ENGLISH HISTORY.
injustice of that proceeding! whilst to the generality a thousand equivocal appearances, confessions
from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion. Compurga- To avoid as much as possible this seti'o. vere mode of trial, and at the same time
to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime,
or charged in a civil complaint, appeared in court
with some of his neighbors, who were called his Compurgators; and when on oath he denied the charge,
they swore that they believed his oath to be true. *
These compurgators were at first to be three; afterwards five were required; in process of time twelve
became necessary. j As a man might be charged
by the opinion of the country, so he might also be
discharged by it: twelve men were necessary to find
him guilty, twelve might have acquitted him. If
opinion supports all government, it not only supported in the general sense, but it directed every
minute part in the Saxon polity. A man who did
not seem to have the good opinion of those among
whom he lived was judged to be guilty, or at least
capable of being guilty, of every crime. It was upon this principle that a man who could not find
the security of some tithing or friborg for his behavior,$ he that was upon account of this universal
* Si quis emendationem oppidorum vel pontium vel profectionem
militarem detrectaverit, compenset regi cxx solidis,. . . . vel purget se, et nominentur ei xiv, et eligantur xi. - Leges Cnuti, 62.
i Si accusatio sit, et purgatio male succedat, judicet Episcopus. --
Leges Cnuti, 53.
$ Every man not privileged, whether he be paterfamilias, (heorth
? ? ? ? ABRIDGMENT OF ENGLISH HISfORY. 319
desertion called Friendless Man, was by our ancestors condemned to death, -a punishment which the
lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved: a
circumstance which strongly marks the genius of
the Saxon government.
On the same principle from which the tri- Trial by the
al by the oath of compurgators was derived, Country.
was derived also the Trial by the Country, which
was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great
importance, it was put in the full Shiremote; and if
the general voice acquitted or condemned, decided
for one party or the other, this was final in the cause.
But then it was necessary that all should agree: for
it does not appear that our ancestors, in those days,
conceived how any assembly could be supposed to
give an assent to a point concerning which several
who composed that assembly thought differently.
They had no idea that a body composed of several
could act by the opinion of a small majority. But
experience having shown that this method of trial
was tumultuary and uncertain, they corrected it by
the idea of compurgation. The party concerned was
no longer put to his oath, -he simply pleaded; the
compurgators swore as before in ancient times; therefore the jury were strictly from the neighborhood, and
fest,*) or pedissequa, (folghere,t) must enter into the hundred and
tithing, and all above twelve to swear he will not be a thief or consenting to a thief. - Leges Cnuti, 19.
* Heorthfeste, - the same with Husfastene, i. e. the master of a family, from the
Saxon, Hearthfeest, i. e. fixed to the house or hearth.
t The Folgheres, or Folgeres, were the menial servants or followers of the Husfastene, or Housekeepers. - Bracton, Lib. III. , Tract. 2, cap. 10. Leges Hen. I. cap. 8.
? ? ? ? 320 ABRIDGMENT OF ENGLISH HISTORY.
were supposed to have a personal knowledge of the
man and the fact. They were rather a sort of evidence than judges: and from hence is derived that
singularity in our laws, that most of our judgments
are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither
are our juries bound, except by one particular statute, and in particular cases, to observe any positive
testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings-out of
our jurisprudence. The Saxons were extremely imperfect in their ideas of law, -- the civil institutions
of the Romans, who were the legislators of mankind,
having never reached them. The order of our courts,
the discipline of our jury, by which it is become so
elaborate a contrivance, and the introduction of a
sort of scientific reason in the law, have been the
work of ages.
As the Saxon laws did not suffer any transaction,
whether of the sale of land or goods, to pass but in
the shire and before witnesses, so all controversies
of them were concluded by what they called the scyre
witness. * This was tried by the oaths of the parties,
by vivd voce testimony, and the producing of charters
and records. Then the people, laity and clergy,
whether by plurality of votes or by what other means
is not very certain, affirmed the testimony in favor of one of the claimants. Then the proceeding
was signed, first by those who held the court, and
then by the persons who affirmed the judgment, who
also swore to it in the same manner. t
* Si quis terram defenderit testimonio provinciae, &c. - Leges Cnuti, 76: And sethe land gewerod hebbe be scyre gewitnesse. t See, in Madox, the case in Bishop of Bathes Court. See also
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 321
The Saxons were extremely moderate Prnishin their punishments. Murder and treason ment
were compounded, and a fine set for every offence.
Forfeiture for felony was incurred only by those that
fled. The punishment with death was very rare,with torture unknown. In all ancient nations, the
punishment of crimes was in the family injured by
them, particularly in case of murder. * This brought
deadly feuds amongst the people, which, in the German nations particularly, subsisted through several
generations. But as a fruitless revenge could answer
little purpose to the parties injured and was ruinous
to the public peace, by the interposal of good offices
they were prevailed upon to accept some composition
in lieu of the blood of the aggressor, and peace was'
restored. The Saxon government did little more
than act the part of arbitrator between the contending parties, exacted the payment of this composition,
and reduced it to a certainty. However, the king,
as the sovereign of all, and the sheriff, as the judicial
officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs
gave rise to, the Christian religion confirmed. Yet
was it not altogether so imperfect as to have no
punishment adequate to those great delinquencies
Brady, 272, where the witnesses on one side offer to swear, or join
battle with the other.
* Parentibus occisi fiat emendatio, vel guerra eorum portetur;
unde Anglicb proverbium habetur, Bige spere of side, oththe beer:
id est, Eme lanceam a latere, aut fer. -Leges Ed. 12.
The fines on the town or hundred.
Parentes murdrati sex marcas haberent, rex quadraginta. [This
different from the ancient usage, where the king had half. ] Si parentes deessent, dominus ejus reciperet. Si dominum non haberet, felagus ejus, id est, fide cum eo ligatus. -Leges Ed. 15. VOL. VII. 21
? ? ? ? 322 ABRIDGMENT OF ENGLISH HISTORY.
which tend entirely to overturn a state, public robbery, murder of the lord. *
Originof suc- As amongst'the Anglo-Saxons government
cession. depended in some measure upon land-property, it will not be amiss to say something upon their manner of holding and inheriting their lands. It
must not be forgot that the Germans were of Scythian original, and had preserved that way of life and those peculiar manners which distinguished the parent nation. As the Scythians lived principally by pasturage and hunting, from the nature of that way
of employment they were continually changing their
habitations. But even in this case some small degree
of agriculture was carried on, and therefore some sort
of division of property became necessary. This division was made among each tribe by its proper chief. Annual But their shares were allotted to the sevproperty. eral. individuals only for a year, lest they should come to attach themselves to any certain habitation: a settlement being wholly contrary to the genius of the Scythlian manners.
Campestres melius Scytha3,
Quorum plaustra vagas rite trahunt domos,
Vivunt, et rigidi Getae,
Immetata quibus jugera liberas
Fruges et Cererbm ferunt,
Nec cultura placet longior annuq.
* Purveyance. Vide Leges Cnuti, 67.
Si quis intestatus ex hac vita decedat, sive sit per negligentiam
ejus, sive per mortem subitaneam, tune non assumat sibi dominus
plus possessionis (mehta) ipsius quam justum armamentum; sed post
mortem possessio (vehtgescyft) ejus quam justissime distribuatur
uxori et liberis, et propinquis cognatis, cuilibet pro dignitate quee ad
cum pertinet. - Leges Cnuti, 68.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 323
This custom of an annual property probably continued amongst the Germans as long as they remained in their own country; but when their conquests carried them into other parts, another object besides the possession of the land arose, which obliged them to
make a change in this particular. In the distribution of the conquered lands, the ancient possessors
of them became an object of consideration, and the
management of these became one of the principal
branches of their polity. It was expedient towards
holding them in perfect subjection, that they should
be habituated to obey one person, and that a kind
of cliental relation should be created between them;
therefore the land, with the slaves, and the people in
a state next to slavery, annexed to it, was Estatesfor
bestowed for life in the general distribution. life.
When life-estates were once granted, it seemed a natural consequence that inheritances should Inheritance.
immediately supervene. When a durable
connection is created between a certain man and a
certain portion of land by a possession for his whole
life, and when his children have grown up and have
been supported on that land, it seems so great an
hardship to separate them, and to deprive thereby
the family of all means of subsisting, that nothing
could be more generally desired nor more reasonably
allowed than an inheritance; and this reasonableness
was strongly enforced by the great change wrought
in their affairs when life-estates were granted. Whilst
according to the ancient custom lands were only
given. for a year, there was a rotation so quick that
every family came in its turn to be easily provided for,
and had not long to wait; but the children of a tenant for life, when they lost the benefit of their father's
? ? ? ? 324 ABRIDGMENT OF ENGLISH HISTORY.
possession, saw themselves as it were immured upon
every side by the life-estates, andperceived no reasonable hope of a provision from any new arrangement. These inheritances began very early in England. By a law of King Alfred it appears that they were then of;a very ancient establishment: and as
such inheritances were intended for great stability,
Book-land they fortified them by charters; and therefore they were called Book-land. This was
done with regard to the possession of the better sort:
the meaner, who were called ceorles, if they did not
live in a dependence on some thane, held their small
portions of land as an inheritance likewise, - not by
olk-land. charter, but by a sort: of prescription. This
was called Folk-landI These estates of inheritance, both the greater and the meaner, were
not fiefs; they were to all purposes allodial, and
had hardly a single property of a feud; they descended equally to all the children, males and females, according to the custom of gavelkind, a custom absolutely contrary to the genius of the feudal tenure; and whenever estates were granted in the
later Saxon times by the bounty of the crown with
an intent that they should be inheritable, so far were
they from being granted with the complicated load
of all the feudal services annexed, that in all the
charters of that kind which subsist they are bestowed with a full power of alienation, et liberi ab
omni seculari gravamine. This was the general condition of those inheritances which were derived from
the right of original conquest, as well to all the soldiers as to the leader; and these estates, as it is said,
were not even forfeitable, no, not for felony, as if that
were in some sort the necessary consequence of an
? ? ? ? ABRIDGMENT OF -ENGLISH HISTORY. 325
inheritable estate. So far were they from resembling
a fief. But there were other possessions Saxonfiefs.
which bore a nearer- resemblance to fiefs,
at least in-their first feeble and infantile state of
the tenure, thai those inheritances. which were held
by an absolute right in the proprietor. The great
officers who attended the court, commanded. armies,
or distributed justice must necessarily be paid and
supported; but in what manner could they be paid?
In money they could not, because there was very
little money then in Europe, and scarce any part of
that little came into the prince's coffers. The only
method of paying them was by. :allotting lands for
their subsistence whilst they remained in. his service. For this reason, in the original distribution,
vast tracts of land were left in the hands of the king.
If any served the king in a military command, his
land may be said to: have been in some sort held by
knight-service. If the tenant was in an office about
the king's person, this gave rise to sergeantry; the
persons who cultivated his lands may be considered
as holding by socage. -But the long: train of services
that made afterwards the learning of the. tenures were
then not thought of, because these feuds, if we may
so call them, had not then come to be inheritances,which circumstance of inheritance gave rise to the whole feudal system. With the Anglo-Saxons the
feuds continued to the last but a sort of pay or salary
of office. The trinoda necessitas, so much spoken of,
which was to attend the king in his expeditions, and
to contribute to the building of bridges and repair of
highways, never'bound the lands by way of tenure,
but as a political regulation, which equally affected
every class and condition of men and every species
of possession.
? ? ? ? 826 ABRIDGMENT OF ENGLISH HISTORY.
The manner of succeeding to lands in
Gavelkind.
England at this period was, as we have observed, by Gavelki'nd,- an equal distribution amongst
the children, males and females. The ancient Northern nations had but an imperfect notion of political power. That the possessor of the land should be the
governor of it was a simple idea; and their schemes
extended but little further. It was not so in the
Greek and Italian commonwealths. In those the
property of the land was in all respects similar to
that of goods, and had nothing of jurisdiction annexed to it; the government there was a merely political institution. Amongst such a people the
custom of distribution could be of no ill consequence, because it only affected property. But gavelkind amongst the Saxons was very prejudicial; for, as government was annexed to a certain possession
in land, this possession, which was continually changing, kept the government in a very fluctuating state:
so that their civil polity had in it an essential evil,
which contributed to the sickly condition in which the Anglo-Saxon state always remained, as well as to its final dissolution.
? ? ? ? BOOK III.
CHAPTER I.
VIEW OF THE STATE OF EUROPE AT THE TIME OF THE
NORMAN INVASION.
BEFORE the period of which we are going to
treat, England was little known or considered
in Europe. Their situation, their domestic calamities, and their ignorance circumscribed the views and politics of the English within the bounds of their own
island. But. the Norman conqueror threw down all
these barriers. The English laws, manners, and maxims were suddenly changed; the scene was enlarged; and the communication with the rest of Europe,
being thus opened, has been preserved ever since in
a continued series of wars and negotiations. That
we may, therefore, enter more fully into the matters
which- lie before us, it is necessary that we understand the state of the neighboring continent at the time when this island first came to be interested in
its affairs.
The Northern nations who had overran the Roman
Empire were at first rather actuated by avarice than
ambition, and were more intent upon plunder than
conquest; they were carried beyond their original
purposes, when they began to form regular governments, for which they had been prepared by no just ideas of legislation. For a long time, therefore, there
was little of order in their affairs or foresight in
? ? ? ? 328 ABRIDGMENT OF ENGLISH HISTORY.
their designs. The Goths, the Burgundian s, the
Franks, the Vandals, the Suevi, after they had prevailed over the Roman Empire, by turns prevailed
over each other in continual wars, which were carried on upon no principles of a determinate policy,
entered into upon motives of brutality and caprice,
and ended as fortune and rude violence chanced to
prevail. Tumult, anarchy, confusion, overspread the
face of Europe; and an obscurity rests upon the
transactions of that time which suffers us to discover
nothing but its extreme barbarity.
Before this cloud could be dispersed, the Saracens,
another body of barbarians.
