Chapter 14

OF THE LAWS AND INSTITUTIONS OF THE SAXONS.

Before we begin to consider the laws and constitutions of the Saxons, let us take a view of the state of the country from whence they are derived, as it is portrayed in ancient writers. This view will be the best comment on their institutions. Let us represent to ourselves a people without learning, without arts, without industry, solely pleased and occupied with war, neglecting agriculture, abhorring cities, and seeking their livelihood only from pasturage and hunting through a boundless range of morasses and forests. Such a people must necessarily be united to each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen, of course, that the intention of investing one person or a few with the whole powers of government, and the notion of deputed authority or representation, are ideas that never could have entered their imaginations. When, therefore, amongst such a people any resolution of consequence was to be taken, there was no way of effecting it but by bringing together the whole body of the nation, that every individual might consent to the law, and each reciprocally bind the other to the observation of it. This polity, if so it may be called, subsists still in all its simplicity in Poland.

But as in such a society as we have mentioned the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves than in a close and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn a numerous train after the person distinguished by them, of those who sought his protection, or feared his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans called them Comites. Over these their chief had a considerable power, and the more considerable because it depended upon influence rather than institution: influence among so free a people being the principal source of power. But this authority, great as it was, never could by its very nature be stretched to despotism; because any despotic act would have shocked the only principle by which that authority was supported, the general good opinion. On the other hand, it could not have been bounded by any positive laws, because laws can hardly subsist amongst a people who have not the use of letters. It was a species of arbitrary power, softened by the popularity from whence it arose. It came from popular opinion, and by popular opinion it was corrected.

If people so barbarous as the Germans have no laws, they have yet customs that serve in their room; and these customs operate amongst them better than laws, because they become a sort of Nature both to the governors and the governed. This circumstance in some measure removed all fear of the abuse of authority, and induced the Germans to permit their chiefs[49] to decide upon matters of lesser moment, their private differences,--for so Tacitus explains the _minores res_. These chiefs were a sort of judges, but not legislators; nor do they appear to have had a share in the superior branches of the executive part of government,--the business of peace and war, and everything of a public nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans, that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Constitution, which has since been so nobly fashioned and so highly finished. This fine system, says Montesquieu, was invented in the woods; but whilst it remained in the woods, and for a long time after, it was far from being a fine one,--no more, indeed, than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.

The ancient state of the Germans was military: so that the orders into which they were distributed, their subordination, their courts, and every part of their government, must be deduced from an attention to a military principle.

The ancient German people, as all the other Northern tribes, consisted of freemen and slaves: the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age separated the boys from men. For when a young man approached to virility,[50] he was not yet admitted as a member of the state, which was quite military, until he had been invested with a spear in the public assembly of his tribe; and then he was adjudged proper to carry arms, and also to assist in the public deliberations, which were always held armed.[51] This spear he generally received from the hand of some old and respected chief, under whom he commonly entered himself, and was admitted among his followers.[52] No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in the strictest dependence, which was confirmed by an oath,[53] and to his brethren in a common vow for their mutual support in all dangers, and for the advancement and the honor of their common chief. This chief was styled Senior, Lord, and the like terms, which marked out a superiority in age and merit; the followers were called Ambacti, Comites, Leudes, Vassals, and other terms, marking submission and dependence. This was the very first origin of civil, or rather, military government, amongst the ancient people of Europe; and it arose from the connection that necessarily was created between the person who gave the arms, or knighted the young man, and him that received them; which implied that they were to be occupied in his service who originally gave them. These principles it is necessary strictly to attend to, because they will serve much to explain the whole course both of government and real property, wherever the German nations obtained a settlement: the whole of their government depending for the most part upon two principles in our nature,--ambition, that makes one man desirous, at any hazard or expense, of taking the lead amongst others,--and admiration, which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, one of the most universal passions among men. These two principles, strong, both of them, in our nature, create a voluntary inequality and dependence. But amongst equals in condition there could be no such bond, and this was supplied by confederacy; and as the first of these principles created the senior and the knight, the second produced the _conjurati fratres_, which, sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws and histories.

The relation between the lord and the vassal produced another effect,--that the leader was obliged to find sustenance for his followers, and to maintain them at his table, or give them some equivalent in order to their maintenance. It is plain from these principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely in the free choice of the parties.

But it is impossible that such a polity could long have subsisted by election alone. For, in the first place, that natural love which every man has to his own kindred would make the chief willing to perpetuate the power and dignity he acquired in his own blood,--and for that purpose, even during his own life, would raise his son, if grown up, or his collaterals, to such a rank as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or fell by natural course, leaving his offspring destitute, the lord could not so far forget the services of his vassal as not to continue his allowance to his children; and these again growing up, from reason and gratitude, could only take their knighthood at his hands from whom they had received their education; and thus, as it could seldom happen but that the bond, either on the side of the lord or dependant, was perpetuated, some families must have been distinguished by a long continuance of this relation, and have been therefore looked upon in an honorable light, from that only circumstance from whence honor was derived in the Northern world. Thus nobility was seen in Germany; and in the earliest Anglo-Saxon times some families were distinguished by the title of Ethelings, or of noble descent. But this nobility of birth was rather a qualification for the dignities of the state than an actual designation to them. The Saxon ranks are chiefly designed to ascertain the quantity of the composition for personal injuries against them.

But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connection; and if a father loft his son under a military age, so as that he could neither lead nor judge his people, nor qualify the young men who came up under him to take arms,--in order to continue the cliental bond, and not to break up an old and strong confederacy, and thereby disperse the tribe, who should be pitched upon to head the whole, but the worthiest of blood of the deceased leader, he that ranked next to him in his life?[54] And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon, empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferior chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, was entirely passed over, and his uncle, or some remoter relation, raised to the crown; but there is not a single instance where the election has carried it out of the blood. So that, in truth, the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined in some degree favorably for the litigants on either side; for it was certainly both hereditary and elective within the bounds, which we have mentioned. This order prevailed in Ireland, where the Northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it,--which if they had done, there is no doubt but many things of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded amongst the ancient Germans, and even preferred to that of the immediate possessor, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed: and this is upon the principles of Tanistry. And the rule seems to have taken such deep root as to have much influenced a considerable article of our feudal law: for, what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century.

Thus we have seen the foundation of the Northern government and the orders of their people, which consisted of dependence and confederacy: that the principal end of both was military; that protection and maintenance were due on the part of the chief, obedience on that of the follower; that the followers should be bound to each other as well as to the chief; that this headship was not at first hereditary, but that it continued in the blood by an order of its own, called Tanistry.

All these unconnected and independent parts were only linked together by a common council: and here religion interposed. Their priests, the Druids, having a connection throughout each state, united it. They called the assembly of the people: and here their general resolutions were taken; and the whole might rather be called a general confederacy than a government. In no other bonds, I conceive, were they united before they quitted Germany. In this ancient state we know them from Tacitus. Then follows an immense gap, in which undoubtedly some changes were made by time; and we hear little more of them until we find them Christians, and makers of written laws. In this interval of time the origin of kings may be traced out. When the Saxons left their own country in search of new habitations, it must be supposed that they followed their leaders, whom they so much venerated at home; but as the wars which made way for their establishment continued for a long time, military obedience made them familiar with a stricter authority. A subordination, too, became necessary among the leaders of each band of adventurers: and being habituated to yield an obedience to a single person in the field, the lustre of his command and the utility of the institution easily prevailed upon them to suffer him to form the band of their union in time of peace, under the name of King. But the leader neither knew the extent of the power he received, nor the people of that which they bestowed. Equally unresolved were they about the method of perpetuating it,--sometimes filling the vacant throne by election, without regard to, but more frequently regarding, the blood of the deceased prince; but it was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus their polity was formed slowly; the prospect clears up by little and little; and this species of an irregular republic we see turned into a monarchy as irregular. It is no wonder that the advocates for the several parties among us find something to favor their several notions in the Saxon government, which was never supported by any fixed or uniform principle. To comprehend the other parts of the government of our ancestors, we must take notice of the orders into winch they were classed. As well as we can judge in so obscure a matter, they were divided into nobles or gentlemen, freeholders, freemen that were not freeholders, and slaves. Of these last we have little to say, as they were nothing in the state. The nobles were called Thanes, or servants. It must be remembered that the German chiefs were raised to that honorable rank by those qualifications which drew after them a numerous train of followers and dependants.[55] If it was honorable to be followed by a numerous train, so it was honorable in a secondary degree to be a follower of a man of consideration; and this honor was the greater in proportion to the quality of the chief, and to the nearness of the attendance on his person. When a monarchy was formed, the splendor of the crown naturally drowned all the inferior honors; and the attendants on the person of the king were considered as the first in rank, and derived their dignity from their service. Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he should have a suitable attendance and sway amongst the people. To support him in both of these, it was necessary that he should have a competent estate. Therefore in this service of the king, this attendance on himself, and this estate to support both, the dignity of a thane consisted. I understand here a thane of the first order.

[Sidenote: Hallmote, or Court-Baron.]

Every thane, in the distribution of his lands, had two objects in view: the support of his family, and the maintenance of his dignity. He therefore retained in his own hands a parcel of land near his house, which in the Saxon times was called inland, and afterwards his demesne, which served to keep up his hospitality: and this land was cultivated either by slaves, or by the poorer sort of people, who held lands of him by the performance of this service. The other portion of his estate he either gave for life or lives to his followers, men of a liberal condition, who served the greater thane, as he himself served the king. They were called Under Thanes, or, according to the language of that time, Theoden.[56] They served their lord in all public business; they followed him in war; and they sought justice in his court in all their private differences. These may be considered as freeholders of the better sort, or indeed a sort of lesser gentry therefore, as they were not the absolute dependants, but in some measure the peers of their lord, when they sued in his court, they claimed the privilege of all the German freemen, the right of judging one another: the lord's steward was only the register. This domestic court, which continued in full vigor for many ages, the Saxons called Hall mote, from the place in which it was held; the Normans, who adopted it, named it a Court-Baron. This court had another department, in which the power of the lord was more absolute. From the most ancient times the German nobility considered themselves as the natural judges of those who were employed in the cultivation of their lands, looking on husbandmen with contempt, and only as a parcel of the soil which they tilled: to these the Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these inferior tenants were decided in the lord's court, in which his steward sat as judge; and this manner of tenure probably gave an origin to copyholders.[57] Their estates were at will, but their persons were free: nor can we suppose that villains, if we consider villains as synonymous to slaves, could ever by any natural course have risen to copyholders; because the servile condition of the villain's person would always have prevented that stable tenure in the lands which the copyholders came to in very early times. The merely servile part of the nation seems never to have been known by the name of Villains or Ceorles, but by those of Bordars, Esnes, and Theowes.

[Sidenote: Tithing Court.]

As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to find some method of uniting and governing these detached parts of the nation, which had not been brought into order by any private dependence. To answer this end, the whole kingdom was divided into Shires, these into Hundreds, and the Hundreds into Tithings.[58] This division was not made, as it is generally imagined, by King Alfred, though he might have introduced better regulations concerning it; it prevailed on the continent, wherever the Northern nations had obtained a settlement; and it is a species of order extremely obvious to all who use the decimal notation: when for the purposes of government they divide a county, tens and hundreds are the first modes of division which occur. The Tithing, which was the smallest of these divisions, consisted of ten heads of families, free, and of some consideration. These held a court every fortnight, which they called the Folkmote, or Leet, and there became reciprocally bound to each other and to the public for their own peaceable behavior and that of their families and dependants. Every man in the kingdom, except those who belonged to the seigneurial courts we have mentioned, was obliged to enter himself into some tithing: to this he was inseparably attached; nor could he by any means quit it without license from the head of the tithing; because, if he was guilty of any misdemeanor, his district was obliged to produce him or pay his fine. In this manner was the whole nation, as it were, held under sureties: a species of regulation undoubtedly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to the spot, were depressed with all the ideas of their original littleness, and by all that envy which is sure to arise in those who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Everything was new to them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the bonds of government. As a life of absolute license tends to turn men into savages, the other extreme of constraint operates much in the same manner: it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires and hundreds and tithings was common to them with the neighboring nations, yet the _frankpledge_ seems to be a peculiarity in the English Constitution; and for good reasons they have fallen into disuse, though still some traces of them are to be found in our laws.

[Sidenote: Hundred Court.]

Ten of these tithings made an Hundred. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined causes concerning breaches of the peace, small debts, and such matters as rather required a speedy than a refined justice.

[Sidenote: County Court.]

[Sidenote: Ealdorman and Bishop.]

There was in the Saxon Constitution a great simplicity. The higher order of courts were but the transcript of the lower, somewhat more extended in their objects and in their power; and their power over the inferior courts proceeded only from their being a collection of them all. The County or Shire Court was the great resort for justice (for the four great courts of record did not then exist). It served to unite all the inferior districts with one another, and those with the private jurisdiction of the thanes. This court had no fixed place. The alderman of the shire appointed it. Hither came to account for their own conduct, and that of those beneath them, the bailiffs of hundreds and tithings and boroughs, with their people,--the thanes of either rank, with their dependants,--a vast concourse of the clergy of all orders: in a word, of all who sought or distributed justice. In this mixed assembly the obligations contracted in the inferior courts were renewed, a general oath of allegiance to the king was taken, and all debates between the several inferior coördinate jurisdictions, as well as the causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an officer of great consideration in those times, called the Ealdorman of the Shire. With him sat the bishop, to decide in whatever related to the Church, and to mitigate the rigor of the law by the interposition of equity, according to the species of mild justice that suited the ecclesiastical character. 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 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 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.

[Sidenote: The Sheriff.]

[Sidenote: Sheriff's Tourn.]

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.[59] 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, civil and criminal, of whatever importance, 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 the court there being left nothing more than the cognizance 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.

[Sidenote: Witenagemote.]

The Witenagemote or Saxon Parliament, 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 thanes, with the other officers of the crown.[60] 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;[61] as among so free 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 prescribed, 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 the members held their seats were far from being exactly ascertained. The _Judicia Civitatis Londoniæ_ afford a tolerable insight into the Saxon method 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 execution 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.[62] 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 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.

[Sidenote: Saxon laws.]

The Anglo-Saxons trusted more to the 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.[63] 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 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 throughput 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.

[Sidenote: Purgation by oath.]

[Sidenote: By ordeal.]

The Saxon 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 the uncertain. Originally, therefore, the defendant in the suit was put to his oath, and if on 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 Dome; it is generally known by the name 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 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 exercé à manier des armes, la peau rude et calleuse ne devoit pas recevoir assez l'impression du fer chaud, ... pour qu'il y parût trois jours après? Et s'il y paroissoit, c'étoit une marque que celui qui faisoit l'épreuve étoit un efféminé_." 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 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 can 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 champion 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 Anglo-Saxons, 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.[64] And as the Druid worship paid the highest respect to the elements of 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 frequent injunctions of the Pope, whose authority was then much venerated, in the use of a species of proof the insufficiency 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 have 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 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.

[Sidenote: Compurgation.]

To avoid as much as possible this severe 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.[65] These compurgators were at first to be three; afterwards five were required; in process of time twelve became necessary.[66] 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,[67] he that was upon account of this universal 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.

[Sidenote: Trial by the Country.]

On the same principle from which the trial by the oath of compurgators was derived, 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 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_.[68] This was tried by the oaths of the parties, by _vivâ 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.[69]

[Sidenote: Punishments.]

The Saxons were extremely moderate in their punishments. Murder and treason 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.[70] 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 which tend entirely to overturn a state, public robbery, murder of the lord.[71]

[Sidenote: Origin of succession.]

[Sidenote: Annual property.]

As amongst the Anglo-Saxons government 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. But their shares were allotted to the several 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 Scythian, manners.

Campestres melius Scythæ, Quorum plaustra vagas rite trahunt domos, Vivunt, et rigidi Getæ, Immetata quibus jugera liberas Fruges et Cererem ferunt, Nec cultura placet longior annuâ.

[Sidenote: Estates for life.]

[Sidenote: Inheritance.]

[Sidenote: Book-land.]

[Sidenote: Folk-land.]

[Sidenote: Saxon fiefs.]

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 bestowed for life in the general distribution. When life-estates were once granted, it seemed a natural consequence that inheritances should 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 possession, saw themselves as it were immured upon every side by the life-estates, and perceived 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, 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 charter, but by a sort of prescription. This was called Folk-land. 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 inheritable estate. So far were they from resembling a fief. But there were other possessions which bore a nearer resemblance to fiefs, at least in their first feeble and infantile state of the tenure, than, 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.

[Sidenote: Gavelkind.]

The manner of succeeding to lands in England at this period was, as we have observed, by Gavelkind,--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.

FOOTNOTES:

[49] They had no other nobility; yet several families amongst them were considered as noble.

[50] Arma sumere non ante cuiquam moris, quàm civitas suffecturum probaverit.--Tacitus de Mor. Germ. 13.

[51] Nihil autem neque publicæ neque privatæ rei nisi armati agunt.--Tacitus de Mor. Germ. 13.

[52] Cæteri robustioribus ac jam pridem probatis aggregantur.--Id. ibid.

[53] Illum defendere, tueri, sua quoque fortia facta gloriæ ejus as signare, præcipuum sacramentum est.--Id. 14.

[54] Deputed authority, guardianship, &c, not known to the Northern nations; they gained this idea by intercourse with the Romans.

[55] Jud. Civ. Lund. apud Wilk. post p. 68.

[56] Spelman of Feuds, ch. 5.

[57] Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines.--For the original of copyholds, see Bracton, Lib. I. fol. 7.

[58] Ibi debent populi omnes et gentes universæ singulis annis, semel in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et sacramento non fracto ibi in unam et simul confœderare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, unâ cum domino suo rege, et terras et honores illius omni fidelitate cum eo servare, et quod illi ut domino suo regi intra et extra regnum universum Britanniæ fideles esse volunt--LL. Ed. Conf. c. 35.--Of Heretoches and their election, vide Id. eodem.

Probibitum erat etiam in eadem lege, ne quis emeret vivum animal vel pannum usatum sine plegiis et bonis testibus.--Of other particulars of buying and selling, vide Leges Ed. Conf. 38.

[59] 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.

[60] 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.

[61] Hence, perhaps, all men are supposed cognizant of the law.

[62] Debet etiam rex omnia rite facere in regno, et per judicium procerum regni.--Debet ... justitiam per consilium procerum regni sui tenere.--Leges Ed. 17.

[63] 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 moat crimes 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.

[64] 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 pœnam, nec ducis jussu, sed velut Deo imperante," says Tacitus, de Mor. German. 7.

[65] 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.

[66] Si accusatio sit, et purgatio male succedat, judicet Episcopus.--Leges Cnuti, 53.

[67] Every man not privileged, whether he be paterfamilias, (heorthfest,[A]) or pedissequa, (folghere,[B]) 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.

[A] Heorthfeste,--the same with Husfastene, i.e. the master of a family, from the Saxon, Hearthfæst, i.e. fixed to the house or hearth.

[B] 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.

[68] Si quis terram defenderit testimonio provinciæ, &c.--Leges Cnuti, 76: And sethe land gewerod hebbe be scyre gewitnesse.

[69] See, in Madox, the case in Bishop of Bathes Court See also Brady, 272, where the witnesses on one side offer to swear, or join battle with the other.

[70] Parentibus occisi fiat emendatio, vel guerra eorum portetur; unde Anglicè proverbium habetur, Bige spere of side, oththe bær; 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.

[71] Purveyance. Vide Leges Cnuti, 67.

Si quis intestatus ex hac vita decedat, sive sit per negligentiam ejus, sive per mortem subitaneam, tunc non assumat sibi dominus plus possessionis (æhta) ipsius quam justum armamentum; sed post mortem possessio (æhtgescyft) ejus quam justissime distribuatur uxori et liberis, et propinquis cognatis, cuilibet pro dignitate quæ ad cum pertinet.--Leges Cnuti, 68.