such, for they were never considered as, nor called, _freeholders_, until
very lately, in one instance, they were admitted to vote for members
of parliament, and their votes allowed by the house of commons. This
decision was greatly exclaimed against by the tories, who were foiled
by this reception, as proceeding from a spirit of party, and as being
contrary to the rules of the antient law, as it certainly was. But, on
the other hand, it was agreeable to common reason and justice, and to the
spirit and principles also, though not to the practice of the antient
constitution. For when Edward the First lays down this maxim, _quæ ad
omnes pertinent ab omnibus debent tractari_, what reason can be assigned
why a copyholder for life, who has a valuable, and as certain estate,
in fact, as a freeholder, though called by a different name, and who
contributes equally to the taxes and expences of the government, should
not have equal privileges, and be equally intitled to be represented.
They are called _copyholders_, from the evidence they had of their
titles. The evidence that freemen had of their estates in land was
either a _deed_, if the grant was by deed, or if it was without deed,
the _livery and seizen_, attested by the witnesses present; but the
copyholder had no deed, neither was livery and seizen given to him, as he
was originally but a tenant at will. His evidence, therefore, was a copy
of the rule entered in the lord’s court roll, which was his title, and
from hence was he named copyholder[304].
The peculiarities attending this kind of tenure, that distinguished it
from other tenures, arose from their being considered as tenants at will.
Hence arose that antient opinion, that if a lord ousted his copyholder,
he could have no remedy by action in the king’s court against him: But
had this been the law that since prevailed, all copyholders had been long
since destroyed. Therefore, in Edward the Fourth’s reign, it came to
be settled, that if the lord turned out his copyholder, he might well
maintain an action of ejectment against him, as a tenant for years could,
or else they might sue the lord in equity to be restored.
From the same principle of its having been an estate at will, arose the
right of the lord to a fine, upon the change either of lord or tenant;
upon the change of the lord by the act of God only, that is by his death;
upon the change of the tenant, either by the act of God, by his death;
or by his own act, by his alienation. But the tenant paid no fine on the
lord’s alienation; for if he was so to do, he might be ruined by being
frequently charged. These fines were an acknowledgment of the lord’s
ancient right of removing them, and were, in some places, by custom,
fixed at a certain rate; in others, they were uncertain, and settled
by the lord: However, he was not allowed to exact an unreasonable one,
for if so, the tenancy would have been absolutely in his power, and of
the reasonableness of the fine the judges of the king’s courts were to
determine.
I mentioned the alienation of copyholders, but to alien directly they
could not, being esteemed but tenants at will, yet what they cannot
directly do, they may indirectly, by observing certain forms; that is,
by surrendering to the lord, to the use of such a person, and then the
lord is, in equity, compellable to admit into the copyhold the person
for whose use it is surrendered. These surrenders are either made in the
manor court, or out of it. If made in court, it is immediately entered in
the court roll; if out of court, it should be presented at the next court
day, and then entered. The surrender out of court must be made to the
lord himself, or to the steward of the manor, or it is not good; except
in some particular manors by custom, where it may be surrendered to the
lord’s bailiff, or to two or more of the copyholders, who are to present
it at court. When a surrender was made, the lord was only an instrument
to hand it over, and therefore must admit that grantee into such estate,
and no other, whom the grantor had appointed in his surrender. In many
cases a court of equity will supply the want of a surrender.
Copyholders could not devise their lands by will for two reasons. First,
that, in general, lands were not devisable till the reign of Henry the
Eighth; and for another reason peculiar to themselves, that, being
called tenants at will, they were not looked upon to have a sure and
permanent estate. But when, after the invention of _uses_, a way was
found out to evade the general law, and to make lands go by will, by the
owner granting his estate to another for the use of himself, the grantor,
for life, and after, for the use of such persons as he, the grantor,
should name in his will; and when courts of equity were found disposed to
oblige the grantee to perform the trust he had undertaken, in imitation
hereof, copyhold estates began to be surrendered to the lord to the use
of the copyholder’s last will; and then the lord, after his death, was
obliged to admit such person as he appointed in such his will, and in
the mean time, the copyholder enjoyed during his life, for the surrender
only did not transfer the estate, except it was to the lord’s own use. If
to any other use, the lord was but an instrument, and the land remained
in the surrenderer until the admittance of the new tenant, which, in the
case I have put, could not be till the old one was dead.
Another peculiarity arising from the same source, there being tenancies
at will, was, that neither the husband could be tenant by the courtesy,
nor the wife tenant in dower. The reason was, that every estate at will
determined by the death of the tenant, neither could an estate tail
be created of a copyhold; for the statutes _De Donis_ extended not to
them, and, therefore, if a gift was made in such words as would, at this
day, create such an estate, it would be in the nature of a _fee simple
conditional_ at common law. However, by special custom in particular
manors, copyhold might be entailed; might go to the tenant by the
courtesy, and the wife might be endowed thereout[305].
Thus much I have thought requisite to shew the general nature of this
tenure, and of its origin. More would be needless to say here, as there
are no such in this kingdom, though the law relating to them makes a
considerable part of the law of England. For the same reason I shall be
very short as to the tenants in antient demesne.
Lands in _antient demesne_ are the estates that the king had, as king, to
support his family, and other expences, and were antiently unalienable.
They were the lands of Edward the Confessor, and the Conqueror. But
as the king could not make profit of them himself, they were given to
tenants of two kinds, freeholders and copyholders. The law with respect
to them stands as it does with other freeholders and copyholders, except
that they have some peculiar privileges. The general reason of these
privileges was, that the freeholders were originally socage, and the
copyholders the villenage tenants of the king, and had these privileges
granted to them because they were supposed constantly employed on the
king’s land, to furnish him with corn, cattle, and other necessaries; and
their privileges have continued, though the services have been changed
into money, and the estates almost all alienated from the crown. These
are principally as follow: They are exempted from all burthens and taxes
laid on by parliament, unless they are specially named. They are not to
be taxed for the wages of the knights of the shire. They are not to pay
toll, or passage money for goods bought and sold in markets, for all
things concerning husbandry and sustenance. They are not to be impleaded
in any court, only in their manor court, nor to be summoned as jurymen,
with some other privileges of the like nature, not necessary to be here
insisted on[306].
LECTURE XXVI.
_The condition and state of laws in England during the Saxon
times—The military policy of the Saxons not so perfect as that
of the Franks—Their Kings elective—The division of the kingdom
into shires, hundreds, and tithings—The administration of
justice—The county-court—The hundred court and court-leet—The
court-baron—The curia regis—Method of trial in the Saxon
courts—The ordeal—The waging of law—The trial by battle—Juries._
Having drawn a rough delineation of a feudal monarchy, and given a
general account of the ranks of people of which it was composed, and of
their distinct rights and privileges, it will next be proper, agreeably
to what I first proposed, to observe, through the several reigns, the
progress of English law, and by what steps and gradations it is come to
differ so widely from what it was in its original; not, indeed, to go
minutely through all the alterations made, for that would be a task that
could not be confined within the compass of these lectures, but to point
out the great and considerable changes, which had extensive influences,
and contributed to give the law a new face. But, before I enter upon
this, it will not be amiss to look back a little, and to say something
with respect to the law in the Saxon times, since much of that remained
after the conquest, and even makes a part of our law at this day.
The Saxons, being a German nation, brought into England the customs of
that country, customs very similar to, and, in many instances, exactly
the same with those used abroad on the continent. However, with respect
to their military policy, it was not so strict and perfect as that of the
Franks, occasioned, as I suppose, by their greater security from danger.
For they had no reason to dread the Britons, having extirpated many, and
expelled the rest, except a few whom they kept in the meanest offices, in
the nature of villeins. Neither was the authority of their kings so great
as abroad, for the founders of the kingdoms of the heptarchy were not
kings in Germany, as the kings of the Franks and other nations had been,
but only leaders of adventurers, who voluntarily associated themselves,
and therefore could have no authority but what their followers confirmed
upon them; and that it was not very considerable, appears from this, that
every thing of great moment was transacted in their general assemblies or
_wittenagemots_[307].
These kings were elective, though generally those of the same family,
(for to this also there were some exceptions) were elected. Offa says of
himself to his people, _Electus ad libertatis vestræ tuitionem, non meis
meritis, sed sola liberalitate vestra_. From the death of a former king
to the election of a new one there was an _interregnum_, and even during
these interregnums they made laws. For when the excellent king _Brithric_
had been poisoned by his queen, they enacted a law, that if any future
king should give his wife the title of queen, he should forfeit his
dignity, and his subjects should be free from their oath of allegiance;
and then they proceeded to elect Egbert, Brithric’s tenth cousin. And,
in pursuance of this law, Ethelbald, deposed his father, for giving that
title to Judith of France. Alfred, indeed, was not chosen upon a vacancy,
but claiming a part of the kingdom before the assembly at Swinburn, by
virtue of an agreement with his brother Ethelred, that assembly annulled
the agreement, as destructive to the nation, then threatened by the
Danes, but enacted that Alfred should succeed to the whole, though
Ethelred, and also their elder brother Ethelbert left sons[308].
I know it is generally said that these three brothers succeeded by their
father’s will, and so the Conqueror pretended a will of Edward the
Confessor in his favour, but what had Ethelwulf to leave, but the little
kingdom of Kent, which was assigned to him upon his deposition. Besides
his will was, that they should succeed in case of issue failing, and they
succeeded though there were sons; and Alfred, who should know his own
title best, acknowledged he had received his crown from the bounty of the
princes, elders, and people. Here I should mention, that the kings had
not a right to marry themselves without the consent of their people, for
of Alfred it is observed, that he did so, _contra morem & statuta_, not
only against custom, but against positive laws. To go through no more
particulars; it appears from history, that all the kings of the Saxon
race were elected; so were the Danes; so was the last Harold, though not
of royal blood, and though Edgar Atheling, who was the lawful heir, had
the kingdom been hereditary, was living; so was the Conqueror, and that
was the just title he had. But enough of this point.
To see how justice was administered among the Saxons; the kingdom,
for this purpose was divided into _shires_, those into _hundreds_,
or, as we call them in this kingdom (Ireland,) _baronies_, and these
into _tithings_, so called because they originally consisted of ten
contiguous families, over which a _tithingman_ presided. Every man, in
these tithings, was bound to keep the peace, not only for himself, but
for the others of his tithing; and if one of them committed a crime, the
rest were obliged to search him out, and produce him for trial; otherwise
the tithing was grievously amerced. This division of the kingdom into
_counties_, and their subdivisions, is generally ascribed to king Alfred.
That the division of hundreds into tithings was his is undoubted; and it
is probable the division of counties into hundreds was his also; that the
people, beggared by the Danish incursions, might have justice rendered
to them nearer their own homes, without the expence, the fatigue, and
even danger of travelling to the county town. But as to counties, they
certainly were more antient. Justice could not be administered, according
to the principles of the German policy, in a country so large as one
of the kingdoms of the heptarchy, without its being subdivided; and
accordingly, during those times, before the union of these kingdoms
into one, we find, in the old laws, the mention of _shires_ and
_sheriffs_[309].
But though Alfred was not the first maker of the divisions, we are not
therefore to charge the writers that give that account with falsity.
Even before his reign the Danes had made settlements in England, in the
northern parts. In the very beginning of it they reduced him to content
himself with the countries south of the Bristol channel and Thames, with
the addition of Essex, which, in their ravages, they had thrown into
the greatest confusion. The rest of England was left as their prey, in
which, after ravaging it several years, they fixed themselves, until,
at length this great prince, to whom no king, I may say, no man, whom
history has recorded, was superior, either for piety to God, for a strict
love of justice, for a fatherly affection to his people, for heroism in
battle, for fortitude of mind (that never despaired in the lowest state
of his affairs, when all seemed desperate) or for a wisdom capable of
directing upon every occasion the proper measures to be taken by the
state over which he presided; I say, until this great prince trampled his
enemies under his feet, and obliged the Danes, who had so long looked
upon him with contempt to sue to become his subjects, and to receive
the lands they had usurped, from him as their king and lord. For to
expel them was impossible, and if it had been otherwise, and the matter
had been effected, they had committed such massacres in the lands they
possessed, that the country would have been desolate. Then, indeed, this
king settled the limits of shires or counties, through all England; in
Essex, and the counties south of the Thames, I presume, according to
the old limits. For if we allow for one county being more woody, or
having more unprofitable land than another, they appear to bear no great
disproportion to each other. But, as to the lands the Danes held, it was
different, for here, to win his new subjects, he was to accommodate the
division somewhat to that which they had made among themselves, under
their several leaders. Hence, in that part of England which was then
Danish, we find the greatest difference between the size and value of
the lands in the several counties, some excessively large, and others as
exceedingly small; which, I think, is no way to be accounted for, in so
wise a prince, but that the several tribes of these Danes were to be kept
in their old bounds, and separate from each other. In such a succession
of ages, undoubtedly, these boundaries have received alterations, but
they could not have received such as would account for the disproportion;
and in truth we find the Danes had divided the land before he conquered
them.
In those counties and hundreds justice was administered to the
inhabitants near their homes, without the delays and expences of
resorting to Westminster. The court held by the sheriff, assisted by the
bishop, was, in its origin, as we find in the red book of the exchequer,
and had cognizance of four several matters that were handled, in this
order. First, all offences against religion and the ecclesiastical
jurisdiction were tried. The bishop, or his commissary, here was judge,
and the sheriff was his assistant; and if the delinquent disregarded the
censures of the church, he enforced the sentence by imprisonment. Next
were tried temporal offences, that concerned the publick, as felonies,
breach of the peace, nuisances, and many others. Here the sheriff was
judge, and the bishop was assistant, to enforce the sentence with
ecclesiastical censures. Thirdly, were tried civil actions, as titles
to lands, and suit upon debt or contracts. Here the sheriff presided,
but the _suitors of the court_, as they were called, that is, the
freeholders, were the judges, or as we now say, the _jury_, and the
sheriff executed the judgment, assisted by the bishop, if need were.
Lastly there was held an _inquest_, to see that every person above twelve
years of age who was in some tything, had taken the oath of allegiance,
and found security to the king for his good demeanor. This was called
the _view of frank pledge_, that is, the viewing that every person had
nine freemen pledges or security for his loyalty to the king, and his
peaceable behaviour to his fellow subjects[310].
But since the time of king Edgar, at least, this court has been divided
into two, the criminal matters, both ecclesiastical and civil, and also
the view of frank pledge was dispatched in one court called the _tourn_,
that is, the _circuit_, from the bishop and sheriffs going circuit
through the county; and the civil business was dispatched in another,
called, the _county court_. The law was, that the sheriff and bishop
should twice in the year go their circuit or tourn, namely, in the month
following Easter, and the month following Michaelmas; and should hold
their court in every hundred of the county; but the view of frank pledge
was to be taken only once a year, namely the tourn after Easter. But for
the more ready dispatching civil causes, the county court was held once
a month, that is in twenty-eight _days_, reckoning a month by four weeks
and not by the calendar[311].
Out of these courts were others afterwards derived, for the more easy and
expeditious way of distributing justice. Out of the sheriff’s tourn, were
two, the _hundred court_, and the _court leet_, and they had cognizance
of the same matters the tourn had, and were erected independent of the
sheriff’s tourn, for the mutual ease of him and the inhabitants, where,
in large counties, the hundred lay too remote to be conveniently visited
in the circuit. But many inconveniencies arising from the sheriff’s power
not running in these separated jurisdictions, the hundred court, which
was held by the steward of the hundred, were all, except a very few, that
had been given in fee to some great men, reunited to the tourn, and so
they vanished in Edward the Third’s reign[312].
The leet was of the same nature as the hundred court, derived out of the
tourn, and made a separate jurisdiction; but it was held in the name of a
subject, by the lord of the manor’s steward, and to the lord belonged the
profits of the courts leet. They were, however, though held by a subject,
in his own name, esteemed as the king’s courts, and allowed to be courts
of record, as well as the tourn from which they sprung.
Out of the county court, which was for private causes, was derived the
_court baron_. It was held from three weeks to three weeks, as all courts
were in the early Saxon times. It was when a manor was exempted from the
sheriff’s county court, and the jurisdiction granted to the lord, to
hold plea of civil suits. In this the suitors were the judges, as in the
county court[313].
In these several courts was justice administered in the Saxon times,
and even for a considerable time after the conquest, for the most part.
But soon after that time inconveniencies were found, partly from the
partiality of the judges in these inferior courts, and partly, from their
ignorance in law. Then began the higher court to draw to themselves the
jurisdiction of these matters, and the county courts to be confined to
pleas of such matters as exceeded forty shillings in value. The pleas of
lands were likewise brought in there, and discussed either in the higher
courts, or before justices of _nisi prius_. The appointment of _justices
errant_, and _justices of assize_; of _justices of goal delivery_, and of
the _quarter sessions_, together with the many powers granted by divers
acts of parliament to one or more justices of the peace, have, in a
succession of ages, continually sunk the business of these courts, and
have left them but a shadow of what they were.
But although most of the business in the old times was in these inferior
courts, there was one superior, that even in the Saxon times, had a
concurrent jurisdiction with them, the _curia regis_. The curia regis
sat in the king’s palace, and removed with him from one part of the
kingdom to another, generally in the king’s hall; except when they
judged questions belonging to the king’s treasure, when they sat in his
treasury, called the _exchequer_, from the chequered cloth wherewith
the table was covered. The judges were, the judiciary, the chancellor,
and the treasurer, together with such great lords as were attendant on
the court; so that, in parliament time, all the great lords sat there;
and this was the foundation of the lords judicature in parliament. The
judiciary presided in all cases that did not concern the revenues, and
indeed his power was so exorbitant by the antient law, being regent of
the kingdom in the king’s absence, that sometime after the conquest, the
kings thought proper to abolish the office, and divide even his judicial
power into several hands[314].
The chancellor was one of the most learned ecclesiastics. It fell,
therefore, naturally to his province to make out all writs, and
processes, and letters patent, and consequently the great seal of the
kingdom was lodged with him. He attended, likewise, something in the
nature of an equity judge; not that there was any such thing as a
distinct _court of equity_, but, as a learned and pious man, to direct
with his advice whenever the case happened, where conscience dictated one
way and the strict law another. The treasurer was present also to take
care that the king had his fines from offenders, which he was afterwards
to collect into the exchequer where he presided, where also he set leases
of the king’s lands for years, collected his rents and debts, and took
care of his escheats and forfeitures. The proper jurisdiction of this
court was where the king was concerned in interest as to his revenue;
where one of the great peers was to be tried for heinous offences, or
even where two persons had been guilty of crimes that seemed to have a
general influence, and tended to general confusion. For unless the crime
of a lower person was very heinous indeed, he was tried in the country,
in the tourn.
Civil causes likewise between the great lords fell under their
inspection, but those between meaner persons they seldom meddled with,
unless they had for difficulty been referred or adjourned to them from
the courts below, and if they, in that case, found the cause of great
difficulty, they adjourned it to the _curia regis_ in full parliament.
However, as they had the power of judging civil causes between all
persons in the first instance, if they thought the cause of such a
nature, that justice was not likely to be done in the country, they
had many applications from such as had those apprehensions; and as
this court had a discretionary power, either of sending them back to
the county-court, or of admitting them here, this gave an occasion for
exacting fines for license to plead in the king’s court, and thereby
of increasing his revenue; until at length, when the inferior courts
declined in reputation, and every man sought for justice in the _curia
regis_, these fines, being arbitrary, became an intolerable grievance,
which was remedied by those famous words in Magna Charta, _Nulli
vendemus, nulli negabimus justitiam_, as I shall observe hereafter. Such
were the courts held in the Saxon times, and for some time after the
conquest, whose several jurisdictions it is proper to point out, for the
better understanding of the alterations that afterward ensued[315].