issue in these courts. And they were the same that were used abroad,
which I have already mentioned, and shall therefore barely run them over.
First, _ordeal_, either by putting their hands in boiling water, or
holding a red hot bar of iron in their hands; or by _cold water_, that
is, tying their hands together, and their feet together, and throwing
the person accused into a pond; and this method the ignorant vulgar
have adopted to try witches. Secondly, the _oath_ of the party, with
_compurgators_, or, as it is called, _waging his law_; and in this manner
was Earl Goodwin acquitted of the murder of Alfred, king Ethelred’s
brother. Thirdly, _battle_, which was the usual method of trying the
title to lands, and appeals of felony, or capital crimes.
If a man was indicted of felony at the king’s suit, he could not offer
battle; for challenging the king was a breach of allegiance, but if he
was appealed of felony by a subject, he had his choice either of battle,
or submitting to be tried by a jury. But if he waged battle, he must
fight in proper person, whereas the appellant, who might be an infant,
or decrepid with age, or a man of religion, or a woman, was allowed
a champion. If lands were demanded from a man, he had, likewise, the
option of trial by battle, or by _grand assize_. If by battle, then were
both parties allowed champions, if they desired it; but the champion,
in such case, must first swear, that he knows the land was the right of
the party he fought for, or that his father told him he knew it, and
charged him to bear witness thereof. So that this trial was referring it
to the providence of God, which of the two contradictory witnesses, the
champions, swore true[316].
The other method was by the grand assize. _Assize_, coming from
_assides_, to fit together, signifies a jury. It was called _grand_,
because of its number. The sheriff returned four knights, who chose
twelve knights more, and their verdict determined. But the most usual
method of trial among the _Saxons_ was by _juries_, as at this day, that
is, by twelve of the _pares curiæ_. The invention of these is attributed
by the English lawyers to Alfred, and greatly do they exult over the laws
of other countries in the excellency of this method. But had they been
acquainted with the ancient laws of the continent, they would have found
the trial by _pares_ common to all the northern nations, though since
wore out by the introduction of the civil law; not so common, indeed, any
where as in England; where every age it gained ground, and wore out the
other[317]. Alfred’s merit, therefore, was rather in fixing the number,
and determining the qualities of the jurors, than in the invention; but
what these several qualifications were, will come in more properly in
another place.
LECTURE XXVII.
_The punishment of public crimes and private wrongs among the
Saxons—The ranks of men among the Saxons—The difficulty of
ascertaining the nature of the Saxon estates, and the tenures
by which they were held—Observations to prove that the Saxon
lands were in general allodial._
In my last I gave an account of the courts wherein the Saxons
administered justice, and of the several methods of trial used in them;
it will be proper to add a few words concerning their _punishment_ of
persons found guilty either of public crimes or private wrongs. When I
spoke of the customs of the German nations, while they lived in that
country, I observed, that all offences were punished by _fines_ only, and
none by _death_, two only excepted, desertion in war, and the rape of a
married woman. The nations descended from them, when they settled within
the limits of the Roman empire, continued the same practice for some
ages, as did the Saxons also in England.
All wrong and crimes, not excepting murder and high treason, were
redeemable by fine and imprisonment, until the Heptarchy was declined;
and for this purpose their laws assigned the several mulcts that were
to be paid for the different offences. Murder was rated higher or
lower according to the quality of the person slain. That of their king
himself was valued at thirty thousand _thrymsæ_, a piece of their money.
But afterwards it was found necessary to inflict capital punishments.
Treason, murder, rape, and robbery, were of the number so punished,
though the punishment of rape was afterwards _castration_; but after the
Conquest it was made capital again. Corrupt administration of justice
was another; for it is recorded, to the praise of Alfred, that he hanged
forty four unjust judges in one year[318]. These were the judges in
the tourns, ealdermen of the counties, or their deputies the sheriffs.
Other offences against the public continued punishable by fine and
imprisonment, and satisfaction for private wrongs was obtained either
by restoration of the thing unjustly detained, if it was extant, or a
compensation to the value in damages, if it was not[319].
As to the order and ranks of people among them, there were, properly
speaking, but two, _freemen_ and _villeins_. The last, I presume, were
the remains of the antient Britons, but among the freemen there were
various orders, not distinguished by any hereditary difference of blood,
but by the dignities of the offices they held by the gift of the king.
Not that we are to imagine there was no regard whatsoever paid to the
descendants of great and illustrious men. As their king was eligible out
of the royal family only, so were there a number of other families, to
whom the enjoyment of these honourable offices were, I may say, confined,
not by any positive distinctive law, but by general practice, and by
the king’s constantly choosing out of them; and who may, with propriety
enough be called the _nobility_. Those honorary offices were of different
ranks of dignity; such as those of _ealdermen_ or _earls_, _coples_,
or as they were sometimes called _Thanes_, _Præpositi_, or rulers
of hundreds; all of whom were, originally, removeable at the king’s
pleasure, though, unless they misbehaved, they were generally continued
for life.
Some, indeed, have thought that earldoms were hereditary, even in the
Saxon times, because they see that earl Goodwin’s son succeeded him,
and the same was true in some other families also. But there is a great
difference between a son’s succeeding to his father by a legal right of
inheritance, and his succeeding either by the voluntary favour of the
king, or by his extorted favour, when a family has grown so powerful,
as to make it a necessary act in the king, in order to preserve public
peace. The latter was the case with respect to earl Goodwin’s family.
Edward the Confessor hated him mortally for the death of his brother
Alfred, as he did his whole family for his sake. However, as he owed the
crown solely to his interest and intrigues, as he was well acquainted
with the power, and knew that he had spirit enough to attempt dethroning
him, if once offended, that prince, who was careless of what came after
him, so he might reign in peace during life, caressed Goodwin and his
family; dissembled all resentment, and, after one or two weak struggles,
let him and his family govern the kingdom at their pleasure; a conduct
that raised them still higher in the opinions of the people, and
concurring with the incapacity of Edgar Atheling, Edward’s nephew, raised
Harold to the throne, as the only man in England capable of defending it
against two powerful invaders[320].
But the great difficulty is to know what kind of _estates_ the Saxons had
in their lands, and by what _tenures_ they held them. This question hath
divided the lawyers and antiquaries of England; some holding that the
tenures were as strictly feudal, as after the conquest, while others as
strongly deny it. I shall not, in this difficult point, pretend to decide
absolutely where so great masters differ, but only make some observations
that perhaps would induce one to believe, that the Saxon lands were, in
general, _allodial_, some of them military benefices for life, and none,
or, if any, at least very few feudal inheritances; and this I take to be
the truth of the matter.
First, then, the Saxon lands in general, were inheritances, descendable
to heirs; and were all subject to military service. An _Heriot_, which is
contended to be the same as the Norman _relief_, was paid upon the death
of the ancestor, and all landholders took the oath of allegiance, or of
fealty, as they would have it; and therefore, Coke and others conclude
that their lands were feudal, and held by knight service; and tho’ there
are no traces either of _wardship_ or _marriage_ to be met with in those
times, they insist that they, as fruits of knight service, must have been
in use tho’ from the paucity of the Saxon records remaining, they cannot
be discovered[321].
This reasoning seems to have great strength, and yet, if we examine with
a little attention, perhaps, these very arguments, when well considered,
will prove the contrary, _viz._ that most of the Saxons lands were
allodial.
First, then, as to their being hereditary: This, singly, is far from
being a proof of their being held by a feudal tenure. The lands of the
Greeks, of the Romans, I may say of all nations, except the conquering
Germans, nay, the allodial lands in their conquests, were hereditary.
Their being so seems rather a proof of their not being founded on the
feudal policy; for the military benefices did not become inheritances
any great length of time before the conquest; whereas there is no ground
to believe that the Saxon lands were ever otherwise. Besides, they had
some qualities that are utterly incompatible with the feudal system. They
were not only inheritances, but were _alienable_ at the pleasure of the
owner, without any leave from the superior, and were, likewise, devisable
by will; so that the Saxons were absolute masters of their land, and not
obliged to transmit to the blood the donor intended to favour, contrary
to the feudal law abroad, and to our law after the conquest. I shall
observe, by the way, that some lands in England in particular places,
being by custom devisable by will after the conquest, was a relict of the
old general Saxon law, those places not having, along with the rest of
the kingdom, embraced the feudal maxim[322].
Another striking difference is, that the Saxons’ lands were not
forfeitable for felony, which still remains by custom in the _gavelkind_
lands in Kent, whence that country proverb, _the father to the bough
and the son to the plough_. Their lands likewise were equally divisable
among all the sons, as were gavelkind lands; which is a customary relict
of the Saxon law, contrary to general rule, since the conquest, where,
at first, the king chose one, and afterwards, as at this day, the eldest
alone succeeded. But this last I will not urge against their being of
feudal origin, for that was the antient law of fiefs; it only shews there
was a considerable alteration introduced at the conquest. However, though
their being inheritances singly will not prove them fiefs, yet, when that
is joined to the military tenure, to the payment of reliefs, and to the
oath of fealty, we must allow them to be such. Let us see then, whether
any of them, singly, or taken all together, will enable us to draw that
conclusion[323].
Certain it is, then, that all the lands in England were, in the Saxon
times, liable to military service; but this will not prove that they
were feudal. For, as I have observed in a former lecture, the allodial
lands in France were subject to the same. Every man who held land as an
allodial tenant, was, according to the quantity, either to find a foot
soldier equipped for the wars, or to join with another to find one, if
he had not land sufficient. These allodial lands were subjected by law
to three sorts of duties. The first I have mentioned, the other two were
building, and repairing bridges, and furnishing waggons and carriages for
the conveyance of arms and the king’s provisions, or money[324].
The Saxon lands were, likewise, subject to what they called _trinoda
necessitas_, the three knotted obligation. The first was, furnishing a
foot soldier; the second, which was not in the allodial lands abroad,
was _arcis constructio_ the building and keeping in repair castles and
forts, where the king, for the public good, ordered them to be erected;
and lastly, _pontis constructio_ the building and repairing of bridges.
As to furnishing carriages, the Saxon freemen were exempted; these being
supplied, in that constitution, by the lower tenants in ancient demesne;
or the king had a right to seize any man’s carriages by his purveyors,
and use them upon paying for them. This right of purveyance of carriages,
and of timber, and of provisions for the king’s household, which was
intended for the king’s benefit, and by which no loss was to accrue to
the subject, as he was to be paid the value, became, in the hands of
the greedy purveyors, an occasion of great grievances; those officers
seizing, often more than was wanted, often where nothing was wanted,
merely to force the proprietor to a composition of money on restoring
them. The manner of payment, too, became very oppressive. The rates were
fixed at first at the due value, but as the rate of money changed, and
the prices of things rose, it came to be under the half, and as it was
not paid for on the spot, but by tickets on the treasurer, the owners,
were frequently put to more trouble and expence in attendance than the
value of their demand. This the purveyors well knew, and therefore turned
their office into an engine of extortion. Many were the proclamations
issued by the king; many the acts of parliament made to regulate it;
But the evil was inveterate, and proved very heavy even under the
best princes. The complaints of these oppressions were as great under
Elizabeth as under her successor James, and indeed, the evil was so
inveterate, that nothing but cutting it up by the roots, the destroying
purveyance itself, could cure it[325].
But to return to the military duty done by the Saxons in general for
their lands. In the first place, then, they served as foot soldiers,
and not on horseback, and in compleat armour, as the feudal tenants
were obliged. Again, the feudal tenants attended not but when called
upon, whereas, the Saxons had regular times of meeting and mustering,
though not summoned, in order to see that the men were well trained, and
properly armed. But the great difference lay in this, that no particular
person was bound to military duty, in consideration of his tenure in
the lands. The lands themselves were liable. Every hide of land found
a man, whether it was in the hands of one, or more persons. There was
then no personal attendance, and, consequently, no commutation for it.
The hide of land supported its soldier, while he continued fighting in
his own county; but if in another, he was to be maintained either by
that county, or the king; whereas, the military tenants, by the feudal
law, were obliged to serve forty days at their own expence, wherever the
king pleased, if the war was a just, or a defensive one; and indeed,
as William the Conqueror modelled it, if the war was even unjust, or
offensive. These differences, added to what I have already observed,
concerning their lands not being escheatable for felony, being alienable,
and being devisable by will, I think, shew plainly that, though the lands
were subject to military service, it was upon grounds and principles very
different from the feudal ones, and that they were rather in the nature
of the allodial lands on the continent.
As to _Herriots_, which Coke and his followers insist much upon, as being
_reliefs_, they also, when thoroughly considered, will, perhaps, be found
to be of a different nature. A Herriot was a title the landlord had from
his tenants, and the king, as supreme landlord, from his, of seizing,
the best beast of his dead tenant, or his armour, if he was a military
man. These being due upon the death of the tenant, certainly bore some
resemblance to the reliefs on the continent, and are in king Canute’s
law, which was written in Latin, called by the name of _relevatio_. To
shew what they were in that time, the _relevatio_, or Herriot of an earl,
was eight horses, four saddled, four unsaddled, four helmets, four coats
of mail, eight lances, eight shields, four swords, and two hundred marks
of gold; of the king’s thane four horses, two saddled, two unsaddled,
two swords, four lances, four shields, his helmet and coat of mail, and
fifty marks of gold; of the middling thane, a horse with his furniture,
with his arms. But, then, Spelman justly observes, that these were not
paid by the heir, as a relief to the lords, to entitle him to enter on
the inheritance. The heir had the lands immediately and was not obliged
to defer his entry till he had paid them, as he was his relief by the
feudal law, and by the law of England after the conquest. Nay, they were
not paid by the heir at law, but by the executor or administrator, as a
perquisite out of the tenant’s personal fortune[326].
However, William the Conqueror, finding these perquisites in use, and
that in Latin they were called _relevationes_, took advantage thereof,
and as the forfeited lands he bestowed on his Normans were given upon
the terms, and with the same burthens as lands on the continent, so were
the reliefs he exacted from such in the same manner, made payable by the
heir, not the executor; and as to the unforfeited lands, which remained
to the Saxons, and were very inconsiderable in number, he, in the manner
I shall shew in the next lecture, converted them, into real fiefs, such
as were then in use in France; from whence the reliefs came, likewise,
to be exacted from the heir, and to be considered as redemptions of the
inheritance, which, upon the principles of the feudal policy, could not
be entered upon by the heir till the relief was paid. This alteration
it was not in the Saxon landholders power to oppose, on the account
before-mentioned; nor, indeed, was the burthen on the heir such, if no
consequences were to be apprehended from it, as deserved opposition; for
William fixed the reliefs at a certainty, at the same rate, or with very
little addition, as the Herriots were in Canute’s law.
But experience soon shewed what effects might follow from the
construction of Norman judges, at the devotion of a king, upon the word
_relevium_ being used, and its becoming payable by the heir, instead
of the executor; his son and successor insisted that reliefs were by
the feudal law arbitrary, and looked upon his father’s limiting them
as a void act, that could not bind his successors. He, accordingly,
exacted arbitrary and excessive reliefs both from the Norman and Saxon
landholders in England, which exasperated both equally against him;
for though the reliefs in France were, by no law, as yet reduced to a
certainty, yet by custom they were to be reasonable, and not to be
merely at the will and discretion of the king or lord; in consequence of
which he was, on some occasions, forced to depend almost entirely, in his
wars with Normandy, on the mercenary army of the lower English, who had
no property; and had his reign continued much longer, it is extremely
probable he would have felt severely for the oppressions he laid his
military tenants of both nations under. But he dying in ten years, Henry
was obliged, before he was elected, to swear to observe the laws of
Edward the Confessor, which he did, with such emendations as his father
the Conqueror had made; and accordingly, as to _reliefs_ he faithfully
observed his oath; but it being inconvenient for the heir, who was at a
call to perform military duty, to be obliged to pay his relief in arms,
which he might want on a sudden emergency, it was therefore, generally
commuted for money. However, there being no settled rate fixed, at which
this commutation should be regulated, this also was made an engine of
oppression in John’s reign, until it was finally fixed at a certain sum
of money, according to the different ranks of the persons, by _Magna
Charta_[327].
As to the last argument, of the _Oath of fealty_ being taken by the
Saxons, it is the weakest of all. An oath of fealty taken by a feudal
tenant, was to his _lord_, whether king or not. It was merely as tenant
to him of land, and in consideration of such, and consequently the
proprietors of land only were to take it. The oath the Saxons took, which
is likened to this, was to the king, as king not as landlord, and not
at all in consideration of land; for every male person above the age of
twelve years was obliged to take this oath among the Saxons, whether he
had lands or not. In truth, it was no more than an oath of allegiance to
the king, as king, which was common in all kingdoms, and not peculiar to
those where the feudal maxims prevailed[328].
Hence I think I have some liberty to conclude, though I do it with due
deference, as the greatest masters in the antient laws and records of
England have been divided in this point, that the very reasons urged to
prove that lands were held in the Saxon times as feudal inheritances,
prove rather the contrary, and that they were, in the general I mean, of
the nature of the allodial lands on the continent.
In my next I shall speak of the alterations introduced by the conqueror,
both as to the tenure of lands in England, and as to the administration
of justice, which were so remarkable, as to deserve to be considered
with the strictest attention, as they laid the foundation for the great
alterations that have followed since.
LECTURE XXVIII.
_The Saxons, though their lands in general were allodial, were
not strangers to military benefices for life—The alterations
introduced by William the Norman, as to the tenure of lands in
England._
Though, in my last, I have delivered my opinion, that the lands of the
Saxons were not feudal, but allodial, I would not be understood as if
there were no lands held by them upon military service, different from
the allodial I have already described. It is undeniable, that there
was among them _lord_ and _vassal_; that there were lands held by such
military service as was performed abroad; where the bond of fealty
subsisted between lord and tenant, and where the tenants were obliged
to serve in person on horseback. But these were few; for the strength
of the Saxon army lay in their infantry. Besides, such were not feudal
inheritances, but benefices for life, for, in all the records remaining
of them, there is not a word implying an estate that could descend, or
a single trace of _wardship_, _marriage_, or _relief_, the necessary
concomitants of such estates. What puts that out of all doubt, in my
apprehension, is one of the laws of William himself, where he says it
was he that granted lands _in feudum, jure hæreditario_, which words are
added, by way of distinguishing the estates he granted from the military
estates for life, in use before. The word _feudum_ alone would have
been sufficient, had that law been in use before, and the words _jure
hæreditario_ were added by way of explanation of _feudum_; and _feudum_
is added by way of distinction from allodial inheritances[329].
When these military benefices began among the Saxons, I cannot say is
determined, but shall offer a conjecture, that carries a great face of
probability. That they were not coeval with the Heptarchy is certain;
for none of the German nations had, at that time, fixed estates for life
in their military holdings. What time, then, so probable as the days of
Egbert, who had resided long in the court of Charlemagne, where these
tenures were in use, and where he saw the benefit of them? Besides, this
was the very time that a body of horse began to be wanted, who could move
swiftly to encounter the Danes, then beginning their ravages, and whose
practice it was to land in separate bodies, and to kill and plunder,
until a superior force assembled, and then reimbarking, to commit the
same devastations on some other defenceless part of the coast. But these
kind of tenures, as I observed before, could be but few, as most of the
lands were inheritances appropriated to particular families.