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].

I next proceed to the method of trial, or determining the matters in 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.