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.