Chapter XII: Front Matter (12)

Relative to villenage, the following are the words of the antient judge Fortescue, who wrote a treatise on the grounds of the English law, for the instruction of his pupil, the unfortunate son of the unfortunate king Henry the Sixth. _Ab homine, & pro vitio introducta est servitus; sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine sublata semper redire gliscit, ut facit omne quod libertate naturali privatur[299]._ We are now to see how, and in how many ways, our law favours this natural propensity to liberty. And the first and plainest is a direct enfranchisement, or, as the Romans called it, _manumission_. This, in the ancient times, before writing was common, used to be done, as all their important acts, (for the better preserving them in memory) in great form. _Qui servum suum liberum facit, in ecclesia, vel mercato, vel comitatu, vel hundredo_, (_that is, the county court or hundred court_) _coram testibus, & palam faciat, et liberas ei vias, & portas conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in manibus ei ponat[300]._ But after the use of writing became common, the method was by the lord’s deed (mentioning him to be his villein, and expressly infranchising him) sealed by the lord’s seal, and attested by proper witnesses, as other deeds between freemen should be[301].

Before I go farther, I should observe the favour of the English laws to liberty in that, by it all manumission, of what kind soever, was absolute and irrevocable. Once a freeman, and ever so; whereas by the civil law, a freedman was bound to many duties towards his patron. A relation between them still subsisted, and if he was guilty of ingratitude, that is, of any of the many offences their law marked as such, he was again to be reduced to slavery.

But besides this species of express enfranchisement, there were many implied ones. First, by the a act of the lord alone, and others by construction of law, upon the act either of lord or villein. By the act of the lord alone, namely, if he had entered into any solemn certain contract with his villein, giving him thereby either a permanent right of property, or a power to bring an action against his lord. In such cases he was instantly manumized, without express words; for, otherwise, he could not have the benefit of the gift intended, and the lord’s act, in such cases, should be construed most wrongly against himself. As if the lord gives land to his villein and his heirs, or to him and the heirs of his body, or to him for life; immediately on the giving livery and seizin, which was, as I have often observed, what compleated an estate of freehold, and made it irrevocable, the villein became free. Otherwise he could not enjoy the benefit of the grant, or protect it against his lord.

The same was the case if the lord gave him any certain property, as a bond for payment of a sum of money, or a yearly annuity, or a lease of lands for years. The villein could not securely enjoy the benefit of the gift, without being able to bring an action against his lord, and consequently being free against him. Yea, though the annuity or lease of land was but for years, the manumission was absolute for ever, and not suspended for the years only; which was different from the cases I put in my last lecture, of villenage being suspended by the act, not of the lord, but another person; but here where the lord himself, by his own act, set him free, though but for a time, he was free for ever. But if the lord gave his villein lands to hold at will; this being of the same nature with the proper holdings of villeins, and the lord having reserved in his own breast a power of ousting whenever he pleased, the villein gaining thereby no certain property, he continued in his former situation.

Secondly, a man may be enfranchised without express words, by construction of law, operating on the act either of the lord or villein. If a lord had a mind to dispossess his villein of lands, or of goods, he had a right to enter on the lands, or seize the goods, without ceremony; but if, waving this right, he brought an action against him for them, or if he brought not any action personal against him, but the one of _Nativo Habendo_, the villein was enfranchised, whether the lord recovered or not, or whether he prosecuted the action or not. For when he omitted the easy remedy the law appointed, and brought his villein into court to defend his right, he admitted him to be a person that could stand in judgment against him, and litigate with him; that is, to be a freeman. But it must be observed this enfranchisement did not commence immediately from the taking out the writ, which was the commencement of the action, but from the appearance of both plaintiff and defendant, and this for the benefit of the lord; for otherwise, as Coke observes, a stranger, by collusion with a villein, might take out an action against him in his lord’s name. To which I may add, that the lord might have intended his action against a freeman of the same name with the villein, and the sheriff might have summoned the villein by mistake. In this case it was hard that the lord should suffer. He therefore might, when he saw the villein ready to appear, nonsuit himself, that is, decline appearing; and then the villein could not appear, and therefore was not enfranchised. But if he went on, and suffered his villein to appear, and consequently enabled him to plead against him, he must have abided by the consequences of his own folly, and his nonsuiting himself afterwards could in no sort avail him[302].

A villein might likewise be manumitted by his lord’s bringing a criminal action against him, though this was no admission of permanent property in him, or of his capacity of standing in law against him as a freeman; as if the lord brought an appeal of felony, as of murder, or robbery, against him. If he was acquitted he might be enfranchised, because he might be entitled to recover damages for the malicious prosecution, and the danger his life had been in; and damages he could not recover without being a freeman. I say _might_ be enfranchised, because he _might_ recover damages. For in this case a distinction is to be taken, whether the villein was, before the appeal brought, indicted at the suit of the king for the same offence, or was not. If he was not, the acquittal shewed the prosecution to be malicious, and the villein was entitled to recover damages, and so to be free. But if he had been indicted, there were no grounds to suppose the appeal brought maliciously. The finding the indictment by the grand jury was a presumption of his guilt. The lord had a rational ground for bringing his appeal, and he had a right to bring it for the punishment of his villein, if guilty. Otherwise he could not have him hanged, for the indictment at the king’s suit might not be prosecuted, or the king might pardon. In such case, therefore, there being no malice presumed, the law gave no damages, and consequently no enfranchisement. But the lord’s bringing the writ called _Nativo habendo_ against his villein, namely, claiming a man to be his, as such, was no enfranchisement, for that would defeat the ends of the suit; and the law allowed the lord a power to seize his villein without further ceremony, it did not precisely compel him to that method only, for his villein might be at too remote a distance, or under the protection of persons too powerful. But if, after appearance, the lord suffered himself to be nonsuited, in this action, it was an enfranchisement.

The law, likewise, enfranchised in some cases on the act of the villein himself, as if the lord had been found guilty in an appeal of murder, brought by his villein, or of rape by his nief; but these I mentioned in the last lecture, and the reason is apparent.

By all these various ways the number of villeins insensibly diminished, and the number of freemen continued to encrease in every reign; but what gave the finishing stroke to servitude were the confusions occasioned by the two contending houses of York and Lancaster; when the whole kingdom was divided, and every lord obliged, even for his own security, to take part with one side or the other; and when once engaged, necessitated to support his party with his whole force. Villeins were, therefore, emancipated in prodigious numbers, in order to their becoming soldiers. Many of such, also, who had not been formerly emancipated, in those times of distraction, fled for self-preservation to London, and other cities, where, being absent from their lords, they were looked upon as free; and where they generally continued, even after these troubles had ceased, unknown to the heirs of the antient lords; and in consequence, for want of proof of their servitude within fifty years last past, (which was the time of limitation for this action) most of them and their posterity became free. When things afterwards became composed, under Henry the Seventh, many of these persons were by the heirs of their former lords reclaimed, and recovered as villeins, though, undoubtedly, the far greater part escaped undiscovered. But even in those actions that were brought, both judges and juries were very favourable to the persons claimed; the juries out of favour to liberty, and the judges, I presume, following the policy of that reign, one of the great objects of which was the depression of the great lords; to which nothing could more contribute than the lessening the number of the persons who were held in such strict dependance by them, and the profits of whose industry they had right to seize, to encrease their wealth and their power[303].

Another thing which had, long before that period, lessened their numbers, was the rise of copyhold tenants. These are persons who are said to hold lands _at will, but according to the custom of a manor_, and those arose from the villenage tenants, as I conceive, by the following means. When a succession of mild and humane lords had neglected, for a long time, to seize their villeins goods, or to exact villein service, so that no memory remained of their having made use of such a practice, they came to be considered in another light, and became exempted from that seizure by prescription. For the lord claiming a villein in a _nativo habendo_, must plead, and prove, that he, or his ancestors, had exacted such services, from the person claimed, or his ancestors, otherwise he failed. Therefore, in the case I have mentioned, though a future lord had an inclination to depart from the practice of his predecessors, and revive his rights, he could not recover them for want of proof; and these persons so long indulged, became freemen. However their lands, (they being only tenants at will) might still be resumed, until, at last, they got, likewise, by the same kind of prescription, a permanent right in them also, in the way I now shall relate.

If a lord had given his villein any certain estate, it was, as I before observed, an absolute manumission for ever. But some lords, either in reward for services done, or out of bounty, gave many of those underling tenants, if not an absolute right to their holdings, at least, a fair claim and title to a permanent estate, which, in honour, the lord or his heirs could not defeat, and yet kept them in a particular kind of dependance, between freedom and absolute villenage. But the question was how this was to be done; for if the lord had given him a deed, to assure him the lands, and so entered into a contract with him, he was entirely emancipated. The way was then for the lord to enter into the roll of his court, wherein he kept the list of his tenants, that he had given such an one an estate at will, to hold to him and his heirs, or to him and the heirs of his body, or to him for life or years; and these directions being constantly complied with, grew by length of time into established rights, and they came to be called _tenants at will, according to the custom of the manor_.

They were still called tenants at will, because, they had been originally 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].

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.

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].