History of the Anglo-Saxons, from the Earliest Period to the Norman Conquest / Second Edition

by Thomas Miller

GOVERNMENT AND LAWS.

When the Saxons first landed in England they could have had no previous knowledge of the Roman laws, which were then in existence in our island; for the government of the conquerors had long overthrown the primitive customs which were in use among the ancient Britons before the landing of Julius Cæsar. We have already shown that the earliest of our Saxon invaders were led on by some military chief, who claimed his descent from Odin, and was acknowledged as leader by the consent of his followers, also allowed the largest share of the plunder or captives which were taken in war. Thus it would naturally follow, that when they came to settle down upon the soil which they had conquered, the power of the military chief would soon be acknowledged, and that to him would be given the greatest portion of the land; while amongst his followers such shares would be distributed as were considered proportionate to their rank. After having conquered and divided the land, they would naturally unite together to defend the possessions they had won, and the chief, or his descendant,—if found worthy of being still retained at their head, by his wisdom or valour—would, either in peace or war, continue to hold the title and power of ruler; and thus would governments be formed, thrones established, and laws made by the wealthy and powerful, to keep their followers and captives in subjection. Nor would it be probable in all instances that the conquered were made captives. Many by their valour and opposition would still present a formidable front to the invaders; and as both parties would in time grow weary of a continued system of attack or defence, concessions would be made, peace agreed upon, the land divided, vows sworn, and penalties fixed, to be paid by those who first broke the treaty. In such cases, war would not be entered into by either party without their first stating the grievances. This, again, would lead to discussions, assemblies, accusations, defences; times and places would be allotted for meeting; and so courts and tribunals were formed; and thus in all countries did law and civilization commence. We have shown how England was at first divided into separate kingdoms; how chief after chief came over, fought, conquered, and established a separate state, until the Octarchy was formed; and that when the whole island was occupied, the Saxon kings began to make war upon each other, until state after state was subdued, and one king at last reigned over all. That governors had to be placed over different divisions of this vast extent of territory; that these, again, placed officers over the sub-divisions: thus there were earls or aldermen, sheriffs, or shrieves, officers to each hundred or tithing; headboroughs, frankpledges, who attended the court-leet which was held at given periods, and accounted for all grievances or violations of the law. The first laws made would naturally be those which protected persons and property,—to punish acts of violence and theft, and to prevent personal vengeance being inflicted. Thus, murder might be compounded for, under certain circumstances, at a fixed penalty, and every portion of the body injured had its price, from the leg to the little finger, even down to the hair, tooth, or nail. The loss of an eye and a leg appears to have been considered the most important, and was punished by a fine of fifty shillings. To lame a person only, the sum exacted was thirty shillings. To wound, or strike such a blow as caused deafness, twenty-five shillings; for fracturing the skull, twenty shillings; for cutting off the little finger, eleven shillings; tearing off the hair, ten shillings. For tearing off a nail, or driving out a tooth, the penalty was one shilling; but if a front tooth, the charge was six shillings. Robbery was punished according to the rank of the party plundered. If a freeman committed robbery, he forfeited all his goods and his freedom; if he was taken in the fact, and the stolen property found in his hand, the king had the option of killing him, of selling him, or receiving the value of his Were, which was the sum at which his life would have been rated had he been murdered. Even the life of the king had its Were or value. One hundred and twenty pounds was the price fixed to be paid as the penalty for the murder of a king. A noble's, a bishop's, an alderman's, a thane's, a servant's, had each its fixed penalty, according to the rank of the deceased,—from that of the king, as above named, to the humblest hind, whose life was rated at thirty shillings. Besides the Were, there was another protection, called the Mund. This seems to have been a penalty paid for disturbing the peace of a man's household; or, as Sharon Turner has observed, "it was a privilege which made every man's house his castle." The Saxons had also their bail or sureties. Thus, when a man had committed homicide, he had to find borh, or sureties for the payment of the penalty. The time allowed for payment is not mentioned, excepting in one case, where it appears to have been limited to forty days. The head of every tithing, or ten families, also appears to have been responsible for those under his jurisdiction or keeping, as we have previously shown in the reign of Alfred. He who had no surety, or borh, or could not pay the penalty for the crime committed, or had no kinsman to redeem him, either became a slave, or might be slain, according to the nature of the offence.

Their mode of trial was very simple, and their general method of arriving at the innocence or guilt of the party accused appears to have been influenced by the number and respectability of the witnesses who swore for or against the prisoner. Thus, if a man stood charged with any offence, and he could bring the given number of persons to swear that he was innocent, the prisoner was acquitted, unless the accusing party could produce a greater number of witnesses to swear against him, and show clearer proofs of his guilt. When this was the case, the offender either submitted to the punishment or underwent the trial of ordeal, or, as it was considered, submitted to the "judgment of God." The ordeal consisted either of hot water or hot iron; in some cases the iron weighed three pounds, and was to be carried nine paces. The ordeal appears to have taken place in the church; if the trial was to be by hot iron, a number of men were allowed to enter the church, and, being ranged on each side, the priest sprinkled them with holy water; they were then to kiss the Gospel, and were signed with the cross. The priest afterwards read a prayer, and during this period the fire was not to be mended, and if burnt out the iron still rested upon the staples to cool, so that in no instance could it be red-hot; the paces were measured by the feet of the accused, and it has been computed that the hot iron would hardly remain in his hand beyond two seconds. Whether the culprit moved rapidly or walked slowly, or threw the iron upon the floor, or placed it on some allotted spot, we cannot tell; though there is but little doubt that means were taken to render the trial as short as possible. When the ordeal was by water, it was sufficient if four witnesses stepped forward to state that they had seen it boiling; whether the vessel was of iron, copper, or clay, a stone was placed in it, which the accused with his bare hand and arm had to take out; the vessel was shallow or deep, according to the nature of the offence he stood charged with; in some cases he had only to plunge in his hand to take out the stone, in others his arm to the elbow. As in the ordeal by heated iron, the same ceremonies were observed, and during the time that elapsed in praying and sprinkling the witnesses the fire was not allowed to be mended; while the act took place, a prayer was offered up to God to discover the truth. When the trial was over, the hand or arm was bound up, and the bandages were not removed until the expiration of three days. It does not appear that the marks of burning or scalding were the tests of guilt; it was only when the wounds were found foul and unhealed that the accused was pronounced guilty; if they looked healthy and well, and were nearly healed, it was considered a proof of innocence. It will be readily imagined that few who were guilty would willingly undergo such a trial, for it must be borne in mind that punishment still followed; and when the signs were unfavourable, there can be but little doubt after so solemn a ceremony that the penalty the accused was doomed to suffer must have been severe. It could, however, like homicide, be compounded for; and capital punishment seems seldom to have taken place amongst the Saxons, unless the crime was committed in open day, and the culprit was caught in the fact, or under such circumstances as were considered too clear to need any trial; in such cases, vengeance was generally taken on the spot, and the robber or murderer was either hanged upon the nearest tree, or slain where he was captured—no evidence was required,—no defence was allowed.

Trial by Ordeal.

There were two other forms of ordeal, called the cross and the corsned; the former consisted of two pieces of wood, which were covered over, one bearing the mark of the cross; if the accused drew this, he was considered innocent; if the piece that was unmarked, guilty. The other consisted in swallowing a piece of bread which the priest had blessed; if it stuck in the throat, or the culprit turned pale, or trembled, or had a difficulty in swallowing it, he stood condemned. Besides fines, many of the punishments they inflicted were severe; they used the whip and the heated brand, mutilated the face, imprisoned, banished, sentenced the guilty to slavery, or doomed them to suffer imprisonment, while their capital punishments appear to have been hanging and stoning to death. The land was divided into what was called "folkland" and "bocland." The folkland was such as belonged to the king and the people; that which was held by agreement or charter was called "bocland," or land made over by agreement of the book, or some written instrument, though conveyances of land were sometimes made by the delivery of an arrow, a spear, or any other object. The king had, however, his bocland or private property, as is proved by the will of king Alfred; and the word folkland in time was changed to crownland, which, no doubt, means that the wastes and commons which the people were allowed to make use of, and were not private property, were considered to belong to the king or the state. Boclands appear originally only to have been granted during the life of the holder. It was the work of time and the change of events which caused them to become hereditary. The Saxons were divided into many classes or ranks; first stood the king, then the earls, nobles, or chiefs; then came the other class of small landed proprietors; and below these another grade, whom we may term freemen; the theows, ceorls, or villains, came last, and were slaves of the soil; if the estate changed hands, the theow went to the next owner; on no account could he remove from the land; he was, however, protected, and, so long as he did his duty, could not be removed by the owner; neither could more than a regular portion of labour be exacted from him; but we have before alluded to his privileges in the laws of Ina. The ceremonies used at their witenagemotes, guilds, moots, and other courts, are matters of law rather than subjects suited to a narrative and picturesque history of England.