[* General Preface to his Hist. p. 7, 8, 9, etc.]
[** LL. Edg. sect. 14, apud Spel. Concil. vol. i.
p. 471.]
[*** Spel. Gloss, in verbo Servus.]
[**** LL. Ælf. sect. 20]
[****** Tacit, de Mor. Germ]
[******* LL. Inse, sect. 11. LL. Ælf. sect. 12.]
The great lords and abbots among the Anglo-Saxons possessed a criminal jurisdiction within their territories, and could punish without appeal any thieves or robbers whom they caught there.[*] This institution must have had a very contrary effect to that which was intended, and must have procured robbers a sure protection on the lands of such noblemen as did not sincerely mean to discourage crimes and violence.
But though the general strain of the Anglo-Saxon government seems to have become aristocratical, there were still considerable remains of the ancient democracy, which were not indeed sufficient to protect the lowest of the people, without the patronage of some great lord, but might give security, and even some degree of dignity, to the gentry or inferior nobility. The administration of justice, in particular, by the courts of the decennary, the hundred, and the county, was well calculated to defend general liberty, and to restrain the power of the nobles. In the county courts, or shiremotes, all the freeholders were assembled twice a year, and received appeals from the inferior courts. They there decided all causes, ecclesiastical as well as civil; and the bishop, together with the alderman or earl, presided over them.[**] The affair was determined in a summary manner, without much pleading formality, or delay, by a majority of voices; and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion.[***] Where justice was denied during three sessions by the hundred, and then by the county court, there lay an appeal to the king’s court;[****] but this was not practised on slight occasions. The aldermen received a third of the fines levied in those courts;[*****] and as most of the punishments were then pecuniary, this perquisite formed a considerable part of the profits belonging to his office. The two thirds also, which went to the king, made no contemptible part of the public revenue. Any free-holder was fined who absented himself thrice from these courts.[******]
[* Higden, lib, i. cap. 50. LL. Edw. Conf. sect.
26. Spel. Concil vol. i. p. 415. Gloss, in verbo. Haligemot
ot Infangenthefe.]
[** LL. Edg. sect. 5. Wilkins, p. 78. LL. Cantit.
sect. 17. Wilkins. p. 136.]
[*** Hickes, Dissert, epist. p. 2, 3, 4, 5, 6, 7,
8.]
[**** LL. Edg. sect. 2. Wilkins, p. 77. LL. Canut.
sect. 18, apud Wilkins, p. 136.]
[****** LL. Ethelst. sect, 20.]
As the extreme ignorance of the age made deeds and writings very rare, the county or hundred court was the place where the most remarkable civil transactions were finished, in order to preserve the memory of them, and prevent all future disputes. Here testaments were promulgated, slaves manumitted, bargains of sale concluded, and sometimes, for greater security, the most considerable of these deeds were inserted in the blank leaves of the parish Bible, which thus became a kind of register, too sacred to be falsified. It was not unusual to add to the deed an imprecation on all such as should be guilty of that crime.[*]
[* Hickes, Dissert, epist.]
Among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative. There were few or no taxes imposed by the states; there were few statutes enacted; and the nation was less governed by laws, than by customs, which admitted a great latitude of interpretation. Though it should, therefore, be allowed, that the wittenagemot was altogether composed of the principal nobility, the county courts, where all the freeholders were admitted, and which regulated all the daily occurrences of life, formed a wide basis for the government, and were no contemptible checks on the aristocracy. But there is another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility; and the degree of it which prevails, cannot be determined so much by the public statutes, as by small incidents in history, by particular customs, and sometimes by the reason and nature of things. The highlands of Scotland have long been entitled by law to every privilege of British subjects; but it was not till very lately that the common people could in fact enjoy these privileges.
The powers of all the members of the Anglo-Saxon government are disputed among historians and antiquaries: the extreme obscurity of the subject, even though faction had never entered into the question, would naturally have begotten those controversies. But the great influence of the lords over their slaves and tenants, the clientship of the burghers, the total want of a middling rank of men, the extent of the mon archy, the loose execution of the laws, the continued disorders and convulsions of the state,—all these circumstances evince that the Anglo-Saxon government became at last extremely aristocratical; and the events, during the period immediately preceding the conquest, confirm this inference or conjecture.
Both the punishments inflicted by the Anglo-Saxon courts of judicature, and the methods of proof employed in all causes, appear somewhat singular, and are very different from those which prevail at present among all civilized nations.
We must conceive that the ancient Germans were little removed from the original state of nature: the social confederacy among them was more martial than civil: they had chiefly in view the means of attack or defence against public enemies, not those of protection against their fellow-citizens: their possessions were so slender and so equal, that they were not exposed to great danger; and the natural bravery of the people made every man trust to himself and to his particular friends for his defence or vengeance. This defect in the political union drew much closer the knot of particular confederacies: an insult upon any man was regarded by all his relations and associates as a common injury: they were bound by honor, as well as by a sense of common interest, to revenge his death, or any violence which he had suffered: they retaliated on the aggressor by like acts of violence; and if he were protected, as was natural and usual, by his own clan, the quarrel was spread still wider, and bred endless disorders in the nation.