Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

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].