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

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.