they were, served, in some tolerable degree, a people who had by their constitution an eye on each other's concerns, and decided almost all matters of any doubt among them by methods, which, however inadequate, were extremely simple. They judged every controversy either by the conscience of the parties, or by the country's opinion of it, or what they judged an appeal to Providence. They were unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of those critical rules by which evidence is sifted, the true distinguished from the false, the certain from the uncertain. Originally, therefore, the defendant in the suit was put to his oath; and if on oath he denied the debt, or the crime with which he was charged, he was of course acquitted. But when the first fervours of religion began to decay, and fraud and the temptations to fraud to increase, they trusted no longer to the conscience of the party. They cited him to an higher tribunal; the immediate judgment of God. Their trials were so many conjurations, and the magical ceremonies of barbarity and heathenism entered into law and religion. This supernatural method of process they called God's dome; it is generally known by the name of ordeal, which, in the Saxon language, signifies the great trial. This trial was made either by fire or water; that by fire was principally reserved for persons of rank; that by water decided the fate of the vulgar; sometimes it was at the choice of the party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honour, was brought forth into the church upon the day of trial, and it was there again consecrated to this awful purpose by a form of service still extant. A solemn mass was performed; and then the party accused appeared, surrounded by the clergy, by his judges, and a vast concourse of people, suspended and anxious for the event; all that assisted purified themselves by a fast of three days, and the accused, who had undergone the same fast, and received the sacrament, took the consecrated iron of about a pound weight, heated red, in his naked hand, and in that manner carried it nine feet. This done, the hand was wrapped up, and sealed in the presence of the whole assembly. Three nights being passed, the seals were opened before all the people; if the hand was found without any sore inflicted by the fire, the party was cleared with universal acclamation; if, on the contrary, a raw sore appeared, the party, condemned by the judgment of heaven, had no further plea or

appeal. Sometimes the accused walked over nine hot irons; sometimes boiling water was used into this the man dipped his hand to the arm. The judgment by water was accompanied by the solemnity of the same ceremonies. The culprit was thrown into a pool of water, in which, if he did not sink, he was adjudged guilty, as though the element (they said) to which they had committed the trial of his innocency had rejected him.

Both these species of ordeal, though they equally appealed to God, yet went on different principles. In the fire ordeal, a miracle must be wrought to acquit the party; in the water, a miracle was necessary to convict him. Is there any reason for this extraordinary distinction, or must we resolve it solely into the irregular caprices of the human mind? The greatest genius which has enlightend this age seems, in this affair, to have been carried, by the sharpness of his wit, into a subtilty hardly to be justified by the way of thinking of that unpolished period. Speaking of the reasons for introducing this method of trial, "qui ne voit," says he, "que chez un peuple exercé â manier des armes la peau rude et calleuse ne devoit pas recevoir assez l'impression du fer chaud pour qu'il y paroissoit trois jours après; et s'il y paroissoit c'est une marque que celui qui faisoit l'épreuve, étoit un efféminé." And this mark of effeminancy, he observes, in those warlike times, supposed that the man has resisted the principles of his education, that he is insensible to honour, and regardless of the opinion of his country. But supposing the effect of hot iron to be so slight, even on the most callous hands, of which, however, there is reason to doubt, yet we can hardly admit this reasoning, when we consider, that women were subjected to this fire ordeal, and that no other women than those of condition could be subjected to it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might have avoided this proof, if they could find a champion to combat in their favour; and he thinks a just presumption might be formed against a woman of rank who was so destitute of friends as to find no protector. It must be owned, that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall we reconcile all this with the custom of the Anglo-Saxons, among whom the ordeal was in constant use, and even for women, without the alternative of the combat, to which it appears this people were entire strangers? What presumption can arise from the event of the water ordeal, in which no

callosity of hands, no bravery, no skill in arms, could be in any degree serviceable? The causes of both may, with more success, be sought among the superstitious ideas of the antient northern world. Among the Germans, the administration of the law was in the hands of the priests or Druids. And as the Druid worship paid the highest respect to the elements of fire and water, it was very natural that they, who abounded with so many conjurations for the discovery of doubtful facts, or future events, should make use of these elements in their divination. It may appear the greater wonder, how the people came to continue so long, and with such obstinacy, after the introduction of Christianity, and in spite of the frequent injunctions of the pope, whose authority was then much venerated, in the use of a species of proof, the insufficiency of which a thousand examples might have detected. But this is perhaps not so unaccountable. Persons were not put to this trial unless there was pretty strong evidence against them; something sufficient to form what is equivalent to a corpus delicti; they must have been actually found guilty by the duodecemvirale judicium, before they could be subjected in any sort to the ordeal. It was in effect show ing the accused an indulgence to give him this chance, even such a chance as was, of an acquittal; and it was certainly much milder than the torture, which is used with full as little certainty of producing its end among the most civilized nations. And the ordeal without question frequently operated by the mere terrour. Many persons, from a dread of the event, chose to discover rather than to endure the trial. Of those that did endure it, many must certainly have been guilty. The innocency of some who suffered could never be known with certainty. Others, by accident, might have escaped; and this apparently miraculous escape had great weight in confirming the authority of this trial. How long did we continue in punishing innocent people for witchcraft, though experience might, to thinking persons, have frequently discovered the injustice of that proceeding? whilst, to the generality, a thousand equivocal appearances, confessions from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion.

The Druids judged not as magistrates, but as interpreters of the will of heaven. Ceterum neque animadvertere, neque vincire, neque verberare quidem nisi sacerdotibus permissum; non quasi in pœnam, nec ducis jussu, sed velut Deo imperante, says Tacitus de Mor. German. 7.

To avoid as much as possible this severe mode of trial, and at the same time to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime, or charged in a civil complaint, appeared in court with some of his neighbours, who were called his compurgators; and when on oath he denied the charge, they swore that they believed his oath to be true. These compurgators were at first to be three, afterwards five were required; in process of time, twelve became necessary. As a man might be charged by the opinion of the country, so he might also be discharged by it: twelve men were necessary to find him guilty, twelve might have acquitted him. If opinion supports all government, it not only supported in the general sense, but it directed every minute part, in the Saxon polity. A man, who did not seem to have the good opinion of those among whom he lived, was judged to be guilty, or at least capable of being guilty of every crime. It was upon this principle, that a man, who could not find the security of some tything or friborgh for his behaviour, he that was upon account of this universal desertion, called friendless man, was by our ancestors condemned to death; a punishment, which the lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved; a circumstance which strongly marks the genius of the Saxon government.

On the same principle, from which the trial by the oath of compurgators was derived, was derived also the trial by the country; which was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great importance, it was put in the full shiremote; and if the general voice acquitted or condemned, decided for one party

* Si quis emendationem oppidorum vel pontium, vel profectionem militarem detrectaverit, compenset Regi 120 solidos, vel purget se, et nominentur ei 14, et eligantur 11. Leges Canuti,62. † Si accusatio sit et purgatio male succedat, judicet Episcopus. Leges Canuti, 53.

Every man not privileged whether he be paterfamilias (heorthfest,*) or pedissequa (folghere,f) must enter into the hundred and tything,

and all above twelve to swear he will not be a

thief, or consenting to a thief. Leges Canuti, 19

*Heorthfeste-the same with Husfastene or Husfestene, i. e. the master of a family, from the Saxon Hearthfæst, i. e. fixed to the house or hearth.

The Folgheres, or Folgeres, were the me nial servants or followers of the Husfastene, or Housekeepers. Bracton. liber 3. Tract. 2. cap. 10. Leges Henrici I. cap. 8

or the other, this was final in the cause. But then it was necessary that all should agree; for it does not appear that our ancestors, in those days, conceived how any assembly could be supposed to give an assent to a point, concerning which, several who composed that assembly thought differently. They had no idea that a body composed of several, could act by the opinion of a small majority. But experience having shown that this method of trial was tumultuary and uncertain, they corrected it by the idea of compurgation. The party concerned was no longer put to his oath; he simply pleaded: the compurgators swore as before, in antient times; therefore the jury were strictly from the neighbourhood, and were supposed to have a personal knowledge of the man, and the fact. They were rather a sort of evidence than judges; and from hence is derived that singularity in our laws, that most of our judgments are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither are our juries bound, except by one particular statute, and in particular cases, to observe any positive testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings of our jurisprudence. The Saxons were extremely imperfect in their ideas of law; the civil institutions of the Romans, who were the legislators of mankind, having never reached them. The order of our courts, the discipline of our jury, by which it is become so elaborate a conirivance, and the introduction of a sort of scientific reason in the law, have been the work

of ages.

As the Saxon laws did not suffer any transaction, whether of the sale of land or goods, to pass but in the shire, and before witnesses, so all controversies of them were concluded by what they called, the scyre witness.* This was tried by the oaths of the parties, by vivâ voce testimony, and the producing of charters and records. Then the people, laity and clergy, whether by plurality of votes, or by what other means is not very certain, affirmed the testimony in favour of one of the claimants. Then the proceeding was signed, first by those who held the court, and then by the persons who affirmed the judgment, who also swore to it in the same manner.†

* Si quis terram defenderit testimonio provinciæ, &c. Leges Canuti, &c.; and sethe land gewerod hebbe be scyre gewitnesse.

† See, in Madox, the case in bishop of Bathes court. See also Brady 272, where the witnesses on one side offer to swear, or join battie with the other.

The Saxons were extremely moderate in their punishments; murder and treason were compounded; and a fine set for every offence. Forfeiture for felony was incurred only by those that fled. The punishment with death was very rare; with torture unknown. In all antient nations, the punishment of crimes was in the family injured by them; particularly in case of murder.* This brought deadly feuds among the people, which, in the German nations particularly, subsisted through several generations. But as a fruitless revenge could answer little purpose to the parties injured, and was ruinous to the public peace, by the interposal of good offices, they were prevailed upon to accept some composition in lieu of the blood of the aggressor, and peace was restored. The Saxon government did little more than act the part of arbitrator between the contending parties, exacted the payment of this composition, and reduced it to a certainty. However, the king, as the sovereign of all, and the sheriff, as the judicial officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs gave rise to, the Christian religion confirmed. Yet was it not altogether so imperfect as to have no punishment adequate to those great delinquencies which tend entirely to overturn a state, public robbery, murder of the lord.†

As among the Anglo-Saxons government depended in some measure upon land property, it will not be amiss to say something upon their manner of holding and inheriting their lands. It must not be forgot that the Germans were of Scythian original, and had preserved that way of life, and those peculiar manners, which distinguished the parent nation. As the Scythians lived principally by pasturage and hunting, from the nature of that way of

*Parentibus occisi fiat emendatio vel guerra eorum portetur, unde Anglice proverbium habetur, Bige spere of side, oththe bær. Eme lanceam a latere, aut fer. Leg. Edward, 12.

The fines on the town or hundred.

Parentes murdrati sex Marcas haberent. Rex quadraginta. [This different from the ancient usage, where the king had half.] Si parentes deessent, dominus ejus reciperet. Si dominum non haberet, filagus ejus, id est, fide cum eo ligatus. LL. Inæ. 75.

Purveyance, vide Leges Canuti, 67.

Si quis intestatus ex hac vita decedat, sive sit per negligentiam ejus, sive per mortem subitaneam, tunc non assumat sibi dominus plus possessionis (æhta) ipsius quam justum armamentum; sed post mortem possessio (æhtgescyft) ejus quam justissime distribuatur uxori, et liberis, et propinquis cognatis, cuilibet pro dignitate quæ ad eum pertinet. Leges Canuti, 68.

employment, they were continually changing their habitations. But even in this case some small degree of agriculture was carried on; and therefore some sort of division of property became necessary. This division was made among each tribe by its proper chief. But their shares were allotted to the several individuals only for a year; lest they should come to attach themselves to any certain habitation; a settlement being wholly contrary to the genius of the Scythian manners.

Campestres melius Scythæ,

Quorum plaustra vagas rite trahunt domos, Vivunt et rigidi Getæ,

Immetata quibus jugera liberas Fruges et Cererem ferunt,

Nec cultura placet longior annua.

This custom of an annual property probably continued among the Germans as long as they remained in their own country; but when their conquests carried them into other parts, another object, besides the possession of the land, arose, which obliged them to make a change in this particular. In the distribution of the conquered lands, the antient possessors of them became an object of consideration, and the management of these became one of the principal branches of their polity. It was expedient, towards holding them in perfect subjection, that they should be habituated to obey one person, and that a kind of cliental relation should be created between them; therefore the land with the slaves, and the people in a state next to slavery annexed to it, were bestowed for life in the general distribution. When life estates were once granted, it seemed a natural consequence, that inheritances should immediately supervene. When a durable connection is created between a certain man, and a certain portion of land, by a possession for his whole life, and when his children have grown up and have been supported on that land, it seems so great an hardship to separate them, and to deprive thereby the family of all means of subsisting, that nothing could be more generally desired, nor more reasonably allowed, than an inheritance; and this reasonableness was strongly enforced by the great change wrought in their affairs, when life estates were granted. Whilst, according to the antient custom, lands were only given for a year, there was a rotation so quick, that every family came in its turn to be easily provided for, and had not long to wait; but the children of a tenant for life, when they lost the benefit of their father's possession, saw themselves as it were immur

ed upon every side by the life estates, and perceived no reasonable hope of a provision from any new arrangement. These inheritances began very early in England; by a law of King Alfred, it appears that they were then of a very antient establishment: and as such inheritances were intended for great stability, they fortified them by charters; and This therefore they were called bookland. was done with regard to the possessions of the better sort; the meaner, who were called ceorles, if they did not live in a dependance on some thane, held their small portions of land as an inheritance likewise; not by charter, but by a sort of prescription: this was called folkland. These estates of inheritants, both the greater and the meaner, were not fiefs; they were to all purposes allodial, and had hardly a single property of a feud; they descended equally to all the children, males and females, according to the custom of gavelkind, a custom absolutely contrary to the genius of the feudal tenure; and whenever estates were granted in the later Saxon times by the bounty of the crown, with an intent that they should be inheritable, so far were they from being granted with the complicated load of all the feudal services annexed, that in all the charters of that kind which subsist, they are bestowed with a full power of alienation, et liberi ab omni seculari gravamine. This was the general condition of those inheritances which were derived from the right of original conquest, as well to all the soldiers, as to the leader; and these estates, as it is said, were not even forfeitable, no not for felony, as if that were in some sort the necessary consequence of an inheritable estate. So far were they from resembling a fief. But there were other possessions, which bore a nearer resemblance to fiefs, at least in their first feeble and infantile state of the tenure, than those inheritances which were held by an absolute right in the proprietor. The great officers who attended the court, commanded armies, or distributed justice, must necessarily be paid and supported; but in what manner could they be paid? In money they could not; because there was very little money then in Europe, and scarce any part of that little came into the prince's coffers. The only method of paying them was, by allotting lands for their subsistence whilst they remained in his service. For this reason, in the original distribution, vast tracts of land were left in the hands of the king. If any served the king in a military command, his land may be said to have been in some sort held by knight service. If the

tenant was in an office about the king's person, this gave rise to sergeantry; the persons, who cultivated his lands, may be considered as holding by socage. But the long train of services, that made afterwards the learning of the tenures, were then not thought of; because these feuds, if we may so call them, had not then come to be inheritances; which circumstance of inheritance gave rise to the whole feudal system. With the Anglo-Saxons, the feuds continued to the last but a sort of pay or salary of office. The trinoda necessitas, so much spoken of, which was to attend the king in his expeditions, and to contribute to the building of bridges and repair of highways, never bound the lands by way of tenure, but as a political regulation, which equally affected every class and condition of men, and every species of possession.

The manner of succeeding to lands in England at this period was, as we have observed, by gavelkind; an equal distribution among the children, males and females. The antient northern nations had but an imperfect notion of political power. That the possessor of the land should be the governour of it was a simple idea; and their schemes extended but little further. It was not so in the Greek and Italian commonwealths. In those the property of the land was in all respects similar to that of goods, and had nothing of jurisdiction annexed to it; the government there was a merely political institution. Among such a people the custom of distribution could be of no ill consequence, because it only affected property; but gavelkind among the Saxons was very prejudical; for as government was annexed to a certain possession in land, this possession, which was continually changing, kept the government in a very fluctuating state; so that their civil polity had in it an essential evil, which contributed to the sickly condition in which the Anglo-Saxon state always remained, as well as to its final dissolution.

BOOK III.

CHAPTER I.

VIEW OF THE STATE OF EUROPE AT THE

TIME OF THE NORMAN INVASION.

BEFORE the period, of which we are going to treat, England was little known or considered in Europe. Their situation, their domestic calamities, and their ignorance, cir

cumscribed the views and politics of the English within the bounds of their own island. But the Norman conquerour threw down all these barriers. The English laws, manners, and maxims, were suddenly changed; the scene was enlarged; and the communication with the rest of Europe being thus opened, has been preserved ever since in a continued series of wars and negotiations. That we may therefore enter more fully into the matters which lie before us, it is necessary that we understand the state of the neigbouring continent at the time when this island first came to be interested in its affairs.

The northern nations, who had over-run the Roman empire, were at first rather actuated by avarice than ambition, and were more intent upon plunder than conquest; they were carried beyond their original purposes, when they began to form regular governments, for which they had been prepared by no just ideas of legislation. For a long time, therefore, there was little of order in their affairs, or foresight in their designs. The Goths, the Burgundians, the Franks, the Vandals, the Suevi, after they had prevailed over the Roman empire, by turns prevailed over each other in continual wars, which were carried on upon no principles of a determinate policy, entered into upon motives of brutality and caprice, and ended as fortune and rude violence chanced to prevail. Tumult, anarchy, confusion overspread the face of Europe; and an obscurity rests upon the transactions of that time, which suffers us to discover nothing but its extreme barbarity.

Before this cloud could be dispersed, the Saracens, another body of barbarians from the south, animated by a fury not unlike that which gave strength to the northern eruptions, but heightened by enthusiasm, and regulated by subordination and uniform policy, began to carry their arms, their manners, and religion, into every part of the universe. Spain was entirely overwhelmed by the torrent of their armies; Italy and the islands were harassed by their fleets, and all Europe alarmed by their vigorous and frequent enterprizes. Italy, who had so long sat the mistress of the world, was by turns the slave of all nations. The possession of that fine country was hotly disputed between the Greek emperour and the Lombards, and it suffered infinitely by that contention. Germany, the parent of so many nations, was exhausted by the swarms she had sent abroad.

However, in the midst of this chaos there were principles at work, which reduced things