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 contrivance, and the introduction of a sort of scientific reason in the law, have been the work

of ages.

This

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 scure witness.* 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 pro. vinciæ, &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 bat. tle 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 tho 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. the Scythians lived principally by pasturage and hunting, from the nature of that way of

As

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 arma. mentum; sed post mortem possessio (æhtgescyft) ejus quam justissime distribuatur uxori, et liberis, et propinquis cognatis, cuilibet pro dig. nitate 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 therefore they were called bookland. This 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 de scended 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 at tended 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 Burgun dians, 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

to a certain form, and gradually unfolded a system, in which the chief movers and main spring were the papal and the imperial powers; the aggrandizement or diminution of which have been the drift of almost all the politics, intrigues, and wars, which have employed and distracted Europe to this day.

ness.

From Rome the whole western world had received its Christianity; she was the asylum of what learning had escaped the general desolation; and even in her ruins she preserved something of the majesty of her antient greatOn these accounts she had a respect and a weight, which increased every day among a simple, religious people, who looked but a little way into the consequences of their actions. The rudeness of the world was very favourable for the establishment of an empire of opinion. The moderation with which the popes at first exerted this empire, made its growth unfelt until it could no longer be opposed. And the policy of later popes, building on the piety of the first, continually increased it; and they made use of every instrument but that of force. They employed equally the virtues and the crimes of the great; they favoured the lust of kings for absolute authority, and the desire of subjects for liberty; they provoked war and mediated peace, and took advantage of every turn in the minds of men, whether of a public or private nature, to extend their influence, and push their power, from ecclesiastical to civil; from subjection to independency; from independency to empire.

France had many advantages over the other parts of Europe. The Saracens had no permanent success in that country. The same hand which expelled those invaders, deposed the last of a race of heavy and degenerate princes, more like eastern monarchs than German leaders, and who had neither the force to repel the enemies of their kingdom, nor to assert their own sovereignity. This usurpation placed on the throne princes of another character; princes who were obliged to supply their want of title by the vigour of their administration. The French monarch had need of some great and respected authority to throw a veil over his usurpation, and to sanctify his newly acquired power by those names and appearances, which are necessary to make it respectable to the people. On the other hand, the pope, who hated the Grecian empire, and equally feared the success of the Lombards, saw with joy this new star arise in the north, and gave it the sanction of his authority. Presently after he called it to his assistance. Pepin passed the Alps, relieved the pope, and

invested him with the dominion of a large country in the best part of Italy.

Charlemagne pursued the course which was marked out for him, and put an end to the Lombard kingdom, weakened by the policy of his father, and the enmity of the popes, who never willingly saw a strong power in Italy. Then he received from the hand of the pope the imperial crown, sanctified by the authority of the holy see, and with it the title of emperour of the Romans, a name venerable from the fame of the old empire, and which was supposed to carry great and unknown prerogatives; and thus the empire rose again out of its ruins in the west; and what is remarkable, by means of one of those nations which had helped to destroy it. If we take in the conquests of Charlemagne, it was also very near as extensive as formerly; though its constitution was altogether different, as being entirely on the northern model of government.

From Charlemagne the pope received in return an enlargement and a confirmation of his new territory. Thus the papal and imperial powers mutually gave birth to each other. They continued for some ages, and in some measure still continue, closely connected, with a variety of pretensions upon each other, and on the rest of Europe.

Though the imperial power had its origin

in France, it was soon divided into two branches, the Gallic, and the German. The latter alone supported the title of empire; but the power being weakened by this division, the papal pretensions had the greater weight. The pope, because he first revived the imperial dignity, claimed a right of disposing of it, or at least of giving validity to the election of the emperour. The emperour, on the other hand, remembering the rights of those sovereigns whose title he bore, and how lately the power, which insulted him with such demands, had arisen from the bounty of his predecessors, claimed the same privileges in the election of a pope. The claims of both were somewhat plausible; and they were supported, the one by force of arms, and the other by ecclesiastical influence; powers, which in those days were very nearly balanced. Italy was the theatre upon which this prize was disputed. In every city, the parties in favour of each of the opponents were not far from an equality in their numbers and strength. Whilst these parties disagreed in the choice of a master, by contending for a choice in their subjection, they grew imperceptibly into freedom, and passed through the medium of faction and anarchy, into regular commonwealths. Thus arose the

republics of Venice, of Genoa, of Florence, Sienna, and Pisa, and several others. These cities, established in this freedom, turned the frugal and ingenious spirit contracted in such communities to navigation and traffic; and pursuing them with skill and vigour, whilst commerce was neglected and despised by the rustic gentry of the martial governments, they grew to a considerable degree of wealth, power, and civility.

The Danes, who in this latter time preserved the spirit and the numbers of the antient Gothic people, had seated themselves in England, in the Low Countries, and in Normandy. They passed from thence to the southern part of Europe, and in this romantic age gave rise in Sicily and Naples to a new kingdom, and a new line of princes.

All the kingdoms on the continent of Europe were governed nearly in the same form; from whence arose a great similitude in the manners of their inhabitants. The feodal discipline extended itself every where, and influenced the conduct of the courts, and the manners of the people, with its own irregular martial spirit. Subjects under the complicated laws of a various and rigorous servitude exercised all the prerogatives of sovereign power. They distributed justice, they made war and peace at pleasure. The sovereign, with great pretensions, had but little power; he was only a greater lord among great lords, who profited of the differences of his peers: therefore, no steady plan could be well pursued either in war or peace. This day a prince seemed irresistible at the head of his numerous vassals, because their duty obliged them to war, and they performed this duty with pleasure. The next day saw this formidable power vanished like a dream, because this fierce undisciplined people had no patience, and the time of the feudal service was contained within very narrow limits. It was therefore easy to find a number of persons at all times ready to follow any standard, but it was hard to complete a considerable design, which required a regular and continued movement. This enterprizing disposition in the gentry was very general, because they had little occupation or pleasure but in war; and the greatest rewards did then attend personal valour and prowess. All that professed arms became in some sort on an equality. A knight was the peer of a king; and men had been used to see the bravery of private persons opening a road to that dignity. The temerity of adventures was much justified by the ill order of every state, which left it a prey to almost any who should attack it

with sufficient vigour. Thus, little checked by any superiour power, full of fire, impetuosity, and ignorance, they longed to signalize themselves, wherever an honourable danger called them; and wherever that invited, they did not weigh very deliberately the probability of success.

The knowledge of this general disposition in the minds of men will naturally remove a great deal of our wonder at seeing an attempt founded on such slender appearances of right, and supported by a power so little proportioned to the undertaking as that of William, so warmly embraced, and so generally followed, not only by his own subjects, but by all the neighbouring potentates. The counts of Anjou, Bretagne, Ponthieu, Boulogne and Poictou, sovereign princes; adventurers from every quarter of France, the Netherlands, and the remotest parts of Germany, laying aside their jealousies and enmities to one another, as well as to William, ran with an inconceivable ardour into this enterprize; captivated with the splendour of the object, which obliterated all thoughts of the uncertainty of the event. William kept up this fervour by promises of large territories to all his allies and associates, in the country to be reduced by their united efforts. But after all it became equally necessary to reconcile to his enterprize the three great powers, of whom we have just spoken, whose disposition must have had the most influence on his affairs.

His feudal lord, the king of France, was bound by his most obvious interests to oppose the further aggrandizement of one already too potent for a vassal; but the king of France was then a minor, and Baldwin, earl of Flanders, whose daughter William had married, was regent of the kingdom. This circumstance rendered the remonstrance of the French council against his design of no effect; indeed, the opposition of the council itself was faint; the idea of having a king under vassalage to their crown might have dazzled the more superficial courtiers, whilst those, who thought more deeply, were unwilling to discourage an enterprize which they believed would probably end in the ruin of the undertaker. The emperour was in his minority, as well as the king of France; but by what arts the duke prevailed upon the imperial council to declare in his favour, whether or no by an idea of creating a balance to the power of France, if we can imagine that any such idea then subsisted, is altogether uncertain; but it is certain that he obtained leave for the vassals of the empire to engage in his service, and that he made use