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$Title{History Of Europe During The Middle Ages
Part II}
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$Author{Hallam, Henry}
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$Subject{footnote
anglo-saxon
leges
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part II

     Beneath the ceorls in political estimation were the conquered natives of
Britain.  In a war so long and so obstinately maintained as that of the
Britons against their invaders, it is natural to conclude that in a great part
of the country the original inhabitants were almost extirpated, and that the
remainder were reduced into servitude.  This, till lately, has been the
concurrent opinion of our antiquaries; and, with some qualification, I do not
see why it should not still be received. ^b In every kingdom of the continent
which was formed by the northern nations out of the Roman empire, the Latin
language preserved its superiority, and has much more been corrupted through
ignorance and want of a standard, than intermingled with their original idiom.
But our own language is, and has been from the earliest times after the Saxon
conquest, essentially Teutonic, and of the most obvious affinity to those
dialects which are spoken in Denmark and Lower Saxony.  With such as are
extravagant enough to controvert so evident a truth it is idle to contend; and
those who believe great part of our language to be borrowed from the Welsh may
doubtless infer that great part of our population is derived from the same
source. ^c If we look through the subsisting Anglo-Saxon records, there is not
very frequent mention of British subjects.  But some undoubtedly there were in
a state of freedom, and possessed of landed estate.  A Welshman (that is, a
Briton) who held five hides was raised, like a ceorl, to the dignity of thane.
^d In the composition, however, for their lives, and consequently in their
rank in society, they were inferior to the meanest Saxon freemen.  The slaves,
who were frequently the objects of legislation, rather for the purpose of
ascertaining their punishment than of securing their rights, may be presumed,
at least in early times, to have been part of the conquered Britons.  For
though his own crimes, or the tyranny of others, might possibly reduce a Saxon
ceorl to this condition, ^e it is inconceivable that the lowest of those who
won England with their swords should in the establishment of the new kingdoms
have been left destitute of personal liberty.

[Footnote b: [Note IV.]]

[Footnote c: It is but just to mention a partial exception, according to a
considerable authority, to what has been said in the text as to the absence of
British roots in the English language; though it can but slightly affect the
general proposition.  Mr. Kemble remarks the number of minute distinctions, in
describing the local features of a country, which abound in the Anglo-Saxon
charters, and the difficulties which occur in their explanation.  One of these
relates to the language itself. "It cannot be doubtful that local names, and
those devoted to distinguish the natural features of a country, possess an
inherent vitality, which even the urgency of conquest is frequently unable to
destroy.  A race is rarely so entirely removed as not to form an integral,
although subordinate, part of the new state based upon its ruins; and in the
case where the cultivator continues to be occupied with the soil, a change of
master will not necessarily lead to the abandonment of the names by which the
land itself and the instruments or processes of labor are designated.  On the
contrary, the conquering race are apt to adopt these names from the conquered;
and thus, after the lapse of twelve centuries and innumerable civil
convulsions, the principal words of the class described yet prevail in the
language of our people, and partially in our literature.  Many, then, of the
words which we seek in vain in the Anglo-Saxon dictionaries, are, in fact, to
be sought in those of the Cymri, from whose practice they were adopted by the
victorious Saxons, in all parts of the country; and they are not Anglo-Saxon,
but Welsh (i. e. foreign, Wylisc), very frequently unmodified either in
meaning or pronunciation." Preface to Codex Diplom., vol. iii. p. 15.  Though
this bears intrinsic marks of probability, it is yet remarkable that, in a
long list of descriptive words which immediately follows, there are not six
for which Mr. Kemble suggests a Cambrian root: and of these some, such as
comb, a valley, belong to parts of England where the British long kept their
ground.]

[Footnote d: Leges Inae, p. 18; Leg. Athelst., p. 71.]

[Footnote e; Leges Inae, c. 24.]

     The great council by which an Anglo-Saxon king was guided in all the main
acts of government bore the appellation of witenagemot, or the assembly of the
wise men.  All their laws express the assent of this council; and there are
instances where grants made without its concurrence have been revoked.  It was
composed of prelates and abbots, of the aldermen of shires, and, as it is
generally expressed, of the noble and wise men of the kingdom. ^f Whether the
lesser thanes, or inferior proprietors of lands, were entitled to a place in
the national council, as they certainly were in the shiregemot, or
county-court, is not easily to be decided.  Many writers have concluded, from
a passage in the History of Ely, that no one, however nobly born, could sit in
the witenagemot, so late at least as the reign of Edward the Confessor, unless
he possessed forty hides of land, or about five thousand acres. ^g But the
passage in question does not unequivocally relate to the witenagemot; and
being vaguely worded by an ignorant monk, who perhaps had never gone beyond
his fens, ought not to be assumed as an incontrovertible testimony.  Certainly
so very high a qualification cannot be supposed to have been requisite in the
kingdoms of the Heptarchy; nor do we find any collateral evidence to confirm
the hypothesis.  If, however, all the body of thanes or freeholders were
admissible to the witenagemot, it is unlikely that the privilege should have
been fully exercised.  Very few, I believe, at present imagine that there was
any representative system in that age; much less that the ceorls or inferior
freemen had the smallest share in the deliberations of the national assembly.
Every argument which a spirit of controversy once pressed into this service
has long since been victoriously refuted. ^h

[Footnote f: Leges Anglo-Saxon.  In Wilkins, passim.]

[Footnote g: Quoniam ille quadraginta hydarum terrae dominium minime
obtineret, licet nobilis esset, inter proceres tunc numerari non potuit. 3
Gale, p. 513.]

[Footnote h: [Note V.]]

     It has been justly remarked by Hume, that, among a peoplewho lived in so
simple a manner as these Anglo-Saxons, the judicial power is always of more
consequence than the legislative.  The liberties of these Anglo-Saxon thanes
were chiefly secured, next to their swords and their free spirits, by the
inestimable right of deciding civil and criminal suits in their own
country-court; an institution which, having survived the conquest, and
contributed in no small degree to fix the liberties of England upon a broad
and popular basis, by limiting the feudal aristocracy, deserves attention in
following the history of the British constitution.

     The division of the kingdom into counties, and of these into hundreds and
decennaries, for the purpose of administering justice, was not peculiar to
England.  In the early laws of France and Lombardy frequent mention is made of
the hundred-court, and now and then of those petty village magistrates who in
England were called tything-men.  It has been usual to ascribe the
establishment of this system among our Saxon ancestors to Alfred, upon the
authority of Ingulfus, a writer contemporary with the conquest.  But neither
the biographer of Alfred, Asserius, nor the existing laws of that prince, bear
testimony to the fact.  With respect indeed to the division of counties, and
their government by aldermen and sheriffs, it is certain that both existed
long before his time; ^i and the utmost that can be supposed is, that he might
in some instances have ascertained an unsettled boundary.  There does not seem
be equal evidence as to the antiquity of the minor divisions.  Hundreds, I
think, are first mentioned in a law of Edgar, and tythings in one of Canute.
^j But as Alfred, it must be remembered, was never master of more than half
the kingdom, the complete distribution of England into these districts cannot,
upon any supposition, be referred to him.

[Footnote i: Counties, as well as the alderman who presided over them, are
mentioned in the laws of Ina, c. 36.

     For the division of counties, which were not always formed in the same
age, nor on the same plan, see Palgrave, i. 116.  We do not know much about
the inland counties in general; those on the coasts are in general larger, and
are mentioned in history.  All we can say is, that they all existed at the
conquest as at present.  The hundred is supposed by Sir H. Ellis, on the
authority of an ancient record, to have consisted of a hundred hides of land,
cultivated and waste, taken together.  Introduction to Domesday, i. 185.  But
this implies equality of size, which is evidently not the case.  A passage in
the Dialogus de Scaccario (p. 31) is conclusive: - Hyda a primitiva
institutione in centum acris constat: hundredus est ex hydarum aliquot
centenariis, sed non determinatis; quidam enim ex pluribus, quidam ex
paucioribus hydis constat.]

[Footnote j: Wilkins, pp. 87, 136.  The former, however, refers to them as an
ancient institution: quaeratur centurae conventus, sicut antea institutum
erat.]

     There is, indeed, a circumstance observable in this division which seems
to indicate that it could not have taken place at one time, nor upon one
system; I mean the extreme inequality of hundreds in different parts of
England.  Whether the name be conceived to refer to the number of free
families, or of landholders, or of petty vills, forming so many associations
of mutual assurance or frankpledge, one can hardly doubt that, when the term
was first applied, a hundred of one or other of these were comprised, at an
average, reckoning, within the district.  But it is impossible to reconcile
the varying size of hundreds to any single hypothesis.  The county of Sussex
contains sixty-five, that of Dorset forty-three; while Yorkshire has only
twenty-six, and Lancashire but six. No difference of population, though the
south of England was undoubtedly far the best peopled, can be conceived to
account for so prodigious a disparity.  I know of no better solution than that
the divisions of the north, properly called wapentakes, ^k were planned upon a
different system, and obtained the denomination of hundreds incorrectly after
the union of all England under a single sovereign.

[Footnote k: Leges Edwardi Confess., c. 33.]

     Assuming, therefore, the name and partition of hundreds to have
originated in the southern counties, it will rather, I think, appear probable
that they contained only an hundred free families, including the ceorls as
well as their landlords.  If we suppose none but the latter to have been
numbered, we should find six thousand thanes in Kent, and six thousand five
hundred in Sussex; a reckoning totally inconsistent with any probable
estimate. ^l But though we have little direct testimony as to the population
of those times, there is one passage which falls in very sufficiently with the
former supposition.  Bede says that the kingdom of the South Saxons,
comprehending Surrey as well as Sussex, contained seven thousand families.
The county of Sussex alone is divided into sixty-five hundreds, which comes at
least close enough to prove that free families, rather than proprietors, were
the subject of that numeration.  And this is the interpretation of Du Cange
and Muratori as to the Centenae and Decaniae of their own ancient laws.

[Footnote l: It would be easy to mention particular hundreds in these counties
so small as to render this supposition quite ridiculous.]

     I cannot but feel some doubt, notwithstanding a passage in the laws
ascribed to Edward the Confessor, ^m whether the tything-man ever possessed
any judicial magistracy over his small district.  He was, more probably,
little different from a petty constable, as is now the case, I believe,
wherever that denomination of office is preserved.  The court of the hundred
was held, as on the continent, by its own centenarius, or hundredman, more
often called alderman, and, in the Norman times, bailiff or constable, but
under the sheriff's writ.  It is, in the language of the law, the sheriff's
tourn and leet.  And in the Anglo-Saxon age it was a court of justice for
suitors within the hundred, though it could not execute its process beyond
that limit.  It also punished small offences, and was intrusted with the "view
of frankpledge," and the maintenance of the great police of mutual surety.  In
some cases, that is, when the hundred was competent to render judgment, it
seems that the county-court could only exercise an appellant jurisdiction for
denial of right in the lower tribunal.  But in course of time the former and
more celebrated court being composed of far more conspicuous judges, and held
before the bishop and the earl, became the real arbiter of important suits;
and the courtleet fell almost entirely into disuse as a civil jurisdiction,
contenting itself with punishing petty offences and keeping up a local police.
^n It was, however, to the county-court that an English freeman chiefly looked
for the maintenance of his civil rights.  In this assembly, held twice in the
year by the bishop and the alderman, ^o or, in his absence, the sheriff, the
oath of allegiance was administered to all freemen, breaches of the peace were
inquired into, crimes were investigated, and claims were determined.  I assign
all these functions to the county-court upon the supposition that no other
subsisted during the Saxon times, and that the separation of the sheriff's
tourn for criminal jurisdiction had not yet taken place; which, however, I
cannot pretend to determine. ^p

[Footnote m: Leges Edwardi Confess. p. 203.  Nothing, as far as I know,
confirms this passage, which hardly tallies with what the genuine Anglo-Saxon
documents contain as to the judicial arrangements of that period.]

[Footnote n: [Note VI.]]

[Footnote o: The alderman was the highest rank after the royal family, to
which he sometimes belonged.  Every county had its alderman; but the name is
not applied in written documents to magistrates of boroughs before the
conquest.  Palgrave, ii. 350.  He thinks, however, that London had aldermen
from time immemorial.  After the conquest the title seems to have become
appropriated to municipal magistrates.]

[Footnote p: This point is obscure; but I do not perceive that the Anglo-Saxon
laws distinguish the civil from the criminal tribunal.]

     A very ancient Saxon instrument, recording a suit in the county-court
under the reign of Canute, has been published by Hickes, and may be deemed
worthy of a literal translation in this place.  "It is made known by this
writing that in the shiregemot (county-court) held at Agelnothes-stane
(Aylston in Herefordshire) in the reign of Canute there sat Athelstan the
bishop, and Ranig the alderman, and Edwin his son, Leofwin Wulfig's son; and
Thurkil the White and Tofig came there on the king's business; and there were
Bryning the sheriff, and Athelweard of Frome, and Leofwin of Frome, and
Goodric of Stoke, and all the thanes of Herefordshire.  Then came to the mote
Edwin son of Enneawne, and sued his mother for some lands, called Weolintun
and Cyrdeslea.  Then the bishop asked who would answer for his mother.  Then
answered Thurkil the White, and said that he would, if he knew the facts,
which he did not.  Then were seen in the mote three thanes, that belonged to
Feligly (Fawley, five miles from Aylston), Leofwin of Frome, Aegelwig the Red,
and Thinsig Staegthman; and they went to her, and inquired what she had to say
about the lands which her son claimed.  She said that she had no land which
belonged to him, and fell into a noble passion against her son, and, calling
for Leofleda her kinswoman, the wife of Thurkil, thus spake to her before
them: 'This is Leofleda my kinswoman, to whom I give my lands, money, clothes,
and whatever I possess after my life:' and this said, she thus spake to the
thanes: 'Behave like thanes, and declare my message to all the good men in the
mote, and tell them to whom I have given my lands and all my possessions, and
nothing to my son;' and bade them be witnesses to this. And thus they did,
rode to the mote, and told all the good men what she had enjoined them.  Then
Thurkil the White addressed the mote, and requested all the thanes to let his
wife have the lands which her kinswoman had given her; and thus they did, and
Thurkil rode to the church of St. Ethelbert, with the leave and witness of all
the people, and had this inserted in a book in the church." ^q

[Footnote q: Hickes, Dissertatio Epistolaris, p. 4, in Thesaurus Antiquitatum
Septentrion, vol. iii.  "Before the Conquest," says Gurdon (on Courts-Baron,
p. 589), "grants were enrolled in the shire-book in public shire-mote, after
proclamation made for any to come in that could claim the lands conveyed; and
this was as irreversible as the modern fine with proclamations, or recovery."
This may be so; but the county-court has at least long ceased to be a court of
record; and one would ask for proof of that assertion.  The book kept in the
church of St. Ethelbert, wherein Thurkil is said to have inserted the
proceedings of the county-court, may or may not have been a public record.]

     It may be presumed from the appeal made to the thanes present at the
county-court, and is confirmed by other ancient authorities, ^r that all of
them, and they alone, to the exclusion of inferior freemen, were the judges of
civil controversies.  The latter indeed were called upon to attend its
meetings, or, in the language of our present law, were suitors to the court,
and it was penal to be absent.  But this was on account of other duties, the
oath of allegiance which they were to take, or the frankpledges into which
they were to enter, not in order to exercise any judicial power; unless we
conceive that the disputes of the ceorls were decided by judges of their own
rank.  It is more important to remark the crude state of legal process and
inquiry which this instrument denotes. Without any regular method of
instituting or conducting causes, the county-court seems to have had nothing
to recommend it but, what indeed is no trifling matter, its security from
corruption and tyranny; and in the practical jurisprudence of our Saxon
ancestors, even at the beginning of the eleventh century, we perceive no
advance of civility and skill from the state of their own savage progenitors
on the banks of the Elbe.  No appeal could be made to the royal tribunal,
unless justice was denied in the county-court. ^s This was the great
constitutional judicature in all questions of civil right.  In another
instrument, published by Hickes, of the age of Ethelred II., the tenant of
lands which were claimed in the king's court refused to submit to the decree
of that tribunal, without a regular trial in the county; which was accordingly
granted. ^t There were, however, royal judges, who, either by way of appeal
from the lower courts, or in excepted cases, formed a paramount judicature;
but how their court was composed under the Anglo-Saxon sovereigns I do not
pretend to assert. ^u

[Footnote r: Id., p. 3.  Leges Henr. Primi., c. 29.]

[Footnote s: Leges Eadgari, p. 77; Canuti, p. 136; Henrici Primi, c. 34. I
quote the latter freely as Anglo-Saxon, though posterior to the conquest;
their spirit being perfectly of the former period.]

[Footnote t: Dissertatio Epistolaris, p. 5.]

[Footnote u: Madox, History of the Exchequer, p. 65, will not admit the
existence of any court analogous to the Curia Regis before the conquest; all
pleas being determined in the county.  There are, however, several instances
of decisions before the king; and in some cases it seems that the witenagemot
had a judicial authority.  Leges Canuti, pp. 135, 136; Hist. Eliensis, p. 469;
Chron. Sax. p. 169.  In the Leges Henr. I., c. 10, the limits of the royal and
local jurisdictions are defined, as to criminal matters, and seem to have been
little changed since the reign of Canute, p. 135 [1818].  [Note VII.]]

     It had been a prevailing opinion that trial by jury may be referred to
the Anglo-Saxon age, and common tradition has ascribed it to the wisdom of
Alfred.  In such a historical deduction of the English government as I have
attempted, an institution so peculiarly characteristic deserves every
attention to its origin; and I shall, therefore, produce the evidence which
has been supposed to bear upon this most eminent part of our judicial system.
The first text of the Saxon laws which may appear to have such a meaning is in
those of Alfred.  "If any one accuse a king's thane of homicide, if he dare to
purge himself (ladian), let him do it along with twelve king's thanes." "If
any one accuse a thane of less rank (laessa maga) than a king's thane, let him
purge himself along with eleven of his equals, and one king's thane." ^v This
law, which Nicholson contends to mean nothing but trial by jury, has been
referred by Hickes to that ancient usage of compurgation, where the accused
sustained his own oath by those of a number of his friends, who pledged their
knowledge, or at least their belief, of his innocence. ^w

[Footnote v: Leges Alfredi, p. 47.]

[Footnote w: Nicholson, Prefatio ad Leges Anglo-Saxon.; Wilkins, p. 10;
Hickes, Dissertatio Epistolaris.]

     In the canons of the Northumbrian clergy we read as follows: "If a king's
thane deny this (the practice of heathen superstitions), let twelve be
appointed for him, and let him take twelve of his kindred (or equals, maga)
and twelve British strangers; and if he fail, then let him pay for his breach
of law twelve half-marcs: If a landholder (or lesser thane) deny the charge,
let as many of his equals and as many strangers be taken as for a royal thane;
and if he fail, let him pay six half-marcs: If a landholder (or lesser thane)
deny the charge, let as many of his equals and as many strangers be taken as
for a royal thane; and if he fail, let him pay six half-marcs: If a ceorl deny
it, let as many of his equals and as many strangers be taken for him as for
the others; and if he fail, let him pay twelve orae for his breach of law." ^x
It is difficult at first sight to imagine that these thirty-six so selected
were merely compurgators, since it seems absurd that the judge should name
indifferent persons, who without inquiry were to make oath of a party's
innocence. Some have therefore conceived that, in this and other instances
where compurgators are mentioned, they were virtually jurors, who, before
attesting the facts, were to inform their consciences by investigating them.
There are, however, passages in the Saxon laws nearly parallel to that just
quoted, which seem incompatible with this interpretation.  Thus, by a law of
Athelstan, if anyone claimed a stray ox as his own, five of his neighbors were
to be assigned, of whom one was to maintain the claimant's oath. ^y Perhaps
the principle of these regulations, and indeed of the whole law of
compurgation, is to be found in that stress laid upon general character which
pervades the Anglo-Saxon jurisprudence.  A man of ill reputation was compelled
to undergo a triple ordeal, in cases where a single one sufficed for persons
of credit; a provision rather inconsistent with the trust in a miraculous
interposition of Providence which was the basis of that superstition.  And the
law of frankpledge proceeded upon the maxim that the best guarantee of every
man's obedience to the government was to be sought in the confidence of his
neighbors.  Hence, while some compurgators were to be chosen by the sheriff,
to avoid partiality and collusion, it was still intended that they should be
residents of the vicinage, witnesses of the defendant's previous life, and
competent to estimate the probability of his exculpatory oath.  For the
British strangers, in the canon quoted above, were certainly the original
natives, more intermingled with their conquerors, probably, in the provinces
north of the Humber than elsewhere, and still denominated strangers, as the
distinction of races was not done away.

[Footnote x: Wilkins, p. 100.]

[Footnote y: Leges Athelstani, p. 58.]