him that was so injured THE highest Offence against Man alone was Treason and the Punishment for this Offence I find set down in the 4 th Law of K. Alfred to this effect viz. That if any one by himself or any other Person should attempt against the King's Life he should lose his Life and Goods or in case he will purge himself he was to do it according to the Valuation of the King's Head But in this the King had no greater a Prerogative than divers other of his Subjects for the same Law doth inform us That it ordained in all Judgments concerning other Men whether Noble or Ignoble whosoever should Conspire against his Lord should lose both his Life and Estate or else pay the Valuation of his Lord's Head I come next to the Coining and Clipping of Money which was not originally such an Offence as was punish'd by Death for the first Law that made it so was that of Ethelred whereby it is left to the King's discretion either to fine or put to Death such Merchants as imported false Money and all Port-Reeves of Towns who should be Accessary to it were made liable to the same but for all this it was not even after the Conquest punishable by Death but amputation of the Right Hand and Privy-Members AS for Murder or killing a Man with Malice prepensed it was by the Preface to King Alfred's Laws punishable by Death And this and the former Law concerning Treason will help us to interpret in what Cases the Wiregilds or Mulcts that we find so frequently mentioned in the Saxon Laws were to be paid for the Life of a Man and particularly that Law of King Athelstan which sets the Rate of these Wiregilds according to the Quality of the Person slain from the King to the Peasant that is when the Party was Killed in some sudden Fray or Quarrel without any Malice forethought THIS I take notice of to obviate the Error of some who suppose that all Murder even of the King himself was redeemable by Money which was not allowed in any Cases but those we account Man-slaughter at this Day and shews the Antiquity of that distinction between Man-slaughter and Murder which is now almost peculiar to England and arose at first from the Proneness of our Nation to Fewds and sudden Quarrels tho the like Custom is also to be found in the Antient Frisian and German Laws if you will take the Pains to consult them But as for Bloodshed Striking Maiming Wounding Dismembring c. they were all of them punishable by Mulcts or Fines as you will see in the Laws of King Alfred and other Places in this Volume I proceed in the next Place to Robbery and Burglary which by the Laws of King Ina were punishable by Death only the Thief was admmitted sometimes to redeem it according to the Estimation of his Head and that I suppose was left to the discretion of the Judg either to deny or allow But for all other less Thefts they were redeemable by Fines And the Laws of Edward the Confessor limited that Punishment of Death to Thefts of twelve Pence in value or above AND Trespasses of a less Nature upon Lands and Goods were to be punished by the Criminal's making Satisfaction to the injured Party and his paying a certain Fine besides to the King which by King Alfred's Law was set at five Shillings and in his Time other Actions were likewise used such as we call Actions upon the Case and the Plaintiff not only recovered Damages for Trespasses done to Possessions and Goods but also Costs for Injuries in Point of Scandal and Defamation in case the Complainant specially declare that he was thereby disabled or injured in his Preferment and made Proof of the same much like to the Forms of our Pleadings now AS for Perjury which I have hitherto omitted tho in strict Method it should have been mentioned before as a Sin against both God and Man the Saxons were utterly Enemies to it and punished it with perpetual discredit of their Testimony and sometimes with Banishment or with grievous Fines to the King and Mulcts to the Judg. For that difference I find observed in those Days between Fines and Mulcts tho the more Antient Times used them for one and the same for I often find pars Muâ—ctae Regi In all these Matters where any Interest was vested in the Crown the King had the Prerogative of Pardon yet always a Recompence was saved to the injured Party besides the Security of the Good-behaviour for Time to come as the case required THESE Mulcts for all these Offences were set down in a Book which was the Rule and Standard of the Judge's Sentence And it is called in the Preface to the Laws of King Edward the Doom or Judgment-Book and Composition was to be made and Satisfaction given according to what was laid in this Judicial or Doom-Book THIS shews that Fines were then set out and appointed by Law and were proportioned not only according to Mens Offences but Abilities of what they were able to pay and were not in those Times left to the Arbitrary Wills and Humours of the Judg to ruin Mens Fortunes and Families and imprison their Persons during Life perhaps only for a small Offence in a rash Word or unmalicious Deed. I confess this Introduction is longer than I first intended it but herein I hope the Reader will excuse me since I have presented him with a true Scheme of the Antient English-Saxon Government and Laws as well Ecclesiastical as Civil relating to the just Prerogatives of the King as also to the true Rights and Liberties of the People and this I have done for two Ends first to inform those of our own Nation as well as Strangers that this Government before the pretended Conquest agreed in the most material parts of it with those of the same Gothick Model all over Europe and that if we do still labour to preserve our Antient Constitution when most of our Neighbours have either lost or given up theirs I think we do deserve Commendation more especially since both Prince and People may have found an equal Interest and Happiness in it AND secondly to shew that neither the Danish nor Norman Invasions called by some Conquests have at all altered it in any of the Substantial parts of our Government or Laws notwithstanding what some Men have so strenuously advanced to the contrary out of what designs they themselves best know AS for what I have here laid down if any thing appears either new or of suspicious Credit I desire to be no farther believed than the Reasons and Authorities I have here produced will justify me and therefore shall leave the Reader to make what Judgment he pleases of it which if it doth not suit with mine I shall not take it amiss since I am sufficiently sensible how much Mens Opinions depend on their present
Edgar was certainly a very Great and Heroick Prince yet questionless that Charter which makes him to have subdued the greatest part of Ireland with the City of Dublin and to be Lord of all the Isles as far as Norway is fictitious and nothing but a piece of Monkish Forgery no Author of that Age making mention of any such thing and instead of a Great Warrior he is usually stiled Edgar the Peaceable for he never made any Foreign Wars that we can learn However such was his mighty Fame that if he did not go himself to Foreigners they came to him out of Saxony Flanders Denmark and other places Though William of Malmesbury observes their coming over did much detriment to the Natives who from the Saxons learned Rudeness from the Flemings Effeminacy and from the Danes Drunkenness the English being before free from those gross Vices and contented themselves to defend their own with a natural Simplicity and not given to admire the Customs and Fashions of other Nations Hereupon the Monk tells us he is deservedly blamed in Story for his too great Indulgence to Strangers This Noble Prince died when he had Reigned about Sixteen Years in the very flower of his Age being scarce Two and thirty years old and with him fell all the Glory of the English Nation scarce any thing henceforth being to be heard of among them but Misery and Disorder He had by Egelfleda sirnamed the Fair the Daughter of Earl Ordmer it 's uncertain whether his Wife or Concubine a Son named Edward who succeeded him By Wilfrida the Nun he had a Daughter named Editha who was also a Nun as hath been already related And by Elfreda the Daughter of Duke Ordgar a Son called Edmund who died five years before his Father and another called Ethelrede who reigned after him but was wholly unlike him in Prudence and Courage I have nothing else to add that is considerable under this year but the death of the Noble Turketule Abbot of Croyland whom from Chancellor to King Edred was at his own desire by him made Abbot He repaired and much enriched that Abby after its being ruined by the Danes and was the first that by adding to the Two Great Bells of that Monastery Six more made the first Tuneable Rings of Bells in England as Ingulph at the end of the account he gives of his Life informs us But before I dismiss this King's Reign it is fit I give you a short account of the chief Laws he made which since neither the time nor place of their enacting are any where mention'd I refer to this place The Preface of these Laws is thus This is the Decree or Law which King Edgar made with the counsel or consent of his Wites or Wisemen for the Honour of God the Confirmation of his Royal Dignity and for the Good of his People The Laws themselves begin with some Ecclesiastical Canons the first of which is concerning the Immunities of the Church and about paying Tythes out of the Lands of the Thanes as well as of those of Ceorles or Countrey-men The Second is concerning payment of Tythes and First fruits as well where a Thane had a Church with a Burying-place as also where he had not The Third appoints the times the Tythes should be paid at and what Remedy was to be had in case they were not paid at the time when they were due The Fourth ordains at what time of the year Peter-pence should be paid and the Penalty that should be incurred by those that should neglect to pay them in accordingly The last ordains every Sunday to be kept holy and to begin at Three a Clock in the Afternoon on Saturday and to end at break of day on Monday upon the penalty appointed by the Judiciary Book From which last Law you may observe how early keeping the Sunday like the Jewish Sabbath began in England Then follow the Secular or Temporal Laws The First of which enjoins that every man poor or rich enjoy the benefit of the Law and have equal Justice done him and for Punishments he would have them so moderated that being accommodated to the Divine Clemency they may be the more tolerable unto men The Second forbids Appeals to the King in Suits except Justice cannot otherwise be obtained And if a man be oppressed he may betake himself to the King for relief and in case a Pecuniary Mulct be inflicted for a fault it must not exceed the value of the man's head The Third imposes a Mulct of an Hundred and twenty Shillings to the King upon a Judge that passes an unjust Sentence against any man except such Judge will take his Oath that he did it not out of any malice but only from Unskilfulness and Mistake in Judgment and in such case he is to be removed from his Place except he can obtain favour of the King longer to retain it and then the Bishop of the Diocess is to send the Mulct imposed upon him to the King's Treasure The Fourth commands That whosoever maliciously shall defame another man whereby he receives any damage either in his Body or Estate so that the defam'd Party can clear himself of those Reports and prove them false then the Defamer's Tongue shall either be cut out or he shall redeem it with the value of his Head The Fifth is to the same effect as in another Law we have formerly cited commanding every one to be present at the Gemote or Assembly of the Hundred and further ordains That the Burghmotes or Assemblies of the great Towns or Cities be held thrice a year and the Shiregemotes or general Meeting of the whole County twice whereat were to be present the Bishop and the Ealdorman the one to teach the people God's Law and the other Man's From whence you may observe the Antiquity of our Charges at our Assizes and Sessions which no doubt do succeed those Discourses which the Ealdorman and Bishop then made to the people upon the subjects above-mentioned The Sixth requires that every man find Sureties for his Good Behaviour and in case any one commit a Crime and fly for it the Sureties should undergo what should be laid upon him If he stole any thing and be taken within a Twelvemonth he should be brought to Justice and then the Sureties should receive back what they had paid on his account Hence we may also take notice not only of the Antiquity of Frank-Pledges which had been long before instituted by King Alfred but also the continuation of this Law by King Edgar from whence it appears that it was no Norman invention introduced to keep under the English Commonalty as some men have without any just cause imagined The Seventh ordains That when any one of evil report is again accused of a Crime and absents himself from the Gemotes or publick Meetings some of the Court shall go where he dwells and take Sureties for his Appearance if they may be had but
Saxon Times I shall proceed in the next place to discourse somewhat of the manner of the disposing of their Goods and Personal Estates which they might do either by Deed or last Will in Writing as at this day But if they happened at any time to die intestate then their Goods were equally divided between the Wife and Children of the Deceased tho by a Law of King Edmund the Relict or Widow was to have half her Husband's Goods yet by the Laws of Edward the Confessor it was declared that in case any one died Intestate then the Children were equally to divide the Goods which I take to be understood with a Salvo of the Wife's Dower or Portion As yet therefore the Ordinaries had nothing to do with the Administration for Goods passed by Descent as well as Lands and upon this Custom the Writ de Rationabili parte Bonorum was grounded at the Common Law as well for the Children as the Wife's Part according as by the Body of the Writ may appear THE antientest Will that Mr. Selden says he hath observed before the Conquest is one of King Edgar's time which Mr. Lambard has given us in his Perambulation of Kent and that is of one Brithric a Gentleman or Thane and his Wife Elswithe wherein they devised both their Lands and Goods and also gave his chief Lord and the Lady his Wife several noble Legacies to prevail with him that his Will might stand good By which it should seem the Lands bequeathed were Feudal Lands held by Knights Service which could not be alienated without the Lord's Consent But Mr. Selden there further takes notice That the Protection or Execution of this Testament as well as the Probate were within the Jurisdiction of the Lord's Court and that especially because divers Lords of Mannors have to this day the Probate of Testaments by Custom continued against that which is otherwise regularly settled in the Church BUT as for Intestates Goods he says The Disposition or Administration of them was in the Saxon times in the chief Lord of him that died in case the Intestate were an immediate Tenant and died at home in Peace But in case he were no Tenant or died in his Lord's Army then it was it seems as other Inheritance under the Jurisdiction of that Temporal Court within whose Territory the Goods were This may be proved out of the Laws of that Time which ordain that upon the Death of an Intestate whom they call CWIALE AWE the Lord is only to have the Heriots due to him which are also appointed by the Laws of the same time that by his the Lord's Advice or Judgment his the Intestate's Goods be divided among his Wife and Children and the next of kin according as to every one of them of right belongs that is according to the nearness of Kindred if no Children or Nephews from them be for it must I suppose be understood that the Succession was such that the Children excluded all their Kindred and of their Kindred the next succeeded according to that in Tacitus of his Germans whose Customs were doubtless mixed with our English-Saxons Haeredes says he successorésque sint cuique liberi nullum Testamentum But it seems Christianity afterwards brought in the free Power of making Testaments amongst them Si liberi non sunt proximus gradus in possessione Fratres Patrui Avunculi BUT this is express'd only in case the Tenant died at home and in Peace for if he died in his Lord's Army both the Heriot was forgiven and the Inheritance both of Goods and Lands was to be divided as it ought which was it seems by the Jurisdiction of the Temporal Court within whose Territory the Death of the Intestate or Goods were for in that case it is not said that the Lord's Judgment was to be used but that the Heirs should divide all or as the words in the Confessor's Law are habeant Haeredes ejus pecuniam terram ejus sine aliqua Diminutione rectè dividant inter se where the Right of the Heir both to Lands and Goods is expresly designed but the Judg that should give it them not mentioned Therefore it seems it remained as other Parts of the Common Law under the Temporal Jurisdiction as by the Civil Law it was under the Praetors Thus far this learned and great Author FROM whence we may make this Note that the Probate of Wills was a Matter of Civil Cognizance before the Conquest and for some time after till the Canon Law being more generally received in England the Bishops Courts took this Power to themselves supposed by Mr. Selden in his 6 th Chapter of his said Treatise to be about the time of Henry the Second WE shall now in the last place go on to the Criminal part of the English-Saxon Laws viz. the manner of Trial Judgment and Execution pass'd and inflicted on Offenders in those Times ALL Trials for Criminal Matters were then either in the Court-Leets the Sheriffs-turn or the County-Courts in which last the greater Offenders were commonly tried and that most antiently by Witnesses and Juries as at this day for we find in the Mirror of Justices that King Alfred commanded one of his Justices to be put to death for passing Sentence upon a Verdict corruptly obtained upon the Votes of the Jurors whereof three of the Twelve were in the Negative And the same King put another of his Justices to death for passing Sentence of Death upon an Ignoramus return'd by the Jury BUT the first Law we read of that defined the Number of Jury-men to be Twelve was that of Aetheldred I. above two hundred Years before the Conquest which says In singulis Centuriis c. in English thus In every Century or Hundred let there be a Court and let Twelve Antient Freemen together with the Lord of the Hundred be sworn that they will not condemn the Innocent nor acquit the Guilty BUT whether there were any such thing as a Grand Jury or Inquest we do not particularly find only we may reasonably conclude there was because in the same Mirror we read that a Justice suffered Death for passing Sentence only upon the Coroner's Record and another Justice had the same Punishment for condemning one without any preceding Appeal or Indictment YET the first time that we find any mention of a Jury by Mens Peers or Equals is in the Agreement between Alfred and Guthrune the Dane in these words in English viz. That if a Lord or a Baron be accused of Homicide he shall be acquitted by twelve Lords but if of inferiour Rank he shall be acquitted by eleven of his Equals and one Lord. BUT in Cases very doubtful and where there was not sufficient Evidence by Witnesses but only strong Presumptions of Guilt in the times after King Alfred Trials by Ordeal came in which Somner in his Glossary says was
be put upon the Head of the Crucifix at Winchester From whose Example as Petrus Pictaviensis relates arose that custom of hanging up the Armour of Great Men in Churches as Offerings made to God by whose assistance they had attained any Honour to themselves or Benefit to their Countrey either by Victory or an Honourable Death I shall conclude his Reign with his Laws which since we have not the time when they were made I have reserved to this place They begin thus This is the Law or Decree which Cnute King of all England Denmark and Norway hath ordained with the Consent of his Wise Men at London as well for the Maintenance of his own Royal Dignity as for the Benefit of his People and were made at Winchester in Mid-winter i.e. at Christmas which you must note was one of the stated times when all the Great Men of the Kingdom both Clergy and Laity used of course to attend upon the King whether he summoned them or not But since these Laws are very long and contain a Repetition and Confirmation of divers Laws formerly made by his Predecessors I shall only here extract some of them and refer the Reader to Mr. Lambard for the rest The first of Civil Concernment commands Justice to be faithfully and indifferently administred both to Poor and Rich and abolishes all unjust Laws The second requires Mercy to be used and that no man be put to death for a small offence The eighth ordains that all people keep the Peace and orders one and the same good Money to be current and no man to refuse it If any one embase the Coin his hands shall be cut off without any Redemption And if a Reeve or Magistrate be accused that it was done by his consent he shall purge himself by a treble Purgation and if he be cast incur the same Punishment with the Offender The twelfth is remarkable since it comprizes all those Forfeitures which the King challenges as due to himself in the Counties of West-Saxony except he please to confer them upon any other viz. the Penalties incurr'd for the breach of the Peace for breaking into a House stopping up a Passage and forsaking a man's Colours If also for any Crime a man be outlaw'd the Restitution of him to his former state belongs to the King He also that possesseth Bocland i. e. Land conveyâ—d by Deed forfeits to the King let his Lord be who he will as also whoever relieves or Harbours a Fugitive The fourteenth Law appoints Mulcts for divers Offences and particulary That if any Judge have out of Hatred or Lucre perverted Justice by the Law of the English he is to pay to the King the value of his Head and also to be removed from his Place or redeem it as the King shall please except he plead that what he did was from Ignorance and then he must confirm this Assertion by Oath And by the Law of the Danes he is to incur the Mulct of the breach of that Law except he can plead Ignorance The Nineteenth renews the former Laws of King Alfred commanding every one of free condition to enter himself into some Hundred or Tything that being in a condition to purge himself he may also be in a capacity to claim from another the value of his Head otherwise none that exceeds twelve years of age in case he receive any wrong shall be capable of enjoying the same privilege with a Freeman and be he a Master of a Family or a Retainer he must be entred into some Hundred or other and must find Pledges or Sureties for his appearance in case he be accused of a Crime Some Great Men says the King if they can do it will protect their Servants giving out sometimes that they are Free other times that they are Slaves but we not enduring any such unjust practises enjoin That every one of twelve years of age shall give Security by Oath that he will neither steal himself nor be accessary to the Theft of any other Thus doth he revive what King Alfred had before ordained That no Freeman should be out of Tything or live at random without this most efficacious Tye of Suretyship and to what was enacted before adds this caution of twelve years beyond which for the Publick Peace and Security none were to live without being admitted and received into some Hundred and Tything The twentieth Law of King Cnute so far indulges a man unblameable and of good Repute who never brake his Oath in the Hundred nor was cast by the Ordeal that his single Purgation shall be accepted But a man of the contrary Reputation shall either be compelled to take his single Oath in three Hundreds or a threefold one according to the custom of that Court or be put to the Ordeal but a single Purgation is to be made with a threefold preparatory Oath By virtue of the fifty fourth Law whosoever conspires against the King or his Lord shall forfeit Life and Fortunes except he purge himself by the threefold Ordeal The sixty first declares breaking down or burning Houses as also Theft manifest Murthers and betraying of ones Lord according to Human Laws to be Crimes for which there is no Bote or Satisfaction to be made by way of Mulct or Compensation Which is alteration of the former Laws by which all these Crimes were redeemable by Money The next wills That Mercy be shewn as much as may be to such as truly and unfeignedly amend their ways And by that which follows the King declares he will put a differrence betwixt Small and Great Rich and Poor Young and Old Infirm and Healthful forasmuch as some men may offend out of a kind of necessity and that a distinction is to be made betwixt a forced and a voluntary act Therefore he promises to succour where there is most need of his help The sixty seventh contains an Act of Grace of the King to his Subjects whereby he relieves such as were formerly oppressed He also enjoins all his Officers that they make provision for his House out of his own Lands and Tillage and that they compel no man to furnish him with any Provisions in this kind upon pain of paying the value of their heads if they impose any Mulct upon Refusers The sixty eighth ordains That in case any man by neglect or sudden Death depart this world intestate his Lord shall take nothing of his Goods except what is due to him as an Herriot but all is to be distributed by his Judgment to the Wife Children and next Kindred justly according to their several Rights The sixty ninth settles the rates of all Herriots to the King ordering that the Herriot of every one be according to his dignity as first That of an Earl eight Horses whereof four with Furniture and four without four Helmets as many Corslets eight Spears and as many Shields four Swords and two hundred Mancuses of Gold That of the King 's chief Thane four
him so kept seal'd up for a year and a day within which time if the Murtherer was found out upon his being delivered to the King's Justice they were to be repaid but in case within that time he could not be discovered then were the Kindred of the Murthered Party to have six of the said Marks and the King the other forty if he had no Kindred his Lord was to receive it and if he had no Lord then his sworn Friend and Companion but if there were none of these then the King should have the whole Sum to himself The sixteenth Article shews us how this way of discovering Murther and punishing the Hundred came to be in use where the Murtherer could not be found viz. That King Cnute when he had gotten England and settled it in Peace and at the request of the English Barons had sent back his Army into Denmark those Barons became Sureties that all the Danes that staid behind with him should in all things enjoy perfect Peace so that in case an Englishman kill'd any of them if he could not clear himself by the Judgment of God that is by Water or Iron meaning the Ordeal Justice was to be executed upon him and in case he ran away Payment was to be made as is aforesaid This Law to prevent the killing of the Normans was likewise continued by King William the Conqueror for in case a man were found slain he was to be taken for a Norman and his Death to be more grievously punished than that of an Englishman unless the Englescherie of him that was killed could be made out before the King's Justices that is that he was an Englishman as Bracton hath particularly shewn us But I shall reserve the speaking further of this Law to the next Volume The seventeenth declares the Office of a King in these words The King who is the Vicegerent of the Supreme King is appointed to this very end That he may Govern and Defend his Earthly Kingdom and the People of the Lord and above all things should reverence his Holy Church and extirpate evil doers out of it which unless he shall do not so much as the Name of a King shall remain to him but he shall utterly lose it as Pope John witnesses Then follows the occasion of this opinion of Pope John's viz. His having given it in answer to the Letter which Pepin and Charles his Son wrote concerning a foolish King of France whether they should still continue him on the Throne or not which being no material part of the Law I omit And then there is somewhat concerning Barons which have Courts and Customs of their own in these words The Archbishops Bishops Earls Barons and all those who have Sac Soc Thol Team and Infangâ—heof shall have their Knights Servants and all other sorts of Dependants under their Friburg that is should either have them forth coming or else should answer for them that if they shall forfeit to any one and a Complaint be made by the Neighbours against them they must bring them forth to have Justice done them in their own Court The eighteenth nineteenth twentieth and one and twentieth are explanations of the Saxon terms in the above-mentioned Law which being explained already in the Introduction I thither refer you The two and twentieth declares all Jews that were in the Kingdom to be under the Protection of the King so that none of them could put himself in the service of any great man without the King's leave for that the Jews and all that are there are the King 's By the three and twentieth King Edward forbad all Usurers to continue in his Kingdom and if any one were convicted that he exacted Usury he should forfeit his Goods and be looked upon as out-law'd After which follows in Mr. Lambard's Copy another Law declaring the King's Power by Virtue of his Royal Dignity to pardon Life and loss of Member but with this Proviso That the Male-factor make satisfaction to such as he hath injured according to his power and besides find Sureties for his good Behaviour which if he did not he was to be banished From whence you may observe That this Prerogative of pardoning in the King was not to extend to the prejudice of the Party injured or his Kindred to whom an Appeal was hereby reserved Concerning which The nineteenth in like manner declares his Royal Prerogative to be such that the King may set at liberty any Captive or Prisoner whenever he comes in any City Borough Castle c. or if he meet him in the way by his mere Word or Command Yet was he that was thus set at liberty bound to make satisfaction to the injured Party But a Murtherer Traytor or one guilty of such like Crimes altho the King should pardon him as to Life and Member according to Law he shall in no wise stay in the Countrey but shall swear that he will depart to the Sea-coast within a stated time set him by the Justice and pass over as soon as he can get opportunity of a Ship and Wind and in case any such prove perjured and shall stay in the Land beyond the time any one that meets them may do Justice upon them i. e. take away their lives From whence you may observe the Antiquity of the Law for abjuring the Realm for such great Offences to which the King's Pardon did not then absolutely extend The rest of this Law which only recites the Penalties for the harbouring or favouring such Malefactors I omit The twenty seventh Article gives leave to harbour a Stranger or Foreigner whom in English they termed Couth or Vncouth that is known or unknown as a Guest for two nights in which space if he transgress he that harboured him shall not be answerable for him but if any one be injured and complaint is made that it was by the Counsel and Advice of him that lodged him he shall with two honest Neighbours by Oath purge himself as to the Advice and Fact or otherwise shall make satisfaction The reason whereof was because after the third night the Law then was such that this stranger was to be looked upon as one of the Family and the Master of it was to answer for him if he transgressed The twenty eighth appoints how Money or Cattel brought into a Town and said by him who brought them that they were found shall be disposed of and who shall have the Custody of them The thirtieth enjoins That those who have the King's Peace either by his Hand or Letters shall take care not to injure others under a double Penalty The thirty first declares the particular Mulcts or Penalties of those who shall violate the King's Peace above-mentioned and especially that of the eight days of his Coronation or of any of the Feasts aforesaid and who should have the Forfeitures arising from thence how much the King and how much the Earl and how much the Dean or the Bishop in whose
a Boat under the Bridge wounded him to death in the lower parts through a hole that it seems he found there But King Harold returning to York had no long time to enjoy his Victory for immediately after the News being brought him that Duke William was landed at Pevensey near Hastings upon Michaelmas day he made all the haste he could to march towards him leaving the Earls Edwin and Morchar behind him with great part of the Forces But since our Annals are very short in the relation of all these Affairs between the Duke and King Harold I shall give you a larger account of it from William of Malmesbury and other Authors who tell us That Duke William with all his Nobility being met in August at St. Walleries a Port-Town in Normandy lay there a long while waiting for a Wind but that continuing contrary for several days the Soldiers at last began thus to murmur in their Camp as it is ordinary for such men when they lye long still and have nothing to do saying among themselves That the man was mad who would go to take away another man's Territories against God's Will which it was plain this was since he had now so long withheld the Wind. This being spread abroad one would have thought it had been enough to have discouraged any one less valiant than the Duke who thereupon consulting with his Chief Officers what was best to be done the wisest of them advised him to bring forth the Body of St. Wallerie to try if by that means they could obtain a fair Wind however perhaps it might put some stop to his Soldiers Discontents What effect the Saint's Body wrought I cannot tell but so much is certain that not long after a fresh Gale offering the Duke immediately set sail for England and his Ship being first got out to Sea casting Anchor lay there till the rest of his Fleet could come up to him who all following the King's Ship which then rid Admiral they in the Afternoon with an easy and gentle Breeze reached Hastings near which the Duke going on Shore his foot by accident slipping he fell down which a Soldier standing by immediately turned into a good Omen saying Sir you have only taken Seisin of that Land of which you will shortly be King As soon as ever his Army had landed he strictly charged them to commit no Outrages nor plunder saying They ought to spare those things which would shortly be their own So the Duke lying still for fifteen days and having strongly fortified his Camp with certain Palisadoes which he had brought over along with him seemed to mind nothing less than War But King Harold precipitated by his own bad Fortune marched against the Duke with but part of his Forces for besides those that had been killed in the late Engagement a great many of his best Soldiers had already deserted him being discontented that they had been denied their share of the Norwegian Plunder yet those Forces which still remained with him he thought sufficient because he heard the Duke was landed but with a small Army so that notwithstanding the strongest and most valiant of his Army were either slain in the late Battel with the Norwegians or else gone from him he yet resolved to fight King Harold being now arrived near Hastings pitched his Camp upon a Hill about Nine Miles from that place and immediately sent out Spies to give him what Account they could of the Number and Forces of the Enemy some of whom being taken within Duke William's Camp though he might have executed them by the Laws of War yet he only commanded them to be led round about it and then having well fed them he ordered them to be sent back to their Lord and being returned King Harold asked them What news they could tell him They hereupon having set forth the generous Behaviour of the Enemies General seriously added That all their Army seemed to be Priests because they had all their Faces with both their Lips close shaven for the English then wore long Beards But the King laughing at their simplicity said He too well knew those they had seen were no Priests but brave Soldiers then Gyrth his youngest Brother being a very young man but of an Understanding and Courage far above his years taking the words out of the King's mouth said thus Sir if you can so far allow the Valour of the Norman Duke I think it is then indiscreet for you to enter the Field against him lest you should be found inferior to him either in Strength or Justice of your Cause for you can no ways deny but that voluntarily or involuntarily you have sworn to him Therefore in my opinion you would do more prudently to withdraw your self from the present Danger and leave to us the Decision of the Day who being free from all Oaths and Promises can with a safe Conscience draw our Swords in defence of our Countrey for it is to be feared that if you your self should engage either your Death or more shameful Flight may ensue whereas if we alone engage with him your Cause will be every where safe for you may either assist us if we should be put to fly or else bury us if we should happen to be slain But the King 's immoderate Pride and Rashness made him deaf to the wholesome Advice of his Brother and he thought it Inglorious and a Dishonour to his past Life to seem afraid of any Danger Therefore being push'd on by his unlucky Fate he hastily sent away the Monk that was newly before come from Duke William to him with these Proposals viz. That either he should quit the Throne or hold it and reign under him or else try the Justice of his Cause by their two single Swords in the sight of both Armies or in case Harold should refuse all these that he was ready to submit it to the Judgment of the Apostolick See I say he hastily sent him away with only this short Answer That he would leave it to God to determine the matter between them So that the Monk being returned with this Answer it added fresh Courage to the Normans whereupon the Generals on both sides immediately drew up their Armies in order to a Battel each according to his Countrey fashion The English had spent the night in drinking and roaring and being thus heated marched early out the next morning against the Enemy The Pikes and Bill-men mingled with a strong Detachment of Targetiers made up the Front and Main Body of the English Army and by their close Order render'd it so impenetrable that nothing but their being outwitted by the Norman Duke could ever have broke it as you will see by and by But King Harold together with his Brethren being all on foot placed themselves near the Royal Standard that by thus being all of them in equal danger with the meanest Soldier no man should so much as think of Flight Whilst in the
there declare their number that they may be ready to produce them to answer any thing that shall be demanded of them in the said Folcmote and if it happen that they bring many strangers on shore that they also certifie this to the King's Officer in that said Assembly that so they may be forth coming Now considering the Times wherein King Alfred lived when there was such flocking of Strangers being Enemies into England this Law was very justly and seasonably made The Thirty First inflicts upon him that shall put a Ceorles's Man that is an ordinary Country-Man without any fault into Bonds viz. A Mulct of Ten Shillings upon him that beats such a one Twenty Shillings if he hang him up a-loft Thirty Shillings if he cut off his Hair to expose him like a Fool Ten Shillings if he shave his Head like a Priest yet bind him not Thirty Shillings and in case he only cut off his Beard Twenty Shillings but if he bind him and shave his Hair like a Priest then Sixty Shillings Which Law was no doubt made to restrain the Tyranny and Insolence of the English Nobility who were wont before that Law too much to domineer over poor Country-Men here called Ceorles-men and therefore it seems highly probable that the Commons of England had then Representatives in the Great Council or else it is not likely the Nobility would ever have lost that Power they then Usurped over them Wherefore I shall leave it to the Indifferent Reader to Consider whether the Common People of England were then such Slaves as some late Writers would fain make them since not only satisfaction was to be made for their Lives but also for the least injury or abuse that might be committed against their Persons The Thirty Fourth Law imposes upon him that shall strike or fight in open Court before the King 's Ealdorman both the value of his own head and such a Fine besides as shall be thought fit and also 120 Shillings to be paid to the Ealdorman by him that by thus drawing his Weapon shall make any disturbance in the Folcmote or County Court if the Ealdorman were not present but the fact was done before his Substitute or the King's Priest then a Were or Amerciament of Thirty Shillings Here by the King's Priest is meant either the King's Chaplain or Bishop I will not determine whether who as we formerly said in those times presided also in the Folcmotes and there dispatched all business relating to the Church The Thirty Fifth ordains What satisfaction shall be made for breach of the Peace in any other place as for Example he that fights in the home-stall of a Country-man shall pay the said Country-man Six Shillings if he drew his Sword but struck not half as much which Penalty also was to be encreased according to the Estate or Quality of him upon whose ground the Assault was made So that if he fought in the House of one worth 600 Shillings he was to pay Three times as much if of one worth 1200 Shillings then the Amends was to be twice as much as the former The Thirty Six Law of Bâ—rhbrice or breach of the Peace in a Town confirms that part of King Ina's Law concerning that matter in imposing upon the Offender for the breach of the Peace in the King's Town or City by setting the Mulct of an Hundred and Twenty Shillings but if it be done in the Arch-Bishop's Town then Ninety Shillings in that of a Bishop or Ealdorman Sixty Shillings in the Town of a Man valued at 1200 Shillings Estate Thirty Shillings but half as much if done in a Village of one worth but half that Sum. From whence we may observe That in those times not only the King and the Great Men such as Bishops and Ealdormen but also Gentlemen of ordinary Estates had Villages or Townships of their own and they themselves received the Mulcts or Penalties imposed for the breach of the Peace within their Precincts which priviledge they lost I suppose after the coming of King William I. The Thirty Seventh is That Law concerning Bocland by vertue whereof he that holds Lands left him by his Ancestors was forbid to alienate it from his Kindred to others in case it could be proved by Writing or Testimony before the King or the Bishop his Kindred being present that the Man who first granted them forbid him all Alienation and laid on him this Condition From the making of this Law Mr. Selden informs us that we may here find an Estate in Fee-Tail much more ancient than the thirteenth Year of Edward the First The 38th Law is concerning Quarrels or deadly Feuds which since it gives a strange Licence for Men to take Satisfaction on their Enemies even without the Presence of any Officer I shall likewise set down First It forbids any Man to attack his Enemy if he find him in his own House except he first demand of him Satisfaction But if he have force enough he may besiege the House for seven days yet he shall not assault him if he will stay within but if he then surrender himself and his Arms into the Defendant's hands he may keep him thirty Days without hurt but then shall leave him so to his Kindred or Friends In case he flie to a Church the Honour of the Church is to be preserved But if the Demandant have not Strength enough to besiege him in his House he may desire the Assistance of the Ealderman which if he cannot obtain he must appeal to the King before he can assault him If any one by chance light upon his Adversary not knowing that he keeps himself at home and he will deliver up his Arms to him he shall keep him safe thirty Days and then deliver him to his Friends But in case he will not deliver up his Arms then he may fight with him but if he be willing to deliver up himself and his Arms to his Enemy and any other Man sets upon him such a Man shall pay the value of his Head if he kills him or give Satisfaction for his Wounds if any be given him according to the Fact besides which he shall be fined and lose all that may fall to him by reason of Kindred From whence you may observe that the nature of that Rough and Martial Age did allow Men a greater Liberty of righting themselves against those that had injured them than was afterwards thought fit to be allowed in more settled and peaceable Times The last of King Alfred's Laws is concerning Wounds and Maims which being very long I shall only give you an Abstract of it It is in short to appoint what Satisfaction in Money any Man shall pay for wounding or maiming another or for cutting off any Member or part of his Body even to the Nail of his little Finger All which was ascertained according to the particular Sums there set down and I shall leave it to wiser Judgments to consider whether
it would not be better if the Law were so at this day since it would not only prevent the too great Favour of Juries in some Cases but also their over-Severity in others by often giving either very small or else excessive Damages according as the Plaintiff or Defendant is more or less known to them or that they have a greater or less Kindness for them There was likewise made in the same Synod divers Ecclesiastical Canons some of which taken from amongst the Civil Ones I shall here likewise set down The first is concerning the Immunities of the Churches by which it is ordained That if a Man guilty of any little Crime flie to a Church which does not belong to the King or the Family of a private Person he shall have three Nights to provide for himself unless in the mean time he can make his Peace But if any Man within that Term shall inflict upon him either Bonds or Blows he shall pay the Price of his Head according to the Custom of the Country and also to the Ministers or Officers of the Church 120 Shillings for violating the Peace thereof The next Law but one is likewise to the same effect whereby is granted to every Church consecrated by the Bishop the like Peace and if any Offender shall flie to it none shall take him thence for seven Days if any Man shall presume to do so he shall be culpable of breaking the King's and Churche's Peace If the Officers shall have need of their Church in the mean time he shall be put into another House which has no more Doors than the Church only the Elder i.e. Presbyter of that Church shall take Care he have no Meat given him But if he will surrender himself and his Arms to his Enemies he shall be kept thirty Nights and then be delivered up to his Kinsmen Also whosoever shall flie to a Church for any Crime which he hath not yet confess'd if he shall there make Confession of it in God's Name half the Penalty shall be remitted to him From whence you may observe the Antiquity and Design of Sanctuaries in England which were not then as they were afterwards abused being at first only intended for Places where Offenders might stay for a time 'till they could agree with their Adversaries or Prosecutors as well as they could since almost all Crimes whatever were redeemable with pecuniary Mulcts in those days The 5th Law is that if one shall steal any thing out of a Church he must restore the value and also forfeit as belongs to an Angild the meaning of which you may see in the next Law The 6th Law is That if any one shall steal on the Sunday or on Christmas or Easter or Ascension-days the Forfeiture should be as belongs to an Angild i. e. the whole value of his Head Also the Hand with which he stole was to be cut off But if he would redeem his Hand it should be permitted him to compound for it according as it should appertain to his Were i. e. the Price of his Head Besides which Laws Alfred Abbot of Rieval in his Geneal Regum Angliae mentions another Law of this King 's whereby every Freeman of the Kingdom having two Hides of Land was obliged to keep his Sons at School 'till they were 15 Years of Age that so they might become Men of Understanding and live happily for said the King in this Law a Man Free-born and unlettered is to be regarded no otherwise than a Beast or a Man void of Understanding The 12th is concerning the Breach of the Peace by Priests If a Priest kill any one he should be taken and all his Estate confiscated and also the Bishop should degrade him and put him out from the Church unless his Lord would obtain his Pardon by the Price of his Head The rest being concerning the Penalties for the Violation of Nuns I omit I have been the more particular in the reciting of these Laws of King Alfred as well Ecclesiastical as Civil that the Reader may see the Penalties that were inflicted upon Offenders in that Age and how different they were from ours But to return to our Annals This Year Beocca the Ealderman carried the Alms of the West-Saxons as well as the King 's to Rome Also Queen Aethelswith who was the Sister of K. Aelfred and Widow of Burhed King of Menia died in her Journey thither whose Body was buried at Pavia And the same Year Aethered Archbishop of Canterbury and Aethelwald the Ealderman deceased in the same Month. About this time also according to Asser King Alfred built two Monasteries the one for Men at Ethelingaie now Athelney that is The Isle of Nobles where he had before lain so concealed and the other for Nuns at Shaftsbury where he made Algiva his own Daughter Abbess endowing them both with great Revenues ' This Year none went to Rome unless two ordinary Messengers whom the King sent with Letters yet nevertheless Florence of Worcester affirms the King Commanded all the Bishops and Religious Men of England to Collect the Alms of the Faithful in order to sen◠them to Rome and Jerusalem And The next Year according to the same Annals Beornhelm Abbot of the West Saxons carried those Alms to Rome and also Goarun or Gythrum King of the Normans i.e. Danes deceased and being God-Son to King Aelfred his Christian Name was Ethelstan this was he who possessed the Country of the East-Angles after the Death of King Edmund Also the same Year the Danes left the River Seine and came to Sand-Laudan which place lyes between the Bretons and the French but the Bretons fighting with them obtained the Victory and drove them into a River where many of them were drown'd This Year also the Annals relate That Plegmond was Elected by God and all his Holy Men to the Arch-Bishoprick of Canterbury thô Florence of Worcester places it and that more rightly under the Year before The Danes again Invaded the Eastern Franckland and Arnulf the Emperour being assisted by the French Saxons and Bavarian Horse fought with the Danish Foot and put them to flight Also Three Scots came now to King Alfred from Ireland in one Boat made of Hides having quitted their Country because they would live the Life of Pilgrims i. e. a Wandring Life for God's sake not being solicitous about any place wherefore they had brought only one Week's Provision with them and after about Seven Days being at Sea landing in Cornwall they were presently brought to King Alfred their Names were Dubslane Macbeth and Maelinmun also Swifneh who was chief Preacher amongst the Irish Scots deceased The same Year after Easter appeared a Comet This Year after Eight Years Intermission the Kingdom became again infested worse than ever by a fresh Invasion of the Danes for their Army above-mentioned being driven by the Emperour Arnwulf out of France marched Westward to Bunnan now Boloign where taking