you to the Laws of King Cnute and those of the Confessor the former of which you will find at the end of his Reign in the ensuing Volume wherein is set down what the Heirs of each of those Feudatary Tenants were to pay to their Lords at the Death of their Ancestors BUT that these could not be near all the Lands of England appears by what hath been already said of Lands held in Allodio And I have known some Learned Antiquaries who have not without good Cause believed that all Tenure by Knight-Service in England was derived from the Danes and Norwegians who upon their Conquests and settling here first brought in that sort of Tenure out of Denmark and Norway from whence the English Saxon Kings might by Degrees impose it upon several Lands by them granted to their Ealdormen or Earls and chief Thanes by Military or Knights Service who likewise granted them to their inferiour Thanes under the like Tenures and yet it would have been very unreasonable that such inferior Thanes should have so far been deprived of their antient English Freedom as that the Earls and King's Thanes should have it in their Power to make what Laws and impose what Taxes they pleased upon them as their under Tenants without their Consent AND if meer Tenure alone could have done this I would fain know why the English Kings before the Conquest by the same reason might not as well have made Laws and taxed their Tenants in Capite without their Consent as these could have done their Tenants that held under them But this is altogether false in Matter of Fact as all the Histories of those Times shew Danegelt it self being first imposed by the Consent of the King and his Wites as appears by the Saxon Annals NOT but that I grant all the Lands of England were then held under those three great Services called in Latin Trinoda Necessitas viz. 1. Expedition that is the finding of Men to defend the Kingdom in case of Invasion 2. The Repair of Bridges and 3. Fortifying of Castles from which even Lands granted to the Church were not exempted as appears by the Charters to several Monasteries But these were Services due and to be performed by the Common Law and Custom of the Kingdom and did not concern one sort of Tenure more than another I have no more to observe concerning this Bocland but that it passed by Deed called by Ingulphus Chirographa until the Confessor's time and was confirmed by the Subscriptions of the Fideles or Subjects there present with golden Crosses and some other holy Marks only this methinks ought not to be passed over that the Ceremony of Livery or Seizin of Lands is very antient as appears by the Charter of Ceadwalla King of the West-Saxons preserved among the Evidences belonging to the Arch-bishop of Canterbury in the Year DCLXXXVII made to Theodore then Arch-bishop of that See of certain Lands with this Subscription Ad cumulum autèm Confirmationis ego Cedwalla Cespitem terrae praedictae supèr sanctum Altare Salvatoris posui propriâ manu pro ignorantia Literarum signum sanctae Crucis expressi subscripsi that is For the farther Confirmation thereof I Ceadwalla have put this said Turf of Earth upon the holy Altar and for want of Learning have with my own Hand made and subscribed the Sign of the holy Cross. The like also hath Camden out of a Patent made by Withered King of Kent to a Nunnery in the Isle of Thanet So much for Bocland CONTRARY to which was that called Folkland which Sir Henry Spelman says was Terra popularis scilicet quae jure communi possidetur vel sine scripto that is Land belonging to the ordinary sort of People which they enjoyed of common Right without any Writings or Deeds as we see in Copy-hold Lands at this day for which the Tenants have seldom any other Evidences than the Copy of the Court-Rolls of the Mannor which Copy-hold Lands were antiently either held by Sockmen that is Free-men holding by the Plow to perform mean and villain Services or else by those who were Villains appendant to the Mannor THESE might be ousted of their small Estates at the Will of the Lord which a Farmer could not be so long as he honestly performed his Services and these were they who after the Conquest were called Tenants in Antient Demesne either of the King or of some other Lord as you will find in the old Natura Breviam OF the like sort also as Dr. Brady very well informs us were Lands and Possessions mentioned by other Names in our Saxon Laws as Gaffolland Rent-Land or Farm-Land Foedus Alured and Guthr c. 2. Gafogyldenhus an House yielding or paying Rent or Gable LL. Inae c. 6. There are also mentioned Inland or the Lords Demesnes which he kept in his own Hands and Neatland which is called Vtland or Outland in Byrthric's Will Terra Villanorum and was let out to Country-men or Villagers Aegder of Thegnes inlandge of Neatland i. e. either of the Lords or Thanes Inland or Demesnes or else the Country-mans Villagers or Villan's Land Gafolland Neatland and Vtland as Mr. Somner truly informs us were opposed to Inland or Demesne-Lands and were Lands granted out for Rent or Service or both and reducible to Folkland and 't is very probable they were the same or of the same Nature for that in the Laws where they are mentioned it appears they were always occupied by Ceorls Churles Country-men Colons or Clowns by Gebures Boors Rustics Plough or Husbandmen or by Neates and Geneates Drudges Villanes or Villagers These three Saxon words being almost of the same Signification tho very different in Sound were always applied to the ordinary sort of People called by us Folk at this day Thus far the Doctor which I will not contradict tho he here makes all Ceorles Men to have been meer Drudges which was not so since those that held Land by Socage-Services were as free as to all things else from the Power of their Lords as our Tenants are at this day BUT I desire by the way that this may not be unobserved that I can no where find the word Colonus used for a Husbandman or Clown in any of our antient Saxon Laws tho Sir Henry Spelman gives us some Examples of the use of it in the German Laws there signifying Liberi Ecclesiastici quos Colonos vocant and the King had also his Coloni but this learned Author supposes that these Coloni answered our Sockmen who were certainly Freemen and not Villains Nor did Villanus signify a Villain but a Country-man or Villager in general till after the Conquest and then it was not from the Latin but French Idiom that a Villain came to signify a Slave or Drudg HAVING now given you what I thought fit to say concerning the several Tenures and ways of Conveyance of Lands in the
Interest Education or Course of Life and I cannot but observe that there are a sort of Men whose Heads seem framed for such a set of Notions rather than others which make them that they cannot easily digest any thing that clashes with them BUT I do not pretend to be infallible or to propose my sense as a Rule and Standard to all others Homo sum nihil humanum à me alienum puto as the Comick Poet hath long since well observed ONE thing indeed I think I may pretend to in this Undertaking and that is Integrity for I look upon it a much viler thing either to falsify or conceal part of an Authority that makes against one and use only so much as shall serve a present Turn that it is to pick a Pocket and as it is of far more dangerous Consequence to the Publick if not found out I must say it is likewise more easily to be discovered since every Man may if he please consult the Authors that such Writers make use of and so detect the Fraud BUT for those who think they may differ from me in some things with good Reason and Authority and will please by their learned Labours to give the World any better Information and Account of these Matters than I have done I shall be so far from being displeased at them that I shall upon full Satisfaction readily own my self very much in their Debt for making the World and me so much the Wiser only I must desire to be treated as one who if I chance to be under any Error am not so wilfully nor as I think without great appearance of Reason and Authority on my side since I call God to witness that neither from a vain Ambition of Glory nor prospect of any Temporal Advantage nor design of gratifying any Party or Faction have I wrote any thing that may disgust Men of different Principles and Notions AND I thank God for this great Blessing to us that we live in a Time when we may not only think or speak but also safely write what we believe to be the Truth to which all Mankind do owe Allegiance and therefore I hope I never shall abuse that invaluable Liberty to the Prejudice of the Government or that excellent constituted Church of which I own my self a Member being fully satisfied that the main End of all our Writings ought to be for the Honour of God and the Common Good of Mankind THE TABLE to the Preface and Introduction A. ACtions on the Case how antient page 126 Adultery its Punishment 125 Aetheling the Title what it was 72 St. Albans his Sufferings most probably a Legend 24 25 26 King Alfred his Preface to Pope Gregory's Pastoral 11. His Testament with Observations upon it 51 52 Allodium Lands hâ—ld in Allodio 118 119 Annals Saxon a brief Account of them and their Translation 10 11 Antient Demesne Tenants therein 121 Antiquity of the Ordeal 124. Of the Distinction between Manslaughter and Murder 126 Arch-bishops of Canterbury and York antiently of equal Dignity and Power 116 Asser Menevensis an Account of him and his Writings 12 13 B. BAro its antient Signification 93 94. When it came first in common use 102 Barones Comitatûs what they were 96 Bede the first English Historian 10 Bishopricks and Abbeys often bestowed by the Election of the great Council of the Kingdom in the Saxon-Times 113 114 Bishops sometimes deprived by the same Councils 115 116 Blasphemy vid. Swearing and Cursing Bocland what it was 118. The same with Lands in Allodio 119 Dr. Brady his Errors concerning the English-Saxon Succession 50 51 c. Britain how divided under the Romans pag. 31 32 Bromton John an Account of the Chronicle that passes under his Name 16 Burglary how punishable 126 Burhwitan or Burhwara who they were 80 C. CAradoc of Lancarvon his Welsh Chronicle 15 Ceorl or Ceorl's Man i. e. Country-man his Privileges 77 Chancellor whence derived and the Antiquity of that Office 73 Clipping and Coining of Money its Punishment 126 Coining of Money a Prerogative of the Crown 67 Colonus its Signification 121 Combat single or Duel 125 Comes Littoris Saxonici who he was 33 Commons present in the great Councils of the Kingdom 88-101 To have been also present there in the Reign of K. William I. 97. Prov'd also to have a Right by Prescription before his time 98 Compurgators who 125 Conquests of the Danes and Normans which were no more than Invasions never altered this Government or Laws in any of its substantial parts 127 Contract or Compact Original between the first English Saxon Kings and their Subjects proved 69 70. and that more antient than the Coronation-Oath 71 72 Coronation of our Kings whence derived 16 Coronation-Oath its Form before the pretended Conquest 58 Costs recovering of Costs and Damages how antient pag. 126 Great Council of the Wites for what ends they were established 41 Great Council or Parliament its Original 86-88 The Persons of whom it consisted 87-102 These Councils often met in the open Air 104. It s Power in making Laws 105-08 Counties their Division more antient than the Reign of K. Alfred 84 The County-Court what 84 Courts of Justice in England how many they were under the Saxon Kings 80 85 Court-Barons their Original 82 Craig Sir Thomas his Objections against the Truth and Antiquity of our English Historians considered 18-23 Crown of England not bequeathable by the Testament of the English-Saxon Kings 51 52 Curia Domini Regis its Signification 85 D. DAnegelt first imposed by Authority of the King and his Wites 120 The Decennary or Tything-Court what 81 Defamation how punishable 126 Degrees of Men that constituted the Common-weal 72-80 Demesnes of the Crown could not be granted away even to pious Vses by the English-Saxon Kings without the Consent of the Great Council 68 Deprivation of English Saxon Kings 68. Of Bishops by the Great Council 115 116 Deputies of Cities and great Towns how antient 95 Disposition of Goods and Personal Estates either by Deed or last Will 121 Doom or Judgment-Book 127 Durham Simeon who he was 15 Dux Britanniae what he was 33 E. EAdmerus his History pag. 14 Ealdorman the Title 73 East-Angles the Succession of their Kings 45 East-Saxon Kings their Succession 43 Ecclesiastical Laws by whom made 108-113 Ecclesiastical Power settled at first under the two Arch-bishops of Canâ—erbury and York 116 Eddi Stephen Author of the Life of Bishop Wilfred with a brief account of him 10 Edward the Confessor the manner of his Election 61 Electus eligerunt their true Signification 55 56 Encomium Emmae 14 English-Saxons vid. Saxons Eorl 74 Ethelwerd sirnamed Quaestor an account of him and his Work 14 F. FEng to Rice the meaning of that Saxon Phrase 55 Feudal Lands what 122 Fideles who they were in the Saxon Government 107 Fidelium multitudo in the Charter of King Ethelwulf what it signified 104 105 Fines and Mulcts their difference set down in a
of their Ancestors do advance even these young Men to the Degree and Honour of being a chief Man FROM hence we may observe that all Nobility among the antient Germans was at first Military as being derived from the Noble and Valiant Acts of their Ancestors in War and thence proceed all the present Ensigns of it videlicet the Shield on which our Coats of Arms are now depicted as also the Helmet and Crest that stand for an Ornament over them for until some Brave and Worthy Act was performed it was not lawful among the Germans for a young Warriour to paint any Device upon his Shield which was only Personal to himself and extended not to his Posterity THE fifth is That Dotem non Vxor Marito sed Vxori Maritus offert viz. THE Husband settles a Dower upon the Wife and not vice versâ the Wife upon the Husband Which shews the Antiquity of Doweâ— among the Germans and English-Saxons and as Mr. Selden upon this Law observes it was called antiently MORGANGHEB among them THE sixth shews that Accisis Crinibus nudatam adulteram coram propinquis expellit domo Maritus ac per omnem vicum verbere agit viz. FOR Adultery the Husband turned the Wife out of his House in the presence of her Relations having first cut off her Hair and being then strip'd whip'd her through the Town BUT the Severity of this Punishment if ever it was in use here was quite abolished by the English-Saxons as you will find from the Laws about it THE seventh is that Haeredes successoresque sui cuique Liberi nullum Testamentum viz. EVERY Man's Heirs and Successors are his Children and no Testament is allowed BUT in this the English-Saxon Law differed much from those of the Germans for it was lawful in England for Men of Quality to dispose of their Land by Will if they pleased provided it were Bocland that is Free-Tenure grantable by Deed as you may find by some Laws in the ensuing Volume otherwise in Lands held in Socage every Man's Sons inherited all alike But this law was changed after the Conquest and no Will could be made of Lands held by Military Service but they descended entirely to the eldest Son which Law continued so low as the Reign of King Henry the 8 th when the Statute was first made which gives the Tenant by Knights Service Power to bequeath his Estate by Will provided there were enough left to perform the Service THE eighth says that Suscipere Inimicitias seu patris seu propinqui quà m amicitias necesse est viz. IT is absolutely necessary to continue the Enmities of a Father or near Kinsman as well as Friendships FROM whence as Mr. Selden well observes arose those Family-Quarrels called in the North of England DEADLY FEUDS which you will also find mentioned in the ensuing Collection of Saxon Laws and which are continued in Scotland even to this Day BUT to proceed with Tacitus he says Nec implacabiles durant Luitur enim etiam homicidium certo Armentorum as Pecorum numero recipÃtque satisfactionem universa Domus viz. THAT they do not remain implacable for the Homicide is recompensed with a certain Number of great and small Cattel and the whole Family thereupon receives Satisfaction THIS Custom continued long not only among the Germans but also English-Saxons The Price of Blood being to be redeemed at a certain Rate according to each Man's Condition which you will hereafter often find in the said Laws to be mentioned under the Title of WIREGILD and in the Laws of King Aethelstan you will meet with the particular Prices of each Man's Head from the Clown even to the King himself the Estimation of whose Life is likewise there set down thô at a much higher Rate as it ought to be than that of other Mens But of this we shall speak more anon THE ninth Law bears that Frumenti modum Dominus aut pecoris aut vestis Colono injungit viz. THE Lord of the Soil prescribes to the Husbandman what quantity of Corn Cattel or Clothes he shall pay him FROM whence we may take notice of the Antiquity of Rent reserved upon Farms which was chiefly in Provision and not in Money as it continued for a long Time after the Conquest here in England and remains so in Scotland even to this Day HAVING thus done with the Laws we shall next descend to the People who practised them The antient Saxons as Adam of Bremen from Einhardus relates were like the Germans divided into these four sorts viz. Noblemen Freemen Slaves that were Manumized and lastly those that continued Slaves But Nithardus speaking of his Time makes them but of three sorts scilicet Ethelings Frilingues and Lazzi that is Noblemen Freemen and Slaves and it was established as a Law among them that none of these should transgress the Bounds of their own Condition by matching with those who were either a Degree above or below them THIS Custom was also long observed in England after the Conquest and gave Original to those Statutes of Mag. Char. and Merton by which the Lord was to lose the Benefit of his Wardship in case he married the Ward to his Disparagement that is To the Daughter of a Villain or a Tradesman in case that the Kindred complained of it BUT before we come to treat of the several Degrees of People abovementioned it is fit we should say something of the Head of the Saxon Common-Weal viz. their King who though he was chosen in all the Kingdoms of the Heptarchy out of the Blood-Royal of Woden their first Leader of this Gothick Colony into Europe as appears by their Pedigree at the end of the Book yet were they at first no better than Generals in War and in time of Peace they had little or no Power as we may see in Bede FOR he speaking of the Province of the Hither i. e. East Frizeland from whence he supposes our Saxon Ancestors to have come and to which the two Hewalds the White and the Black went to preach the Gospel and were there martyr'd for their Pains he hath this remarkable Passage Non enim habent Regem iidem antiqui Saxones sed Satrapas plurimos suae Genti praepositos qui ingruente Belli Articulo mittunt aequalitèr sortes quemcunque sors ostenderit hunc tempore Belli Ducem omnes sequuntur huic obtemperant peracto autèm Bello rursum aequalis potentiae omnes fiunt Satrapae i. e. For the Antient Saxons says he have no King but several Noblemen of their own Nation set over them who on the breaking out of any War cast Lots and on whomsoever the Lot happened to fall all the People during that War follow and obey him as their General but when the War was over and at an end all these Lords again became of equal Power AND it is likewise very observable that neither Bede nor any other German Author who relates the Story of
the valuation of his Life in Aethelstan's Laws THIS Comes is not to be taken in that Sense as if he was a Count or Lord as now understood being only a Comes or Companion in respect of those of his own Rank or Degree and interpreted by Mr. Lambard by Custos-paganus and so seems to have been the chief Man or Captain in a Town or Village and was to head all those he brought with him from thence into the Field and therefore the Penalty was the more severe on him if he ran away lest he should infect others by his bad Example SINCE I have been so large in this Introduction I have chosen but slightly to mention these Dignities and Offices for they having been so learnedly and fully handled by Mr. Selden in his Titles of Honour as also by Dr. Brady in his first Part of the Saxon History and by Dr. Howel in his Discourse of the Polity of the English Saxons I shall refer the Reader to them for his farther Satisfaction and will only speak of two Degrees of Men more of whom it seems being below their Notice they give us but a short Account THE first is that of Ceorle or Countrey-man from whence our word Carle or Churle is derived indeed he could not be possessed of what was called Bockland or Free-land conveyable by Deed but however he was as free as to his Person and Property as the greatest Thane of them all And therefore we find in the Laws of King Alfred divers pecuniary Penalties enacted against those who should commit Adultery with a Country-man's Wife or should endeavour to vitiate the Chastity of his Servant or Slave or should break the Peace by fighting either in his House or Yard And as for his Person by the last of those Laws it is appointed what Satisfaction in Money shall be paid by any who wound or maim him even to Nail of his little Finger And this Law as equally extended to him as to those of the greatest Quality And because the Nobility or Gentry were too apt to abuse these poor Countrymen who were their Tenants and Vassals the thirty first Law of King Alfred ordains what Satisfaction a Man was to make for any ways injuring and misusing a Ceorle's Man by binding him beating him or cutting off his Hair Frolicks I suppose too often then in fashion among some ill-natured domineering Gentlemen which made this merciful and good King provide such a necessary Law for their future Security AND further to prove their Freedom it is likewise enacted in the Laws of King Ina that if a Ceorlesman should refuse going out to War he was to forfeit thirty Shillings which shews that he was such a Man as was to have Weapons of his own for the Defence of himself and Service of his Country Which is also required by the Laws of Edward the Confessor in Title Greve And therefore Dr. Brady is very much out in limiting the Title of Freemen mentioned in King Edward's Laws only to such as were Tenants by Military Service for that Law says no such thing but only that all the Freemen in the whole Kingdom according to their several respective Estates Goods and Possessions and to their Fees and Tenements ought to have Arms and keep them ready for the Defence of the Kingdom c. Where you may observe that all Estates Goods and Possessions of what kind soever do hereby capacitate Men to keep Arms and consequently give them the Title of Freemen and therefore are not limited to Tenants by Knights Service alone As also appears from the Assize of Arms appointed by King Henry the Second THE highest Degree of these Ceorles were those called Liberi Socmanni i. e. Free Socmen so called from Soc which in the Saxon Tongue signifies a Plow Of these we find no mention till the Laws of Edward the Confessor where the Manbote i. e. Satisfaction for a Servant slain is by Danelage i. e. the Danish Law due from a Villane or Villager and a Socman twelve Ores from a Freeman three Marks Not that this Socman here put as distinct from Freeman was really a Slave but only as Freemen were then taken properly for Gentlemen or Freeholders for that these Sockmen were free as to their Persons tho not Lands appears by the old Natura Brevium where it defines a Socman to be such a Tenant who holds of the King or any other Lord Lands and Tenements by Villain or base Services and was privileged in this manner that none could eject him from those Lands and Tenements so long as he could do the Services belonging to the same THIS I have taken notice of because Dr. Brady in his Preface before his Norman History as also indivers other Places of his Works has laboured all he can to make the Condition of the common People of this Kingdom before the Conquest as well as after to have been little better than that of Slavery and seems to repine very often that it is not so still as I could easily shew if I would go about it BUT certainly those could not be Slaves who had Slaves under them and were entrusted with the highest Badg of Freedom not being forced or pressed thereunto viz. a voluntary Service in War which the greatest were alike subject to with these for the Defence and Safety of the Kingdom and which was part of the old Oath of Fidelity that was taken as well before as after his pretended Conquest BUT before I dismiss this Subject I cannot omit taking notice that the Laws or Rules of Gentility were not so strictly observed under the English Saxon as afterwards they were under the Norman Kings for Mr. Seldâ—n hath given us a Law of King Athelstane which he took from an Antient Manuscript in the Library at St. James's in these words Si Villanus excrevisset ut haberet plenariè V. Hidas terrae suae propriae Ecclesiam Coquinam Timpanarium Januam Sedem Sundernotam in Aula Regis deinceps Taini Lege dignus sit Which is also confirmed by Mr. Lambard in his Itinerary of Kent concerning the same Law and is there set down in Saxon which I shall here translate thus That if a Ceorl or a Country-man so thrived that he had fully five Hides of his own Land a Church a Kitchin a Bell-house a Borough-gate with a Seat and any distinct Office in the King's Court then was he thenceforth of equal Honour or Dignity with a Thane Where by the Church the Kitchin the Bell-house the Borough-gate with a Seat c. Mr. Selden understands The State or Fashion of a Lord of that Time in having a Church for his Family and Tenants in keeping a Court for them which may well be meant in the Burhgate setl or Town-gate with a Seat and in keeping a House or Entertainment competent to that Dignity which may be understood in the Cycenan and Belhuis i.e. Kitchin
Horses whereof two with Furniture and two without two Swords four Spears and as many Shields one Helmet one Corslet and fifty Mancuses of Gold The Herriot of an inferior Thane an Horse with Furniture and Arms or amongst the West-Saxons the Sum of Money that is paid called Halfange in Mercia and East-England two Pounds But amongst the Danes the Herriot of a King's Thane who hath free Jurisdiction is four Pounds and if he be nearer to the King his Herriot is two Horses whereof the one with Furniture and the other without a Sword two Spears as many Targets and fifty Mancuses of Gold But the Herriot of a Thane of the lowest condition is two Pounds This word Herriot or as the true Saxon word is written Herëgeate signifies Furniture for War given by the Vassal to his Lord probably at first designed for the driving away Thieves and Robbers which abounded when the Danish or Northern Nations so frequently invaded the Land For though the word Here does in the Saxon Language signify an Army yet it is in our Saxon Authors when without composition generally taken in the worst sense for Invaders and Spoilers A Lawful Army collected by the King for the defence of the Nation being called by the name of Fyrd The seventy first requires Widows to continue in Widowhood for the space of Twelve Months and then permits them to marry If a Woman marry before her Twelve Months be out she shall lose her Dower with all that her Husband left her which is to come in such case to the next of kin and he that marries her shall pay the value of his Head to the King or to whomsoever he assigns it The seventy fifth Law deprives him of Life and Estate who either in an Expedition by Land or Sea deserts his Lord or his Fellow-Soldier and in such case the Lord is to have back the Land he gave him or if it was Bocland it goes to the King But in case any one dye in Fight in the presence of his Lord either at home or abroad his Herriot shall be remitted and his Children shall succeed both to his Goods and Lands and equally divide them The seventy sixth gives him liberty that hath defended his Land and cleared it from all doubts and incumbrances in the Sciregemote or County-Court to possess it quietly whilst he lives and to leave it to whom he pleases when he dies From whence we may observe that before the Conquest men might bequeath their Lands by their Last Will. The seventy seventh gives liberty to every man to hunt in his own Grounds but forbids all men under a Penalty to meddle with the King's Game especially in those places which he had fenced by Privilege By those places thus privileged he means those which afterwards the Normans called Forests being Ground Desart and Woody lying open to the King 's Deer not fenced about with any Hedge or Wall but circumscribed and privileged or as here he words it fenced with certain Bounds Laws and Immunities under Magistrates Judges Officers c. Concerning these Forests the King published certain Constitutions Thirty four in number which you may see at large in Sir Hen. Spelman's Glossary tit Foresta But because he mentions them not in this nor any other of his Laws they seem to have been made afterwards But the Thirtieth Article is therein almost the very same with this Law forbidding all men to meddle with his Game and yet permitting them to hunt in their own Grounds sine Chasea but what that signifies unless it be following their Game out of their own Grounds I will not take upon me to determine King HAROLD sirnamed Harefoot NOT long after the Death of King Cnate our Annals relate That there was a great Witena Gemot or Council of the Wise Men held at Oxnaford where Earl Leofric and almost all the Thanes on the East part of Thames with the Seamen of London chose Harold for King of all England whilst his Brother Hardecnute was in Denmark But Earl Godwin and all the Great Men of the West-Saxons withstood it as much as they could though they were not able to prevail against them Then was it also decreed That Elgiva or Emma the Mother of Hardecnute should reside at Winchester with the Domesâ—ick Servants of the late King and should possess all West-Saxony where Earl Godwin was Governor or Lord Lieutenant It is said also by some concerning this King Harold that he was the Son of King Cnute and of Aelgiva the Daughter of Aelfhelm the Ealdorman but that seems scarce probable to many however he was full or Real King of all England That which gave cause to this suspicion was as Florence of Worcester and Radulph de Diceto relate That this Aelgiva not being able to have Children by King Cnute commanded the Son of a certain Shoomaker then newly born to be brought to her and feigning a formal Lying in to have imposed upon the credulous King her Husband that she was really brought to bed of a Son which if true shews that it is no new or strange thing for a Queen of England to impose a supposititious Birth upon the King her Husband and the whole Nation But this Contention about the Election of Harold gives us great reason to doubt the Truth of the Relation in Simeon of Durham and other Authors of this Harold's being appointed by his Father's Will to succeed in the Kingdom of England such a Nomination or Recommendation seldom or never failing to be observed by the States of the Kingdom without any dispute at the Election of a New King And besides Queen Aemma his Mother who had then the greatest power with King Cnute would sure much rather have had her own Son Hardecnute to have succeeded him in the Kingdom of England than Harold at best supposed to be her Husband's Son by another Woman So that if Harold was now chosen King it is most likely that it was not in pursuance of King Cnute's Will but purely from the prevailing Faction of the Danes and Londoners who as William of Malmesbury tells us were by their long conversation with them become wholly Danish in their Inclinations But if Ingulph may be believed who lived as well before as after the Conquest there was then so great a Dispute about the Election of a King that many fearing a Civil War would ensue it caused multitudes of people to quit their Habitations and betake themselves into Waterish and Fenny Places where they thought the Enemy could not or would no easily pursue them and particularly to the Monastery of Croyland where they caused such a disturbance that the Monks of that place could neither meet in the Church nor in the Refectory When at last to avoid the Effusion of Christian Blood it was agreed at the aforesaid Council at Oxnaford That the Kingdom should be divided between the two Brothers Harold and Hardecnute so that the former should have all the Countries
well as on the Holidays themselves as also in Parishes when the Feast of the Saint to whom the Church is dedicated is kept so that if any one come devoutly to the Celebration thereof he was to have security in going staying and returning home and besides in many other cases too long here to set down From whence we may observe the Antiquity of those Parish Feasts called in several parts of England Wakes The fourth appoints That where ever the King's Justice or any other Person shall hold Civil Pleas if the King's Deputy or Attorney comes thither to open any Cause concerning Holy Church that shall be first determined for it is just God be served before all others The fifth ordains That whosoever holds any thing of the Church or hath his Mansion on the Church's Land he or they shall not be compell'd to plead out of the Ecclesiastical Courts for Contumacy or otherwise nay though he forfeit unless Justice be wanting in those Courts which says the Law God forbid By which all the Tenants of the Church were exempted from pleading or appearing at the King's Courts which though a strange and unreasonable Privilege yet it seems it continued in the time of William the First The sixth confirms the Laws of Sanctuaries ordaining That no man shall be taken out of any Church to which he hath fled for any offence unless it be by the Bishop or his Officers The like Privilege is also allowed to the Priest's House provided it stand upon the Ground of the Church but if a Thief went out of the Sanctuary to rob he was to forfeit that Privilege The seventh leaves those to the Justice of the Bishop who violate the Peace of Holy Church and if any Offender shall despise his Sentence either by flying or contemning it and Complaint thereof be made to the King after forty days he shall give Pledges to reconcile himself to God the King and the Church and if he cannot be found he shall be outlaw'd and if then he be found and can be laid hold on he shall be delivered up to the King if he defends himself he shall be slain For from the day of his Outlawry he is said in English to have Wulfsheofod i.e. a Wolfs-head or as we now commonly say in Latin gerere Caput Lupinum This is the common Law of all Outlaws The eighth and ninth appoint what things small Tythes should be paid out of and recites that they had been granted long before a Rege Baronibus Popâ—lo that is by the King the Barons and the People And though the word Barons was not commonly used till the time of King William the First when these Laws were drawn up in the form we now have them upon an Inquisition granted to the Ancient and Wise Men of all the Counties in England as Rog. Hoveden informs us yet is this but a Recital of the Ancient Law of Tythes in the Dialect of those times when the word Baron came to be used instead of Thane The tenth appoints after what manner the Ordeal or Judgment by Fire or Water should be executed by the Bishop's Officer and the King's Justice upon those that deserved it From which you may observe that this Law of Ordeal was in force some time after the coming in of the Normans This Law also ordains in what Cases and over what Persons the Courts Baron should have Jurisdiction but it being somewhat large I refer you to it The Eleventh again reinforces the payment of Romescot or Peter-pence which iâ— denied the King's Justice shall compel the payment because it is the King 's Alms. From whence we may observe how much those Romish Writers are mistaken who will needs make these Peter-pence to have been a Tribute from the Kings of England to the Pope The twelfth shews what Danegelt was and on what occasion it was first imposed That the payment of Danegelt was first ordained because of the frequent Invasions of the Danish Pyrates to repress which there was Twelvepence imposed upon every Hide of Land throughout England to be paid yearly Which also shews us about what time these Laws were collected into the form we now have them by this Clause viz. That the Church was excused from this payment until the time of William Rufus who as is here recited asking an Aid of his Barons for the obtaining Normandy from his Brother then going to Jerusalem there was granted to him not by any standing Law but only for the present necessity Four Shillings upon every Hide of Land the Church not excepted The thirteenth sets forth That the Peace of the King is manifold as sometimes it is given by his own hand which the English call Cyninges honde sealde gryth This Protection was granted not only to Persons but Places also by way of Privilege as likewise to Churches or Churhmen within their own Walls as appears by the League betwixt King Edward and Guthrum in which it is termed Cyninges honde gryth Another sort of Peace was on the Coronation-day which lasted eight days that at Christmass which held also eight days and so on the Feast of Easter and Whitsuntide Another sort was given by his Brief or Letters and another there was belonging to the Four great Highways viz. Watlingstreet Foss Hickenildstreet and Ermingstreet whereof two are extended to the Length and two to the Breadth of the Kingdom Another still there was belonging to the Rivers of Note which conveyed Provisions to Towns and Cities From whence it appears that this Peace of the King was a Priâ—ilege or Exemption granted to Persons not to be sued or answer at Law in any Action â—rought against them during certain solemn and stated Times and in certain of the most famous and frequented Highways of the Kingdom The fourteenth declares That all Treasure prove should be the King 's unless it were found in a Church or Church-yard in which case if it were Gold it was all the King 's but if Silver one half was to go to him and another to the Church The fifteenth treateth of Murther and declares if any one was murthered the Murtherer should be enquired after in the Village or Town where the Body was found and if he was discovered to be delivered up to the King's Justice within eight days after the Fact committed and in case he could not be found a month and a day was allowed for search after him within which term if he could not be seiz'd on forty six Marks were to be collected out of that Town and if it was not able to pay so much then the Hundred was liable to make it good And forasmuch as this Payment could not be made in the Towns and great inconveniences arose the Barons i.e. the Freeholders of the County took care that six and forty Marks should be paid out of the Hundred which being seal'd up with the Seal of some one Baron of the County they were to be sent to the Treasurer and by
Civil Matters the words of this last King's Law run thus Ex omni Comitatu bis quotannis conventus agitor cui quidem illius Dioecesis Episcopus Senator intersunto quorum Alter Jura Divina humana alter populum edoceto IN every County let there be twice a Year an Assembly of the People whereat the Bishop of the Diocess and the Earl shall be present the one to direct in Divine the other in humane Matters WHICH so continued the Bishop and Earl sitting therein together until King William the Conqueror in a full Convention of his Arch-bishops Bishops Abbots and Temporal Lords commanded that Ecclesiastical Matters should thenceforth be handled by the Bishops in Courts of their own and not any more be discust amongst Secular Affairs IN this Court as well as in that of the Country according to the Laws of King Henry I. these Persons following were to be present as may appear by this Clause Intersint autèm Episcopi Comites Vicedomini Vicarii Centenarii Aldermanni Preafecti Praepositi Barones Vavassores Tungrevii caeteri terrarum Domini diligentèr intendentes nè malorum Impunitas aut Gravionum pravitas vel Judicum subversio solita miseros laceratione confiniant AGANTVR itâque primò debita verae Christianitatis Jura secundò Regis placita postremò Causae singulorum dignis satisfactionis expleantur Scil. Ecclesiastical Causes and Pleas of the Crown in the Turn but Private Causes in the County Court Vid. Coke 's 4 th Instit. 259 260. where you will find that THE Tourn is a Court of Record holden before the Sheriff the Antient Institution thereof was before Magna Charta to hear and determine all Felonies Death of Man excepted and Common Nusances See the Stat. Mag. Chart. c. 17. and the Exposition of the same in the 2 d. Instit. THE Stile of this Court is Curia Visus Franc. Domini Regis apud B. coram Vicecomite in Turno suo c. ibid. THE reason of which is because in this Court the Pledges or Sureties of every Decennary or Tithing were entred before the Court Leets were taken out of it and granted to particular Lords of Mannors which Sir H. Spelman in his Glossary supposes to have been done in the Reign of King Alfred but since I find nothing concerning these Court Leets till after the Conquest I shall defer the farther treating of them to that time I have no more to say of this Court but that it was also called the Folcmote and in which by Edward the Confessor's Laws all Freemen were to take the Oath of Allegiance or Fidelity to the King as appears by the Law it self Omnes Proceres Regni milites Liberi Homines totius Regni BRITANNIAE facere debent Fidelitatem Domino Regi in Pleno FOLCMOTO corà m Episcopis Regni c. YOU will likewise find in the same Law just preceding this an extraordinary Assembly of this Folcmote upon any sudden Danger which met on ringing of the Bells called in English Motbel and there they were to consult how to prevent the Danger THE second of these Courts was called the County-Court and was also very Antient and to be held once every Month by the Shireeve as from K. Edward the Elder 's Laws appeareth Praepositus quÃsque ad quartam circitèr quamque septimanam frequentem populi concionem celebrato cuÃque jus dicito aequabile Litesque singulas cum dies condicti advenerint dirimito EVERY Shireeve shall convene the People once a Month and do equal Right to all putting an end to Controversies at Times appointed TO this Court were antienly Appeals made from the Hundred-Court as appears by the Laws of Canutus Et nemo namium capiat in Comitatu vel extra Comitatum priusquam ter in Hundredo suo rectum sibi perquisierit si tertia vice rectum non habeat eat quarta vice ad Conventum totius Comitatus quod Anglicè dicitur Scyremot c. No Man by a Distress shall compel another to the County-Court unless he have thrice complained in the Hundred-Court But if he have not Right the third Time he may then sue in the County-Court which is called the Scyregemot AND besides says Sir William Dugdale Regis placita Causa singulorum debita verae Christianitatis jura were first determined here where interesse debent Commissarii Episcopi Comites Ecclesiae potestates and the Presbyter Ecclesiae as well as quatuor de Melioribus villae were obliged to attendance qui Dei Leges as well as Seculi negotia justâ consideratione definirent AND a little after he further proceeds thus Now let us see of what things the Sheriff here antienly held Plea Ad Vicecomites pertinent ista saith Glanvile Placitum de Recto de liberis Tenementis per Breve Domini Regis ubi Curia Dominorum probatur de Recto defecisse Placitum de Nativis sed per Breve Domini Regis ID est It belongeth to the Shireeve to hold Plea in this Court upon a Writ of Right concerning Freehold in Cases where the Lord of the Mannor wherein the Land lieth hath not done Justice as also to hold Plea concerning Bondmen but by the King 's Writ I shall say no more of this Court but refer the Reader to the said Book from whence I have taken most of those things I have here given you concerning all these Courts wherein he may find at large how great the Power of this Court was not only before but after the Conquest And I have also reserved the treating of these two Courts by themselves because tho the 3 former are supposed by some to be of K. Alfred's Erection upon his new Reformation of the Kingdom but these two were not so for notwithstanding Ingulf tells us that this King Alfred first divided the Provinces of England into Counties yet we find Mr. Selden Learnedly makes it out That Alfred was not the first that divided the Kingdom into Shires or Counties for saith he before Alfred's Time those Provinces had their Ealdormen in them Thus we read of Ethelwolfus Barocensis Pagae Comes and Ceorle Domnaniae Comes and Eanulf Somersetensis Pagae Comes for the Earldoms of Barkshire Devonshire and Somersetshire under King Ethelwolf Father to King Alfred are remembred in Asserius Menevensis that lived in King Alfred's Time Two of them are also in Ethelwerd a Writer of the Saxon Times besides Osric Dorsetum Dux for Eolderman of Dorset Eâ—lchere or Alchere was at the same Time Ealdorman of Kent and Auda or Wuda of Surrey as we have it in Hoveden Huntingdon and in that Asserius also And Ingulphus hath the Charter of King Ethelbald's Foundation of Crowland whereunto the Comites of Leicester and of Lincoln both subscribe TO which I may also add divers Examples that you will meet with of the same kind in the following History out of the Saxon Annals HAVING thus dispatched these inferior
Great Lords or Senators then presently he is with the Doctor a trifling old Monk very little curious in observing the Constituent Parts or Members of our Saxon Great Councils HAVING thus shewn some of Dr. Brady's erroneous and inconsiderate Glosses concerning the English-Saxon Nobility before the Conquest which he vainly supposes to have been the same as it is at this day I shall now endeavour to settle some truer Notions relating to those Great Councils which as to the Lay-Members besides the Ealdormen above-mentioned I conceive consisted of the whole Body of Thanes or Free-holders who were then all Gentlemen either by Birth or Estates for I have already proved from the Laws of King Athelstan that a meer Ceorl's Man if he had purchased five Hides of Thane Land did thereby become equal in all respects to a Thane NOW if the word Thane before the Conquest signified the same with the word Baro which came into common use after that time as Sir Henry Spelman and Mr. Selden both grant it did and Mr. Camden in his Introduction to his first Edition of his Britannia in 4 o is yet more express as to this word Baro as you may see by this remarkable Passage Verùm Baro ex illis nominibus videatur quae tempus paulatìm meliora molliora reddidit nam longò post tempore non milites sed qui LIBERI erant DOMINI Thani Saxonibus dicebantur Barones vocari coeperunt nec dum magni honoris erant paulò autem posteà viz. some time after the Conquest eò honoris pervenit ut nomine Baronagii Angliae omnes quodammodo Regni Ordines continuerentur tho it must be confest that Mr. Camden because he found this Passage had given some Offence to the higher Nobility he in his next Edition in Folio restrained it by adding the word Superiores before Ordines as if none but the higher Barons might be thought to have once made part of the Baronage of the Kingdom And likewise Sir Henry Spelman in his Glossary under the Title of Barones Comitatus i. e. the Barons of Counties who are frequently mentioned in the Laws of our first Norman Kings has this remarkable Passage and he being so great a Man I shall not offer to abridg it HOC Nomine scilicet Barones Comitatus saith he contineri videtur Antiquis paginis omnis Baronum feodalium species in uno quovis Comitatu degentium Proceres nempè Maneriorum Domini nec non liberè quique Tenentes hoc est fundorum proprietarii Anglicè FREEHOLDERS Notandum autèm est liberè hos Tenentes nec tà m exiles olìm fuisse nec tà m Vulgares ut hodiè deprehenduntur nam Villas Dominia in minutas haereditates nondùm distrahebant Nobiles sed ut vidimus in Hiberniâ penès se retinentes agros per precarios excolebant adscriptitios Vid. LL. Edw. Confess cap. 15. Quod per Hundredum colligerentur 46 Marcae Sigillo alicujus Baronum Comitatus sigillarentur ad Thesaurum Regis deportarentur In Domesd. habiti sun◠Barones Comitatus Magnates Nobiles qui in Curiis praesunt Comitatuum hoc est ipsarum Curiarum Judices quos Hen. 1. LL. suarum cap. 30. esse liberè Tenentes Comitatûs demonstrat Regis inquit Judices sunt Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Which I shall give you thus in English Under this Title of Barones Comitatus seems to be contained in our antient Writers all sorts of Feudal Barons dwelling in any one County viz. the chief Men and Lords of Mannors as also all free Tenants that is Proprietors of Lands in English FREE-HOLDERS And it is also to be considered that these free Tenants were not antiently so mean and pitiful as they are accounted at this day For Gentlemen had not as yet parcell'd out their Townships and Lordships into small Estates but as we see in Ireland keeping them themselves by their hired Servants and Villains husbanded their own Lands In the Laws of Edward the Confessor cap. 15. it is appointed that 46 Marks should be collected out of the Hundred and sealed up with the Seal of one of the Barons of the County and be lodged in the King's Treasury In Dooms-day Book those Noblemen and Gentlemen are called Barons of the County who presided in County-Courts that is who were Judges of those Courts whom Hen. 1. in the 30 th Chapter of his Laws shews to be the free Tenants of the County The King's Judges says he are the Barons of the County who have Freehold Lands in them by whom the Causes of each of them ought to be tried and adjudged in their respective turns AND there also immediately follows in the same Law of Henry the First another Clause whereby Villains and all such mean and beggarly Fellows called there Cocsetti or Perdingi are not to be reckoned amongst the Judges of the Laws for they neither in the Hundred nor in the County forfeit their own Money nor that of their Masters THIS I think is sufficient to prove that all such base and indigent People such as Dr. Brady calls Tag Rag and Bobtaile were excluded from having any thing to do in these inferior Courts and if so then much more to be sure were they shut out of the most August Assembly of the Kingdom the Wittena-Gemot Mycel-Synoth or what we now call the Parliament AND this I have brought to shew that I do as much disown the Thoughts of introducing any Degrees or Orders of Men less than those of Quality or Estates into the Great Councils of those Times as the Doctor himself does BUT in the first part of his Compleat History he asserts that not only the King's Thanes but also all the Middle and Lesser Thanes were both after as well as before the Conquest Military Men who held their Lands by Military or Knight's Service which he would prove from the Heregeat or Heriots that by the Laws of King Cnute were to be paid to their Lords by their Heirs in Horses and Money and certain Arms. Well let this for once be admitted but I would then have the Doctor never to urge Military or Knight-Service as a Badg of the Norman Conquest any more and in the next Treatise which he shall please to publish I would desire him to make it out that none but the King's Thanes who were all one with his Tenants in Capite after the Conquest had any Place in the Great Council of the Kingdom for without this he does nothing yet thus much I must say for him that in the beginning of his Answer to Mr. Petyt he seems to be somewhat more good-natured making the Saxon Wittena Gemotes more large and diffusive for in them he owns were Arch-Bishops Bishops Masse-Thegnes or Dignified and Great Clergy-Men Aldermen or Comites King's Gereves or Praepositi King 's Thegnes Thanes or Ministers his Counsellors
Westmoreland I suppose they are omitted in this Catalogue because in the Times not long before the Conquest the first was under the Power of the Scots and consequently under their Laws as the two latter were under that of their own Earls who ruled those Counties as Feudatary Princes under the Kings of England tho thus much is certain that the Danish Laws took Place there as well as in Yorkshire BUT after King Edward the Confessor came to the Crown he reduced the whole Kingdom under one General for thus says Ranulph Higden as he is cited by Sir Henry Spelman in his Glossary Tit. Lex Ex tribus his Legibus Sanctus Edwardus unam Legem Communem edidit quas Leges Sancti Edwardi usque hodie vocant Brompton says the like Iste Supradictus Rex Sanct. Ed. Conf. dictus est Edwardus Tertius qui Leges Communes Anglorum Genti tempore suo ordinavit quia proantè Leges nimìs partiales editae fuerant But Roger Hoveden carries them up higher in his History of Henry the Second for he says Quod istae Leges primùm inventae institutae erant tempore Edgari Avi sui sed postquam Edwardus venit ad Regnum Consilio Baronum Angliae Legem per 48. Annos sopitâ—m excitavit excitatam reparavit reparatam decoravit decoratam confirmavit confirmata verò vocata est Lex Edwardi Regis non quià ipse invenisset eam prius sed cum praetermissa fuerat Oblivioni penitùs data è Diebus Avi sui Edgari qui primus Inventor ejus fuisse dicitur usque ad sua tempora quià justa honesta erant è profundo Abysso extraxit eam revocavit ut suam observandam tradidit But the true Reason why it is called the Common Law is because it is the Common or Municipal Law of this Kingdom so that Lex Communis or Jus Patriae is all one with Lex Patriae or Jus Patrium and it is also called the Common Law in other Countries as Lex Communis Norica Burgundica Lombardica c. And from this latter they were so called by William the First in his Confirmation of them HAVING now given you the Original of our Laws in General we will next proceed to shew you what they were in particular as far as they concern those two great Branches of all Municipal Laws viz. the Civil or the Criminal The former oâ— which concerns Lands and Goods and the latter the Nature and Punishments of Criminal Offences TO begin with the former as far as it concerns Lands I shall satisfy my self with what Dr. Brady hath with great Industry and Exactness extracted in the first part of his Compleat History of England out of those Learned Authors you will find there cited in the Margin which is as follows Mr. Somner says there were but two sorts of Tenures here in the Saxon times before the Conquest Bocland and Folkland to which two all other sorts of Land might be reduced Bocland as Lambard says was Free and Hereditary and was a Possession by Writing the other without That by Writing was possessed by the Free or Nobler sort that without called Folkland was holden by paying Annual Rent or performance of Services and was possessed by the Rural People Rusticks Colons or Clowns in those Times these Writings were called in Latin Libelli Terrarum Landboc's and Telligraphia and Livery and Seizin was then made and given by delivery of a Turf taken from the Land with the Writings This was called Terra Testamentalis hereditaria Land Inheritable and devisable by Will unless the first Purchaser or Acquirer by Writing or Witness had prohibited it and then it could not be sold or disposed of from the nearest Kindred This Bocland was of the same Nature with Allodium in Doomsday holden without any Paiments nor chargeable with Services to any Lord or Seignory and though the Name was almost quite lost yet the thing remained under the Name of Allodium and the Lands possessed by the Allodiarii frequently mentioned in Doomsday I have been the more exact in putting down this Passage because it plainly proves from the learned Doctor 's own shewing that if the greatest part of the Lands before the Conquest held by Men of any Quality were Bocland and that this Bocland was the same as he grants with Lands held in Allodio and I have already proved that such Lands were held without any Paiments or Services other than such publick Taxes as were imposed by the Great Council of the Kingdom that is Danegelt with such other Duties as all Lands whatsoever were liable to then is it also as evident that these Lands which were far the greatest part of the Lands in the Kingdom were not held by Knight's Service and consequently their Owners could not be Tenants in Capite as this Author is pleased in other Places to suppose and therefore these Tenants in Allodio could never be so represented by such Military Persons as that they alone could either make Laws for them or lay Taxes on their Estates without their Consents either by themselves or Representatives in the Great Councils or Parliaments of those Times and therefore such free Tenants must have either appeared for themselves in Person or have chosen others to represent them AND if any Man doubt whether these Lands held in Allodio were before the Conquest the greatest part of the Lands of the Kingdom I must refer them for their Satisfaction to Mr. Somners and Mr. Taylor 's Treatises upon Gavelkind as also to Mr. Lambard's Discourse of the Customs of Kent at the end of his Perambulation of that County who there fully prove that the Antient Bocland descending to all the Male Issue alike was not meer Socage Tenure but Allodial 2 dly That this was the general Tenure of all Lands not held by Knights Service before the Conquest as well Gavelkind as others and that not only at the Common Law but confirmed by divers Saxon Kings as by that Law of King Edmund Si quis intestatus obierit Liberi ejus haereditatem aequalitèr dividant So likewise by the 68 th and 75 th Laws of King Cnute as also by those of Edward the Confessor confirmed by William the Conqueror Cap. 36. And therefore Mr. Somner in his said Treatise of Gavelkind farther proves that this was a Liberty left to the Kentish Men by William the Conqueror when all the rest of England changed its Antient Tenure and Mr. Taylor in his History of Gavelkind Chap. 6 7 8. hath proved this to have been a general Custom not only in Kent but in Wales and several parts of England I shall not any further pursue what the Doctor has said of Lands holden by Military Service before the Conquest or of the Herriots or Reliefs that were due upon them which were payable out of the Feudal Lands of the Ealdormen middle and less Thanes but shall refer
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
Records that are now lost may be credited this King condemn'd no less than Fourty four inferior Judges in Hundred and County Courts to be hanged in one Year for their false Judgments either in condemning or acquitting Men without the Verdict of the Jury but the particular Cases being many and long I refer you to the Authour himself wherein you will see the Difference between the manner of Judicial Proceedings in those Times from what they were presently after the Norman Conquest But some of our Historians as particularly Harding in his Chronicle made this King to have collected a Body of Laws not only out of the Old and New Testament but also from the Greek Roman British and Danish Laws which if it were ever done is not now extant Having thus finished the Life of King Alfred I cannot but take Notice of his last Will and Testament the only one we have left of all the English-Saxon Kings wherein at the very beginning he styles himself By the Divine Grace King of the West-Saxons with the Means and Assistance of Athelred the Archbishop as also with the Assent and Consent of the Nobility of all West-Saxony whom he there summons as Witnesses of this his last Will and to be Trustees and Overseers of his Goods and Estate for the good of his Soul as well of the Inheritance which GOD and the chief Men together with the Ealdormen of the People had affectionately and bountifully bestowed upon him as also of the Inheritance which his Father Aethelwulf had bequeathed to him and his three Brothers viz. Aethelbald Aethered and himself so as that the Survivor of them should enjoy the entire Dominion of the whole Kingdom And then proceeds to shew the particular force of that Entail according to his said Father's Will in these Words as he gives it us speaking in the first Person That if it should happen That Aethelbald the eldest Son of our Father should first decease then Aethered together with the Nobility of all West-Saxony should be Witnesses for us of our Share in the said Kingdom on the Day of his Coronation whom we should with all our Might endeavour to advance to the Throne after the Death of Aethelbald our eldest Brother according to the Agreement he made with us viz. That the said King Aethered should permit us to enjoy our Distributions as we had them before our said Brother's Coronation And also the Engagement he stood in to us concerning the said Hereditary Distribution was confirmed in like manner to wit that the Lands and Territories which K. Aethered by our Assistance and the Power of our Men should acquire to himself as also the Dominions which should fall to him by Hereditary Right he should in Brotherly Love proportionably divide with us But yet if it should so happen that Aethered should succeed to the Kingdom he himself was to promise the same thing But he refusing as this Testament particularly takes notice to observe this Agreement only promised That as for the Lands and Territories which he by Alfred's and his People's Assistance should acquire to his Dominions as also the Inheritance to which he was born he would after his decease confer upon none else but my self And being thus pacified I thereupon remitted all further Complaints against my Brother Then he proceeds farther That in case it should happen that we all should fall by the hands of our Danish Enemies then it was especially provided that every one of us should so dispose of our Estates to our Sons that each of them should successively enjoy our Inheritance and our Lands and Possessions in like manner as the Inheritance it self with the Dominions Lands and Possessions which had been before conferred upon us And then he goes on to recite what had been formerly done in a General Council of the West Saxon Nobility at Swinbourne wherein he had adjured them all to bear witness of the manner and intent of the former Entail the sum of which was That since K. Aethered his Elder Brother was deceased there was then none left but himself who had any writing or Testimony concerning this Inheritance nor any other Heir besides himself and that if any one should offer to claim the said Inheritance he should lose his Right unless he forthwith produced witnesses of it but then he heard that all his Kinsmen were dead and so the whole Inheritance of King Aethelwulf his Father was devolved upon him by a Charter made thereof at his General Council at Langdene which Charter he had then likewise wife commanded to be read before the Witnesses of all West Saxony and after it was read he ordered all there present to declare whether they had heard or knew of any Man who could justly claim any Right to his Inheritance which had never come to his Knowledge before because it was his intent to disinherit none of his Kinsmen of any thing and then all the Princes and Ealdormen of his People did firmly and positively declare that they never heard of any who had a juster Title to it than himself and then they gave him full power to make his Will and bequeath his Estate to his Kinsmen and Friends in such manner as best pleased him Next King Alfred proceeds in the presence of the said Witnesses to make his last Will and to confer upon his Eldest Son Edward divers Lands and Territories there particularly mentioned lying in divers Countries in England but without any mention of the Crown he also leaves other Lands there recited to his Younger Son the like he does for each of his Daughters to whom he gives divers Lands there particularly set down and then bequeaths to Athelm and Aethelwald his Brother's Sons divers Towns there also particularly recited then follow his Legacies in Money to his Sons Daughters and Servants and to his Kinsmen above mentioned as also to Ethelred General of his Militia and to the Arch-Bishop of Canterbury Asser Bishop of Shireburne and several other Bishops all which would be too tedious here to be set down And to let you see that Entails were then in force He farther Wills That those to whom he had given his Free-Hold-Lands should not alienate them beyond their own Lives and if they had no Children they should go to the next of Kin especially to the Eldest Son as long as any one of them remain'd alive for so his Father had bequeathed his Inheritance but if it should any ways happen that his said Lands should come into the hands of Women then he Wills That after their Decease those Lands should revert to his next Male Kindred descending from their bodies c. And then concludes with an earnest Exhortation and desire that none of his Relations should any ways disquiet each other concerning those things which he had already given and bequeathed to them since the whole Nobility of the West Saxon Nation had already agreed with him that it was but Just and Right that
men accused of any Crime till they have first made satisfaction By this it appears how ancient in this Nation the Custom is of calling a Servant by the word used for the whole Species of Mankind a Phrase in use as well with the Romans and others more ancient as with modern people The twenty fourth is concerning Traffick and in confirmation of former Laws ordains That if a man buy any thing with witness which another man challenges for his own the Seller shall make it good and secure the bargain whether he be Bond or Free But on the Lord's day no Market shall be held under penalty or forfeiture of the Wares and a Mulct of 30 shillings besides The next thing that follows at the end of these Laws relating to the Civil State is the Valuation of mens Heads which we have often heard mentioned by these Laws but never yet to what it particularly amounted First then saith the Text The valuation of the King's Head according to the English Common Laws is thirty thousand Thrymses whereof fifteen thousand are properly the value of his Head the rest being due to the Kingdom so that the latter fifteen belonged to the Nation the former to his Kindred An Archbishop's and Earl's Weregild as the Saxons called the valuation of his Head is fifteen thousand Thrymses A Bishop's and Ealdorman's eight thousand A General 's of an Army or an High Marshal's four thousand Thrymses The valuation of a Spiritual Thane or Priest as also of a Temporal Thane was two thousand Thrymses That of a Countreyman or Câ—orl by the Danish Law was 267 Thrymses But if a Welshman grow so rich as to maintain a Family have Land and pay a yearly Rent to the King he shall be valued at 120 shillings if he possess half a Hide of Land at 80 shillings If he have no Land yet if he be a Freeman the value of his Head shall be seventy shillings If a Ceorl or Countreyman be so wealthy as to possess five Hides of Land in case he be killed the price or value of his Life shall be two thousand Thrymses but if he come to have a Corslet an Helmet and a Gilt Sword tho he have no Land he shall be accounted a Sithcundmon and if his Children or Grandchildren shall grow so rich as to possess five Hides of Land all their Posterity shall be reckoned as so many Sithcundmen and be valued at two thousand Thrymses The Mercians value a Countreyman at two hundred shillings a Thane at twelve hundred They are wont to equal the single value of the King's Head with six thousand Thanes that is thirty thousand Sceats for so much is the value of the King's Head and as much more must be paid as a recompence for his death the value of his Head belongs to his Kindred and the compensation of his Death to the people He that is valued at 1200 shillings his Oath shall be of the same esteem as those of six Countreymen for where such an one is slain six Countreymen would satisfy over and above for the value therefore the value of him and all them shall be the same By the English Law the Oaths of a Priest and a Thane are of the like esteem By these valuations of Heads from the highest to the lowest Rank we may perceive that in those Ancient Times Punishments consisted rather in Mulcts than in Blood contrary to our present Custom whereby small Offences in comparison especially if reiterated are become Capital which whence it hath proceeded whether from this consideration that Crimes in latter Ages do more abound or from other reasons is not evident As for the Sithcundmon mentioned in this Law Mr. Somner derives this word from Syth or Gethysa an Equal or Companion and cund kind and Mon man so that he seems to have been one equal to a Thane King EDMUND NOT long after King Athelstan's Decease Prince Edmund his Brother succeeded him at the Age of Eighteen Years and reigned Six Years and an half This year according to the Annals King Edmund Lord of the English and the Protector of his Subjects invaded Mercia on that side where the River Humber and the Way of the White Fountain divide the Countrey he there took in five Cities viz. Ligoracester now Leicester Lindcolne now Lincoln and Snotingaham Stanford and Deorby which were all before under the power of the Danes being forced to submit to them having been long under their Tyrannical Yoke This seems very strange for most of those places are mentioned to have been before recovered from the Danes by King Edward his Father and how they could be conquered again in the time of so great a Warrier as King Athelstan was I could not understand were it not explained by other Authors The same year King Aeadmund received King Anlaf to Baptism and some time after he likewise received King Reginald at his Confirmation This year also King Anlaf deceased and Richard the Elder took upon him the Dukedom of Normandy and governed it 52 years But R. Hoveden and Mat. Westminster from what Authority I know not relate That this Anlaf the Dane above-mentioned and Norwegian by Extract who had been in the time of King Athelstan expell'd the Kingdom of Northumberland about this time landed in Yorkshire with a great Fleet resolving to subdue the whole Kingdom of England and marching Southward besieged Northampton but not succeeding there he marched back to Tamworth where having wasted the Countrey round about came at last to Legacester now Westchester which when King Edmund heard of he march'd with a powerful Army and met him at that City and having fought with him most part of the day the two Archbishop of Canterbury and York seeing the great Danger and Hazard the Kingdom was then in made an Agreement betwixt the two Kings That Anlaf should possess that part of England lying North of Watlingstreet and King Edmund that part which lay South of it and that the Survivor of them should quietly enjoy the whole Kingdom and thereupon Anlaf married Alditha the Daughter of Earl Orme by whose Counsel and Assistance he obtained the late Victory But William of Malmesbury tells this Story somewhat different viz. That about this time the Northumbers rebelling recalled this Anlaf out of Ireland whom they made their King but whom nevertheless King Edmund conquered and at last expell'd the Kingdom and so once again added Northumberland to his own Dominions which shews the great uncertainty of the History of these times But R. Hoveden and Mat. Westminster do further add That when this Anlaf had not long after his Marriage spoiled and burned the Church of St. Balther and had burnt Tiningaham by the just Judgment of God he miserably ended his Life but without telling us by what means And they both further relate That Anlaf the Son of Sihtric after this reigned again over the Northumbers and was this year expelled that Kingdom by King
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