The Works of the Right Honourable Edmund Burke Volume VII Part 15

As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to find some method of uniting and governing these detached parts of the nation, which had not been brought into order by any private dependence. To answer this end, the whole kingdom was divided into Shires, these into Hundreds, and the Hundreds into t.i.things.[58] This division was not made, as it is generally imagined, by King Alfred, though he might have introduced better regulations concerning it; it prevailed on the continent, wherever the Northern nations had obtained a settlement; and it is a species of order extremely obvious to all who use the decimal notation: when for the purposes of government they divide a county, tens and hundreds are the first modes of division which occur. The t.i.thing, which was the smallest of these divisions, consisted of ten heads of families, free, and of some consideration. These held a court every fortnight, which they called the Folkmote, or Leet, and there became reciprocally bound to each other and to the public for their own peaceable behavior and that of their families and dependants. Every man in the kingdom, except those who belonged to the seigneurial courts we have mentioned, was obliged to enter himself into some t.i.thing: to this he was inseparably attached; nor could he by any means quit it without license from the head of the t.i.thing; because, if he was guilty of any misdemeanor, his district was obliged to produce him or pay his fine. In this manner was the whole nation, as it were, held under sureties: a species of regulation undoubtedly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to the spot, were depressed with all the ideas of their original littleness, and by all that envy which is sure to arise in those who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Everything was new to them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the bonds of government. As a life of absolute license tends to turn men into savages, the other extreme of constraint operates much in the same manner: it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires and hundreds and t.i.things was common to them with the neighboring nations, yet the _frankpledge_ seems to be a peculiarity in the English Const.i.tution; and for good reasons they have fallen into disuse, though still some traces of them are to be found in our laws.

[Sidenote: Hundred Court.]

Ten of these t.i.things made an Hundred. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate t.i.things attended. Here were determined causes concerning breaches of the peace, small debts, and such matters as rather required a speedy than a refined justice.

[Sidenote: County Court.]

[Sidenote: Ealdorman and Bishop.]

There was in the Saxon Const.i.tution a great simplicity. The higher order of courts were but the transcript of the lower, somewhat more extended in their objects and in their power; and their power over the inferior courts proceeded only from their being a collection of them all. The County or Shire Court was the great resort for justice (for the four great courts of record did not then exist). It served to unite all the inferior districts with one another, and those with the private jurisdiction of the thanes. This court had no fixed place. The alderman of the shire appointed it. Hither came to account for their own conduct, and that of those beneath them, the bailiffs of hundreds and t.i.things and boroughs, with their people,--the thanes of either rank, with their dependants,--a vast concourse of the clergy of all orders: in a word, of all who sought or distributed justice. In this mixed a.s.sembly the obligations contracted in the inferior courts were renewed, a general oath of allegiance to the king was taken, and all debates between the several inferior coordinate jurisdictions, as well as the causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an officer of great consideration in those times, called the Ealdorman of the Shire. With him sat the bishop, to decide in whatever related to the Church, and to mitigate the rigor of the law by the interposition of equity, according to the species of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the bishop was the chief acting person in this court. The reverence in which the clergy were then held, the superior learning of the bishop, his succeeding to the power and jurisdiction of the Druid, all contributed to raise him far above the ealdorman, and to render it in reality his court. And this was probably the reason of the extreme lenity of the Saxon laws. The canons forbade the bishops to meddle in cases of blood.

Amongst the ancient Gauls and Germans the Druid could alone condemn to death; so that on the introduction of Christianity there was none who could, in ordinary course, sentence a man to capital punishment: necessity alone forced it in a few cases.

Concerning the right of appointing the Alderman of the Shire there is some uncertainty. That he was anciently elected by his county is indisputable; that an alderman of the shire was appointed by the crown seems equally clear from the writings of King Alfred. A conjecture of Spelman throws some light upon this affair. He conceives that there were two aldermen with concurrent jurisdiction, one of whom was elected by the people, the other appointed by the king. This is very probable, and very correspondent to the nature of the Saxon Const.i.tution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the ordinary business of the nation was then transacted, the state would have hardly differed from a pure democracy. Besides, as the king had in every county large landed possessions, either in his demesne, or to reward and pay his officers, he would have been in a much worse condition than any of his subjects, if he had been dest.i.tute of a magistrate to take care of his rights and to do justice to his numerous va.s.sals. It appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year only, and that the royal alderman held his place at the king's pleasure. This latter office, however, in process of time, was granted for life; and it grew afterwards to be hereditary in many shires.

[Sidenote: The Sheriff.]

[Sidenote: Sheriff's Tourn.]

We cannot pretend to say when the Sheriff came to be subst.i.tuted in the place of the Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from the nature of the thing itself. As several persons of consequence enough to obtain by their interest or power the place of alderman were not sufficiently qualified to perform the duty of the office, they contented themselves with the honorary part, and left the judicial province to their subst.i.tute.[59]

The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was in his manor, for the same reasons officiated by his deputy, the shire-reeve. This is the origin of the Sheriff's Tourn, which decided in all affairs, civil and criminal, of whatever importance, and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to the court there being left nothing more than the cognizance of pleas under forty shillings, unless by a particular writ or special commission. But by what steps such a revolution came on it will be our business hereafter to inquire.

[Sidenote: Witenagemote.]

The Witenagemote or Saxon Parliament, the supreme court, had authority over all the rest, not upon any principle of subordination, but because it was formed of all the rest. In this a.s.sembly, which was held annually, and sometimes twice a year, sat the earls and bishops and greater thanes, with the other officers of the crown.[60] So far as we can judge by the style of the Saxon laws, none but the thanes, or n.o.bility, were considered as necessary const.i.tuent parts of this a.s.sembly, at least whilst it acted deliberatively. It is true that great numbers of all ranks of people attended its session, and gave by their attendance, and their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in the way of acclamation than by the exercise of a deliberate voice, or a regular a.s.sent or negative. This may be explained by considering the a.n.a.logy of the inferior a.s.semblies. All persons, of whatever rank, attended at the county courts; but they did not go there as judges, they went to sue for justice,--to be informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at the Witenagemotes, not to make laws, but to attend at the promulgation of the laws;[61] as among so free a people every inst.i.tution must have wanted much of its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in these early times the commons sat, as they do at this day, by representation from shires and boroughs; and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such appearances as no other explanation can account for.

To the reign of Henry the Second, the citizens and burgesses were little removed from absolute slaves. They might be taxed individually at what sum the king thought fit to demand; or they might be discharged by offering the king a sum, from which, if he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted with severity, and even cruelty. A great difference is made between taxing them and those who cultivate lands: because, says my author, their property is easily concealed; they live penuriously, are intent by all methods to increase their substance, and their immense wealth is not easily exhausted. Such was their barbarous notion of trade and its importance. The same author, speaking of the severe taxation, and violent method of extorting it, observes that it is a very proper method,--and that it is very just that a degenerate officer, or other freeman, rejecting his condition for sordid gain, should be punished beyond the common law of freemen.

I take it that those who held by ancient demesne did not prescribe simply not to contribute to the expenses of the knight of the shire; but they prescribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of the same kind in the Saxon times, when they were of more repute. It is certain that many places now called boroughs were formerly towns or villages in ancient demesne of the king, and had, as such, writs directed to them to appear in Parliament, that they might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of summoning them.

This appears by sufficient records. And it appears by records also, that it was much at the discretion of the sheriff what boroughs he should return; a general writ was directed to him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to Parliament were quite pa.s.sed over, and others, never considered as such before, were returned. What is called the prescription on this occasion was rather a sort of rule to direct the sheriff in the execution of his general power than a right inherent in any boroughs.

But this was long after the time of which we speak. In whatever manner we consider it, we must own that this subject during the Saxon times is extremely dark. One thing, however, is, I think, clear from the whole tenor of their government, and even from the tenor of the Norman Const.i.tution long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which the members held their seats were far from being exactly ascertained. The _Judicia Civitatis Londoniae_ afford a tolerable insight into the Saxon method of making and executing laws. First, the king called together his bishops, and such other persons _as he thought proper_. This council, or Witenagemote, having made such laws as seemed convenient, they then swore to the observance of them. The king sent a notification of these proceedings to each Burgmote, where the people of that court also swore to the observance of them, and confederated, by means of mutual strength and common charge, to prosecute delinquents against them. Nor did there at that time seem to be any other method of enforcing new laws or old. For as the very form of their government subsisted by a confederacy continually renewed, so, when a law was made, it was necessary for its execution to have again recourse to confederacy, which was the great, and I should almost say the only, principle of the Anglo-Saxon government.

What rights the king had in this a.s.sembly is a matter of equal uncertainty.[62] The laws generally run in his name, with the a.s.sent of his wise men, &c. But considering the low estimation of royalty in those days, this may rather be considered as the voice of the executive magistrate, of the person who compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems, the law was digested by the king or his council for the a.s.sent of the general a.s.sembly. That order is now reversed. All these things are, I think, sufficient to show of what a visionary nature those systems are which would settle the ancient Const.i.tution in the most remote times exactly in the same form in which we enjoy it at this day,--not considering that such mighty changes in manners, during so many ages, always must produce a considerable change in laws, and in the forms as well as the powers of all governments.

We shall next consider the nature of the laws pa.s.sed in these a.s.semblies, and the judicious manner of proceeding in these several courts which we have described.

[Sidenote: Saxon laws.]

The Anglo-Saxons trusted more to the strictness of their police, and to the simple manners of their people, for the preservation of peace and order, than to accuracy or exquisite digestion of their laws, or to the severity of the punishments which they inflicted.[63] The laws which remain to us of that people seem almost to regard two points only: the suppressing of riots and affrays,--and the regulation of the several ranks of men, in order to adjust the fines for delinquencies according to the dignity of the person offended, or to the quant.i.ty of the offence. In all other respects their laws seem very imperfect. They often speak in the style of counsel as well as that of command. In the collection of laws attributed to Alfred we have the Decalogue transcribed, with no small part of the Levitical law; in the same code are inserted many of the Saxon inst.i.tutions, though these two laws were in all respects as opposite as could possibly be imagined. These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude inst.i.tutions of an unlettered people had attained an height which the united efforts of necessity, learning, inquiry, and experience can hardly reach to in many ages. We must add, that, although as one people under one head there was some resemblance in the laws and customs of our Saxon ancestors throughput the kingdom, yet there was a considerable difference, in many material points, between the customs of the several shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some of which custom, that caused them, has abrogated; others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.

[Sidenote: Purgation by oath.]

[Sidenote: By ordeal.]

The Saxon laws, imperfect and various as they were, served in some tolerable degree a people who had by their Const.i.tution an eye on each other's concerns, and decided almost all matters of any doubt amongst them by methods which, however inadequate, were extremely simple. They judged every controversy either by the conscience of the parties, or by the country's opinion of it, or what they judged an appeal to Providence. They were unwilling to submit to the trouble of weighing contradictory testimonies; and they were dest.i.tute of those critical rules by which evidence is sifted, the true distinguished from the false, the certain from the uncertain. Originally, therefore, the defendant in the suit was put to his oath, and if on oath he denied the debt or the crime with which he was charged, he was of course acquitted.

But when the first fervors of religion began to decay, and fraud and the temptations to fraud to increase, they trusted no longer to the conscience of the party. They cited him to an higher tribunal,--the immediate judgment of G.o.d. Their trials were so many conjurations, and the magical ceremonies of barbarity and heathenism entered into law and religion. This supernatural method of process they called G.o.d's Dome; it is generally known by the name of _Ordeal_, which in the Saxon language signifies the Great Trial. This trial was made either by fire or water: that by fire was princ.i.p.ally reserved for persons of rank; that by water decided the fate of the vulgar; sometimes it was at the choice of the party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honor, was brought forth into the church upon the day of trial; and it was there again consecrated to this awful purpose by a form of service still extant. A solemn ma.s.s was performed; and then the party accused appeared, surrounded by the clergy, by his judges, and a vast concourse of people, suspended and anxious for the event; all that a.s.sisted purified themselves by a fast of three days; and the accused, who had undergone the same fast, and received the sacrament, took the consecrated iron, of about a pound weight, heated red, in his naked hand, and in that manner carried it nine feet. This done, the hand was wrapped up and sealed in the presence of the whole a.s.sembly. Three nights being pa.s.sed, the seals were opened before all the people: if the hand was found without any sore inflicted by the fire, the party was cleared with universal acclamation; if on the contrary a raw sore appeared, the party, condemned by the judgment of Heaven, had no further plea or appeal.

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

Both these species of ordeal, though they equally appealed to G.o.d, yet went on different principles. In the fire ordeal a miracle must be wrought to acquit the party; in the water a miracle was necessary to convict him. Is there any reason for this extraordinary distinction? or must we resolve it solely into the irregular caprices of the human mind?

The greatest genius which has enlightened this age seems in this affair to have been carried by the sharpness of his wit into a subtilty hardly to be justified by the way of thinking of that unpolished period.

Speaking of the reasons for introducing this method of trial, "_Qui ne voit_," says he, "_que, chez un peuple exerce a manier des armes, la peau rude et calleuse ne devoit pas recevoir a.s.sez l'impression du fer chaud, ... pour qu'il y parut trois jours apres? Et s'il y paroissoit, c'etoit une marque que celui qui faisoit l'epreuve etoit un effemine_."

And this mark of effeminacy, he observes, in those warlike times, supposed that the man has resisted the principles of his education, that he is insensible to honor, and regardless of the opinion of his country. But supposing the effect of hot iron to be so slight even on the most callous hands, of which, however, there is reason to doubt, yet we can hardly admit this reasoning, when we consider that women were subjected to this fire ordeal, and that no other women than those of condition could be subjected to it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might have avoided this proof, if they could find a champion to combat in their favor; and he thinks a just presumption might be formed against a woman of rank who was so dest.i.tute of friends as to find no protector. It must be owned that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall we reconcile all this with the custom of the Anglo-Saxons, among whom the ordeal was in constant use, and even for women, without the alternative of the combat, to which it appears this people were entire strangers?

What presumption can arise from the event of the water ordeal, in which no callosity of hands, no bravery, no skill in arms, could be in any degree serviceable? The causes of both may with more success be sought amongst the superst.i.tious ideas of the ancient Northern world. Amongst the Germans the administration of the law was in the hands of the priests or Druids.[64] And as the Druid worship paid the highest respect to the elements of fire and water, it was very natural that they who abounded with so many conjurations for the discovery of doubtful facts or future events should make use of these elements in their divination.

It may appear the greater wonder, how the people came to continue so long, and with, such obstinacy, after the introduction of Christianity, and in spite of the frequent injunctions of the Pope, whose authority was then much venerated, in the use of a species of proof the insufficiency of which a thousand examples might have detected. But this is perhaps not so unaccountable. Persons were not put to this trial, unless there was pretty strong evidence against them, something sufficient to form what is equivalent to a _corpus delicti_; they must have been actually found guilty by the _duodecemvirale judicium_, before they could be subjected in any sort to the ordeal. It was in effect showing the accused an indulgence to give him this chance, even such a chance as it was, of an acquittal; and it was certainly much milder than the torture, which is used, with full as little certainty of producing its end, among the most civilized nations. And the ordeal without question frequently operated by the mere terror. Many persons, from a dread of the event, chose to discover rather than to endure the trial.

Of those that did endure it, many must certainly have been guilty. The innocency of some who suffered could never be known with certainty.

Others by accident might have escaped; and this apparently miraculous escape had great weight in confirming the authority of this trial. How long did we continue in punishing innocent people for witchcraft, though experience might, to thinking persons, have frequently discovered the injustice of that proceeding! whilst to the generality a thousand equivocal appearances, confessions from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion.

[Sidenote: Compurgation.]

To avoid as much as possible this severe mode of trial, and at the same time to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime, or charged in a civil complaint, appeared in court with some of his neighbors, who were called his Compurgators; and when on oath he denied the charge, they swore that they believed his oath to be true.[65] These compurgators were at first to be three; afterwards five were required; in process of time twelve became necessary.[66] As a man might be charged by the opinion of the country, so he might also be discharged by it: twelve men were necessary to find him guilty, twelve might have acquitted him. If opinion supports all government, it not only supported in the general sense, but it directed every minute part in the Saxon polity. A man who did not seem to have the good opinion of those among whom he lived was judged to be guilty, or at least capable of being guilty, of every crime. It was upon this principle that a man who could not find the security of some t.i.thing or friborg for his behavior,[67] he that was upon account of this universal desertion called Friendless Man, was by our ancestors condemned to death,--a punishment which the lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved: a circ.u.mstance which strongly marks the genius of the Saxon government.

[Sidenote: Trial by the Country.]

On the same principle from which the trial by the oath of compurgators was derived, was derived also the Trial by the Country, which was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great importance, it was put in the full Shiremote; and if the general voice acquitted or condemned, decided for one party or the other, this was final in the cause. But then it was necessary that all should agree: for it does not appear that our ancestors, in those days, conceived how any a.s.sembly could be supposed to give an a.s.sent to a point concerning which several who composed that a.s.sembly thought differently. They had no idea that a body composed of several could act by the opinion of a small majority. But experience having shown that this method of trial was tumultuary and uncertain, they corrected it by the idea of compurgation. The party concerned was no longer put to his oath,--he simply pleaded; the compurgators swore as before in ancient times; therefore the jury were strictly from the neighborhood, and were supposed to have a personal knowledge of the man and the fact. They were rather a sort of evidence than judges: and from hence is derived that singularity in our laws, that most of our judgments are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither are our juries bound, except by one particular statute, and in particular cases, to observe any positive testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings-out of our jurisprudence. The Saxons were extremely imperfect in their ideas of law,--the civil inst.i.tutions of the Romans, who were the legislators of mankind, having never reached them. The order of our courts, the discipline of our jury, by which it is become so elaborate a contrivance, and the introduction of a sort of scientific reason in the law, have been the work of ages.

As the Saxon laws did not suffer any transaction, whether of the sale of land or goods, to pa.s.s but in the shire and before witnesses, so all controversies of them were concluded by what they called the _scyre witness_.[68] This was tried by the oaths of the parties, by _viva voce_ testimony, and the producing of charters and records. Then the people, laity and clergy, whether by plurality of votes or by what other means is not very certain, affirmed the testimony in favor of one of the claimants. Then the proceeding was signed, first by those who held the court, and then by the persons who affirmed the judgment, who also swore to it in the same manner.[69]

[Sidenote: Punishments.]

The Saxons were extremely moderate in their punishments. Murder and treason were compounded, and a fine set for every offence. Forfeiture for felony was incurred only by those that fled. The punishment with death was very rare,--with torture unknown. In all ancient nations, the punishment of crimes was in the family injured by them, particularly in case of murder.[70] This brought deadly feuds amongst the people, which, in the German nations particularly, subsisted through several generations. But as a fruitless revenge could answer little purpose to the parties injured and was ruinous to the public peace, by the interposal of good offices they were prevailed upon to accept some composition in lieu of the blood of the aggressor, and peace was restored. The Saxon government did little more than act the part of arbitrator between the contending parties, exacted the payment of this composition, and reduced it to a certainty. However, the king, as the sovereign of all, and the sheriff, as the judicial officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs gave rise to, the Christian religion confirmed. Yet was it not altogether so imperfect as to have no punishment adequate to those great delinquencies which tend entirely to overturn a state, public robbery, murder of the lord.[71]

[Sidenote: Origin of succession.]

[Sidenote: Annual property.]

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

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

Campestres melius Scythae, Quorum plaustra vagas rite trahunt domos, Vivunt, et rigidi Getae, Immetata quibus jugera liberas Fruges et Cererem ferunt, Nec cultura placet longior annua.

[Sidenote: Estates for life.]

[Sidenote: Inheritance.]

[Sidenote: Book-land.]

[Sidenote: Folk-land.]

[Sidenote: Saxon fiefs.]

This custom of an annual property probably continued amongst the Germans as long as they remained in their own country; but when their conquests carried them into other parts, another object besides the possession of the land arose, which obliged them to make a change in this particular.

In the distribution of the conquered lands, the ancient possessors of them became an object of consideration, and the management of these became one of the princ.i.p.al branches of their polity. It was expedient towards holding them in perfect subjection, that they should be habituated to obey one person, and that a kind of cliental relation should be created between them; therefore the land, with the slaves, and the people in a state next to slavery, annexed to it, was bestowed for life in the general distribution. When life-estates were once granted, it seemed a natural consequence that inheritances should immediately supervene. When a durable connection is created between a certain man and a certain portion of land by a possession for his whole life, and when his children have grown up and have been supported on that land, it seems so great an hardship to separate them, and to deprive thereby the family of all means of subsisting, that nothing could be more generally desired nor more reasonably allowed than an inheritance; and this reasonableness was strongly enforced by the great change wrought in their affairs when life-estates were granted. Whilst according to the ancient custom lands were only given for a year, there was a rotation so quick that every family came in its turn to be easily provided for, and had not long to wait; but the children of a tenant for life, when they lost the benefit of their father's possession, saw themselves as it were immured upon every side by the life-estates, and perceived no reasonable hope of a provision from any new arrangement. These inheritances began very early in England. By a law of King Alfred it appears that they were then of a very ancient establishment: and as such inheritances were intended for great stability, they fortified them by charters; and therefore they were called Book-land. This was done with regard to the possession of the better sort: the meaner, who were called _ceorles_, if they did not live in a dependence on some thane, held their small portions of land as an inheritance likewise,--not by charter, but by a sort of prescription. This was called Folk-land. These estates of inheritance, both the greater and the meaner, were not fiefs; they were to all purposes allodial, and had hardly a single property of a feud; they descended equally to all the children, males and females, according to the custom of gavelkind, a custom absolutely contrary to the genius of the feudal tenure; and whenever estates were granted in the later Saxon times by the bounty of the crown with an intent that they should be inheritable, so far were they from being granted with the complicated load of all the feudal services annexed, that in all the charters of that kind which subsist they are bestowed with a full power of alienation, _et liberi ab omni seculari gravamine_. This was the general condition of those inheritances which were derived from the right of original conquest, as well to all the soldiers as to the leader; and these estates, as it is said, were not even forfeitable, no, not for felony, as if that were in some sort the necessary consequence of an inheritable estate. So far were they from resembling a fief. But there were other possessions which bore a nearer resemblance to fiefs, at least in their first feeble and infantile state of the tenure, than, those inheritances which were held by an absolute right in the proprietor. The great officers who attended the court, commanded armies, or distributed justice must necessarily be paid and supported; but in what manner could they be paid? In money they could not, because there was very little money then in Europe, and scarce any part of that little came into the prince's coffers. The only method of paying them was by allotting lands for their subsistence whilst they remained in his service. For this reason, in the original distribution, vast tracts of land were left in the hands of the king. If any served the king in a military command, his land may be said to have been in some sort held by knight-service. If the tenant was in an office about the king's person, this gave rise to sergeantry; the persons who cultivated his lands may be considered as holding by socage. But the long train of services that made afterwards the learning of the tenures were then not thought of, because these feuds, if we may so call them, had not then come to be inheritances,--which circ.u.mstance of inheritance gave rise to the whole feudal system. With the Anglo-Saxons the feuds continued to the last but a sort of pay or salary of office. The _trinoda necessitas_, so much spoken of, which was to attend the king in his expeditions, and to contribute to the building of bridges and repair of highways, never bound the lands by way of tenure, but as a political regulation, which equally affected every cla.s.s and condition of men and every species of possession.

[Sidenote: Gavelkind.]

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

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