pos But the most numerous rank by far in the community seems to have been the slaves or villains, who were the property of their lords, and were consequently incapable themselves of sessing any property. Dr. Brady assures us, from a survey of domesday-book,* that, in all the counties of England, the far greater part of the land was occupied by them, and that the husbandmen, and still more the socmen, who were tenants that could not be removed at pleasure, were very few in comparison. This was not the case with the German nations, as far as we can collect from the account given us by Tacitus. The perpetual wars in the Heptarchy, and the depredations of the Danes, seem to have been the cause of this great alteration with the Anglo-Saxons. Prisoners taken in battle, or carried off in the frequent inroads, were then reduced to slavery, and became, by right of war,† entirely at the disposal of their lords. Great property in the nobles, especially if joined to an irregular administration of justice, naturally favors the power of the aristocracy; but still more so, if the practice of slavery be admitted, and has become very common. The nobility not only possess the influence which always attends riches, but also the power which the laws give them over their slaves and villains. It then becomes difficult, and almost impossible, for a private man to remain altogether free and independent. There were two kinds of slaves among the Anglo-Saxons; household slaves, after the manner of the ancients, and prædial, or rustic, after the manner of the Germans. These latter resembled the serfs, which are at present to be met with in Poland, Denmark, and some parts of Germany. The power of a master over his slaves was not unlimited among the Anglo-Saxons, as it was among their ancestors. If a man beat out his slave's eye or teeth, the slave recovered his liberty if he killed him, he paid a fine to the king, provided the slave died within a day after the wound or blow; otherwise it passed unpunished. The selling of themselves or children to slavery, was always the practice among the German nations, and was continued by the Anglo-Saxons.** The great lords and abbots among the Anglo-Saxons pos * General Preface to his Hist. p. 7, 8, 9, etc. LL. Elf. sect. 17. ** LL. Inæ, sect. 11. LL. Ælf. sect. 12. SLL. Elf. sect. 20. Tacit. de Mor. Germ. sessed a criminal jurisdiction within their territories, and could punish without appeal any thieves or robbers whom they caught there.* This institution must have had a very contrary effect to that which was intended, and must have procured robbers a sure protection on the lands of such noblemen as did not sincerely mean to discourage crimes and violence. But though the general strain of the Anglo-Saxon government seems to have become aristocratical, there were still considerable remains of the ancient democracy, which were not indeed sufficient to protect the lowest of the people, without the patronage of some great lord, but might give security, and even some degree of dignity, to the gentry or inferior nobility. The administration of justice, in particular, by the courts of the decennary, the hundred, and the county, was well calculated to defend general liberty, and to restrain the power of the nobles. In the county courts, or shiremotes, all the freeholders were assembled twice a year, and received appeals from the inferior courts. They there decided all causes, ecclesiastical as well as civil; and the bishop, together with the alderman or earl, presided over them.† The affair was determined in a summary manner, without much pleading, formality, or delay, by a majority of voices; and the bishop and alderman had no further authority than to keep order among the freeholders, and interpose with their opinion.‡ Where justice was denied during three sessions by the hundred, and then by the county court, there lay an appeal to the king's court; but this was not practised on slight occasions. The aldermen received a third of the fines levied in those courts; || and as most of the punishments were then pecuniary, this perquisite formed a considerable part of the profits belonging to his office. The two thirds also, which went to the king, made no contemptible part of the public revenue. Any free holder was fined who absented himself thrice from these courts. As the extreme ignorance of the age made deeds and writings very rare, the county or hundred court was the place *Higden, lib, i. cap. 50. LL. Edw. Conf. sect. 26. Spel. Concil. vol. i. p. 415. Gloss. in verbo. Haligemot et Infangenthefe. † LL. Edg. sect. 5. Wilkins, p. 78. LL. Canut. sect. 17. Wilkins, p. 136. Hickes, Dissert. epist. p. 2, 3, 4, 5, 6, 7, 8. Wilkins, p. 77. LL. Canut. sect. 18, apud § LL. Edg. sect. 2. Wilkins, p. 136. LL. Edw. Conf. sect. 31. TLL. Ethelst. sect. 20. where the most remarkable civil transactions were finished, in order to preserve the memory of them, and prevent all future disputes. Here testaments were promulgated, slaves manumitted, bargains of sale concluded, and sometimes, for greater security, the most considerable of these deeds were inserted in the blank leaves of the parish Bible, which thus became a kind of register, too sacred to be falsified. It was not unusual to add to the deed an imprecation on all such as should be guilty of that crime.* Among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative. There were few or no taxes imposed by the states; there were few statutes enacted; and the nation was less governed by laws, than by customs, which admitted a great latitude of interpretation. Though it should, therefore, be allowed, that the wittenagemot was altogether composed of the principal nobility, the county courts, where all the freeholders were admitted, and which regulated all the daily occurrences of life, formed a wide basis for the government, and were no contemptible checks on the aristocracy. But there is another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility; and the degree of it which prevails, cannot be determined so much by the public statutes, as by small incidents in history, by particular customs, and sometimes by the reason and nature of things. The highlands of Scotland have long been entitled by law to every privilege of British subjects; but it was not till very lately that the common people could in fact enjoy these privileges. The powers of all the members of the Anglo-Saxon government are disputed among historians and antiquaries: the extreme obscurity of the subject, even though faction had never entered into the question, would naturally have begotten those controversies. But the great influence of the lords over their slaves and tenants, the clientship of the burghers, the total want of a middling rank of men, the extent of the monarchy, the loose execution of the laws, the continued disorders *Hickes, Dissert. epist. and convulsions of the state, all these circumstances evince that the Anglo-Saxon government became at last extremely aristocratical; and the events, during the period immediately preceding the conquest, confirm this inference or conjecture. Both the punishments inflicted by the Anglo-Saxon courts of judicature, and the methods of proof employed in all causes, appear somewhat singular, and are very different from those which prevail at present among all civilized nations. We must conceive that the ancient Germans were little removed from the original state of nature: the social confederacy among them was more martial than civil: they had chiefly in view the means of attack or defence against public enemies, not those of protection against their fellow-citizens : their possessions were so slender and so equal, that they were not exposed to great danger; and the natural bravery of the people made every man trust to himself and to his particular friends for his defence or vengeance. This defect in the political union drew much closer the knot of particular confederacies: an insult upon any man was regarded by all his relations and associates as a common injury: they were bound by honor, as well as by a sense of common interest, to revenge his death, or any violence which he had suffered they retaliated on the aggressor by like acts of violence; and if he were protected, as was natural and usual, by his own clan, the quarrel was spread still wider, and bred endless disorders in the nation. The Frisians, a tribe of the Germans, had never advanced beyond this wild and imperfect state of society; and the right of private revenge still remained among them unlimited and uncontrolled.* But the other German nations, in the age of Tacitus, had made one step farther towards completing the political or civil union. Though it still continued to be an indispensable point of honor for every clan to revenge the death or injury of a member, the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference. He obliged the person maimed or injured, and the relations of one killed, to accept of a present from the aggressor and his relations, as a compensation for the injury, and to drop all farther prosecution of revenge. That the * LL. Fris. tit. 2, apud Lindenbrog. p. 491. accommodation of one quarrel might not be the source of more, this present was fixed and certain according to the rank of the person killed or injured, and was commonly paid in cattle, the chief property of those rude and uncultivated nations. A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered: it satisfied their pride by the submission which it expressed: it diminished their regret for the loss or injury of a kinsman by their acquisition of new property; and thus general peace was for a moment restored to the society.* But when the German nations had been settled some time in the provinces of the Roman empire, they made still another step towards a more cultivated life, and their criminal justice gradually improved and refined itself. The magistrate, whose office it was to guard public peace, and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, or to his family, he thought himself entitled to exact a fine, called the "fridwit," as an atonement for the breach of peace, and as a reward for the pains which he had taken in accommodating the quarrel. When this idea, which is so natural, was once suggested, it was willingly received both by sovereign and people. The numerous fines which were levied, augmented the revenue of the king; and the people were sensible that he would be more vigilant in interposing with his good offices, when he reaped such immediate advantage from them; and that injuries would be less frequent, when, besides compensation to the person injured, that they were exposed to this additional penalty.t This short abstract contains the history of the criminal jurisprudence of the northern nations for several centuries. The state of England in this particular, during the period of the Anglo-Saxons, may be judged of by the collection of ancient laws, published by Lambard and Wilkins. The chief purport of these laws is not to prevent or entirely suppress private quarrels, which the legislators knew to be *Tacit. de Mor. Germ. The author says, that the price of the composition was fixed; which must have been by the laws, and the interposition of the magistrates. + Besides paying money to the relations of the deceased, and to the king, the murderer was also obliged to pay the master of a slave or vassal a sum, as a compensation for his loss. This was called the "manbote." See Spel. Gloss. in verb. Fredum, Manbot. |