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LECTURE XXVI.

The condition and state of laws in England during the Saxon times....The military policy of the Saxons not so perfect as that of the Franks....Their Kings elective....The division of the kingdom into shires, hundreds, and tithings....The administration of justice....The county court....The hundred court and court-leet....The court-baron....The curia regis.... Method of trial in the Saxon courts....The ordeal....The waging of law....The trial by battle....Juries.

HAVING drawn a rough delineation of a feudal monarchy, and given a general account of the ranks of people of which it was composed, and of their distinct rights and privileges, it will next be proper, agreeably to what I first proposed, to observe, through the several reigns, the progress of English law, and by what steps and gradations it is come to differ so widely from what it was in its original; not, indeed, to go minutely through all the alterations made, for that would be a task that could not be confined within the compass of these lectures, but to point out the great and considerable changes, which had extensive influences, and contributed to give the law a new face. But, before I enter upon this, it will not be amiss to look back a little, and to say something with respect to the law in the Saxon times, since much of that remained after the conquest, and even makes a part of our law at this day.

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The Saxons, being a German nation, brought into England the customs of that country, customs very similar to, and, in many instances, exactly the same with those used abroad on the continent. However, with respect to their military policy, it was not so strict and perfect as that of the Franks, occasioned, as I suppose, by their greater security from danger. For they had no reason to dread the Britons, having extirpated many, and expelled the rest, except a few whom they kept in the meanest offices, in the nature of villeins. Neither was the authority of their kings so great as abroad, for the founders of the kingdoms of the heptarchy were not kings in Germany, as the kings of the Franks and other nations had been, but only leaders of adventurers, who voluntarily associated themselves, and therefore could have no authority but what their followers confirmed upon them; and that it was not very considerable, appears from this, that every thing of great moment was transacted in their general assemblies or wittenagemots†.

These kings were elective, though generally those of the same family, (for to this also there were some exceptions) were elected. Offa says of himself to his people, Electus ad libertatis vestræ tuitionem, non meis meritis, sed sola liberalitate vestra. From the death of a former king to the election of a new one there was an interregnum, and even during these interregnums they made laws. For when the excellent king Brithric had been poisoned by his queen, they enacted a law, that if any future king should give his wife the title of queen, he should forfeit his dig† Bacon's discourse on the Laws and Government of England, part 1. chap. 16.

nity, and his subjects should be free from their oat of allegiance; and then they proceeded to elect Egbert, Brithric's tenth cousin. And, in pursuance of this law, Ethelbald deposed his father, for giving that title to Judith of France. Alfred, indeed, was not chosen upon a vacancy, but claiming a part of the kingdom before the assembly at Swinburn, by virtue of an agreement with his brother Ethelred, that assembly annulled the agreement, as destructive to the nation, then threatened by the Danes, but enacted that Alfred should succeed to the whole, though Ethelred, and also their elder brother Ethelbert, left sonst.

I know it is generally said that these three brother ssucceeded by their father's will, and so the Conqueror pretended a will of Edward the Confessor in his favor, but what had Ethelwulf to leave, but the little kingdom of Kent, which was assigned to him upon his deposition? Besides, his will was, that they should succeed in case of issue failing, and they succeeded tho' there were sons; and Alfred, who should know his own title best, acknowledged he had received his crown from the bounty of the princes, elders, and people. Here I shall mention, that the kings had no right to marry themselves without the consent of their people, for of Alfred it is observed, that he did so, contra morem & statuta, not only against custom but against positive laws. To go through no more particulars; it appears from history that all the kings of the Saxon race were elected; so were the Danes; so was the last Harold, though not of royal blood, and though Edgar Atheling, who was

†Tyrel's general Introduction to his Hist. of England.... Hume, append. 1.

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the lawful heir, had the kingdom been hereditary, was living; so was the Conqueror, and that was the just title he had. But enough of this point.

To see how justice was administered among the Saxons; the kingdom, for this purpose, was divided into shires, those into hundreds, or, as we call them in this kingdom (Ireland) barcnies, and these into tithings, so called because they originally consisted of ten contiguous families, over which a tithingman presided. Every man in these tithings, was bound to keep the peace, not only for himself, but for the others of his tithing; and if one of them committed a crime, the rest were obliged to search him out, and produce him for trial, otherwise the tithing was grievously amerced. This division of the kingdom into counties, and their subdivisions, is generally ascribed to king Alfred. That the division of hundreds into tithings was his, is undoubted; and it is probable the division of counties into hundreds was his also; that the people, beggared by the Danish incursions, might have justice rendered to them nearer their own homes, without the expence, the fatigue, and even danger of travelling to the county town. But as to counties, they certainly were more ancient. Justice could not be administered, according to the principles of the German policy, in a country so large as one of the heptarchy, without its being subdivided ; and accordingly, during those times, before the union of these kingdoms into one, we find, in the old laws, the mention of shires and sheriffst.

+ Spelm. Gloss voc. Comitatus, hundredus, & trithinga. Tyrrel's introduction to his hist. Carte's Hist. vol. 1. p. 310. Spelm. life of Alfred. Gurdon's Hist. of Court Baron and Court Leet.

But though Alfred was not the first maker of the divisions, we are not therefore to charge the writers that give that account with falsity. Even before his reign the Danes had made settlements in England, in the northern parts. In the very beginning of it they reduced him to content himself with the countries south of Bristol channel and Thames, with the addition of Essex, which, in their ravages, they had thrown into the greatest confusion. The rest of England was left as their prey, in which, after ravaging it several years, they fixed themselves, until, at length this great prince, to whom no king, I may say, no man whom history has recorded, was superior, either for piety to God, for a strict love of justice, for a fatherly affection to his people, for heroism in battle, for fortitude of mind (that never despaired in the lowest state of his affairs, when all seemed desperate) or for a wisdom capable of directing upon every occasion the proper measures to be taken by the state over which he presided; I say, until this great prince trampled his enemies under his feet, and obliged the Danes, who had so long looked upon him with contempt, to sue to become his subjects, and to receive the lands they had usurped, from him as their king and lord. For to expel them was impossible, and if it had been otherwise, and the matter had been effected, they had committed such massacres in the lands they possessed, that the country would have been desolate. Then, indeed, this king settled the limits. of shires or counties, through all England; in Essex, and the counties south of the Thames, I presume, according to the old limits. For if we allow for one county being more woody, or having more

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