president of the society himself be wanting in this particular, he binds himself to pay one pound; unless he has the reasonable excuse of sickness, or of duty to his superior. When any of the associates is murdered, they are to exact eight pounds from the murderer; and if he refuse to pay it, they are to prosecute him for the sum at their joint expense. If any of the associates who happens to be poor kill a man, the society are to contribute, by a certain proportion, to pay his fine: a mark a-piece if the fine be seven hundred shillings; less if the person killed be a clown or ceorle; the half of that sum, again, if he be a Welshman. But where any of the associates kills a man, wilfully and without provocation, he must himself pay the fine. If any of the associates kill any of his fellows in a like criminal manner, besides paying the usual fine to the relations of the deceased, he must pay eight pounds to the society, or renounce the benefit of it; in which case, they bind themselves, under the penalty of one pound, never to eat or drink with him, except in the presence of the king, bishop, or alderman. There are other regulations to protect themselves and their servants from all injuries, to revenge such as are committed, and to prevent their giving abusive language to each other; and the fine, which they engage to pay for this last offence, is a measure of honey.
[FN [k] Bradys Treatise of Boroughs, p. 3, 4, 5, &c. The case was the same with the freemen in the country. See Pref. to his Hist. p.
8, 9, 10, &c. [1] LL. Edw. Conf. Sec. 8. apud Ingulph. [m] Dissert.
Epist. p. 21.]
It is not to be doubted but a confederacy of this kind must have been a great source of friendship and attachment; when men lived in perpetual danger from enemies, robbers, and oppressors, and received protection chiefly from their personal valour, and from the assistance of their friends or patrons. As animosities were then more violent, connexions were also more intimate, whether voluntary or derived from blood: the most remote degree of propinquity was regarded: an indelible memory of benefits was preserved: severe vengeance was taken for injuries, both from a point of honour, and as the best means of future security: and the civil union being weak, many private engagements were contracted in order to supply its place, and to procure men that safety which the laws and their own innocence were not alone able to insure to them.
On the whole, notwithstanding the seeming liberty, or rather licentiousness, of the Anglo-Saxons, the great body even of the free citizens, in those ages, really enjoyed much less true liberty, than where the execution of the laws is the most severe, and where subjects are reduced to the strictest subordination and dependence on the civil magistrate. The reason is derived from the excess itself of that liberty. Men must guard themselves at any price against insults and injuries; and where they receive not protection from the laws and magistrate, they will seek it by submission to superiors, and by herding in some private confederacy which acts under the direction of a powerful leader. And thus all anarchy is the immediate cause of tyranny, if not over the state, at least over many of the individuals.
Security was provided by the Saxon laws to all members of the Wittenagemot, both in going and returning, EXCEPT THEY WERE NOTORIOUS THIEVES AND ROBBERS.
[MN The several orders of men.]
The German Saxons, as the other nations of that continent, were divided into three ranks of men, the noble, the free, and the slaves [n]. This distinction they brought over with them into Britain.
[FN [n] Nithard. Hist. lib. 4.]
The nobles were called thanes; and were of two kinds, the kings thanes and lesser thanes. The latter seem to have been dependent on the former; and to have received lands, for which they paid rent, services, or attendance in peace and war [o]. We know of no title which raised any one to the rank of thane, except noble birth and the possession of land. The former was always much regarded by all the German nations, even in their most barbarous state; and as the Saxon nobility, having little credit, could scarcely burthen their estates with much debt, and as the Commons had little trade or industry by which they could accumulate riches, these two ranks of men, even though they were not separated by positive laws, might remain long distinct, and the noble families continue many ages in opulence and splendour. There were no middle ranks of men that could gradually mix with their superiors, and insensibly procure to themselves honour and distinction. If by any extraordinary accident a mean person acquired riches, a circumstance so singular made him be known and remarked; he became the object of envy, as well as of indignation, to all the nobles; he would have great difficulty to defend what he had acquired; and he would find it impossible to protect himself from oppression, except by courting the patronage of some great chieftain, and paying a large price for his safety.
[FN [o] Spellm. Feuds and Tenures, p. 40.]
There are two statutes among the Saxon laws which seem calculated to confound those different ranks of men; that of Athelstan, by which a merchant, who had made three long sea voyages on his own account, was entitled to the quality of thane [p]; and that of the same prince, by which a ceorle or husbandman, who had been able to purchase five hides of land, and had a chapel, a kitchen, a hall, and a bell, was raised to the same distinction [q]. But the opportunities were so few, by which a merchant or ceorle could thus exalt himself above his rank, that the law could never overcome the reigning prejudices; the distinction between noble and base blood would still be indelible; and the well-born thanes would entertain the highest contempt for those legal and factitious ones. Though we are not informed of any of these circumstances by ancient historians, they are so much founded on the nature of things, that we may admit them as a necessary and infallible consequence of the situation of the kingdom during those ages.
[FN [p] Wilkins, p. 71. [q] Selden, Titles of Honour, p. 515.
Wilkins, p. 70.]
The cities appear by Domesday-book to have been at the Conquest little better than villages [r]. York itself, though it was always the second, at least the third [s], city in England, and was the capital of a great province, which never was thoroughly united with the rest, contained but one thousand four hundred and eighteen families [t].
Malmsbury tells us [u], that the great distinction between the Anglo-Saxon nobility, and the French or Norman was, that the latter built magnificent and stately castles; whereas the former consumed their immense fortunes in riot and, hospitality, and in mean houses.
We may thence infer, that the arts in general were much less advanced in England than in France; a greater number of idle servants and retainers lived about the great families; and as these, even in France, were powerful enough to disturb the execution of the laws, we may judge of the authority acquired by the aristocracy in England.
When Earl Godwin besieged the Confessor in London, he summoned from all parts his huscarles or houseceorles and retainers, and thereby constrained his sovereign to accept of the conditions which he was pleased to impose upon him.
[FN [r] Winchester, being the capital of the West Saxon monarchy, was anciently a considerable city. Gul. Pict. p. 210. [s] Norwich contained 738 houses, Exeter 315, Ipswich 538, Northampton 60, Hereford 146, Canterbury 262, Bath 64, Southampton 84, Warwick 225.
See Brady of Boroughs, p. 3, 4, 5, 6, &c. These are the most considerable he mentions. The account of them is extracted from Domesday-book. [t] Bradys Treatise of Boroughs, p. 10. There were six wards, besides the archbishops palace; and five of these wards contained the number of families here mentioned, which, at the rate of five persons to a family, makes about 7000 souls. The sixth ward was laid waste. [u] p. 102. See also, De Gest. Angl. p. 333.]
The lower rank of freemen were denominated ceorles among the Anglo-Saxons; and, where they were industrious, they were chiefly employed in husbandry: whence a ceorle and a husbandman became in a manner synonymous terms. They cultivated the farms of the nobility or thanes, for which they paid rent; and they seem to have been removeable at pleasure. For there is little mention of leases among the Anglo-Saxons; the pride of the nobility, together with the general ignorance of writing, must have rendered these contracts very rare, and must have kept the husbandmen in a dependent condition. The rents of farms were then chiefly paid in kind [w].
[FN [w] LL. Inae, Sec. 70. These laws fixed the rents for a hide; but it is difficult to convert it into modern measures.]
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 possessing any property. Dr.
Brady assures us, from a survey of Domesday-book [x], 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 [y], entirely at the disposal of their lords. Great property in the nobles, especially if joined to an irregular administration of justice, naturally favours 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.
[FN [x] General Preface to his Hist. p. 7, 8, 9 &c. [y] LL. Edg. Sec.
14 apud Spellm. Conc. vol. 1. p. 471.]
There were two kinds of slaves among the Anglo-Saxons; household slaves, after the manner of the ancients, and praedial, or rustic, after the manner of the Germans [z]. 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 slaves eye or teeth, the slave recovered his liberty [a]: 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 [b]. The selling of themselves or children to slavery was always the practice among the German nations [c], and was continued by the Anglo-Saxons [d].
[FN [z] Spellm. Gloss. in verb. SERRUS [a] LL. Aelf. Sec. 20. [b] Ibid 17. [c] Tacit. de Morib. Germ. [d] LL. Inae, Sec. 11 LL. Aelf.
Sec. 12.]
The great lords and abbots among the Anglo-Saxons possessed a criminal jurisdiction within their territories, and could punish without appeal, any thieves or robbers whom they caught there [e]. 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.
[FN [e] Higden, lib. 1. cap. 50. LL. Edw. Conf. Sec. 26. Spellm.
Conc. vol. i. p. 415. Gloss. in verb. HALIGEMOT ET INFANGENTHEFE.]
[MN Courts of justice.]
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 [f]. 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 farther authority than to keep order among the freeholders, and interpose with their opinion [g]. Where justice was denied during three sessions by the hundred, and then by the county court, there lay an appeal to the kings court [h]; but this was not practised on slight occasions. The alderman received a third of the fines levied in those courts [i]; 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 freeholder was fined who absented himself thrice from these courts [k].
[FN [f] LL. Edg. Sec. 5. Wilkins, p. 78. LL. Canut. Sec. 17.
[h] LL. Edg Sec. 2. Wilkins, p. 77. LL. Canut. Sec. 18. apud Wilkins, p. 136. [i] LL. Edw. Conf. Sec. 31. [k] LL. Ethelst. Sec.
20.]
As the extreme ignorance of the age made deeds and writings very rare, the county or hundred court was the place 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 [l].
[FN [1] Hickes, Dissert. Epist.]
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 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.
[MN Criminal law.]
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 honour, 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 [m]. 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 honour 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 [n], as a compensation for the injury [o], and to drop all farther prosecution of revenge. That the 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 [p].
[FN [m] LL. Fris. tit. 2. apud. Lindenbrog. p. 491. [n] LL. Aethelb.
Sec. 23. LL. Aelf. Sec. 27. [o] Called by the Saxons MOEGBOTA. [p] Tacit. de Morib. 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.]
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, they were exposed to this additional penalty [q].
[FN [q] 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 Spell. Gloss. in verb. FREDUM, MANBOT.]
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 legislature knew to be impossible, but only to regulate and moderate them. The laws of Alfred enjoin, that if any one know that his enemy or aggressor, after doing him an injury, resolves to keep within his own house, AND HIS OWN LANDS [r], he shall not fight him till he require compensation for the injury. If he be strong enough to besiege him in his house, he may do it for seven days without attacking him; and if the aggressor be willing, during that time, to surrender himself and his arms, his adversary may detain him thirty days; but is afterwards obliged to restore him safe to his kindred, AND BE CONTENT WITH THE COMPENSATION.
If the criminal fly to the temple, that sanctuary must not be violated. Where the assailant has not force sufficient to besiege the criminal in his house, he must apply to the alderman for assistance; and if the alderman refuse aid, the assailant must have recourse to the king; and he is not allowed to assault the house till after this supreme magistrate has refused assistance. If any one meet with his enemy, and be ignorant that he was resolved to keep within his own lands, he must, before he attack him, require him to surrender himself prisoner, and deliver up his arms; in which case he may detain him thirty days: but if he refuse to deliver up his arms, it is then lawful to fight him. A slave may fight in his master's quarrel: a father may fight in his son's with any one, except with his master [s].
[FN [r] The addition of these last words in Italics appears necessary from what follows in the same law. [s] LL. Aelfr. Sec. 28 Wilkins, p. 43.]
It was enacted by King Ina, that no man should take revenge for an injury till he had first demanded compensation, and had been refused it [t].
[FN [t] LL. Inae, Sec. 9.]
King Edmond, in the preamble to his laws, mentions the general misery occasioned by the multiplicity of private feuds and battles; and he establishes several expedients for remedying this grievance. He ordained that if any one commit murder, be may, with the assistance of his kindred, pay within a twelvemonth the fine of his crime; and if they abandon him, he shall alone sustain the deadly feud or quarrel with the kindred of the murdered person: his own kindred are free from the feud, but on condition that they neither converse with the criminal, nor supply him with meat or OTHER NECESSARIES: if any of them, after renouncing him, receive him into their house, OR GIVE HIM ASSISTANCE, they are finable to the king, and are involved in the feud. If the kindred of the murdered person take revenge on any but the criminal himself, AFTER HE IS ABANDONED BY HIS KINDRED, all their property is forfeited, and they are declared to be enemies to the king and all his friends [u]. It is also ordained, that the fine for murder shall never be remitted by the king [w]; and that no criminal shall be killed who flies to the church, or any of the kings towns [x]; and the king himself declares, that his house shall give no protection to murderers, till they have satisfied the church by their penance, and the kindred of the deceased, by making compensation [y].
The method appointed for transacting this composition is found in the same law [z].
[FN [u] LL. Edm. Sec. 1. Wilkins, p. 73. [w] LL. Edm. Sec. 3. [x] Ibid. Sec. 2. [y] Ibid. Sec. 4. [z] Ibid Sec. 7.]
These attempts of Edmond, to contract and diminish the feuds, were contrary to the ancient spirit of the northern barbarians, and were a step towards a more regular administration of justice. By the Salic law, any man might, by a public declaration, exempt himself from his family quarrels: but then he was considered by the law as no longer belonging to the family; and he was deprived of all right of succession, as the punishment of his cowardice [a].
[FN [a] Tit. 63.]
The price of the king's head, or his weregild, as it was then called, was by law thirty thousand thrimsas, near thirteen hundred pounds of present money. The price of the prince's head was fifteen thousand thrimsas; that of a bishop's or alderman's, eight thousand; a sheriffs four thousand; a thane's or clergyman's, two thousand; a ceorle's, two hundred and sixty-six. These prices were fixed by the laws of the Angles. By the Mercian law, the price of a ceorle's head was two hundred shillings; that of a thane's six times as much; that of a king's six times more [b]. By the laws of Kent, the price of the archbishop's head was higher than that of the kings [c]. Such respect was then paid to the ecclesiastics! It must be understood, that where a person was unable or unwilling to pay the fine, he was put out of the protection of law, and the kindred of the deceased had liberty to punish him as they thought proper.
Some antiquarians [d] have thought, that these compensations were only given for manslaughter, not for wilful murder: but no such distinction appears in the laws; and it is contradicted by the practice of all the other barbarous nations [e], by that of the ancient Germans [f], and by that curious monument above mentioned, a Saxon antiquity, preserved by Hickes. There is indeed a law of Alfred's, which makes wilful murder capital [g]; but this seems only to have been an attempt of that great legislator towards establishing a better police in the kingdom, and it probably remained without execution. By the laws of the same prince, a conspiracy against the life of the king might be redeemed by a fine [h].
[FN [d] Tyrrel, Introduction, vol. i. p.126. Carte, vol. i. p. 366.
[e] Lindenbrogius, passim. [f] Tac. de Mor. Germ. [g] LL. Aelf. Sec.
12. Wilkins, p. 29. It is probable that by wilful murder Alfred means a treacherous murder, committed by one who had no declared feud with another. [h] LL. Aelf. Sec. 4 Wilkins, p. 35.]
The price of all kinds of wounds was likewise fixed by the Saxon laws: a wound of an inch long under the hair, was paid with one shilling; one of a like size in the face, two shillings: thirty shillings for the loss of an ear, and so forth [i]. There seems not to have been any difference made, according to the dignity of the person. By the laws of Ethelbert, any one who committed adultery with his neighbour's wife, was obliged to pay him a fine, and buy him another wife [k].
[FN [i] LL. Elf. Sec. 40. See also, LL. Ethelb. Sec. 34, &c. [k] LL.
Ethelb. Sec. 32.]
These institutions are not peculiar to the ancient Germans. They seem to be the necessary progress of criminal jurisprudence among every free people, where the will of the sovereign is not implicitly obeyed.
We find them among the ancient Greeks during the time of the Trojan war. Compositions for murder are mentioned in Nestor's speech to Achilles in the ninth Iliad and are called APOINAI. The Irish, who never had any connexions with the German nations, adopted the same practice till very lately; and the price of a man's head was called among them his ERIC; as we learn from Sir John Davis. The same custom seems also to have prevailed among the Jews [l].
[FN [l] Exod. cap. xxi. 29, 30.]
Theft and robbery were frequent among the Anglo-Saxons. In order to impose some check upon these crimes, it was ordained, that no man should sell or buy any thing above twenty-pence value, except in open market [m]; and every bargain of sale must be executed before witnesses [n]. Gangs of robbers much disturbed the peace of the country; and the law determined, that a tribe of banditti, consisting of between seven and thirty-five persons, was to be called a TURMA, or troop: any greater company was denominated an army [o]. The punishments for this crime were various, but none of them capital [p].
If any man could track his stolen cattle into another's ground, the latter was obliged to show the tracks out of it, or pay their value [q].
[FN [m] LL. Aethelst. Sec. 12. [n] Ibid. Sec. 10, 12. LL. Edg. apud Wilkins, p. 80. LL. Ethelredi, Sec. 4 apud Wilkins, p. 103. Hloth.
and Eadm. Sec. 16. LL. Canut. Sec. 22. [o] LL. Inae, Sec. 12. [p] LL. Inae, Sec. 37. [q] LL. Aethelst. Sec. 2. Wilkins, p. 63.]
Rebellion, to whatever excess it was carried, was not capital, but might be redeemed by a sum of money [r]. The legislators, knowing it impossible to prevent all disorders, only imposed a higher fine on breaches of the peace committed in the king's court, or before an alderman or bishop. An alehouse too seems to have been considered as a privileged place; and any quarrels that arose there were more severely punished than elsewhere [s].
[FN [r] LL. Ethelredi, apud Wilkins, p. 110. LL. Aelf. Sec. 4.
Wilkins, p. 35. [s] LL. Hloth. and Eadm. Sec. 12, 13. LL. Ethelr.
apud Wilkins, p. 117.]
[MN Rules of proof.]
If the manner of punishing crimes among the Anglo-Saxons appear singular, the proofs were not less so; and were also the natural result of the situation of the people. Whatever we may imagine concerning the usual truth and sincerity of men who live in a rude and barbarous state, there is much more falsehood, and even perjury among them, than among civilized nations; virtue which is nothing but a more enlarged and more cultivated reason, never flourishes to any degree, nor is founded on steady principles of honour, except where a good education becomes general; and where men are taught the pernicious consequences of vice, treachery, and immorality. Even superstition, though more prevalent among ignorant nations, is but a poor supply for the defects in knowledge and education: our European ancestors, who employed every moment the expedient of swearing on extraordinary crosses and relics, were less honourable in all engagements than their posterity, who, from experience, have omitted those ineffectual securities. This general proneness to perjury was much increased by the usual want of discernment in judges, who could not discuss an intricate evidence, and were obliged to number, not weigh, the testimony of the witnesses [t]. Hence the ridiculous practice of obliging men to bring compurgators, who, as they did not pretend to know any thing of the fact, expressed upon oath, that they believed the person spoke true; and these compurgators were in some cases multiplied to the number of three hundred [u]. The practice also of single combat was employed by most nations on the continent as a remedy against false evidence [w]; and though it was frequently dropped, from the opposition of the clergy, it was continually revived from experience of the falsehood attending the testimony of witnesses [x]. It became at last a species of jurisprudence: the cases were determined by law, in which the party might challenge his adversary, or the witnesses, or the judge himself [y]: and though these customs were absurd, they were rather an improvement on the methods of trial which had formerly been practised among those barbarous nations, and which still prevailed among the Anglo-Saxons.
[FN [t] Sometimes the laws fixed easy general rules for weighing the credibility of witnesses. A man whose life was estimated at 120 shillings, counterbalanced six ceorles, each of whose lives was only valued at 20 shillings, and his oath was deemed equivalent to that of all the six. See Wilkins, p. 72. [u] Praef. Nicol. ad Wilkins, p 11.
[w] LL. Burgund. cap. 45. LL. Lomb. lib. 2. tit. 55, cap. 34. [x] LL. Longob. lib. 2. tit. 55. cap. 23. apud Landenb. p. 661. [y] See Desfontaines and Beaumanoir.]
When any controversy about a fact became too intricate for those ignorant judges to unravel, they had recourse to what they called the judgment of God; that is, to fortune: their methods of consulting this oracle were various. One of them was the decision of the CROSS: it was practised in this manner: when a person was accused of any crime, he first cleared himself by oath, and he was attended by eleven compurgators. He next took two pieces of wood, one of which was marked with the sign of the cross, and wrapping both up in wool, he placed them on the altar, or on some celebrated relic. After solemn prayers for the success of the experiment, a priest, or, in his stead, some unexperienced youth, took up one of the pieces of wood, and if he happened upon that which was marked with the figure of the cross, the person was pronounced innocent; if otherwise, guilty [z]. This practice, as it arose from superstition, was abolished by it in France. The emperor, Lewis the Debonnaire, prohibited that method of trial, not because it was uncertain, but lest that sacred figure, says he, of the cross should be prostituted in common disputes and controversies [a].
[FN [z] LL. Frison. tit. 14. apud Lindenbrogium, p. 496. [a] Du Cange, in verb. CRUX.]
The ordeal was another established method of trial among the Anglo- Saxons. It was practised either by boiling water or red-hot iron.
The former was appropriated to the common people; the latter to the nobility. The water or iron was consecrated by many prayers, masses, fastings, and exorcisms [b]; after which the person accused either took up a stone sunk in the water [c] to a certain depth, or carried the iron to a certain distance; and his hand being wrapped up, and the covering sealed for three days, if there appeared, on examining it, no marks of burning, he was pronounced innocent; if otherwise, guilty [d]. The trial by cold water was different: the person was thrown into consecrated water; if he swam, he was guilty; if he sunk, innocent [e]. It is difficult for us to conceive how any innocent person could ever escape by the one trial, or any criminal be convicted by the other. But there was another usage admirably calculated for allowing every criminal to escape who had confidence