תמונות בעמוד
PDF
ePub

an account of the immediate effects of the Saxon settlements. Those effects were not, as it is easy to suppose, desirable. The invaders had fought hard for empire, and they were determined to enjoy the sweets of it.

"The conquered Britons were neither indulged entirely with their original property, nor divefted entirely of it, by the Saxons. The victors would certainly requester a portion of the lands for their own use. And the vanquished did as certainly retain a portion in their own pofTefiion. In the laws of Ina the monarch of the West-Saxons, and during the course of the feventh century, the fine for the murder of a Wilisc or Briton is fixed at a hundred and twenty shillings, if he possessed a hide of land, and at eighty only, if he poffefied but half that quantity. And so also on the continent, and in the earlier laws of the Franks, a heavy mulat is prescribed for the mur. der of a Provincial that was the actual proprietor of an estare; Ro. . manus homo podefjor, id eft, qui res in pago ubi remanet proprias pos.. fidet. The rule of war, which was observed by the Germans in ge. neral on their conquests along the continent, would be equally prac. tised by the Saxons in the island. And two-thirds of the land belonging to the vanquished became the prey of the victor. The Ger. mans, infinitely more merciful than the Romans to the slaves which they took in battle, were much less humane than they to the coun. tries that they reduced in war. ' The latter with all their municipies. colonies, and stations, and all their taxes, services, and impofitions. scarcely received a fifth of the provincial dominions. And the Saxons, not content with a fourth, a third, or even a half, rapaciously took two thirds into their own pofleffion. Two-thirds of the houses in the town, and two-thirds of the land in the country, would be configned by lot to the conqueror. And the small remainder would be divided in the same manner among the original proprietors, and measured out to them exactly according to their original portions.'

The sixth chapter describes the feveral great divisions of a Saxon flate, the civil policy established in each of them, together with the military economy settled over the whole. And here the Reader will find Mr. Whitaker, with great ability and erudition, contesting a generally received opinion :

The partition of the Saxon kingdoms into tythings. hundreds, and counties has been almost universally attributed to the illustrions Alfred. Malmesbury expressly asserts him to have divided his territories into hundreds and tythings. Ingulphus as expressly declares him to have modelled them into counties, tythings, and hundreds. And nearly the whole body of our modern historians and lawyers have, religiously copied the one and implicitly followed the other. But they are all mistaken. The tything, hundred, and county constituted a part of that original polity, which the Saxons brought with them from Germany. And two of them appear existing in Britain, and all three in France, even some ages before the time of Alfred. The tything and fire are both mentioned in the laws of the WestSaxons, before the close of the seventh century and during the reign of Ina. And the tything, the fire, and the hundred are noticed in the capitularies of the Franks, before the year 630 and the reign of

LI 2

Dagobert.

Dagobert. All the three inftitutions would commence originally at one and the same period, among the kindred nations of the Pranks and Saxons. And the fact presents us with a view of society, the most remarkable that occurs in all the varied delineations of history. It thews these admirable establishments to have been formed amid the wilds of Germany. It holds up to us a fine police, existing among a barbarous people. And it exhibits the most accurate model of domestic economy, reduced to practice by a military nation.

• The tything makes its first appearance in France about the beginning, and in England about the conclusion, of the seventh century. By this institution every freeman of the kingdom, that was the master of a family, became a Bonh, Freo-borh, Friborg, or frank pledge to the government, for the good and peaceable behaviour of all the persons within it. And he was also obliged to give security for his own behaviour, and to have nine neighbouring masters of fa. milies for his own fponfors. This remarkable part of the Saxon aconomy has been a thousand times described by our historians, an. tiquaries, and lawyers ; and yet was never explained by any of them. They have all pursued the same high-road of notices, and all fol. lowed in one beaten track of observations. And they have praised it without asligning reasons, and admired it greatly without underftanding it.

• They have particularly imagined the Friborg and his nine fponfors to be merely the masters of common families. But this fürely is so ridiculous' a supposition, as instantly strikes the mind with a convincing sense of its absurdity. No polity could seriously think of descending to such a minuteness, as to bring every ordinary house. keeper under an immediate recognizance to the crown. A military one especially, such as that of all nations is in the first stages of cia vility, and the Saxon muft particularly have been in the very iafancy of their settlement here, would undoubtedly disdain to do it. And, if boch one and the other could be prevailed on to think of the fcheme, it could never be reduced into practice. The trouble and expence of taking the ftipulations would have been insupportable, and the number of recognizances lodged in the courts, infinite. The very multiplicity of the objects must have prevented any diftin&tness in them. And the wild extensiveness of the plan would baffle every effort of execution.

• The dictates of common sense, therefore, suggested a different procedure to the legislators of the Saxons. And the same strength of intellect, which could frame the great system of tythings, would immediately catch the only practicable mode of its execution at first and of its operation afterwards. The necessities of civil polity, the prin. ciples of military æconomy, and the interior disposition of the country at this period, would all concur together to point out some of the greater and presiding families as the representatives of those below them, and to make them immediately responsible for the rest.' · In the following passage we behold, in a strong light, the barbarous polity of our Saxon ancestors, and some strictures on our own that seem to merit attention, though not altogether new :

.. Founded • Founded upon that spirit of fanaticism which always actuates the body of superstition, one of the tests expected the perpetual interpo-. fition of Divinity, and the regular suspension of the strongest powers of pature, in protection of impeached truth and in vindication of challenged innocence. The accused being previously carried through all the rites of religion, that could give solemnity to the aliion and inspire the soul with horror, he grasped the glowing iron in his naked hand, or plunged his naked arm into the boiling caldron. And, if the iron had burnt or the water scalded him, he was instantly pro. nounced guilty of the charge, and punished according to the crime.

• But there was another kind of ordeal, which was formed upon the same principle of fanaticism, and yet determined disputes in a different manner; as impertinently expeding God to super-add mia raculous effects to merely physical causes in detection of guilt, as the former did to counteract the ordinary principles of nature in justification of innocence. This is mentioned in a French capitulary of 828, a law of Athelstan, and the Textus Roffenfis. And by it the culprit, having a rope tied about him, was plunged two eils and a half deep in a river or pond, after solemn adjuration of him and the water; of him, not to undergo the trial if he was conscious of his guilt, and of the water, not to receive him into it unless he was innocent. If he sunk, as naturally he would, he was acquitted. And he was condemned only if he floated, being then considered as want. ing in weight of goodness. This strange practice was derived to the Saxons from their Celtic ancestors. The Gauls, when they suspected their wives of infidelity and their infants of bastardy, even in the days of Julian the apoitate, made the former throw the latter into the stream of the Rhine ; and the mother was put to death on their finking, and restored to favour only on their swimming. And this is well known to have lately continued the popular teit of witchcraft among ourselves; and almost subjected the poor wretches, as it had done the culprits before, to be either drowned in the trial or put to death for the crime.

• There was also a fourth method of adjudging causes in this mechanical manner, without the assistance of knowledge or the trouble of thought; that was very different from all the reft, and is spoken of in the Textus Roffenfis and a law of Canute. And the accused took an ounce of barley-bread and cheese, properly exorcised, and began to eat it in the presence of the appointed officers. If he could not swallow it, or instantly afterwards was seized with paleness and a : fhivering, he was condemned ; and, if not, acquitted.

. To these supernatural standards of their actions the Saxons were so obstinately attached, that they continued in their courts under the influence of Christianity, and againft the remonftrances of the clergy, to the Conqueft. They were even continued beyond it, and descended to the reign of Henry the Second. And the ordeals of iron and water were then appealed to by the courts, regularly on all accusations of maiming. But the former was restrained, as it proba. bly was in the time of the Saxons also, to such defendants as ranked in the line of gentlemen, And the latter was appropriated to the lower orders of life.

L13

"The

• The punishments of crimes were not left by the Saxons to the arbitrary decifion of the judges, but were accurately ascertained by the legislature. And many of them, as among the Britons before, and among all nations in the infancy of civil polity, consisted solely of mulets. A robbery was prudently punished by a fine. But, contrary to all propriety and the suggeltions of the Deity, even a mur: der was punished in the same manner. Several corrections, however, were bodily. And some crimes were rewarded with loss of limb, some with a feverer sort of Indian scaiping, others with absolute Navery, and others again with actual hanging or drowning. The law of the Saxons was generally so much the wiser, as it was less fanguinary than that of the present period. It expressly forbad any to be put to death for a theft of less than twelve-pence, 'at a time when that sum was equivalent to three pounds at present. In this particular we adhere to the letter, but have utterly forgotten the spirit, of the institute. In others, we have renounced equally the Spirit and the letter. And, in confequence of both, we offer up yearly such hecatombs of human facrifices to the law of property, as our Saxon forefathers would have shuddered to behold, even amidst the period of their wildet barbarism.'

Mr. Whitaker, in his notes on the foregoing chapter, has pointed out some mistakes into which Mr. Justice Blackstone seems to have fallen in his celebrated Commentaries on the Laws. These must excite the curiosity of the lawyer and the antiquary, and will fhew at the same time, how much the studies of the latter, with regard to a precise knowledge of our laws in their original state, require the artention of the former :

The learned and accurate Mr. Justice Blackstone, in his late Commentaries upon the Laws, has also made several mistakes concerning tythings, which it may be proper to point out here, before we proceed to other subjects.

In vol. i. p. 133, he says, that “ Alfred, -to prevent the ra. pines and disorders which formerly prevailed in the realm, instituted tythings; so called, because ten freeholders with their families composed one.” And in p. 115, he adds, that “ the institution of han. dreds-he rather introduced than invented.”

I have already shewn in the text, that tythings were not insti. tuted by Alfred, and that hundreds were neither invented nor intro• duced by him. They were both parts of the great æconomy of the Germans. They both appear equally in France two or three centuries before the reign of Alfred. And the tything particularly, which is here attributed without hesitation to that monarch, and af. firmed to be his own invention, while the hundred is supposed to be only introduced by him ; this actually occurs in our own laws as early as the seventh century, though the hundred does not make its appearance till a confiderable time afterwards.

** Nor did the rything, when it was instituted, confift of ten freeholders only and their families. I have fully shewn above the ab. surdity of such an opinion. And on the best ground, I think, I have converted the mere freeholder of our lawyers and historians

into a much more important personage, the actual lord of a township.

• P. 114. " One of the principal inhabitants of the tything is annually appointed to prefide over the rest, being called the tyihing. man, the head. borough (words which speak their own etymology, and in some countries the boríholder, or borough's ealder, being Supposed to be the discreetest man in the borough, town, or tything. Tythings, towns, or vills are of the fame signification in law.

• The worthy Judge has here asserted a tything to be the same with a township. And his endeavour to thew the truth of his pofition is attended with such an embarrassment of terms and such a confu. Gon of ideas, as will appear very extraordinary to every admirer of this juftly celebrated author.

• The general assertion is plainly a mistake. And the ancient tything and township were very different divisions of our country. This appears very plain upon the face of those laws, which are our great and original authority for the institution of tythings. And the thirty second declares the president of a deanery to have had a jurisdiction, not merely over a single township, but over several of them : ftatuerunt justitiarios super quosque decem friborgos, quos Decanos possumus appellare ;-ifti inter villas et vicinos causas tractabant.

But, had there been no such declaration in the laws of the Confessor, yet the difference between a township and a tything would have been very apparent.-The officer here meant by Sir William, as “ one of the principal inhabitants of the rything, annually appointed to preside over the rest, and called tything-man, headborough, or borsholder,” is a constable; as appears from the terms used by him here and his express declaration in p. 356. And the great and leading characteristic of a tything is this, That it should have a judicial authority lodged in the governor of it, and exercised regularly in his own court of judicarure. Statuerunt, says the above-cited law concerning the Saxons, Juftitiarios super quosque decem fribor. gos; ifti-caujas tractabant. But where is the judicial authority of the mere head of a township? And where is the judicature of a con. stable? Is he the justiciary of his district ? And is there a court convened by him, in which he presides and the inhabitants plead? The very itating such questions is a decisive answer to such a position. The constable is only the recent creation of our statute-book. - And the whole of his office is to act ministerially in the execution of the law. He has not, and he never had, any judicial authority. And the court of a constable would be a solæcism in polity.-

P. 114-115. “ Tythings, towns, or vills have the same figni. fication in law. These towns-contained each originally but one parish and one tything.”

' In the extract immediately before, our author had made the tything the same with a township and also with a borough. And he has here made it the same with a parith too. How are these politions to be reconciled ? Has he not previously declared every cything, township, or borough to consist only of ten freeholders and their tamilies ? But did every borough consist only of ten such families ? Was every borough and township inhabited exactly by the same number of housholds? Was every town and towníhip in the kingdom

L14

formed

« הקודםהמשך »