820-1066.]

TRIAL BY JURY, NOT SAXON.

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more perfect investigation of Anglo-Saxon lore has proved that this invaluable institution was not introduced until after the Conquest. In the administration of justice in the Anglo-Saxon courts, it was usual to require the landowners and people of the vicinity, to assist in the discovery and punishment of crime. Twelve thanes were chosen in every wapentake, to present the crimes committed in the district; twelve compurgators confirmed the oath of innocence, of an accused person. But the proceeding of the twelve thanes was an accusation, not a trial; the compurgators were the exparte supporters of the accused; and the Saxon inquests, which bear the nearest resemblance to the modern jury, were the witnesses, and not the triers of the facts. It is probable, however, that the number of the jury, when trial by jury was afterwards constituted, was fixed in reference to the old Anglo-Saxon preference for the number of twelve.1

Amongst the Saxon laws those of King Edward the Confessor were much prized; and their disuse after the Conquest was greatly regretted by the Saxon people. These laws were, however, ordained by King Canute; and were only confirmed by King Edward on his accession to the throne.2

When we review these ancient Saxon institutions, we find the government to be monarchical, but strongly controlled by the aristocracy of the Wittena-Gemote, and of the eorls and higher nobility. The people had no direct political power; but they were not rigidly excluded from it, the institutions permitting them to ascend to the rank of nobility, by means within the reach of successful industry at home, or adventurous trade abroad. A large proportion of the people

1 Mr. Hallam has produced the evidence that bears upon this question, and expressed his opinion that it does not warrant us to infer the existence of trial by jury. (Middle Ages, vol. ii. p. 76.) Sir F. Palgrave has treated the subject at large, with the same conclusion, in his History, ch. 8.

new population, a new language, and a new political system were introduced.

A large number of the Saxon nobles fell in the battle, and their estates were immediately confiscated by William. Some who survived and made their submission, were allowed to retain their properties; but afterwards joining in insurrection, they were deprived of them; so that before the close of William's reign, nearly all the land of the kingdom had passed into his power. The people at first struggled to retain their freedom, and their Saxon institutions and laws, which they greatly cherished; but, deprived of the leadership and support of the ancient nobility, their attempts were unsuccessful, and they gradually sank into a state of poverty and bondage.

The acquisition of the lands of England was one of the chief motives of the followers of William to assist him in the invasion of the island; and when the conquest was complete, he lost no time in giving them the expected booty. The King appropriated to himself, as the demesnes of the Crown, 1422 large properties or manors in different shires, besides other scattered lands and farms. Amongst these were the lands of the Saxon kings and great thanes; of Edward the Confessor, Harold, Earl Godwin, Ghida, the mother of Harold, and Editha, the Confessor's Queen. The lands of other Saxon nobles he divided amongst his chieftains, apparently according to their rank in Normandy; or in proportion to the number of their followers, or to the supplies they had furnished to the expedition. But it is observable that most of the larger grants were of lands in different parts of the kingdom; so that too much power or influence might not be obtained by any chief, through the possession of large properties in one place. If that rule were departed from, the lands were generally on the borders of Wales or in the North, where the chieftain would have to defend his possessions against neighbouring or foreign foes. Some of the Conqueror's chieftains acquired estates

1 Kelham's Domesday Book Illustrated, p. 440.

1066-1087.] THE FEUDAL SYSTEM INTRODUCED.

23

by marriage with the heiresses of ancient Saxon families; their titles being probably confirmed by grants from the Conqueror.'

But William did not long allow his chiefs to enjoy their new possessions free from his control; and to unite their interests with his, and secure their assistance in war and their counsel in peace, he introduced into the country the FEUDAL SYSTEM. This system was at that time established in Normandy, and in other parts of Europe; where it had its origin in the policy of the barbarians, who spread themselves over the continent at the decline of the Roman Empire. It has been a question of learned controversy, whether or not the feudal system existed in England amongst the Saxons; but the best authorities hold that it was first introduced into England by the Conqueror. It was the most important of all the changes introduced by William; and it has greatly influenced the formation of our present system of government. From it flowed (as will hereafter appear) our Parliament; almost directly the aristocratic, and scarcely less so the representative, branch of it. It lies at the foundation of our law of landed property. The law of primogeniture was its necessary consequence. Notwithstanding its oppressions, it maintained its hold until abolished by statute in the reign of Charles II. It is obvious, therefore, that the nature and principles of our constitution cannot be understood, without an acquaintance with, at least, the outlines of that celebrated system.

The object of the feudal system was to create that mutual relation between the king and his chiefs, which would ensure the defence of his kingdom, and the power of the king. It attached all importance to land, which was then the only wealth. Its leading principle was, that the king is the

1 Sir Henry Ellis's Introduction to Domesday Book, vol. i. p. viii. Peers' Report, vol. i. p. 24.

2 Spelman on Feuds, cap. 3, p. 7. See Hallam's Middle Ages, vol. ii. pp. 89-96.

paramount lord of all the lands of the kingdom; and that all proprietors hold their lands directly or indirectly (in feudal phrase, mediately or immediately) of the king. The Conqueror, on his first division of the land amongst his followers, did not grant it on feudal tenure: it was, at first, given as allodial, or free from any superior or burden; and it was not until the latter end of William's reign, after an alarm of an expected invasion from Denmark had passed away, that he induced his chiefs to provide for the defence of the kingdom, by holding their lands as feudatories. In the nineteenth year of his reign, William and the great landowners met at Sarum; where the latter voluntarily surrendered their estates to the King, and received them back from him, to be held by the tenure of KNIGHT-SERVICE, or CHIVALRY.!

The feudal relation was instituted by a symbolical delivery of the possession of the land by the king, as feudal lord, to the grantee, or vassal, in the presence of other vassals. This was called livery of seisin; and it was followed by a remarkable ceremony, that, according to modern ideas, would perhaps be considered humiliating, both in posture and language. It was called homage; and so called from its being the profession by the vassal that he was the king's man, from the Norman words used in the ceremony, "Je deveigne votre homme,”—I become your man. The vassal (or tenant, as he was usually called, after homage, by reason of his holding the land) was ungirt of his sword, and his head was uncovered. The king sat, and the vassal knelt before him, on both his knees; holding his hands together, between the hands of the king. In that position, the vassal

1 c A.D. 1086.--This year the King bare his crown and held his court in Winchester, at Easter. Afterwards he was at Sarum, in Lammas, where he was met by his councillors; and all the landsmen that were of any account over all England became this man's vassals as they were; and they all bowed themselves before him, and became his men, and swore him oaths of allegiance that they would against all other men be faithful to him." (Saxon Chronicle, p. 290.)

1066-1087.]

FEUDAL SERVICES.

25

25

pronounced these words in Norman-French: "I become your man from this day forward, of life and limb, and of earthly worship; and unto you shall be true and faithful and bear to you faith for the tenements I claim to hold of you." The king then kissed the vassal on the cheek, and the vassal took the oath of fealty. "Hear this, my lord, I will be faithful and loyal to you, and will bear to you faith for the tenements I hold of you; and will loyally perform the customs and services which I owe to you, at the times assigned. So help me God and His Saints."

The services which were reserved by the king, and which the tenant was to render to him, were twofold,-to follow, or do suit2 to him in his court in time of peace, and to attend him in war, if called upon. This tenure was called by the various names of Tenure in Chivalry, Military Tenure, and Knight-Service. Each portion of the land granted, that was equal in value to the sum of twenty pounds a year, (estimated, according to some authorities, by a fixed invariable quantity, according to others by its quality only3) constituted a Knight's-Fee; and for each knight's-fee the tepant was bound to render a knight completely armed and accoutred for war, with attendants and horses, to serve forty days in the year.

The Conqueror also appropriated large quantities of land to the CHURCH; but no distinction was made in favour of ecclesiastical property. The land was held by military service, and charged with the render of knights and men, which it was the duty of the abbots and bishops to provide.

The holders of lands by military service, directly of the king, owned no superior but the king: they were called the king's tenants in capite, or in chief; and, from the words in the act of homage, by which each declared himself to be the man, l'homme, or (in law Latin) baro, of the king, they ac

1 Littleton, 64.

2 A derivative from suivre, to follow,-hence 'suitors.'

3 See 'Modus Tenendi Parliamentum' (1671), p. 4. Selden's Titles of Honour, p. 769 et post; Sir H. Ellis, i. 146, and authorities there cited.