by Edmund Burke
To the reign of Henry the Second, the citizens and burgesses were little removed from absolute slaves. They might be taxed individually at what sum the king thought fit to demand; or they might be discharged by offering the king a sum, from which, if he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted with severity, and even cruelty. A great difference is made between taxing them and those who cultivate lands: because, says my author, their property is easily concealed; they live penuriously, are intent by all methods to increase their substance, and their immense wealth is not easily exhausted. Such was their barbarous notion of trade and its importance. The same author, speaking of the severe taxation, and violent method of extorting it, observes that it is a very proper method, — and that it is very just that a degenerate officer, or other freeman, rejecting his condition for sordid gain, should be punished beyond the common law of freemen.
I take it that those who held by ancient demesne did not prescribe simply not to contribute to the expenses of the knight of the shire; but they prescribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king’s villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of the same kind in the Saxon times, when they were of more repute. It is certain that many places now called boroughs were formerly towns or villages in ancient demesne of the king, and had, as such, writs directed to them to appear in Parliament, that they might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of summoning them. This appears by sufficient records. And it appears by records also, that it was much at the discretion of the sheriff what boroughs he should return; a general writ was directed to him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to Parliament were quite passed over, and others, never considered as such before, were returned. What is called the prescription on this occasion was rather a sort of rule to direct the sheriff in the execution of his general power than a right inherent in any boroughs. But this was long after the time of which we speak. In whatever manner we consider it, we must own that this subject during the Saxon times is extremely dark. One thing, however, is, I think, clear from the whole tenor of their government, and even from the tenor of the Norman Constitution long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which the members held their seats were far from being exactly ascertained. The Judicia Civitatis Londoniæ afford a tolerable insight into the Saxon method of making and executing laws. First, the king called together his bishops, and such other persons as he thought proper. This council, or Witenagemote, having made such laws as seemed convenient, they then swore to the observance of them. The king sent a notification of these proceedings to each Burgmote, where the people of that court also swore to the observance of them, and confederated, by means of mutual strength and common charge, to prosecute delinquents against them. Nor did there at that time seem to be any other method of enforcing new laws or old. For as the very form of their government subsisted by a confederacy continually renewed, so, when a law was made, it was necessary for its execution to have again recourse to confederacy, which was the great, and I should almost say the only, principle of the Anglo-Saxon government.
What rights the king had in this assembly is a matter of equal uncertainty. The laws generally run in his name, with the assent of his wise men, &c. But considering the low estimation of royalty in those days, this may rather be considered as the voice of the executive magistrate, of the person who compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems, the law was digested by the king or his council for the assent of the general assembly. That order is now reversed. All these things are, I think, sufficient to show of what a visionary nature those systems are which would settle the ancient Constitution in the most remote times exactly in the same form in which we enjoy it at this day, — not considering that such mighty changes in manners, during so many ages, always must produce a considerable change in laws, and in the forms as well as the powers of all governments.
We shall next consider the nature of the laws passed in these assemblies, and the judicious manner of proceeding in these several courts which we have described.
Saxon laws.
The Anglo-Saxons trusted more to the strictness of their police, and to the simple manners of their people, for the preservation of peace and order, than to accuracy or exquisite digestion of their laws, or to the severity of the punishments which they inflicted. The laws which remain to us of that people seem almost to regard two points only: the suppressing of riots and affrays, — and the regulation of the several ranks of men, in order to adjust the fines for delinquencies according to the dignity of the person offended, or to the quantity of the offence. In all other respects their laws seem very imperfect. They often speak in the style of counsel as well as that of command. In the collection of laws attributed to Alfred we have the Decalogue transcribed, with no small part of the Levitical law; in the same code are inserted many of the Saxon institutions, though these two laws were in all respects as opposite as could possibly be imagined. These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude institutions of an unlettered people had attained an height which the united efforts of necessity, learning, inquiry, and experience can hardly reach to in many ages. We must add, that, although as one people under one head there was some resemblance in the laws and customs of our Saxon ancestors throughput the kingdom, yet there was a considerable difference, in many material points, between the customs of the several shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some of which custom, that caused them, has abrogated; others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.
Purgation by oath.
By ordeal.The Saxon laws, imperfect and various as they were, served in some tolerable degree a people who had by their Constitution an eye on each other’s concerns, and decided almost all matters of any doubt amongst them by methods which, however inadequate, were extremely simple. They judged every controversy either by the conscience of the parties, or by the country’s opinion of it, or what they judged an appeal to Providence. They were unwilling to submit to the trouble of weighing contradictory testimonies; and they were destitute of those critical rules by which evidence is sifted, the true distinguished from the false, the certain from the uncertain. Originally, therefore, the defendant in the suit was put to his oath, and if on oath he denied the debt or the crime with which he was charged, he was of course acquitted. But when the first fervors of religion began to decay, and fraud and the temptations to fraud to increase, they trusted no longer to the conscience of the party. They cited him to an higher tribunal, — the immediate judgment of God. Their trials were so many conjurations, and the magical ceremonies of barbarity and heathenism entered into law and religion. This supernatural method of process they called God’s Dome; it is generally known by the name of Ordeal, which in the Saxon language signifies the Great Trial. This trial was made either by fire or water: that by fire was principally reserved for persons of rank; that by water decided the fate of the vulgar; sometimes it was at the choice of the party. A piece of iron, kept with a religious veneration in some monastery, which claimed this privilege as an honor, was brought forth into the church upon the day of trial; and it was there again consecrated to this awful purpose by a form of service still extant. A solemn mass was performed; and then the party accused appeared, surrounded by the clergy, by his judges, and a vast concourse of people, suspended and anxious fo
r the event; all that assisted purified themselves by a fast of three days; and the accused, who had undergone the same fast, and received the sacrament, took the consecrated iron, of about a pound weight, heated red, in his naked hand, and in that manner carried it nine feet. This done, the hand was wrapped up and sealed in the presence of the whole assembly. Three nights being passed, the seals were opened before all the people: if the hand was found without any sore inflicted by the fire, the party was cleared with universal acclamation; if on the contrary a raw sore appeared, the party, condemned by the judgment of Heaven, had no further plea or appeal. Sometimes the accused walked over nine hot irons: sometimes boiling water was used; into this the man dipped his hand to the arm. The judgment by water was accompanied by the solemnity of the same ceremonies. The culprit was thrown into a pool of water, in which if he did not sink, he was adjudged guilty, as though the element (they said) to which they had committed the trial of his innocency had rejected him.
Both these species of ordeal, though they equally appealed to God, yet went on different principles. In the fire ordeal a miracle must be wrought to acquit the party; in the water a miracle was necessary to convict him. Is there any reason for this extraordinary distinction? or must we resolve it solely into the irregular caprices of the human mind? The greatest genius which has enlightened this age seems in this affair to have been carried by the sharpness of his wit into a subtilty hardly to be justified by the way of thinking of that unpolished period. Speaking of the reasons for introducing this method of trial, “Qui ne voit,” says he, “que, chez un peuple exercé à manier des armes, la peau rude et calleuse ne devoit pas recevoir assez l’impression du fer chaud, ... pour qu’il y parût trois jours après? Et s’il y paroissoit, c’étoit une marque que celui qui faisoit l’épreuve étoit un efféminé.” And this mark of effeminacy, he observes, in those warlike times, supposed that the man has resisted the principles of his education, that he is insensible to honor, and regardless of the opinion of his country. But supposing the effect of hot iron to be so slight even on the most callous hands, of which, however, there is reason to doubt, yet we can hardly admit this reasoning, when we consider that women were subjected to this fire ordeal, and that no other women than those of condition could be subjected to it. Montesquieu answers the objection, which he foresaw would be made, by remarking, that women might have avoided this proof, if they could find a champion to combat in their favor; and he thinks a just presumption might be formed against a woman of rank who was so destitute of friends as to find no protector. It must be owned that the barbarous people all over Europe were much guided by presumptions in all their judicial proceedings; but how shall we reconcile all this with the custom of the Anglo-Saxons, among whom the ordeal was in constant use, and even for women, without the alternative of the combat, to which it appears this people were entire strangers? What presumption can arise from the event of the water ordeal, in which no callosity of hands, no bravery, no skill in arms, could be in any degree serviceable? The causes of both may with more success be sought amongst the superstitious ideas of the ancient Northern world. Amongst the Germans the administration of the law was in the hands of the priests or Druids. And as the Druid worship paid the highest respect to the elements of fire and water, it was very natural that they who abounded with so many conjurations for the discovery of doubtful facts or future events should make use of these elements in their divination. It may appear the greater wonder, how the people came to continue so long, and with, such obstinacy, after the introduction of Christianity, and in spite of the frequent injunctions of the Pope, whose authority was then much venerated, in the use of a species of proof the insufficiency of which a thousand examples might have detected. But this is perhaps not so unaccountable. Persons were not put to this trial, unless there was pretty strong evidence against them, something sufficient to form what is equivalent to a corpus delicti; they must have been actually found guilty by the duodecemvirale judicium, before they could be subjected in any sort to the ordeal. It was in effect showing the accused an indulgence to give him this chance, even such a chance as it was, of an acquittal; and it was certainly much milder than the torture, which is used, with full as little certainty of producing its end, among the most civilized nations. And the ordeal without question frequently operated by the mere terror. Many persons, from a dread of the event, chose to discover rather than to endure the trial. Of those that did endure it, many must certainly have been guilty. The innocency of some who suffered could never be known with certainty. Others by accident might have escaped; and this apparently miraculous escape had great weight in confirming the authority of this trial. How long did we continue in punishing innocent people for witchcraft, though experience might, to thinking persons, have frequently discovered the injustice of that proceeding! whilst to the generality a thousand equivocal appearances, confessions from fear or weakness, in fine, the torrent of popular prejudice rolled down through so many ages, conspired to support the delusion.
Compurgation.To avoid as much as possible this severe mode of trial, and at the same time to leave no inlet for perjury, another method of clearing was devised. The party accused of any crime, or charged in a civil complaint, appeared in court with some of his neighbors, who were called his Compurgators; and when on oath he denied the charge, they swore that they believed his oath to be true. These compurgators were at first to be three; afterwards five were required; in process of time twelve became necessary. As a man might be charged by the opinion of the country, so he might also be discharged by it: twelve men were necessary to find him guilty, twelve might have acquitted him. If opinion supports all government, it not only supported in the general sense, but it directed every minute part in the Saxon polity. A man who did not seem to have the good opinion of those among whom he lived was judged to be guilty, or at least capable of being guilty, of every crime. It was upon this principle that a man who could not find the security of some tithing or friborg for his behavior, he that was upon account of this universal desertion called Friendless Man, was by our ancestors condemned to death, — a punishment which the lenity of the English laws in that time scarcely inflicted for any crime, however clearly proved: a circumstance which strongly marks the genius of the Saxon government.
Trial by the Country.On the same principle from which the trial by the oath of compurgators was derived, was derived also the Trial by the Country, which was the method of taking the sense of the neighborhood on any dubious fact. If the matter was of great importance, it was put in the full Shiremote; and if the general voice acquitted or condemned, decided for one party or the other, this was final in the cause. But then it was necessary that all should agree: for it does not appear that our ancestors, in those days, conceived how any assembly could be supposed to give an assent to a point concerning which several who composed that assembly thought differently. They had no idea that a body composed of several could act by the opinion of a small majority. But experience having shown that this method of trial was tumultuary and uncertain, they corrected it by the idea of compurgation. The party concerned was no longer put to his oath, — he simply pleaded; the compurgators swore as before in ancient times; therefore the jury were strictly from the neighborhood, and were supposed to have a personal knowledge of the man and the fact. They were rather a sort of evidence than judges: and from hence is derived that singularity in our laws, that most of our judgments are given upon verdict, and not upon evidence, contrary to the laws of most other countries. Neither are our juries bound, except by one particular statute, and in particular cases, to observe any positive testimony, but are at liberty to judge upon presumptions. These are the first rude chalkings-out of our jurisprudence. The Saxons were extremely imperfect in their ideas of law, — the civil institutions of the Romans, who were the legislators of mankind, having never reached them. The order of our courts, the discipline of our jury, by which it is become so elaborate a contrivance, and the introduction of a sort of scientific reason in t
he law, have been the work of ages.
As the Saxon laws did not suffer any transaction, whether of the sale of land or goods, to pass but in the shire and before witnesses, so all controversies of them were concluded by what they called the scyre witness. This was tried by the oaths of the parties, by vivâ voce testimony, and the producing of charters and records. Then the people, laity and clergy, whether by plurality of votes or by what other means is not very certain, affirmed the testimony in favor of one of the claimants. Then the proceeding was signed, first by those who held the court, and then by the persons who affirmed the judgment, who also swore to it in the same manner.
Punishments.The Saxons were extremely moderate in their punishments. Murder and treason were compounded, and a fine set for every offence. Forfeiture for felony was incurred only by those that fled. The punishment with death was very rare, — with torture unknown. In all ancient nations, the punishment of crimes was in the family injured by them, particularly in case of murder. This brought deadly feuds amongst the people, which, in the German nations particularly, subsisted through several generations. But as a fruitless revenge could answer little purpose to the parties injured and was ruinous to the public peace, by the interposal of good offices they were prevailed upon to accept some composition in lieu of the blood of the aggressor, and peace was restored. The Saxon government did little more than act the part of arbitrator between the contending parties, exacted the payment of this composition, and reduced it to a certainty. However, the king, as the sovereign of all, and the sheriff, as the judicial officer, had their share in those fines. This unwillingness to shed blood, which the Saxon customs gave rise to, the Christian religion confirmed. Yet was it not altogether so imperfect as to have no punishment adequate to those great delinquencies which tend entirely to overturn a state, public robbery, murder of the lord.
