From around the late C7th, although England was divided into various separate kingdoms one king tended to become predominant and to regard himself as the overlord of the others and thus call himself King of England. For a short-time England was united under a Danish King - Canute (ruled, 1016 to 1035) but by this time the Danes and the Anglo-Saxons were so well integrated that this probably had no material affect upon the English people.
The Norman conquest
The era of Anglo-Saxons came to an end, when the last Anglo-Saxon King - Harold - was defeated by William, Duke of Normandy, at Hastings in 1066. There then followed a further period during which invaders had to be assimilated into England.
Anglo-Saxon government
The Norman Conquest is often regarded as the starting point of English Law. However it is important not to overlook the system of local government which they inherited which enabled them to impose a strong central administration upon the country.
The Anglo-Saxons divided the country into shires (or counties). This system remained largely unchanged until 1972, when, in an act of unparalleled social barbarism, the Tory Government of the day, under Edward Heath conducted a wholly unnecessary re-organisation. The Anglo-Saxons divided the shires into smaller units of government called ‘Hundreds’. The derivation of the name isn’t known - maybe the amount of land needed to maintain one hundred families. However, they varied greatly in size: there were, for example, 63 in Kent but only 5 in Leicestershire. Below the Hundreds were the boroughs and towns or vills. The vills were an important instrument of local government and had a number of important duties e.g. to supply four representatives to the Hundred court.
Each shire was governed by a nobleman called an Earl. The Earls had households which reflected that of the King. The king’s interests, principally the collection of revenue owed to the king, were represented by an official called the Shire Reeve (reeve means ‘steward’ so this translates to ‘county steward’) shortened to Sheriff.
Each shire and hundred had its court (or moot). The courts were not courts in the modern sense but dealt with the whole spectrum of local administration of which administering justice was only a part. The principal courts were the Hundred Court which met once a month and the Shire Court which met once every six months. After the Norman conquest, many of these courts appear to have been franchised into private hands. Because a number of invaders were being murdered by the Saxons, it was enacted that every hundred where a Norman as found murdered was to be subjected to a heavy fine (called a murdrum). Because it was often denied that the murdered man was a Norman, it became the presumption that the murdered man was a Norman unless the contrary could be proved. This was done by a procedure called ‘Presentment of Englishry.’
Every six months there was a special meeting of the Hundred court which the sheriff attended. It was called the ‘sheriff’s tourn’. The reeve of each vill and its four best men were questioned by the sheriff as to crimes which had been committed within the Hundred. One aspect of the business of the court was for the sheriff to ‘take a view of the frankpledge’, i.e. to endure that every male over 12 was enrolled in a tithing. A tithing was a group of 10 families who were responsible for bringing the offender to justice should one of them commit a crime. (For the unfree people, their lord was responsible). Thus the frankpledge represented a primitive form of policing.
The Shire court was originally presided over by the Earl. All the free land-owners of the shire at in the shire court along with the bishop as representative of the church. Although in Anglo-Saxon times six-monthly meetings seem to have been the rule, by the C13th the county court was meeting monthly.
The local courts began to go into decline with the rise in royal justice.
The Conquest seems to have preserved these courts but added the baronial court. This was a court held by a land-owner for his tenants. The right to hold such a court was coveted because the court produced a significant income.
A further addition under the Normans was the Ecclesiastical Court. These were staffed by clergy and dealt with matters which were of special interest to the church such as marriage, wills and crimes committed by the clergy. These matters were formally dealt with in the Shire Courts, where the Bishop was in attendance, but William of Normandy had made a promise to the Pope that if the Pope supported his attempt to secure the throne of England, William would establish ecclesiastical courts if he were successful. The ecclesiastical courts still exist. However, their jurisdiction is confined to matters of church government. They lost their jurisdiction over Divorce and Wills when the Court of Divorce and the Court of Probate were established in 1857.
Forms of proof
The courts dealt with a mixture of what today would be termed civil and criminal matters. The way in which facts were proved was primitive.
The ordeal was a form of proof which relied upon the judgement of God. It was done under the supervision of a priest, usually either in the church or close by. There were two main forms of ordeal. The ordeal of hot iron consisted of an iron rod being heated and the defendant made to carry the iron in his hands for a certain number paces. The resultant wound was bound up and then unbound after a certain number of days (the general rule seems to have been between 3 and 7). If the wound was found to have festered, it was God’s judgement that the defendant was guilty. It ought not to be thought that, primitive though it was, the ordeal was administered mindlessly. It was always administered if the defendant was accused of a criminal act and had been caught red-handed. However, if there was some doubt about the accused’s guilt, the iron was not heated or was not heated to any great heat, or the accused was allowed to prove by way of compurgation (also called ‘wager of law’). The ordeal of water was where the defendant was tied to a rope and lowered into a pond. If he/she sank the verdict was not guilty or not liable. If he/she floated the verdict was innocent. This ordeal was mainly used for women. A further ordeal, mainly used for priests was the ordeal of the cursed morsel. Here a morsel of bread or cheese had to be swallowed by the accused. It may sometimes have had a feather inserted into it. If the accused choked he was guilty. If not he was innocent.
Compurgation was a mode of proof whereby the defendant enlisted the help of a number of ‘oath-helpers’, usually 12. What happened was that the defendant swore on the bible that he was not guilty or that he did not owe the money or whatever. The oath-helpers then swore a solemn oath, not that the defendant was not liable, but that they thought that his oath was worthy of belief: i.e. if he swears that he didn’t do it, we believe he didn’t. This may appear to be a simple way of avoiding liability but don’t forget that it had its roots in mediaeval times when the religious ethic was very strong and when many people believed that swearing a false oath would condemn them to everlasting perdition in the life hereafter. The oath had to be word perfect otherwise it was invalid. When people began to get more cynical it became possible to buy the service of oath-helpers at the doors of the courts.
A further method of proof, unknown to the Anglo-Saxons, was introduced by the Normans. This was trial by battle (or combat) whereby the defendant had to fight either the claimant (in the case of a claim to land) or his accuser, where he was accused of a criminal offence. Unless he were old or infirm, the defendant had to fight in person. There is an example in the time of King John of a knight accused of felony being released from jail twice a day to practice fencing (quoted by Poole in Doomsday Book to Magna Carta 1087-1216.)
The significance of these types of proof
The ordeal came to a sudden end. The Fourth Lateran Council of the Church of Rome in 1215 decided that the ordeal was an appeal to superstition not an appeal to God. The Council therefore forbade the clergy to participate in ordeals. The ordeal therefore lost the basis of its validity. A method of proof had to be found to replace it. The method chosen, after some uncertainty, was trial by jury. Jury trial has remained the foundation of trial for serious criminal offences to the present day.
Compurgation lasted longer. Each type of civil action had a designated form of proof. Compurgation was the method of proof used in the trial of allegations that the defendant owed money (debt) or goods (detinue) to the claimant. This fact led to claimants using legal fictions in order that their case might be tried by jury.
Similarly with trial by battle. This was used to try cases relating to the ownership of land. Instead an elaborate series of fictions were devised whereby an action which was intended to eject a trespasser from land was used, instead, to try the title to the land.
Government
Anglo-Saxon England was governed by the king with the help of a group of ‘wise men’ called the Witan. These men would be the chief landowners and the chief figures in the church but there was no restriction as to who the king called upon to be part of the Witan.
This changed after the conquest. The kingdom was governed by the king with the help of his tenants-in-chief, called together in a body called the curia regis. Literally this means ‘the king’s court’ but was principally an administrative body, although it had certain judicial functions. From this curia regis developed Parliament and the royal, centralised, courts of justice.
The feudal system
This is the name given to the system whereby a land-owner acknowledges another as his ‘lord’ in the interests of mutual protection: the lord protects the interests of his ‘man’ in return for which the man goes to the aid of his lord when necessary. The ‘man’ swears homage to his lord by way of kneeling before him, taking his hands and swearing a formal oath.
There was a type of feudal system under the Anglo-Saxons. However, it was much looser than the one developed by the Normans. A significant feature of it was that it depended upon mutual acceptance by the lord and his man and, if it became convenient the man could put his land under the over-lordship of a different lord. All this changed with the Normans. William introduced the basic theory that all land belonged to the king. The king then granted an estate in the land to certain followers. They were called ‘tenants-in-chief’. In turn the tenants-in-chief granted land to their own follower and in turn these sub-tenants could grant land to their own tenants. This process could continue indefinitely and was called ‘sub-infeudation’.
Although these land-holders are called ‘tenants’ they are not tenants in the modern sense of the word. applied to those who simply rent land and have no other interest in it. They were, to all intents and purposes, the owners of the land. They could not be displaced providing they honoured the conditions under which they held the land (the tenure).
Tenure was one of four types:
Knight tenure: this meant that the tenant was bound to provide the lord with a number of properly equipped knights, for so many days during the year. However, it was not long before knight tenure was becoming commuted to a money payment called ‘scutage’ - literally meaning ‘shield money’.
Sergeanty: this meant that the tenant was bound to provide services of a personal nature for the lord such as carrying his banner into battle.
Frankalmoign: certain church lands were held by this tenure, although many were held by knights’ service or socage. It consisted of the church undertaking to say prayers for the repose of the soul of the lord after the lord’s death.
Socage: this meant that the tenant was bound to render specified general services. A Northamptonshire family held lands by hunting wolves in the counties of Northants, Huntingdon, Oxford and Buckingham. However, the services were more usually of a normal agricultural type. Eventually all services became socage and were commuted to a money payment. This became progressively worth less until, although all land is still theoretically held on a feudal socage tenure today, the money long since became devalued to the extent where it was not worth collecting.
There were also a number of ‘feudal incidents’. The chief of these were as follows:
Wardship: if a tenant died (for example) and was succeeded by an heir who was under 14, the lord was entitled to possession of the tenant’s land and to the profits from the land until the heir came of age. The lord had an obligation to maintain and educate the tenant according to his station in life.
Aids: there were originally a number of circumstances in which the lord could call on his tenants for aid. However, finally aids were due in only three circumstances: to ransom the lord’s body, to knight the lord’s eldest son and to marry the lord’s eldest daughter (once). Otherwise they were granted only by agreement.
Escheat and forfeiture: Escheat is where the land reverts to the law if a tenant either dies without an heir or is found guilty of a felony. Forfeiture was where, in the case of a tenant being convicted of treason, the land
was forfeited to the king.
Marriage: the lord had a right to arrange a suitable marriage for his wards.
Relief: where the tenant died and was succeeded by his heir, the heir had to pay a sum of money for the lord to re-grant the land to the heir. This was called a ‘relief’.
Villeins
There was a large section of the community, both under the Anglo-Saxon and under the Normans which was not free. They held land but their tenure was not freehold. Their service took the form of working on their lord’ land for so many days per week. Their good tended to belong to the lord. They could not move to a different manor without the consent of their lord.
Doomsday Book and the Salisbury Oath
William 1 died in 1087. The last few years of his reign were spent in compiling the Doomsday Book. This was an audit of the land-holding and the livestock of every county in England. This was necessary in order that the King could be aware of the royal dues under the feudal system It was compiled by sending Royal Commissioners out into the country to make appropriate enquiries. The result was the Doomsday Book. Its significance is twofold:
1. it shows the close control over finance exercised by William and subsequent kings, which soon resulted in the establishment of a government department called the Exchequer. This in turn led to the establishment of a court to decide royal revenue disputes.
2. it is the earliest example of itinerant royal commissioners being sent round the country. This system, as developed in order to keep the knowledge required for taxation up-to-date. Being regarded as impartial these royal commissioners were often asked to give rulings in dispute. This judicial function gradually overtook the fiscal function.
3 it is perhaps the earliest know use of the system of requiring people to answer questions about matters within their knowledge. It is regarded a the forerunner of the jury system. Although Maitland says (Constitutional History of England 1908), speaking about the procedure whereby evidence is sought from a sworn inquest of neighbours ‘This is not English’ there is, nevertheless, evidence of a jury system in Anglo-Saxon England. King Ethelred promulgated a decree at Wantage circa 997 which is in very similar terms to the Assize of Clarendon 1166, to which the modern jury may be directly traced.
In 1086 William summoned all the land-holders in England to Salisbury in order to swear an oath of allegiance to him. It is thought that he did this in order to head off the possibility of a revolt. He had seen this happen in France, where William himself was a tenant-in-chief of the King of France. The government in France was weak because if a tenant-in-chief was prepared to break his oath of fealty (loyalty), that tenants own tenants, who had sworn an oath of fealty only to the tenant-in-chief, would be bound to help the tenant-in-chief against his lord. Thus, if William could secure an oath of fealty from ALL tenants, not just his own tenants-in-chief, it would require oath breaking on a large scale in order for a revolution to take place.
