M. (Paul) Rapin de Thoyras.

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Before Egbert, the Kinjs of Kent were crowned by the was Hereditary ; as the Imperial Crown of Germany can't
Archbifhops of Canterbury : The Kings of Northumber- be faid to be fo, though it has now continued two hundred
land by the Archbifhops of York ; and the reft commonly and fifty years in the Houfe of Aujlria. To fupport their
by the Bifhop of their Capital. After Egbert united the Opinion concerning the Right of Eleftion, they alledge
Heptarchy or at leaft four of the Kingdoms into one, feveral Paffages of the Hiftonans, who, fpeaking of the
the Archb'ifliop of Canterbury claimed the Privilege of Kings that fucceeded their Fathers, ufe this Expreffion,
crownin- the Kings ; but this pretenfion was founded eleBus ejl in Regem, He was defied King.
only on°a Cuftom,° which, tho' ufual, was not however
neceftary. And indeed we find, after the Union, feveral
Kings were crowned by the Archbifhops of York, or even
by other Bifhops. Some fay, Harold put the Crown on
his own head himfelf. Sweyn, the firft Damjh King, was
not crowned at all, and yet was owned for King. Edgar
reigned feveral years in Weffex before he was folemnly
crowned. Edward the Confeffor 's Coronation was not per-
formed till fix Months after he was proclaimed. This



To this the others reply, That indeed upon certain Anpuiv.
occafions, Fraud and Violence took place: But however,
the Lineal Succeffion, tho' broken for fome time, preferved
its Rights, fince quickly after we find things were reftored
to their former State. I think it needlefs to produce the
Inftances alledged by both Parties. Befides their having
been related in the Hiftory, the Reader may eafily refrefh
his Memory by carting his Eye on the Genealogical Ta-
bles of the Anglo-Saxon Kings, where the Order of the Suc-



neglect is a clear Evidence this Ceremony was not then ceffion is fet down. As for the Expreffion of the Hifto-



deemed abfoluteiy neceftary. And therefore they who
date the beginnings of the Reigns from the Coronation-
days, only breed confufion in Chronology, from a miftaken
nicety. This way of reckoning is fo much the more
liable to Error, as there were feveral Kings who repeated
the Solemnity of their Coronation feveral times ; for in-
stance, Cerdic firft King of Weffex. This Ceremony was
not at firft performed in a Church, but in the open Air.
Thus it is exprefly faid by the I iftonans, that .



frrm of the
Crown-



Three Opi-
nions c •'.-
terning tis

ituc.ijft-n.



rians, Hi was eletled, they fay, thefe Words are to be
found only in Authors who wrote long after, and made
ufe of them without confidering the Confequences, as not
treating exprefly of this matter. Befides, 'tis pretended,
thefe Authors have not rightly tranflated the original
Terms in the Saxon Annals, Feng to Rice, which properly
fignify Regnum capejffit, he took upon him the Kingdom.

They who are of the third Opinion, alledge againft the That the
firft, that the Crown was not tfierefore Hereditary, be- c f™?f%'
Edmund and Edred were crowned in an open caufe it continued long in one Family, as appears from the ^g g^

•V,, ' , < example of the Houfe of Aitftria. To the fecond they

rl.ice (i.) , i • n i ,- i <"■ i n .- '

As for the Form of the Crown, it was not over-cu- object, that after proving the Lrown not to be Hereditary,
rious at leaft it was not uniform, as may be feen from their Inference, that it was therefore Elective, is notjuft,
many Impreflions of Heads of the Saxon Kings, given us for there is another way, which excluded the other two,
by Camden and Spelman ( z ). Some have only a Diadem of namely, the Kings difpos'd of the Crown as they thought
Pearls Others a Coronet with fix Rays or Points, with fit. To confirm their Opinion, they alledge the example

of France, where they pretend, the Kings, even as low
down as fome of the fecond Race (4), enjoyed the Privi-
lege of difpofing of their Dominions, which occafioned the
fo frequent divifion of that Kingdom. For, fay they, had
it been the eldeft Son's Right always to fucceed his Father,
'tis inconceivable that the younger Brothers fhould fo
frequently rife in Arms to compel their elder to fhare the
tO the C R IV M Kingdom with them. On the other hand, they obferve,
if the Crown of France had been Elective, 'tis not likely
the French would have always elected as many Sovereigns,
as the former Kings had left Sons. From all which they
conclude, that the frequent Partitions during the firft and
fecond Race, were folely owing to the teftamentary difpofi-
tion of the Kings. Agreeable to this, is, what Mezerai
fays, fpeaking of Aribert King Dagcbert's Brother. His
words are : But as Aribert was young, and the King his
Father perhaps had lift him no Part of the Kingdom in his
Will, it was to no purpofe that Bernulph, his Mother's Bro-
ther, endeavoured to perfuade the Neuftrians to rife in his



Flower dc Luces between, or Pearls upon them. Edward
the Confeffor has an Imperial Crown. This variety (hows,
that in England, as well as in other places, there was not
then any. fettled Form for the Crowns, but that each
Prince pieafed his own fancy ( 3 ).



The S U c c f s s 1 o N
in the Time of
Saxon s .



the Anglo-



THERE
■*- Sublet.



are three different Opinions upon this
The firft is, that the Crown was all along
Hereditary, as well during the Heptarchy as afterwards.
The fecond, that the Crown was always Elective, and in
the difpofal of the People ; fo that, although the Son fuo
< ceded the Father, it was however by Election



The



the Crown was neither Hereditary nor Elec- favour. This Cuftom cftablifhed among the French from

tive 'but the Kings had power to srive it by Will to any the beginning of their Monarchy, as it is pretended to be

one 'of their Sons nr Relations, whom they thought moft proved, is doubtlefs a ftrong Prefumption that the Anglo-

worthy. But how confidently foever each afierts his O- Saxons did the like, feeing they Jived at the fame time,
pinio



/'it is eafily perceived that to eftablifh anyone of* and came, as well as the Francs, from Germany, in the fame



(i) They were crowned in the Market-Place of Kingflonufon Thaws,
(2) Thefe Impreflions woe taken from old Sax.n Cows.



as Fiction in them who will needs have it that Alfred wis crowned with a Crown wrought, with Fktuer de Lutes, becaufe
'' own was kept among the Regalia at Wcfiminfitr before our late Civil Wars. (See Note (9) p. 95.) The InUriprion, /'
iv on the Box wherein it w»s kept by fome Monk of After-Times, to give the greater A;r of Antiquity to the Crown.



fuch a C



[4) The Crown of Trance has been enjoyed by three Royal Families : Firft,
Kings ■ 3<.cciiL the Carolinians from Charles Murttlho Lemi V, fourteen Kinjs



p. 9 5') The Inkriprion, Httc cjl, &c. being in allpro-
)f Antiquity to the Crown.
Firft, the Meroiijns, bet-un by Pharamottd y and ended in Childcrie IN, twenty one.



Third, begun m Hu^h Cafut t of wliich there have been thirty one Kings.

Century.



A Diflertacion on the Government of the Anglo-Saxons,



>S9



jin'ruer.



^nether
Proof m J a
veur '.I the
Ktnst.



Century. Hat if It be objected, there are no Inftances to
be found then in England o\ the like Partitions, in the King-
doms of the Heptarchy, it is replied, there were foinc, tho'
not many. The Kings of the Heptarchy, who were but
petty Princes in corriparifoh of the Kings of France, took
care not to divide their Dominions, othcrwife there would
i|uick!y have been as many Sovereigns as Cities. However
there were feme that did Co : For Inftance, Penda King
of Mercia, placed in his Life-time, his eldeft Son Peda
on the Throne of Leicejler, having eredtcd that City, and
the adjoining Country into a Kingdom. Etkrlrcd his Son
and Succeffor, gave his Brother Mervwdld part of
his Dominions, with the Title of King of Hereford,
which little Kingdom was left by Mertrwald, to his Bro-
ther Mercelm. OJwjl King of Northumberland, gave the
Kingdom of Dtira to Alfred his Natural Son, -is Ethel-
ivulph did the Kingdom of Kent in his Life-time to Athel-
Jfan. For a farther Confirmation of this Opinion, Ethel-
ivulph's Will is produced, who difpefed of his Dominions
in fo abfolute a manner, that his tour Sons were to fuc-
ceed one after another, whether the firft had Children or
not; which was accordingly done. Thefe are the Argu-
ments alledgcd in Proof of the third Opinion; but they
have not remained unanfwercd.

It is faid firft, thofe Princes, who were crowned in
their Father's Life-time, were properly but fo many Vice-
roys : and they, who, contrary to the cftablifhed order,
fucceeded by virtue of a Will, were admitted to the
Throne by the Authority, or at leaft, not without the
Confent of the Eftates, which implies a Right of Eleftion
in the Subjects.

But it is more difficult to anfwer the Arguments drawn
from the Proceedings of Canute the Great, who, towards the
latter end of his Life, very carefully avoided every thing
that might make the Englijh appreheniive of his intending
to alter the form of Government. 'Tis well known,
this Prince annulled his Marriage Articles with Emma of
Normandy, by making his Will, and appointing Harold
his Succeilbr, inftead of Hardicanute, who by the Mar-
riage-ContracSt was Heir to the Crown. This feems to
demonftrate, the King was entirely free to chufe his
Succeffor. It is true, after his death Difputes arofe ; but
however that be, it appears at leaft, this Prince thought he
might difpofe of the Crown by Will. The fame tiling
may be faid of Edward the Confeffor. Whether this Prince
made a Will in favour of the Duke of Normandy, or de-
figned it only, or even gave him but a bare verbal Pro-
mife, it may be inferred from thence, that he imagined he
had a Pvight to fettle the Succeffion that way.

Thefe are the Reafons alled^ed to fupport the three
Opinions, in this important Inquiry. I call it important
with regard to thofe who really think it fo. For my
part, I can hardly be perfuaded there is any occafion to
recur to the CuiToms of the Anglo-Saxons, toeftablifh thofe
that are to be followed at this day.



Tie three
Opinion!

may be
muted.



ceffion in the time of the Anglo Saxons, will be found to
be much the fame with thofe at prcfent. It is confeft, the
Crown is Hereditary. But however, this prevents not
the Parliament in extraordinary cafes, from claiming a
Power to over-rule Cuftom, and fettle the Succeffion on a
more diftant, in prejudice of a nearer Relation. Of this
the Hiftory of England (ince the Conqucft affords many
Inftances and Precedents, without infilling on thofe of our
own Times. If it is objected, all do not allow the King
and Parliament to have a right to fuch a Power; it may be
replied, till the contrary is determined by a lawful Au-
thority, it is reafonable to picfume this Power is right-
fully lodged in the Nation. According to thefe Princi-
ples, they, who labour to prove the Crown was Elective
in the time of the Anglo-Saxons, don't feem to do much
in favour of the Parliament, which claims a Power to
alter the Succeffion but on certaia occafions. On the
other hand, they, who undertake to prove the Crown was
Hereditary at that time, do nogrcni prejudice to the Au-
thority affumed by thisAuguft Bod) only in extraordinary
Cafes. In fine, as they, who pretend to prove the
Saxon Kings had an abfolute Power to difpofe of the
Crown, probably do not mean that the prefent Kings have
the fame Power, they feem to me to debate a Q_ucftion of
more Curiofity than Importance.



Of the LAWS of the Anglo-
Saxons.



D'



Several f:>n
of Luvji-



Bcde, i. 2.
c. 3.



URING the Heptarchy, thare were no Laws
common to all the feven Kingdoms ; but each had
its own in particular. It is very likely however, thefe
Laws were not very different, fince the Inhabitants of the
feven Kingdoms had the fame original. But there is no-
thing certain in this matter. The firft Laws, we have
any Knowledge of, are thofe publifhed by Ethelbcrt King
of Kent, about the time of the Converfion of the Saxons.
We have likewife Ina's King of JVefjex, and Offd's King
of Mercia ; and there is no doubt but fome of the
other Kings made Laws, though they are not transmitted
to us.

After the Union of the feven Kingdoms, Egbert's Suc-
ceffors explained or extended the Laws already eftablifhed,
or made new ones. The moft famous are thofe of Alfred
the Great, taken, as he himfelf fays, from the beft he
could find, and particularly from Ina's and Ojfa's above-
mentioned. Edgar, with fuch Additions and Emendations 0/ Edgar,
as he thought fit, caufed the Laws of Alfred to be ftriclly
obferved. But it muft be remembred, when England was
divided into two Kingdoms, namely, IVeffex and Mercia,
each had their Laws apart, and Canute the Great caufed
thofe that were introduced by the Danes into Northumbcr



Lavjt cf
Alfred.



It would not, perhaps, be impoffible to form an Idea of land and Eajl-Anglia, to be approved by the General Affem-



uglo-Saxon Government, with regard to the Suc-



the Ani

ceffion, by uniting the three foregoing Opinions. It
feems to me that from all the reafons alledgcd, it may
be inferred in favour of the reft, that the Crown was
Hereditary in the Family of the Saxon Kings, as well
during the Heptarchy, as after the Union of the Seven
Kingdoms. In favour of the fecond, it may be granted,
that upon extraordinary occafions, the IVittena-Gcmot,
confidering it felf as Supreme Legiflator, affumed an ab-
solute Authority, and went beyond the ufual Bounds.
With the third it may be faid, the Kings had power of
nominating their SuccelTor, provided, when they devia-
ted from the common Practice, which was to prefer the
next in Blood, they took care to have their Choice con-
firmed by the Great Council of the Kingdom. This is
the Reafon why thofe Kings who were not the next in
Blood, never failed of making ufe of the Confent of the
Eftates, thereby to reelify the Irregularity of their accef-
fion to the Throne. This wefeealfo in Alfred's Will,
at the end of his Life pub'ifhed by Spelman (1). By
uniting thus the three Opinions, the Rules for the Suc-



bly. There were therefore in England three forts of
Laws, the Wejl-Saxon, Mercian, and Danifl), till Edward
the Confeffor united them all in one Body (2). As I pro-
pofed only to give a general Notion of the Government of
the Anglo-Saxons, my defign is not to enter into a particu-
lar Account of all thefe Laws. I fhall content my felf
with relating fome Circumftances, which feem to me to
merit the Curiofity of fuch as are Strangers to the Englijh
Conftitution, and are intelligible to all the World.

The Laws were divided into Civil and Criminal. The
firft concerned the Lands or Eftates, which were of two
forts, Bocland and Socland. Bocland was much of the
fame Nature with the Lands we call Allodial (3). It
was Free and Hereditary, and might he alienated by the
Owner, though he held in Fee of a fuperior Lord. This
is properly what is elfewhere called, Feudum honorattim.
This fort of Land was poflefTed bv the Nobles and molt
confiderable among the People. Socland was poflelied by
the Ceorles, and held of the Lord by payment of a cer-
tain annual Rent, and performance of certain perfonal Ser-
vices. This fort of Land is the fame with what is c.Jicd



TBmfirtt
of Lawii



(1) Ego JElfredns totius VAfi-Saxenia Nobilitatii Confenfu pariter Gf Aflenfu, Occidentalium Saxonum Rex, &c. Whence it is manifeft, that though

he was nominated in his Father's Will to fncceed his Brothers, yet he was elected or at leaft confirmed by the Great Council in the PoJTelTton of th<f
Crown, fo bequeathed to him by his Father. And therefore it is plain, that though the King had the Power to difpofe of the Crown by Will, yet it could
not be done without the Content and Allent of the Eftates.

("■-) See what Biihop A'/V tfon fays of this threefold Diftincticn of the Laws in p. 126. Note (3). To which may be added here the Opinion of Spelman :
*' Our Saxont, though divided into many Kingdoms, yet were they all one in Effect, in Manners, Laws, and Language ; fo that the breaking of their Go-
" vernment into many Kingdoms, or the re-uniting of their Kingdoms into a Monarchy, wrought little or no change amongft them touching Laws. For
" though we talk of the JVeJl-Sa xem- La<zu, Mereian-haiv , and Dane-Lane, whereby the feveral Parts of England were governed; yet they ail held an
" Uniformity in Snbftance, differing rather in their Mulcts than in their Canon ; that is, in the Quantity of Fines and Amerciaments, than in the Courfe
" and Frame of Juftice. " Reliy. Spel. p. 4.9.

(}) The Northern Nations neither incorporating nor deftroying the Inhabitants in their Conquefts, divided the Land into three Parts ; one they left to the
old HoiTeiibrs, the other two they took themfelves. Thefe Divilinns are call d by the Writets of thofe Ages, S:rtes Getbiete, and Sortei Romano?, in Italy.
The Francs proceeded in the fame manner in Gaul. What they took to themfelves was termed Terra Saliea, the reft was called Afdium, from the negative
Particle A and Lead, which fignihes in Teutonic*, Perfons linked by feudal Tenures, who only had a Share in the Legislature. So that A:Uc:a! Lands were
fuc-h as were not uib'cft to feudal Duties ; yet before Tenants were opprelfed, the Term Alkdarii was a Term of Reproach, as it difcriminated the Vanquished
trom the Victors. Though their Land was at firft free from all Service, many Pufteflcrs for their better Security gave their AHvIial Lands to the Chief: of
great Lordihips to take them back under feudal Tenures. Others, without diverting themfelves at all of their antient Poffeffion, piaced themfejves under fuch
Superiors, and then came in ufe the Phrafe tcnere in Allodic, frequent enough in our Doomfday Book, and in foreign Writers ; for ill Protection and Sub-
jection was fuppofed then to be founded on Tenure. St. Amand, p. 26, 27.

a Rural



166



The HI ST OR T of ENGLAND.



Vol. I.



net ■
i

i,-. by



• . rd
Veer.



Means if
difctraering
the Truth.

By Oath.



Ordeal
Tryals.



a Rural Fief. I d^n't think it neceffary to enquire here in-
to the original of Fees, which would lead me too far, and
betides would contain nothing peculiar to England. I flia.ll
only fay, in Seidell's opinion, Fees derive their origin from
the North, and from thence palled into Germany, Italy,
France, Spain, England, where the northern Nations fet-
tled. It would alfo be too long a Digreffion from my
purpofe, to recite all the Laws concerning the pofTeilion
of the two forts of Lands before-mentioned, efpecally as
thefe things are underftood by few People. 'Tis fufficient
to have given a general Idea of them, and therefore I
(hall proceed to what is much more intelligible, the Cri-
minal Laws.

" -/ By the regulations of Alfred the Great, all Perfons accu-
fed of any Crime were to be tried by their Peers. This
Privilege which the Englijh have preferved to this day, is
one of the greateft a Nation can enjoy. It fcreens the
fmail from the Oppreffion of the great, and from the Ca-
price or Paffion of the King himfelf, of which there have

'/ been fcveral Inftances in England. But as the Term Peers
may not be rightly underftood by many Readers, it will be
proper briefly to explain the meaning of the Word. It is
to be obferved, that in England there are but two Degrees
or Orders of Men, namely, the Pens of the Realm, and
the Commons. Dukes, Marqueffes, Earls, Vifcounts, Ba-
rons, Archbifhops and Bifliops, are Peers of the Realm,
and Peers among themfelves ; infomuch that the lowed of
the Barons is the Peer of the higheft Duke. All the reft
of the People are ranked with the Commons. So that in
this refpect, the meaneft Artificer is Peer of all below the
rank ofa Baron. When therefore it is faid, every one is tried
by his Peers ; the meaning is, the Peers of the Realm are
judged by thofe of their own Order, that is, by the other
Lords; who, like them, are Peers of the Realm. In the
fame manner, one of the Commonalty is tried by fuch as
are of the order of the Commons, who, in this refpedt, are
his Peers or equals, how muchfoever they may differ with
regard to Birth or Fortune. There is however this diffe-
rence between the Peers of the Realm and the Commons;
every Peer of the Realm has a right to vote at the Tryal
of another Peer, whereas the Commons are tried but by
twelve Perfons of their Order, whole VerdicT: concerns on-
ly Fact. Thefe twelve Perfons, after hearing the pub-
lick Examination of the Witneffes for and againft the
Party accufed, only bring him in Guilty or not Guilty
of the Crime laid to his Charge ; after which, the Judge
condemns or acquits him according to Law. Such is the
Privilege enjoyed by the Englijl) ever fince the Time of
King Alfred. And perhaps this Prince only revived and
rectified a Cuftom eftablifhed by the Saxons Time out of
Mind(t).

When the Crime was not clearly proved, or fufficient
Evidence found to condemn or acquit the Accufed, two
Methods were ufed, by which, it was thought, the Truth
might be difcovered. The firft was the Oath of the
Party accufed, to purge himfelf of the Crime he was
charged with. But his tingle Oath was not fufficient :
He was to bring with him a certain Number of Perfons
who were [and (till are] called Compurgators, who alfo
fworc to his Innocence.

The fecund Method was by Ordeal (z), that is, Trial
by Fire or Water. The Trial by Fire was performed
two ways. The Perfon accufed held in his Hand a red-
hot piece of Iron of one, two, or three Pounds weight,
according to his Crime, or according to the Evidence
againft him ; or elfe he was made to walk barefoot and
blindfold over nine red-hot Pow-fhares placed at a itated
diftance. If he had the good fortune to come off unhurt,
lie was declared Innocent : But in cafe he was burnt, he
was pronounced Guilty. Perfons of Quality were tried by
Fire-Ordeal, of which Emma, Mother to Edward the Con-
fejjor, is an Inftance. Trial by JVatcr-Ordeal was made
either by cold or fcalding Water. Peafants and Slaves
were put upon this Trial. In the Trial by cold Water,
the Party fufpeited had his Hands and Feet tied together,
and fo was thrown into a Pond or River. If he funk, he



Single Cunt
bat.



was adjudged Innocent ; but if he floated on the Surface of
the Water, he was declared Guilty (3). When fcalding
Water was the Tell, the Perfon accufed was to plunge
his Arm into it as far as the Wrift, and fometimes up to
the Elbow. The Trial by cold Water was introduced by
Lewis le Debonnaire, and by Pope Eugenius II, inftead of
an Oath, which was but tco often the occafion of the
guilty Perfons perjuring themfelves ; and the Englijh fol-
lowed their Example.

The third way of Trial was by fingle Combat. When
the Evidences of the Accufation were not ftrong, the
Party was allowed to vindicate his Innocence by challeng-
ing his Accufer to fingle Combat. If a Woman was ac-
cufed, (he had the Privilege of fubftituting one in her
room, who was called her Champion. This Cuftom was
not introduced into England till towards the End of the
Empire of the Saxons : But it continued a long time in
being.

A fourth way of Trial was by giving the Party fuf- Cerfned.
fpected a bit of Bread or Cheefe (4), confecrated witli
abundance of Ceremonies. If he was guilty, it was be-
lieved the Bread or the Cheefe would ftick in his Throat
and choak him ; but if innocent, he would readily i'wal-
low it. Part of the Imprecation ufed upon delivering him
the Bread, (after receiving the Communion) was as fol-
lows : May this Bread [or this Cheefe] which is given him
in order to bring the Truth to light, Jlick in his Threat and
find no Paffage if he is guilty ( 5 ). But if innocent of the
Crime laid to his Charge, may he eafily /wallow this Bread
[or this Cheefe] confecrated in thy Name, to the end all may
know, &c. This way of Trial was evidently in Imita-
tion of the Waters of Jealoujy among the Jews. They Numb* ».
who forged the Circumftances of Earl Goodwin's death, as
related in the reign of King Edward, had probably an
eye to this Cuftom. This confecrated Bread or Cheefe
was called Corfned, from the -woxASnide or Snidan, which
fignifies to cut a Lit off, and Corf, that is, to eurfc, be-
caufe 'twas believed it brought a Curfe on the guilty Per-
fon. The Church not only approved of all thefe ways of
Trial, but prefcribed the Ceremonies and Form of Prayers
to be ufed on thefe cccafions, and even confentcd that the
Bifhops and Priefts fhould officiate. There is a Law of



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