This was the very first origin of civil,
or rather, military government, amongst the ancient
people of Europe; and it arose from the connection
that necessarily was created between the person who
gave the arms, or knighted the young man, and him
that received them; which implied that they were to
be occupied in his service who originally gave them.
or rather, military government, amongst the ancient
people of Europe; and it arose from the connection
that necessarily was created between the person who
gave the arms, or knighted the young man, and him
that received them; which implied that they were to
be occupied in his service who originally gave them.
Edmund Burke
We have mentioned the.
partiality of
King Edward to the Normans, and the hatred he
bore to Godwin and his family. The Duke of Normandy, to whom Edward had personal obligations,
had -taken a tour into England, and neglected no
means to improve these dispositions to his. own advantage. It is said that he then received the fullest
assurances of being appointed to the succession, and
that Harold himself had been sent soon after into
Normandy to settle whatever related to it. This is
an obscure transaction, and would, if it could be
cleared up, convey but little instruction. So that
whether we believe or not that, William. had engaged Harold by a solemn oath to secure him the
kingdom, we know that he afterwards set up a will
of King Edward in his favor, which, however, he
never produced, and probably never had to produce.
In these delicate circumstances Harold was not want
? ? ? ? 282 ABRIDGMENT OF ENGLISH HISTORY.
ing to himself. By the most equitable laws and the
most popular behavior he sought to secure the affections of his subjects; and he succeeded so well, that, when he marched against the King of Norway, who
had invaded his kingdom and taken York, without difficulty he raised a numerous army of gallant men, zealous for his cause and their country. He obtained
a signal and decisive victory over the Norwegians.
The King Elarfager, and the traitor Tosti, who had
joined him, were slain in the battle, and the Norwegians were forced to evacuate the country. Harold had, however, but little time to enjoy the fruits of his
victory.
Scarce had the Norwegians departed, when William, Duke of Normandy, landed in the southern part
of the kingdom with an army of sixty thousand chosen men, and struck a general terror through all the nation, which was well acquainted with the character
of the commander and the courage and discipline of
his troops.
The Normans were'the posterity of those Danes
who had so long and so cruelly harassed the British
islands and the shore of the adjoining continent. In
the days of King Alfred, a body of these adventurers, under their leader, Rollo, made an attempt upon England; but so well did they find every spot defended by. the vigilance and bravery of that great monarch that they were compelled to retire. Beaten from these shores, the stream of their impetuosity bore towards the northern parts of France, which had
been reduced to the most deplorable condition by
their former ravages. Charles the Simple then sat
on the throne of that kingdom; unable to resist this
torrent of barbarians, he was obliged to yield to it;
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 283
he agreed to give up to Rollo the large and fertile
province of Neustria, to hold of him as his feudatory.
This province, from the new inhabitants, was called
Normandy. Five princes succeeded Rollo, who maintained with great bravery and cultivated with equal wisdom his conquests. The ancient ferocity of this
people was a little softened by their settlement; but
the bravery which had made the Danes so formidable
was not extinguished in the Normans, nor the spirit
of enterprise. Not long before this period, a private
gentleman of Normandy, by his personal br. avery, had
acquired the kingdom of Naples. Several others followed his fortunes, who added Sicily to it. From
one end of Europe to the other the Norman name
was known, respected, and feared. Robert, the sixth
Duke of Normandy, to expiate some crime which lay
heavy upon his conscience, resolved, according to the
ideas of that time, upon a pilgrimage to Jerusalem.
It was in vain that his nobility, whom he had'assembled to notify this resolution to them, represented to him the miserable state to which his country would
be reduced, abandoned by its prince, and uncertain
of a legal successor. The Duke was not. to be moved
from his resolution, which appeared but the: more
meritorious from the difficulties which attended it.
He presented to the states William, then an infant,
born of an obscure woman, whom, notwithstanding,
he doubted not to be his son; him he appointed to
succeed; him he recommended to their virtue and
loyalty; and then, solemnly resigning the government in his favor, he departed on the pilgrimage,
from whence he never returned. The states, hesitating some time between the mischiefs that attend the allowing an illegitimate succession and those
? ? ? ? 284 ABRIDGMENT OF ENGLISH HISTORY.
which might arise from admitting foreign pretensions,
thought the former the least prejudicial, and accordingly swore allegiance to William. But this oath was not sufficient to establish a right so doubtful. The
Dukes of Burgundy and Brittany, as well as several
Norman noblemen, had specious titles. The endeavors of all these disquieted the reign of the young prince with perpetual troubles. In these troubles he
was formed early in life to vigilance, activity, secrecy,
and a conquest over all those passions, whether bad
or good, which obstruct the way to greatness. He
had to contend with all the neighboring princes, with
the seditions of a turbulent and unfaithful nobility,
and the treacherous protection of his feudal lord, the
King of France. All of these in their turns, sometimes all of these together, distressed him. But with
the most unparalleled good fortune and conduct he
overcame all opposition, and triumphed over every
enemy, raising his power and reputation above that
of all his ancestors, as much as he was exalted by his
bravery above the princes of his own time.
Such was the prince who, on a pretended claim
from the will of King Edward, supported by the common and popular pretence of punishing offenders and redressing grievances, landed at Pevensey in Sussex,
to contest the crown with Harold. Harold had no
sooner advice of his landing than he advanced to
meet him with all possible diligence; but there did
not appear in his army, upon this occasion, the same
unanimity and satisfaction which animated it on its
march against the Norwegians. An ill-timed economy in Harold, which made him refuse to his soldiers the plunder of the Norwegian camp, had created a
general discontent. Several deserted; and the sol
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 285
diers who remained followed heavily a leader under
whom there was no hope of plunder, the greatest incitement of the soldiery. Notwithstanding this ill disposition, Harold still urged forward, and by forced
marches advanced within seven miles of the enemy.
The Norman, on his landing, is said to have sent
away his ships, that his army might have no way
of safety but in conquest; yet had he fortified his
camp, and taken every prudent precaution, that so
considerable an enterprise should not be reduced to
a single effort of despair. When the armies, charged
with the decision of so mighty a contest, had approached each other, Harold paused awhile. A
great deal depended on his conduct at this critical
time. The most experienced in the council of war,
who knew the condition of their troops, were of opinion that the engagement ought to be deferred, - that the country ought to be wasted, - that, as the winter
approached, the Normans would in, all probability be
obliged to retire of themselves, - that,,if. this should
not happen, the Norman army was without resources,
whilst the English would be every'day considerably
augmented, and might attack their enemy at a time
and manner which might make their success certain.
To all these reasons nothing was opposed but a false
point of honor and a mistaken courage in Ilarold,1
who urged his fate, and resolved on an engagement.
The Norman, as soon as lie perceived that the English were determined' on a battle, left his camp to post himself in an advantageous situation, in which
his whole: army remained the night which preceded
the action.
This night was spent in a manner which prognosticated the event of the following day. On the part of
? ? ? ? 286 ABRIDGMENT OF ENGLISH HISTORY.
the Normans it was spent in prayer, and in a cool
and steady preparation for the engagement; on the
side of the English, in riot and a vain confidence
that neglected all the necessary preparations. The
two armies met in the morning; from seven to five
the battle was fought with equal vigor, until at last
the Norman army pretending to break in confusion,
a stratagem to which they had been regularly formed,
the English, elated with success, suffered that firm
order in which their security consisted to dissipate,
which when William observed, he gave the signal to
his men to regain their former disposition, and fall
upon the English, broken and dispersed. Harold in
this emergency did everything which became him,
everything possible to collect his troops and to renew the engagement; but whilst he flew from place to place, and in all places restored the battle, an
arrow pierced his brain, and he died a king, in a
manner worthy of a warrior. The English immediately fled; the rout was total, and the slaughter prodigious.
The consternation which this defeat and the death
of Harold produced over the kingdom was more fatal
than the defeat itself. If William had marched directly to London, all contest had probably been at an end; but he judged it more prudent to secure the
sea-coast, to make way for reinforcements, distrusting
his fortune in his success more than he had done in
his first attempts. He marched to Dover, where the
effect of his victory was such that the strong castle
there surrendered without resistance. Had this fortress made any tolerable defence, the English would have had leisure to rouse from their consternation,
and plan some rational method for continuing the
? ? ? ? ABRIDGHENT OF ENGLISH HISTORY. 287
war; but now the conqueror was on full march
to London, whilst the English were debating concerning the measures they should take, and doubtful in what manner they should fill the vacant
throne. However, in this emergency it was necessary to take some resolution. The party of Edgar
Atheling prevailed, and he was owned king by the
city of London, which even at this time was exceedingly powerful, and by the greatest part of the nobility then present. But his reign was of a short duration. William advanced by hasty marches, and, as he approached, the perplexity of the English redoubled: they had done nothing for the defence of the
city; they had no reliance on their new king; they
suspected one another; there was no authority, no
order, no counsel; a confused and ill-sorted assembly
of unwarlike people, of priests, burghers, and nobles
confounded with them in the general panic, struck
down by the consternation of the late defeat, and
trembling under the bolts of the Papal excommunication, were unable to plan any method of defence: insomuch that, when he had passed the
Thames and drew near to London, the clergy, the
citizens, and the greater part of the nobles, who had
so lately set the crown on the head of Edgar, went
out to meet him; they submitted to him, and having brought him in triumph to Westminster, he
was there solemnly crowned King of England. The
whole nation followed the example of London; and
one battle gave England to the Normans, which had
cost the Romans, the Saxons, and Danes so much
time and blood to acquire.
At first view it is very difficult to conceive how
this could have happened to a powerful nation, in
? ? ? ? 288 ABRIDGMENT OF ENGLISH HISTORY.
which it does not appear that the conqueror had one
partisan. It stands a single event in history, unless,
perhaps, we may compare it with the reduction of
Ireland, some time after, by Henry the Second. An
attentive consideration of the state of the kingdom at'
that critical time may, perhaps, in some measure, lay
open to us the cause of this extraordinary revolution.
The nobility of England, in which its strength consisted, was much decayed. Wars and confiscations,
but above all the custom of gavelkind, had reduced
that body very low. . At the same time some few
families had been raised to a degree of power unknown in the ancient Saxon times, and dangerous. in all. Large possessions, and a larger authority, were annexed to the offices of the Saxon magistrates, whom they called Aldermen. This authority,
in their long and bloody wars with the Danes, it was
found necessary to increase, and often to increase
beyond the ancient limits. Aldermen were created
for life; they were then frequently made hereditary;
some were vested with a power over others; and at
this period we begin to hear of dukes who governed
over several shires, and had many aldermen subject
to them. These officers found means to turn the
royal bounty into an instrument of becoming independent of its authority. Too great to obey, and too
little to protect, they were a dead weight upon the
country. They begau to cast an eye on the crown,
and distracted the nation by cabals to compass their
designs. At the same time they nourished the most
terrible feuds amongst themselves. The feeble government of Edward established these abuses. He
could find no method of humbling one subject
grown too great, but by aggrandizing in the same
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 289
excessive degree some others. Thus, he endeavored to balance the power of Earl Godwin by exalting Leofric, Duke of Mercia; and Siward, Duke of Northumberland, to an extravagant greatness. The
consequence was this: he did not humble Godwin,
but raised him potent rivals. When, therefore, this
prince died, the lawful successor to the crown, who
had nothing but right in his favor, was totally
eclipsed by the splendor of the great men who had
adorned themselves with the spoils of royalty. The
throne was now the prize of faction; and Harold, the
son of Godwin, having the strongest faction, carried
it. By this success the opposite parties were inflamed with a new occasion of rancor and animosity,
and an incurable discontent was raised in the minds
of Edwin and Morcar, the sons of Duke Leofric, who
inherited their father's power and popularity: but
this animosity operated nothing in favor of the legitimate heir, though it weakened the hands of the gov
erning prince.
The death of Harold was far from putting an end
to these evils; it rather unfolded more at large the
fatal consequences of the ill measures which had
been pursued. Edwin and Morcar set on foot once
more their practices to obtain the crown; and when
they found themselves baffled, they retired in discontent from the councils of the nation, withdrawing:
thereby a very large part of its strength and authority. The council of the nation, which was fornfied of
the clashing factions of a few great men, (for the
rest were nothing,) divided, disheartened, weakened,
without head, without direction, dismayed by a terrible defeat, submitted, because they saw no other
course, to a conqueror whose valor they had experiVOL. VII. 19
? ? ? ? 290 ABRIDGMENT OF ENGLISH HISTORY.
enced, and who had hitherto behaved with great
appearances of equity and moderation. As for the
grandees, they were contenlted rather to submit to
this foreign prince than to those whom they regarded
as their equals and enemies.
With these causes other strong ones concurred.
For near two centuries the continual and bloody
wars with the Danes had exhausted the nation; the
peace, which for a long time they were obliged to buy
dearly, exhausted it yet more; and it had not sufficient leisure nor sufficient means of acquiring wealth
to yield at this time any extraordinary resources.
The new people, which after so long a struggle had
mixed with the Elglish, had not yet so thoroughly
incorporated with the ancient inhabitants that a perfect union might be expected between them, or that any strong, uniform, national effort might have resulted from it. Besides, the people of England were
the most backward in Europe in all improvements,
whether in military or in civil life. Their towns
were meanly built, and more meanly fortified; there
was scarcely anything that deserved the name of a
strong place in the kingdom; there was no fortress
which, by retarding the progress of a conqueror,
might give the people an opportunity of recalling
their spirits and collecting their strength. To these
we may add, that the Pope's approbation of William's pretensions gave them great weight, especially amongst the clergy, and that this disposed and reconciled to submission a people whom the circumstances we have mentioned had before driven to it.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 291
CHAPTER VII.
OF THE LAWS AND INSTITUTIONS OF THE SAXONS.
BEFORE we begin to consider the laws and constitutions of the Saxons, let us take a view of- the state of the country from whence they are derived, as it is
portrayed in ancient writers. This view will be the
best comment on their institutions. Let us represent
to -ourselves a people without learning, without arts,
without industry, solely pleased and occupied with
war, neglecting agriculture, abhorring cities, and
seeking their livelihood only from pasturage and
hunting through a boundless range of morasses and
forests. Such a people must necessarily be united to
each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen, of course, that the intention of investing one person or a few with the whole powers
of government, and the notion of deputed authority
or representation, are ideas that never could have entered their imaginations. When, therefore, amongst such a people any resolution of consequence was to
be taken, there was no way of effecting it but by
bringing together the whole body of the nation, that
every individual might consent to the law, and each
reciprocally bind the other to the observation of it.
This polity, if so it may be called, subsists still in
all its simplicity in Poland.
But as in such a society as we have mentioned
the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves than in a close
? ? ? ? 292 ABRIDGMENT OF ENGLISH1 HISTORY.
and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn. a numerous train after the person distinguished by them, of those who sought his protection, or feared:his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These
the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans
called them Comites. Over these their chief had a
considerable power, and the more considerable because it depended upon influence rather than institution: influence among so free a people being the principal source of power. But this authority,. great
as it was, never could by its very nature be stretched
to despotism; because any despotic act would have
shocked the only principle by which that authority
was supported, the general good opinion. On the
other hand, it could not have been bounded by any
positive laws, because laws can hardly subsist amongst
a people who have not the use of letters. It was a
species of arbitrary power, softened by the popularity
from whence it arose. It came from popular opinion,
and by popular opinion it was corrected.
If people so barbarous as the Germans have no
laws, they have yet customs that serve in their room;
and these customs operate amongst them better than
laws, because they become a sort of Nature both to
the governors and the governed. This circumstance
in solne measure removed all fear of the abuse of
authority, and induced the Germans to permit their
chiefs to decide upon matters of lesser moment,
* They had no other nobility; yet several families amongst them
were considered as noble.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 293
their private differences, -for so Tacitus explains
the minores res. These chiefs were a sort of judges,
but not legislators; nor do they appear to have had
a share in the superior branches of the executive
part of government, - the business of peace and war,
and everything of a public nature, being determined,
as we have before remarked, by the whole body of
the people, according to a maxim general among the
Germans, that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Constitution, which has: since been so nobly fashioned and so highly finished. This
fine system, says Montesquieu, was invented in the
woods; but whilst it remained in the woods, and for
a long time after, it was far from being a fine one, -
no more, -indeed, than a very imperfect attempt at
government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.
The ancient state of the Germans was military:
so that the orders into which they were distributed,
their subordination, their courts, and every part of
their government, must be deduced from an attention to a military principle.
The ancient German people, as all the other Northern tribes, consisted of freemen and slaves: the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their
own will, nor until, they were admitted to that dignity by an established order, which at a certain age
separated the boys from men. For when a young
man approached to virility,* he was not yet admitted
as a member of the state, which was quite military,
* Arma sumere non ante cuiquam moris, quhm civitas suffecturum probaverit. - Tacitus de Mor. Germ. 13;
? ? ? ? 294 ABRIDGMENT OF ENGLISH HISTORY.
until he had been invested with a spear in the public
assembly of his tribe; and then he was adjudged
proper to carry arms, and also to assist in the public deliberations, which were always held armed. *
This spear he generally received from the hand of
some old and respected chief, under whom he conmmonly entered himself, and was admitted among his followers. t No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in
the strictest dependence, which was confirmed by an
oath,$ and to his brethren in a common vow for their
mutual support in all dangers, and for the advancement and the honor of their common chief. This
chief was styled Senior, Lord, and the like terms,
which marked out a superiority in age and merit;
the followers were called Ambacti, Com. ites, Leudes,
Vassals, and other terms, marking submission and
dependence.
This was the very first origin of civil,
or rather, military government, amongst the ancient
people of Europe; and it arose from the connection
that necessarily was created between the person who
gave the arms, or knighted the young man, and him
that received them; which implied that they were to
be occupied in his service who originally gave them.
These principles it is necessary strictly to attend to,
because they will serve much to explain the whole
* Nihil autem neque publicae neque privatse rei nisi armati agunt.
- Tacitus de Mor. Germ. 13.
t Cweteri robustioribus ac jam pridem probatis aggregantur. - Id.
ibid.
$ Illum defendere, tueri, sua quoque fortia facta glorive ejus assignare, prmecipuum sacramentum est. --Id. 14.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 295
course both of government and real property, wherever the German nations obtained a settlement: the
whole of their government depending for the most
part upon two principles in our nature, - ambition,
that makes one man desirous, at any hazard or expense, of taking the lead amongst others,- and admiration,. which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, one of the most
universal passions among men. These two principles, strong, both of them, in our nature, create a
voluntary inequality and dependence. But amongst
equals in condition there could be no such bond, and
this was supplied by confederacy; and as the first of
these principles created the senior and the knight,
the second produced the conjurati fratres, which,
sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws
and histories.
The relation between the lord and the vassal produced another effect, -- that the leader was obliged
to find sustenance for his followers, and to maintain
them at his table, or give them some equivalent in
order to their maintenance. It is plain from these
principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely
in the free choice of the parties.
But it is impossible that such a polity could long
have subsisted by election alone. For, in the first
place, that natural love which every man has to his
own kindred would make the chief willing to perpetuate the power and dignity he acquired in his own
blood, - and for that purpose, even during his own
? ? ? ? 296 ABRIDGMENT OF ENGLISH HISTORY.
life, would raise his son, if grown up, or. his collaterals, to such a rank as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or
fell by natural course, leaving his offspring destitute,
the lord could not so far forget the services of his
vassal as not to continue his allowance to his children; and these again growing up, from reason and
gratitude, could only take their knighthood at his
hands from whom they had received their education; and thus, as it could seldom happen but that
the bond, either on the side of the lord or dependant, was perpetuated, some families must have been
distinguished by a long continuance of this relation,
and have been therefore looked upon in an honorable light, from that only circumstance from whence
honor -was derived in the Northern world. Thus
nobility was seen in Germany; and in the earliest
Anglo-Saxon times some families were distinguished
by the title of Ethelings, or of noble descent. But
this nobility of birth was rather a qualification for
the dignities of the state than an actual designation
to them. The Saxon ranks are chiefly designed to
ascertain the quantity of the composition for personal injuries against them.
But though this hereditary relation was created
very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an
inheritance only according to the principles from
whence it was derived; by them it was modified.
It was originally a military connection; and if a
father left his son under a military age, so as that
he' could neither lead nor judge his people, nor
qualify the young men-who came up under him to
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 297
take arms, --in order to continue the cliental bond,
and not to break up an old and strong confederacy,
and thereby disperse the tribe, who should be pitched
upon to head the whole, but the worthiest of blood
of the deceased leader, he that ranked next to him
in his life? * And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was
thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon empire. The
first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the
inferior chieftains was regulated by a. similar law.
Very frequent examples occur in the Saxon times,
where the son of the deceased king, if under age,;wa;s entirely passed over, and his uncle, or some
remoter relation, raised to the crown; but there
is not a single instance where the election has carried it out of the blood. So that, in truth, the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined in some degree
favorably for the -litigants on either side; for it was
certainly both hereditary and elective within the
bounds which we have mentioned. This order prevailed in Ireland, where the Northern customs were
retained some hundreds of years after the rest of
Europe had in a great measure receded from them.
Tanistry continued in force there until the beginning
of the last century. And we have greatly to regret
the narrow notions of our lawyers, who abolished the
* Deputed authority, guardianship, &c. , not known to the Northern nations; they gained this idea by intercourse with the Romans.
? ? ? ? 298 ABRIDGMENT OF ENGLISH HISTORY.
authority of the Brehon law, and at the same time
kept no monuments of it, - which if they had done,
there is no doubt but many things of great value
towards determining many questions relative to the
laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it
has not been, I think, observed, that *the ascending
collateral branch was much regarded amongst the
ancient Germans, and even preferred to that of the
immediate possessor, as being, in case of an accident
arriving to the chief, the presumptive heir, and him
on whom the hope of the family was fixed: and this is
upon the principles of Tanistry. And the rule seems
to have taken such deep root as to have much influenced a considerable article of our feudal law: for,
what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without
any descending assets, where the lineal did not, unless something descended; and. this subsisted invariably in the law until this century. Thus we have seen the foundation of the Northern
government and the orders of their people, which
consisted of dependence and confederacy: that the
principal end of both was military; that protection
and maintenance were due on the part of the chief,
obedience on that of the follower; that the followers
should be bound to each other as well as to the chief;
that this headship was not at first hereditary, but that
it continued in the blood by an order of its own,
called Tanistry.
All these unconnected and independent parts were
only linked together by a common council: and here
religion interposed. Their priests, the Druids, having
a connection throughout each state, united it. They
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 299
called the assembly of the people: and here their
general resolutions were taken; and the whole might
rather be called a general confederacy than a government. In no other bonds, I conceive, were they united before they quitted Germany. In this ancient state we know them from Tacitus. Then follows an immense gap, in which undoubtedly some changes were
made by time; and we hear little more of them until
we find them Christians, and makers of written laws.
In this interval of time the origin of kings may be
traced out. When the Saxons left their own country
in search of new habitations, it must be supposed that
they followed their leaders, whom they so much venerated at home; but as the wars which made way foi
their establishment continued for a long time, military obedience made them familiar with a stricter
authority. A subordination, too, became necessary
among the leaders of each band of adventurers: and
being habituated to yield an obedience to a single
person in the field, the lustre of his command and
the utility of the institution easily prevailed upon
them to suffer him to form the band of their union
in time of peace, under the name of King. But the
leader neither knew the extent of the power he received, nor the people of that which they bestowed.
Equally unresolved were they about the method of
perpetuating it, -- sometimes filling the vacant throne
by election, without regard to, but more frequently
regarding, the blood of the deceased prince; but it
was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus
their polity was formed slowly; the prospect clears up
by little and little; and this species of an. irregular
republic we see turned into a monarchy as irregular.
? ? ? ? 300 ABRIDGMENT OF ENGLISH HISTORY.
It is no wonder that the advocates for the several
parties among us find something to favor their several notions in the Saxon government, which was never supported by any fixed or uniform principle.
To comprehend the other parts of the government
of our ancestors, we must take notice of the orders
into which they were classed. As well as we can
judge in so obscure a matter, they were divided into
nobles or gentlemen, freeholders, freemen that were
not freeholders, and slaves. Of these last we have
little to say, as they were nothing in the state. The
nobles were called Thanes, or servants. It must be
remembered that the German chiefs were raised to
that honorable rank by those qualifications which
drew after them a numerous train of followers and
dependants. * If it was honorable to be followed by
a numerous train, so it was honorable in a secondary
degree to be a follower of a man of consideration;
and this honor was the greater in proportion to the
quality of the chief, and to the nearness of the attendance on his person. When a monarchy was formed, the splendor of the crown naturally drowned
all the inferior honors; and the- attendants on the
person of the king were considered as the first in
rank, and derived their dignity from their service.
Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he
should have a suitable attendance and sway amongst
the people. To support him in both of these, it was
necessary that he should have a competent estate.
Therefore in this service of the -king, this attendance
on himself, and this estate to support both, the dig
* Jud. Civ. Lund. apud Wilk. post p. 68.
? ? ? ? ABRIDGMENTI OF ENGLISH HISTORY. 301
nity of a thane consisted. I understand here a thane
of the first order.
Every thane, in the distribution of his lands, had
two objects in view: the support of his family, and
the maintenance of his dignity. He therefore retained in his own hands a parcel of land near his
house, which in the Saxon times was called inland,
and afterwards his demesne, which served to keep
up his hospitality: and this land was cultivated either by slaves, or by the poorer sort of people, who
held lands of him by the performance of this service. The other portion of his estate he either gave
for life or lives to his followers, men of a liberal
condition, who served the greater thane, as he himself served the king. They were called UnderThanes, or, according to the language of that time, Theoden. * They served their lord in all public
business; they followed him in war; and they
sought justice in his court in all their private differences. These may be considered as freeholders
of the better sort, or indeed a sort of lesser gentry;
therefore, as they were not the absolute dependants,
but in some measure the peers of their lord, when
they sued in his court, they claimed the privilege
of all the German freemen, the right of judging
one another: the lord's steward was only the register. This domestic court, which continued in full
vigor for many ages, the Saxons called Hall- mallmote,
mote, from the place in which it was held; Baron.
the Normans, who adopted it, named it a CourtBaron. This court had another department, in
which the power of the lord was wore absolute.
From the most ancient times the German nobility
* Spelman of Feuds, ch. 5.
? ? ? ? 302 ABRIDGMENT OF ENGLISH HISTORY.
considered themselves as the natural judges of those
who were employed in the cultivation of their lands,
looking on husbandmen with contempt, and only as
a parcel of the soil which they tilled: to these the
Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these. inferior tenants were decided in the lord's court, in which his steward sat as judge; and this manner
of tenure, probably gave an origin to copyholders. *
Their estates were at will, but their persons were
free: nor can we suppose that villains, if we consider villains as synonymous to slaves, could ever
by any natural course have. risen to copyholders;
because the servile condition of the villain's person
would always have prevented that stable tenure in
the lands which the copyholders came to in very
early times. The merely servile part of the nation
seems never to have been known by the name of
Villains or Ceorles, but by those of Bordars, Esnes,
and Theowes.
As there were large tracts throughout the country
not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery,
and such Saxons as had not attached themselves to
the fortunes of any leading man, it was proper to
fil: I some method of uniting and governing these
detached parts of the nation, which had not been
brought into order by any private dependence. To
answer this end, the whole kingdom was divided into
* Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt
tenementa sua per libera servitia vel per liberas consuetudines. - For
the original of copyholds; see Bracton, Lib. I. fol. 7.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 303
Shires, these into Hundreds, and the Hundreds into
Tithings. * This division was not made, as it is generally imagined, by King Alfred, though he might
have introduced better regulations concerning it; it
prevailed on the continent, wherever the Northern
nations had obtained a settlement; and it is a species
of order extremely obvious to all who use the decimal
notation: when for the purposes of government they
divide a county, tens and hundreds are the first modes
of division which occur. The Tithing, which was the
smallest of these divisions, consisted of ten heads of
families, free, and of some consideration. These held
a court every fortnight, which they called Tithing
the Folkmote, or Leet, and there became Court.
reciprocally bound to each other and to the public
for their own peaceable behavior and that of their
families and dependants. Every man in the kingdom, except those who belonged to the. seigneurial
courts we have mentioned, was obliged to enter himself into some tithing: to this he was inseparably
attached; nor could he by any means quit it without license from the head of the tithing; because,
if he was guilty of any misdemeanor, his district was
obliged to produce him or pay his fine. In this man* Ibi debent populi omnes et gentes universal singulis annis, semel
in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et
sacramento non fracto ibi in unam et simul confcederare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, una cum domino suo rege, ct terras et honores illius omni fidelitate cum eo servare, et quod illi ut domino suo regi
intra et extra regnum universum Britanniae fideles esse volunt. - LL.
Ed. Conf. c. 35. - Of Heretoches and their election, vide Id. eodem.
Prohibitum erat etiam in eadem lege, ne quis emeret vivum animal
vel pannum usatum sine plegiis et bonis testibus. - Of other particulars of buying and selling, vide Leges Ed. Conf. 38.
? ? ? ? 304 ABRIDGMENT OF ENGLISH HISTORY.
ner was the whole nation, as it were, held under
sureties: a species of regulation undoubtedly very
wise with regard to the preservation of peace and
order, but equally prejudicial to all improvement in
the minds or the fortunes of the people, who, fixed
invariably to the spot, were depressed with all the
ideas of their original littleness, and by all that envy
which is sure to arise in those who see their equals
attempting to mount over them. . This rigid order
deadened'by degrees the spirit of the English, and
narrowed their conceptions. - Everything was new to
them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the
bonds of government. As a life of absolute license
tends to turn men into savages, the other extreme
of constraint operates much in the same manner: it
reduces them to the same ignorance, but leaves them
nothing of the savage spirit. These regulations helped
to keep the people of England the most backward in
Europe; for though the division into shires and hundreds and tithings was common to them with the neighboring nations, yet the frankpledge seems to
be a peculiarity in the English Constitution; and
for good reasons they have fallen into disuse, though
still some traces of them are to be found in our
laws.
Hundred Ten of these tithings made an Hundred.
court. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined
causes concerning breaches of the-peace, small debts,
and such matters as rather required a speedy than a
refined justice.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 305
There was in the Saxon Constitution a great simplicity. The higher order of courts were but the
transcript of the lower, somewhat more extended
in their objects and in their power; and their power over the inferior courts proceeded only from their
being a collection of them all. The County County
or Shire Court was the great resort for jus- Court.
tice (for the four great courts of. record did not then
exist). It served to unite all the inferior districts
with one another, and those with the private jurisdiction of the thanes. This court had no fixed place.
The alderman of the shire appointed it. Hither came
to account for their own conduct, and that of those
beneath them, the bailiffs of hundreds and tithings;
and boroughs, with their people, - the thanes of'
either rank, with their dependants, -- a vast concourse of the clergy of all orders: in a word, of'
all who sought or distributed justice. In this mixed
assembly the obligations contracted in the inferior
courts were renewed, a general oath of allegiance
to the king was taken, and all debates between the
several inferior coordinate jurisdictions, as well as the
causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an. officer of great consideration in those times, called!
the Ealdorman of the Shire. With him sat Ealdorman
the bishop, to decide in whatever related to and Bishop.
the Church, and to mitigate the rigor of the law by
the interposition of equity, according to the species
of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the
bishop was the chief acting person in this court. The
reverence in which the clergy were then held, the
VOL. VII. 20
? ?
King Edward to the Normans, and the hatred he
bore to Godwin and his family. The Duke of Normandy, to whom Edward had personal obligations,
had -taken a tour into England, and neglected no
means to improve these dispositions to his. own advantage. It is said that he then received the fullest
assurances of being appointed to the succession, and
that Harold himself had been sent soon after into
Normandy to settle whatever related to it. This is
an obscure transaction, and would, if it could be
cleared up, convey but little instruction. So that
whether we believe or not that, William. had engaged Harold by a solemn oath to secure him the
kingdom, we know that he afterwards set up a will
of King Edward in his favor, which, however, he
never produced, and probably never had to produce.
In these delicate circumstances Harold was not want
? ? ? ? 282 ABRIDGMENT OF ENGLISH HISTORY.
ing to himself. By the most equitable laws and the
most popular behavior he sought to secure the affections of his subjects; and he succeeded so well, that, when he marched against the King of Norway, who
had invaded his kingdom and taken York, without difficulty he raised a numerous army of gallant men, zealous for his cause and their country. He obtained
a signal and decisive victory over the Norwegians.
The King Elarfager, and the traitor Tosti, who had
joined him, were slain in the battle, and the Norwegians were forced to evacuate the country. Harold had, however, but little time to enjoy the fruits of his
victory.
Scarce had the Norwegians departed, when William, Duke of Normandy, landed in the southern part
of the kingdom with an army of sixty thousand chosen men, and struck a general terror through all the nation, which was well acquainted with the character
of the commander and the courage and discipline of
his troops.
The Normans were'the posterity of those Danes
who had so long and so cruelly harassed the British
islands and the shore of the adjoining continent. In
the days of King Alfred, a body of these adventurers, under their leader, Rollo, made an attempt upon England; but so well did they find every spot defended by. the vigilance and bravery of that great monarch that they were compelled to retire. Beaten from these shores, the stream of their impetuosity bore towards the northern parts of France, which had
been reduced to the most deplorable condition by
their former ravages. Charles the Simple then sat
on the throne of that kingdom; unable to resist this
torrent of barbarians, he was obliged to yield to it;
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 283
he agreed to give up to Rollo the large and fertile
province of Neustria, to hold of him as his feudatory.
This province, from the new inhabitants, was called
Normandy. Five princes succeeded Rollo, who maintained with great bravery and cultivated with equal wisdom his conquests. The ancient ferocity of this
people was a little softened by their settlement; but
the bravery which had made the Danes so formidable
was not extinguished in the Normans, nor the spirit
of enterprise. Not long before this period, a private
gentleman of Normandy, by his personal br. avery, had
acquired the kingdom of Naples. Several others followed his fortunes, who added Sicily to it. From
one end of Europe to the other the Norman name
was known, respected, and feared. Robert, the sixth
Duke of Normandy, to expiate some crime which lay
heavy upon his conscience, resolved, according to the
ideas of that time, upon a pilgrimage to Jerusalem.
It was in vain that his nobility, whom he had'assembled to notify this resolution to them, represented to him the miserable state to which his country would
be reduced, abandoned by its prince, and uncertain
of a legal successor. The Duke was not. to be moved
from his resolution, which appeared but the: more
meritorious from the difficulties which attended it.
He presented to the states William, then an infant,
born of an obscure woman, whom, notwithstanding,
he doubted not to be his son; him he appointed to
succeed; him he recommended to their virtue and
loyalty; and then, solemnly resigning the government in his favor, he departed on the pilgrimage,
from whence he never returned. The states, hesitating some time between the mischiefs that attend the allowing an illegitimate succession and those
? ? ? ? 284 ABRIDGMENT OF ENGLISH HISTORY.
which might arise from admitting foreign pretensions,
thought the former the least prejudicial, and accordingly swore allegiance to William. But this oath was not sufficient to establish a right so doubtful. The
Dukes of Burgundy and Brittany, as well as several
Norman noblemen, had specious titles. The endeavors of all these disquieted the reign of the young prince with perpetual troubles. In these troubles he
was formed early in life to vigilance, activity, secrecy,
and a conquest over all those passions, whether bad
or good, which obstruct the way to greatness. He
had to contend with all the neighboring princes, with
the seditions of a turbulent and unfaithful nobility,
and the treacherous protection of his feudal lord, the
King of France. All of these in their turns, sometimes all of these together, distressed him. But with
the most unparalleled good fortune and conduct he
overcame all opposition, and triumphed over every
enemy, raising his power and reputation above that
of all his ancestors, as much as he was exalted by his
bravery above the princes of his own time.
Such was the prince who, on a pretended claim
from the will of King Edward, supported by the common and popular pretence of punishing offenders and redressing grievances, landed at Pevensey in Sussex,
to contest the crown with Harold. Harold had no
sooner advice of his landing than he advanced to
meet him with all possible diligence; but there did
not appear in his army, upon this occasion, the same
unanimity and satisfaction which animated it on its
march against the Norwegians. An ill-timed economy in Harold, which made him refuse to his soldiers the plunder of the Norwegian camp, had created a
general discontent. Several deserted; and the sol
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 285
diers who remained followed heavily a leader under
whom there was no hope of plunder, the greatest incitement of the soldiery. Notwithstanding this ill disposition, Harold still urged forward, and by forced
marches advanced within seven miles of the enemy.
The Norman, on his landing, is said to have sent
away his ships, that his army might have no way
of safety but in conquest; yet had he fortified his
camp, and taken every prudent precaution, that so
considerable an enterprise should not be reduced to
a single effort of despair. When the armies, charged
with the decision of so mighty a contest, had approached each other, Harold paused awhile. A
great deal depended on his conduct at this critical
time. The most experienced in the council of war,
who knew the condition of their troops, were of opinion that the engagement ought to be deferred, - that the country ought to be wasted, - that, as the winter
approached, the Normans would in, all probability be
obliged to retire of themselves, - that,,if. this should
not happen, the Norman army was without resources,
whilst the English would be every'day considerably
augmented, and might attack their enemy at a time
and manner which might make their success certain.
To all these reasons nothing was opposed but a false
point of honor and a mistaken courage in Ilarold,1
who urged his fate, and resolved on an engagement.
The Norman, as soon as lie perceived that the English were determined' on a battle, left his camp to post himself in an advantageous situation, in which
his whole: army remained the night which preceded
the action.
This night was spent in a manner which prognosticated the event of the following day. On the part of
? ? ? ? 286 ABRIDGMENT OF ENGLISH HISTORY.
the Normans it was spent in prayer, and in a cool
and steady preparation for the engagement; on the
side of the English, in riot and a vain confidence
that neglected all the necessary preparations. The
two armies met in the morning; from seven to five
the battle was fought with equal vigor, until at last
the Norman army pretending to break in confusion,
a stratagem to which they had been regularly formed,
the English, elated with success, suffered that firm
order in which their security consisted to dissipate,
which when William observed, he gave the signal to
his men to regain their former disposition, and fall
upon the English, broken and dispersed. Harold in
this emergency did everything which became him,
everything possible to collect his troops and to renew the engagement; but whilst he flew from place to place, and in all places restored the battle, an
arrow pierced his brain, and he died a king, in a
manner worthy of a warrior. The English immediately fled; the rout was total, and the slaughter prodigious.
The consternation which this defeat and the death
of Harold produced over the kingdom was more fatal
than the defeat itself. If William had marched directly to London, all contest had probably been at an end; but he judged it more prudent to secure the
sea-coast, to make way for reinforcements, distrusting
his fortune in his success more than he had done in
his first attempts. He marched to Dover, where the
effect of his victory was such that the strong castle
there surrendered without resistance. Had this fortress made any tolerable defence, the English would have had leisure to rouse from their consternation,
and plan some rational method for continuing the
? ? ? ? ABRIDGHENT OF ENGLISH HISTORY. 287
war; but now the conqueror was on full march
to London, whilst the English were debating concerning the measures they should take, and doubtful in what manner they should fill the vacant
throne. However, in this emergency it was necessary to take some resolution. The party of Edgar
Atheling prevailed, and he was owned king by the
city of London, which even at this time was exceedingly powerful, and by the greatest part of the nobility then present. But his reign was of a short duration. William advanced by hasty marches, and, as he approached, the perplexity of the English redoubled: they had done nothing for the defence of the
city; they had no reliance on their new king; they
suspected one another; there was no authority, no
order, no counsel; a confused and ill-sorted assembly
of unwarlike people, of priests, burghers, and nobles
confounded with them in the general panic, struck
down by the consternation of the late defeat, and
trembling under the bolts of the Papal excommunication, were unable to plan any method of defence: insomuch that, when he had passed the
Thames and drew near to London, the clergy, the
citizens, and the greater part of the nobles, who had
so lately set the crown on the head of Edgar, went
out to meet him; they submitted to him, and having brought him in triumph to Westminster, he
was there solemnly crowned King of England. The
whole nation followed the example of London; and
one battle gave England to the Normans, which had
cost the Romans, the Saxons, and Danes so much
time and blood to acquire.
At first view it is very difficult to conceive how
this could have happened to a powerful nation, in
? ? ? ? 288 ABRIDGMENT OF ENGLISH HISTORY.
which it does not appear that the conqueror had one
partisan. It stands a single event in history, unless,
perhaps, we may compare it with the reduction of
Ireland, some time after, by Henry the Second. An
attentive consideration of the state of the kingdom at'
that critical time may, perhaps, in some measure, lay
open to us the cause of this extraordinary revolution.
The nobility of England, in which its strength consisted, was much decayed. Wars and confiscations,
but above all the custom of gavelkind, had reduced
that body very low. . At the same time some few
families had been raised to a degree of power unknown in the ancient Saxon times, and dangerous. in all. Large possessions, and a larger authority, were annexed to the offices of the Saxon magistrates, whom they called Aldermen. This authority,
in their long and bloody wars with the Danes, it was
found necessary to increase, and often to increase
beyond the ancient limits. Aldermen were created
for life; they were then frequently made hereditary;
some were vested with a power over others; and at
this period we begin to hear of dukes who governed
over several shires, and had many aldermen subject
to them. These officers found means to turn the
royal bounty into an instrument of becoming independent of its authority. Too great to obey, and too
little to protect, they were a dead weight upon the
country. They begau to cast an eye on the crown,
and distracted the nation by cabals to compass their
designs. At the same time they nourished the most
terrible feuds amongst themselves. The feeble government of Edward established these abuses. He
could find no method of humbling one subject
grown too great, but by aggrandizing in the same
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 289
excessive degree some others. Thus, he endeavored to balance the power of Earl Godwin by exalting Leofric, Duke of Mercia; and Siward, Duke of Northumberland, to an extravagant greatness. The
consequence was this: he did not humble Godwin,
but raised him potent rivals. When, therefore, this
prince died, the lawful successor to the crown, who
had nothing but right in his favor, was totally
eclipsed by the splendor of the great men who had
adorned themselves with the spoils of royalty. The
throne was now the prize of faction; and Harold, the
son of Godwin, having the strongest faction, carried
it. By this success the opposite parties were inflamed with a new occasion of rancor and animosity,
and an incurable discontent was raised in the minds
of Edwin and Morcar, the sons of Duke Leofric, who
inherited their father's power and popularity: but
this animosity operated nothing in favor of the legitimate heir, though it weakened the hands of the gov
erning prince.
The death of Harold was far from putting an end
to these evils; it rather unfolded more at large the
fatal consequences of the ill measures which had
been pursued. Edwin and Morcar set on foot once
more their practices to obtain the crown; and when
they found themselves baffled, they retired in discontent from the councils of the nation, withdrawing:
thereby a very large part of its strength and authority. The council of the nation, which was fornfied of
the clashing factions of a few great men, (for the
rest were nothing,) divided, disheartened, weakened,
without head, without direction, dismayed by a terrible defeat, submitted, because they saw no other
course, to a conqueror whose valor they had experiVOL. VII. 19
? ? ? ? 290 ABRIDGMENT OF ENGLISH HISTORY.
enced, and who had hitherto behaved with great
appearances of equity and moderation. As for the
grandees, they were contenlted rather to submit to
this foreign prince than to those whom they regarded
as their equals and enemies.
With these causes other strong ones concurred.
For near two centuries the continual and bloody
wars with the Danes had exhausted the nation; the
peace, which for a long time they were obliged to buy
dearly, exhausted it yet more; and it had not sufficient leisure nor sufficient means of acquiring wealth
to yield at this time any extraordinary resources.
The new people, which after so long a struggle had
mixed with the Elglish, had not yet so thoroughly
incorporated with the ancient inhabitants that a perfect union might be expected between them, or that any strong, uniform, national effort might have resulted from it. Besides, the people of England were
the most backward in Europe in all improvements,
whether in military or in civil life. Their towns
were meanly built, and more meanly fortified; there
was scarcely anything that deserved the name of a
strong place in the kingdom; there was no fortress
which, by retarding the progress of a conqueror,
might give the people an opportunity of recalling
their spirits and collecting their strength. To these
we may add, that the Pope's approbation of William's pretensions gave them great weight, especially amongst the clergy, and that this disposed and reconciled to submission a people whom the circumstances we have mentioned had before driven to it.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 291
CHAPTER VII.
OF THE LAWS AND INSTITUTIONS OF THE SAXONS.
BEFORE we begin to consider the laws and constitutions of the Saxons, let us take a view of- the state of the country from whence they are derived, as it is
portrayed in ancient writers. This view will be the
best comment on their institutions. Let us represent
to -ourselves a people without learning, without arts,
without industry, solely pleased and occupied with
war, neglecting agriculture, abhorring cities, and
seeking their livelihood only from pasturage and
hunting through a boundless range of morasses and
forests. Such a people must necessarily be united to
each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen, of course, that the intention of investing one person or a few with the whole powers
of government, and the notion of deputed authority
or representation, are ideas that never could have entered their imaginations. When, therefore, amongst such a people any resolution of consequence was to
be taken, there was no way of effecting it but by
bringing together the whole body of the nation, that
every individual might consent to the law, and each
reciprocally bind the other to the observation of it.
This polity, if so it may be called, subsists still in
all its simplicity in Poland.
But as in such a society as we have mentioned
the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves than in a close
? ? ? ? 292 ABRIDGMENT OF ENGLISH1 HISTORY.
and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn. a numerous train after the person distinguished by them, of those who sought his protection, or feared:his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These
the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans
called them Comites. Over these their chief had a
considerable power, and the more considerable because it depended upon influence rather than institution: influence among so free a people being the principal source of power. But this authority,. great
as it was, never could by its very nature be stretched
to despotism; because any despotic act would have
shocked the only principle by which that authority
was supported, the general good opinion. On the
other hand, it could not have been bounded by any
positive laws, because laws can hardly subsist amongst
a people who have not the use of letters. It was a
species of arbitrary power, softened by the popularity
from whence it arose. It came from popular opinion,
and by popular opinion it was corrected.
If people so barbarous as the Germans have no
laws, they have yet customs that serve in their room;
and these customs operate amongst them better than
laws, because they become a sort of Nature both to
the governors and the governed. This circumstance
in solne measure removed all fear of the abuse of
authority, and induced the Germans to permit their
chiefs to decide upon matters of lesser moment,
* They had no other nobility; yet several families amongst them
were considered as noble.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 293
their private differences, -for so Tacitus explains
the minores res. These chiefs were a sort of judges,
but not legislators; nor do they appear to have had
a share in the superior branches of the executive
part of government, - the business of peace and war,
and everything of a public nature, being determined,
as we have before remarked, by the whole body of
the people, according to a maxim general among the
Germans, that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Constitution, which has: since been so nobly fashioned and so highly finished. This
fine system, says Montesquieu, was invented in the
woods; but whilst it remained in the woods, and for
a long time after, it was far from being a fine one, -
no more, -indeed, than a very imperfect attempt at
government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.
The ancient state of the Germans was military:
so that the orders into which they were distributed,
their subordination, their courts, and every part of
their government, must be deduced from an attention to a military principle.
The ancient German people, as all the other Northern tribes, consisted of freemen and slaves: the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their
own will, nor until, they were admitted to that dignity by an established order, which at a certain age
separated the boys from men. For when a young
man approached to virility,* he was not yet admitted
as a member of the state, which was quite military,
* Arma sumere non ante cuiquam moris, quhm civitas suffecturum probaverit. - Tacitus de Mor. Germ. 13;
? ? ? ? 294 ABRIDGMENT OF ENGLISH HISTORY.
until he had been invested with a spear in the public
assembly of his tribe; and then he was adjudged
proper to carry arms, and also to assist in the public deliberations, which were always held armed. *
This spear he generally received from the hand of
some old and respected chief, under whom he conmmonly entered himself, and was admitted among his followers. t No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in
the strictest dependence, which was confirmed by an
oath,$ and to his brethren in a common vow for their
mutual support in all dangers, and for the advancement and the honor of their common chief. This
chief was styled Senior, Lord, and the like terms,
which marked out a superiority in age and merit;
the followers were called Ambacti, Com. ites, Leudes,
Vassals, and other terms, marking submission and
dependence.
This was the very first origin of civil,
or rather, military government, amongst the ancient
people of Europe; and it arose from the connection
that necessarily was created between the person who
gave the arms, or knighted the young man, and him
that received them; which implied that they were to
be occupied in his service who originally gave them.
These principles it is necessary strictly to attend to,
because they will serve much to explain the whole
* Nihil autem neque publicae neque privatse rei nisi armati agunt.
- Tacitus de Mor. Germ. 13.
t Cweteri robustioribus ac jam pridem probatis aggregantur. - Id.
ibid.
$ Illum defendere, tueri, sua quoque fortia facta glorive ejus assignare, prmecipuum sacramentum est. --Id. 14.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 295
course both of government and real property, wherever the German nations obtained a settlement: the
whole of their government depending for the most
part upon two principles in our nature, - ambition,
that makes one man desirous, at any hazard or expense, of taking the lead amongst others,- and admiration,. which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, one of the most
universal passions among men. These two principles, strong, both of them, in our nature, create a
voluntary inequality and dependence. But amongst
equals in condition there could be no such bond, and
this was supplied by confederacy; and as the first of
these principles created the senior and the knight,
the second produced the conjurati fratres, which,
sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws
and histories.
The relation between the lord and the vassal produced another effect, -- that the leader was obliged
to find sustenance for his followers, and to maintain
them at his table, or give them some equivalent in
order to their maintenance. It is plain from these
principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely
in the free choice of the parties.
But it is impossible that such a polity could long
have subsisted by election alone. For, in the first
place, that natural love which every man has to his
own kindred would make the chief willing to perpetuate the power and dignity he acquired in his own
blood, - and for that purpose, even during his own
? ? ? ? 296 ABRIDGMENT OF ENGLISH HISTORY.
life, would raise his son, if grown up, or. his collaterals, to such a rank as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or
fell by natural course, leaving his offspring destitute,
the lord could not so far forget the services of his
vassal as not to continue his allowance to his children; and these again growing up, from reason and
gratitude, could only take their knighthood at his
hands from whom they had received their education; and thus, as it could seldom happen but that
the bond, either on the side of the lord or dependant, was perpetuated, some families must have been
distinguished by a long continuance of this relation,
and have been therefore looked upon in an honorable light, from that only circumstance from whence
honor -was derived in the Northern world. Thus
nobility was seen in Germany; and in the earliest
Anglo-Saxon times some families were distinguished
by the title of Ethelings, or of noble descent. But
this nobility of birth was rather a qualification for
the dignities of the state than an actual designation
to them. The Saxon ranks are chiefly designed to
ascertain the quantity of the composition for personal injuries against them.
But though this hereditary relation was created
very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an
inheritance only according to the principles from
whence it was derived; by them it was modified.
It was originally a military connection; and if a
father left his son under a military age, so as that
he' could neither lead nor judge his people, nor
qualify the young men-who came up under him to
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 297
take arms, --in order to continue the cliental bond,
and not to break up an old and strong confederacy,
and thereby disperse the tribe, who should be pitched
upon to head the whole, but the worthiest of blood
of the deceased leader, he that ranked next to him
in his life? * And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was
thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon empire. The
first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the
inferior chieftains was regulated by a. similar law.
Very frequent examples occur in the Saxon times,
where the son of the deceased king, if under age,;wa;s entirely passed over, and his uncle, or some
remoter relation, raised to the crown; but there
is not a single instance where the election has carried it out of the blood. So that, in truth, the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined in some degree
favorably for the -litigants on either side; for it was
certainly both hereditary and elective within the
bounds which we have mentioned. This order prevailed in Ireland, where the Northern customs were
retained some hundreds of years after the rest of
Europe had in a great measure receded from them.
Tanistry continued in force there until the beginning
of the last century. And we have greatly to regret
the narrow notions of our lawyers, who abolished the
* Deputed authority, guardianship, &c. , not known to the Northern nations; they gained this idea by intercourse with the Romans.
? ? ? ? 298 ABRIDGMENT OF ENGLISH HISTORY.
authority of the Brehon law, and at the same time
kept no monuments of it, - which if they had done,
there is no doubt but many things of great value
towards determining many questions relative to the
laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it
has not been, I think, observed, that *the ascending
collateral branch was much regarded amongst the
ancient Germans, and even preferred to that of the
immediate possessor, as being, in case of an accident
arriving to the chief, the presumptive heir, and him
on whom the hope of the family was fixed: and this is
upon the principles of Tanistry. And the rule seems
to have taken such deep root as to have much influenced a considerable article of our feudal law: for,
what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without
any descending assets, where the lineal did not, unless something descended; and. this subsisted invariably in the law until this century. Thus we have seen the foundation of the Northern
government and the orders of their people, which
consisted of dependence and confederacy: that the
principal end of both was military; that protection
and maintenance were due on the part of the chief,
obedience on that of the follower; that the followers
should be bound to each other as well as to the chief;
that this headship was not at first hereditary, but that
it continued in the blood by an order of its own,
called Tanistry.
All these unconnected and independent parts were
only linked together by a common council: and here
religion interposed. Their priests, the Druids, having
a connection throughout each state, united it. They
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 299
called the assembly of the people: and here their
general resolutions were taken; and the whole might
rather be called a general confederacy than a government. In no other bonds, I conceive, were they united before they quitted Germany. In this ancient state we know them from Tacitus. Then follows an immense gap, in which undoubtedly some changes were
made by time; and we hear little more of them until
we find them Christians, and makers of written laws.
In this interval of time the origin of kings may be
traced out. When the Saxons left their own country
in search of new habitations, it must be supposed that
they followed their leaders, whom they so much venerated at home; but as the wars which made way foi
their establishment continued for a long time, military obedience made them familiar with a stricter
authority. A subordination, too, became necessary
among the leaders of each band of adventurers: and
being habituated to yield an obedience to a single
person in the field, the lustre of his command and
the utility of the institution easily prevailed upon
them to suffer him to form the band of their union
in time of peace, under the name of King. But the
leader neither knew the extent of the power he received, nor the people of that which they bestowed.
Equally unresolved were they about the method of
perpetuating it, -- sometimes filling the vacant throne
by election, without regard to, but more frequently
regarding, the blood of the deceased prince; but it
was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus
their polity was formed slowly; the prospect clears up
by little and little; and this species of an. irregular
republic we see turned into a monarchy as irregular.
? ? ? ? 300 ABRIDGMENT OF ENGLISH HISTORY.
It is no wonder that the advocates for the several
parties among us find something to favor their several notions in the Saxon government, which was never supported by any fixed or uniform principle.
To comprehend the other parts of the government
of our ancestors, we must take notice of the orders
into which they were classed. As well as we can
judge in so obscure a matter, they were divided into
nobles or gentlemen, freeholders, freemen that were
not freeholders, and slaves. Of these last we have
little to say, as they were nothing in the state. The
nobles were called Thanes, or servants. It must be
remembered that the German chiefs were raised to
that honorable rank by those qualifications which
drew after them a numerous train of followers and
dependants. * If it was honorable to be followed by
a numerous train, so it was honorable in a secondary
degree to be a follower of a man of consideration;
and this honor was the greater in proportion to the
quality of the chief, and to the nearness of the attendance on his person. When a monarchy was formed, the splendor of the crown naturally drowned
all the inferior honors; and the- attendants on the
person of the king were considered as the first in
rank, and derived their dignity from their service.
Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he
should have a suitable attendance and sway amongst
the people. To support him in both of these, it was
necessary that he should have a competent estate.
Therefore in this service of the -king, this attendance
on himself, and this estate to support both, the dig
* Jud. Civ. Lund. apud Wilk. post p. 68.
? ? ? ? ABRIDGMENTI OF ENGLISH HISTORY. 301
nity of a thane consisted. I understand here a thane
of the first order.
Every thane, in the distribution of his lands, had
two objects in view: the support of his family, and
the maintenance of his dignity. He therefore retained in his own hands a parcel of land near his
house, which in the Saxon times was called inland,
and afterwards his demesne, which served to keep
up his hospitality: and this land was cultivated either by slaves, or by the poorer sort of people, who
held lands of him by the performance of this service. The other portion of his estate he either gave
for life or lives to his followers, men of a liberal
condition, who served the greater thane, as he himself served the king. They were called UnderThanes, or, according to the language of that time, Theoden. * They served their lord in all public
business; they followed him in war; and they
sought justice in his court in all their private differences. These may be considered as freeholders
of the better sort, or indeed a sort of lesser gentry;
therefore, as they were not the absolute dependants,
but in some measure the peers of their lord, when
they sued in his court, they claimed the privilege
of all the German freemen, the right of judging
one another: the lord's steward was only the register. This domestic court, which continued in full
vigor for many ages, the Saxons called Hall- mallmote,
mote, from the place in which it was held; Baron.
the Normans, who adopted it, named it a CourtBaron. This court had another department, in
which the power of the lord was wore absolute.
From the most ancient times the German nobility
* Spelman of Feuds, ch. 5.
? ? ? ? 302 ABRIDGMENT OF ENGLISH HISTORY.
considered themselves as the natural judges of those
who were employed in the cultivation of their lands,
looking on husbandmen with contempt, and only as
a parcel of the soil which they tilled: to these the
Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these. inferior tenants were decided in the lord's court, in which his steward sat as judge; and this manner
of tenure, probably gave an origin to copyholders. *
Their estates were at will, but their persons were
free: nor can we suppose that villains, if we consider villains as synonymous to slaves, could ever
by any natural course have. risen to copyholders;
because the servile condition of the villain's person
would always have prevented that stable tenure in
the lands which the copyholders came to in very
early times. The merely servile part of the nation
seems never to have been known by the name of
Villains or Ceorles, but by those of Bordars, Esnes,
and Theowes.
As there were large tracts throughout the country
not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery,
and such Saxons as had not attached themselves to
the fortunes of any leading man, it was proper to
fil: I some method of uniting and governing these
detached parts of the nation, which had not been
brought into order by any private dependence. To
answer this end, the whole kingdom was divided into
* Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt
tenementa sua per libera servitia vel per liberas consuetudines. - For
the original of copyholds; see Bracton, Lib. I. fol. 7.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 303
Shires, these into Hundreds, and the Hundreds into
Tithings. * This division was not made, as it is generally imagined, by King Alfred, though he might
have introduced better regulations concerning it; it
prevailed on the continent, wherever the Northern
nations had obtained a settlement; and it is a species
of order extremely obvious to all who use the decimal
notation: when for the purposes of government they
divide a county, tens and hundreds are the first modes
of division which occur. The Tithing, which was the
smallest of these divisions, consisted of ten heads of
families, free, and of some consideration. These held
a court every fortnight, which they called Tithing
the Folkmote, or Leet, and there became Court.
reciprocally bound to each other and to the public
for their own peaceable behavior and that of their
families and dependants. Every man in the kingdom, except those who belonged to the. seigneurial
courts we have mentioned, was obliged to enter himself into some tithing: to this he was inseparably
attached; nor could he by any means quit it without license from the head of the tithing; because,
if he was guilty of any misdemeanor, his district was
obliged to produce him or pay his fine. In this man* Ibi debent populi omnes et gentes universal singulis annis, semel
in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et
sacramento non fracto ibi in unam et simul confcederare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos, una cum domino suo rege, ct terras et honores illius omni fidelitate cum eo servare, et quod illi ut domino suo regi
intra et extra regnum universum Britanniae fideles esse volunt. - LL.
Ed. Conf. c. 35. - Of Heretoches and their election, vide Id. eodem.
Prohibitum erat etiam in eadem lege, ne quis emeret vivum animal
vel pannum usatum sine plegiis et bonis testibus. - Of other particulars of buying and selling, vide Leges Ed. Conf. 38.
? ? ? ? 304 ABRIDGMENT OF ENGLISH HISTORY.
ner was the whole nation, as it were, held under
sureties: a species of regulation undoubtedly very
wise with regard to the preservation of peace and
order, but equally prejudicial to all improvement in
the minds or the fortunes of the people, who, fixed
invariably to the spot, were depressed with all the
ideas of their original littleness, and by all that envy
which is sure to arise in those who see their equals
attempting to mount over them. . This rigid order
deadened'by degrees the spirit of the English, and
narrowed their conceptions. - Everything was new to
them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the
bonds of government. As a life of absolute license
tends to turn men into savages, the other extreme
of constraint operates much in the same manner: it
reduces them to the same ignorance, but leaves them
nothing of the savage spirit. These regulations helped
to keep the people of England the most backward in
Europe; for though the division into shires and hundreds and tithings was common to them with the neighboring nations, yet the frankpledge seems to
be a peculiarity in the English Constitution; and
for good reasons they have fallen into disuse, though
still some traces of them are to be found in our
laws.
Hundred Ten of these tithings made an Hundred.
court. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined
causes concerning breaches of the-peace, small debts,
and such matters as rather required a speedy than a
refined justice.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 305
There was in the Saxon Constitution a great simplicity. The higher order of courts were but the
transcript of the lower, somewhat more extended
in their objects and in their power; and their power over the inferior courts proceeded only from their
being a collection of them all. The County County
or Shire Court was the great resort for jus- Court.
tice (for the four great courts of. record did not then
exist). It served to unite all the inferior districts
with one another, and those with the private jurisdiction of the thanes. This court had no fixed place.
The alderman of the shire appointed it. Hither came
to account for their own conduct, and that of those
beneath them, the bailiffs of hundreds and tithings;
and boroughs, with their people, - the thanes of'
either rank, with their dependants, -- a vast concourse of the clergy of all orders: in a word, of'
all who sought or distributed justice. In this mixed
assembly the obligations contracted in the inferior
courts were renewed, a general oath of allegiance
to the king was taken, and all debates between the
several inferior coordinate jurisdictions, as well as the
causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an. officer of great consideration in those times, called!
the Ealdorman of the Shire. With him sat Ealdorman
the bishop, to decide in whatever related to and Bishop.
the Church, and to mitigate the rigor of the law by
the interposition of equity, according to the species
of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the
bishop was the chief acting person in this court. The
reverence in which the clergy were then held, the
VOL. VII. 20
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