*
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.
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.
Edmund Burke
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
? ? ? ? 306 ABRIDGMENT OF ENGLISH HISTORY.
superior learning of the bishop, his succeeding to the
power and jurisdiction of the Druid, all contributed
to raise him far above the ealdorman, and to render
it in reality his court. And this was probably the
reason of the extreme lenity of the Saxon laws. The
canons forbade the bishops to meddle in cases of
blood. Amongst the ancient Gauls and Germans
the Druid could alone condemn to death; so that
on the introduction of Christianity there was none
who could, in ordinary course, sentence a man to
capital punishment: necessity alone forced it in a
few cases.
Concerning the right of appointing the Alderman
of the Shire there is some uncertainty. That he was
anciently elected by his county is indisputable; that
an alderman of the shire was appointed by the crown
seems equally clear from the writings of King Alfred.
A conjecture of Spelman throws some light upon this
affair. He conceives that. there were two aldermen
with concurrent jurisdiction, one of whom was elected by the people, the other appointed. by the king.
This is very probable, and very correspondent to the
nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the
ordinary business of the nation was then transacted,
the state would have hardly differed from a pure democracy. Besides, as the king had in every county
large landed possessions, either in his demesne, or to
reward and pay his officers, he would have been in a
much worse condition than any of his subjects, if he
had been destitute of a magistrate to take care of his
rights and to do justice to his numerous vassals. It
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 307
appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year
only, and that the royal alderman held his place at
the king's pleasure. This latter office, however, in
process of time, was granted for life; and it grew
afterwards to be hereditary in many shires.
We cannot pretend to say when the Sheriff came to be substituted in the place of the
Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from
the nature of the thing itself. As several persons
of consequence enough to obtain by their interest or
power the place of alderman were not sufficiently
qualified to perform the duty of the office, they contented themselves with the honorary part, and left
the judicial province to their substitute. * The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was
in his manor, for the same reasons officiated by his
deputy, the shire-reeve. This is the origin of the
Sheriff's Tourn, which decided in all affairs, Sheriff's
civil and criminal, of whatever importance, Tourn.
and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow
of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to
* Sheriff in the Norman times was merely the king's officer, not
the earl's. The earl retained his ancient fee, without jurisdiction;
the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either
immediately or mediately, and therefore his officer governed.
? ? ? ? 308 ABRIDGMENT OF ENGLISH HISTORY.
the court there being left nothing more than the cog,
nizance of pleas under forty shillings, unless by a particular writ or special commission. But by what
steps such a revolution came on it will be our business hereafter to inquire.
Witenage- The Witenagemote or Saxon Parliament,
mote. the supreme court, had authority over all
the rest, not upon any principle of subordination,
but because it was formed of all the rest. In
this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and
greater thalnes, with the other officers of the crown. *
So far as we can judge by the style of the Saxon
laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly,
at least whilst it acted deliberatively. It is true that
great numbers of all ranks of people attended its session, and gave by their attendance, and. their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in
the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This
may be explained by considering the analogy of the
inferior assemblies. All persons, of whatever rank,
attended at the county courts; but they did not go
there as judges, they went to sue for justice,- to be
informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at
the Witenagemotes, not to make laws, but to attend
at the promulgation of the laws; t as among so free
* How this assembly was composed, or by what right the members
sat in it, I cannot by any means satisfy myself. What is here said
is, I believe, nearest to the truth.
t Hence, perhaps, all men are supposed cognizant of the law.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 309
a people every institution must have wanted much of
its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in
these early times the commons sat, as they do at
this day, by representation from shires and boroughs;
and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such
appearances as no other explanation can account for.
To the reign of Henry the Second, the citizens and
burgesses were little removed from absolute slaves.
They might be taxed individually at what sum the
king thought fit to demand; or they might be discharged by offering the king a sum, from which, if
he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted
with severity, and even cruelty. A great difference
is made between taxing them and those who cultivate
lands: because, says my author, their property is
easily concealed; they live penuriously, are intent
by all methods to increase their substance, and their
immense wealth is not easily exhausted. Such was
their barbarous notion of trade and its importance.
The same author, speaking of the severe taxation,
and violent method of extorting it, observes that it is
a very proper method, - and that it is very just that
a degenerate officer, or other freeman, rejecting his
condition for sordid gain, should be punished beyond
the common law of freemen.
I take it that those who held by ancient demesne
did not prescribe simply not to contribute to the
expenses of the knight of the shire; but they pre
? ? ? ? 310 ABRIDGMENT OF ENGLISH HISTORY.
scribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of
no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of
the same kind in the Saxon times, when they were
of more repute. It is certain that many places now
called boroughs were formerly towns or villages in
ancient demesne of the king, and had, as such, writs
directed to them to appear in Parliament, that they
might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of
summoning them. This appears by sufficient records. And it appears by records also, that it was
much at the discretion of the sheriff what boroughs
he should return; a general writ was directed to
him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to
Parliament were quite passed over, and others, never
considered as such before, were returned. What is
called the prescription on this occasion was rather a
sort of rule to direct the sheriff in the execution of
his general power than a right inherent in any boroughs. But this was long after the time of which
we speak. In whatever manner we consider it, we
must own that this subject during the Saxon times
is extremely dark. One thing, however, is, I think,
clear from the whole tenor of their government, and
even from the tenor of the Norman Constitution
long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 311
the members held their seats were far from being
exactly ascertained. The Judicia Civitatis Londonice
afford a tolerable insight into the Saxon hMethod of
making and executing laws. First, the king called
together his bishops, and such other persons as he
thought proper. This council, or Witenagemote,
having made such laws as seemed convenient, they
then swore to the observance' of them. The king sent
a notification of these proceedings to each Burgmote,
where the people of that court also swore to the observance of them, and confederated, by means of
mutual strength and common charge, to prosecute
delinquents against them. Nor did there at that
time seem to be any other method of enforcing new
laws or old. For as the very form of their government subsisted by a confederacy continually renewed,
so, when a law was-made, it was necessary for its ex-. ecution to have again recourse to confederacy, which
was the great, and I should almost say the only, principle of the Anglo-Saxon government.
What rights the king had in this assembly is a
matter of equal uncertainty. * The laws generally
run in his name, with the assent of his wise men,
&c. But considering the low estimation of royalty
in those days, this may rather be considered as the
voice of the executive magistrate, of the person who
compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems. the law was digested'by the king or his
council for the assent of the general assembly. That
* Debet etiam rex omnia rite facere in regno, et per judicium procerum regni. -Debet. . . . justitiam per consilium procerum regni
sui tenere. - Leges Ed. 17.
? ? ? ? 312 ABRIDGMENT OF ENGLISH HISTORY.
order is now reversed. All these things are, I think,
sufficient to show of what a visionary nature those
systems are which would settle the ancient Constitution in the most remote times exactly in the same
form in which we enjoy it at this day, - not considering that such mighty changes in manners, during
so many ages, always must produce a considerable
change in laws, and in the forms as well as the powers of all governments.
We shall next consider the nature of the laws
passed in these assemblies, and the judicious manner of proceeding in these several courts which we
have described.
The Anglo-Saxons trusted more to the
Saxon laws.
strictness of their police, and to the simple
manners of their people, for the preservation of peace
and order, than to accuracy or exquisite digestion of
their laws, or to the severity of the punishments
which they inflicted. * The laws which remain to us
of that people seem almost to regard two points only:
the suppressing of riots and affrays, --and the regulation, of the several ranks of men, in order to adjust
the fines for delinquencies according to the dignity
of the person offended, or to the quantity of the
offence. In all other respects their laws seem very
imperfect. They often speak in the style of counsel
as well as that of command. In the collection of
laws attributed. to Alfred we have the Decalogue
* The non-observance of a regulation of police was always heavily
punished by barbarous nations; a slighter punishment was inflicted
upon the commission of crimes. Among the Saxons most crime's
were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids, -to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 818
transcribed, with no small part of the Levitical law;
in the same code are inserted many of the Saxon
institutions, though these two laws were in all respects as opposite as could possibly be imagined.
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
? ? ? ? 306 ABRIDGMENT OF ENGLISH HISTORY.
superior learning of the bishop, his succeeding to the
power and jurisdiction of the Druid, all contributed
to raise him far above the ealdorman, and to render
it in reality his court. And this was probably the
reason of the extreme lenity of the Saxon laws. The
canons forbade the bishops to meddle in cases of
blood. Amongst the ancient Gauls and Germans
the Druid could alone condemn to death; so that
on the introduction of Christianity there was none
who could, in ordinary course, sentence a man to
capital punishment: necessity alone forced it in a
few cases.
Concerning the right of appointing the Alderman
of the Shire there is some uncertainty. That he was
anciently elected by his county is indisputable; that
an alderman of the shire was appointed by the crown
seems equally clear from the writings of King Alfred.
A conjecture of Spelman throws some light upon this
affair. He conceives that. there were two aldermen
with concurrent jurisdiction, one of whom was elected by the people, the other appointed. by the king.
This is very probable, and very correspondent to the
nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the
ordinary business of the nation was then transacted,
the state would have hardly differed from a pure democracy. Besides, as the king had in every county
large landed possessions, either in his demesne, or to
reward and pay his officers, he would have been in a
much worse condition than any of his subjects, if he
had been destitute of a magistrate to take care of his
rights and to do justice to his numerous vassals. It
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 307
appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year
only, and that the royal alderman held his place at
the king's pleasure. This latter office, however, in
process of time, was granted for life; and it grew
afterwards to be hereditary in many shires.
We cannot pretend to say when the Sheriff came to be substituted in the place of the
Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from
the nature of the thing itself. As several persons
of consequence enough to obtain by their interest or
power the place of alderman were not sufficiently
qualified to perform the duty of the office, they contented themselves with the honorary part, and left
the judicial province to their substitute. * The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was
in his manor, for the same reasons officiated by his
deputy, the shire-reeve. This is the origin of the
Sheriff's Tourn, which decided in all affairs, Sheriff's
civil and criminal, of whatever importance, Tourn.
and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow
of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to
* Sheriff in the Norman times was merely the king's officer, not
the earl's. The earl retained his ancient fee, without jurisdiction;
the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either
immediately or mediately, and therefore his officer governed.
? ? ? ? 308 ABRIDGMENT OF ENGLISH HISTORY.
the court there being left nothing more than the cog,
nizance of pleas under forty shillings, unless by a particular writ or special commission. But by what
steps such a revolution came on it will be our business hereafter to inquire.
Witenage- The Witenagemote or Saxon Parliament,
mote. the supreme court, had authority over all
the rest, not upon any principle of subordination,
but because it was formed of all the rest. In
this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and
greater thalnes, with the other officers of the crown. *
So far as we can judge by the style of the Saxon
laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly,
at least whilst it acted deliberatively. It is true that
great numbers of all ranks of people attended its session, and gave by their attendance, and. their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in
the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This
may be explained by considering the analogy of the
inferior assemblies. All persons, of whatever rank,
attended at the county courts; but they did not go
there as judges, they went to sue for justice,- to be
informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at
the Witenagemotes, not to make laws, but to attend
at the promulgation of the laws; t as among so free
* How this assembly was composed, or by what right the members
sat in it, I cannot by any means satisfy myself. What is here said
is, I believe, nearest to the truth.
t Hence, perhaps, all men are supposed cognizant of the law.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 309
a people every institution must have wanted much of
its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in
these early times the commons sat, as they do at
this day, by representation from shires and boroughs;
and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such
appearances as no other explanation can account for.
To the reign of Henry the Second, the citizens and
burgesses were little removed from absolute slaves.
They might be taxed individually at what sum the
king thought fit to demand; or they might be discharged by offering the king a sum, from which, if
he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted
with severity, and even cruelty. A great difference
is made between taxing them and those who cultivate
lands: because, says my author, their property is
easily concealed; they live penuriously, are intent
by all methods to increase their substance, and their
immense wealth is not easily exhausted. Such was
their barbarous notion of trade and its importance.
The same author, speaking of the severe taxation,
and violent method of extorting it, observes that it is
a very proper method, - and that it is very just that
a degenerate officer, or other freeman, rejecting his
condition for sordid gain, should be punished beyond
the common law of freemen.
I take it that those who held by ancient demesne
did not prescribe simply not to contribute to the
expenses of the knight of the shire; but they pre
? ? ? ? 310 ABRIDGMENT OF ENGLISH HISTORY.
scribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of
no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of
the same kind in the Saxon times, when they were
of more repute. It is certain that many places now
called boroughs were formerly towns or villages in
ancient demesne of the king, and had, as such, writs
directed to them to appear in Parliament, that they
might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of
summoning them. This appears by sufficient records. And it appears by records also, that it was
much at the discretion of the sheriff what boroughs
he should return; a general writ was directed to
him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to
Parliament were quite passed over, and others, never
considered as such before, were returned. What is
called the prescription on this occasion was rather a
sort of rule to direct the sheriff in the execution of
his general power than a right inherent in any boroughs. But this was long after the time of which
we speak. In whatever manner we consider it, we
must own that this subject during the Saxon times
is extremely dark. One thing, however, is, I think,
clear from the whole tenor of their government, and
even from the tenor of the Norman Constitution
long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 311
the members held their seats were far from being
exactly ascertained. The Judicia Civitatis Londonice
afford a tolerable insight into the Saxon hMethod of
making and executing laws. First, the king called
together his bishops, and such other persons as he
thought proper. This council, or Witenagemote,
having made such laws as seemed convenient, they
then swore to the observance' of them. The king sent
a notification of these proceedings to each Burgmote,
where the people of that court also swore to the observance of them, and confederated, by means of
mutual strength and common charge, to prosecute
delinquents against them. Nor did there at that
time seem to be any other method of enforcing new
laws or old. For as the very form of their government subsisted by a confederacy continually renewed,
so, when a law was-made, it was necessary for its ex-. ecution to have again recourse to confederacy, which
was the great, and I should almost say the only, principle of the Anglo-Saxon government.
What rights the king had in this assembly is a
matter of equal uncertainty. * The laws generally
run in his name, with the assent of his wise men,
&c. But considering the low estimation of royalty
in those days, this may rather be considered as the
voice of the executive magistrate, of the person who
compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems. the law was digested'by the king or his
council for the assent of the general assembly. That
* Debet etiam rex omnia rite facere in regno, et per judicium procerum regni. -Debet. . . . justitiam per consilium procerum regni
sui tenere. - Leges Ed. 17.
? ? ? ? 312 ABRIDGMENT OF ENGLISH HISTORY.
order is now reversed. All these things are, I think,
sufficient to show of what a visionary nature those
systems are which would settle the ancient Constitution in the most remote times exactly in the same
form in which we enjoy it at this day, - not considering that such mighty changes in manners, during
so many ages, always must produce a considerable
change in laws, and in the forms as well as the powers of all governments.
We shall next consider the nature of the laws
passed in these assemblies, and the judicious manner of proceeding in these several courts which we
have described.
The Anglo-Saxons trusted more to the
Saxon laws.
strictness of their police, and to the simple
manners of their people, for the preservation of peace
and order, than to accuracy or exquisite digestion of
their laws, or to the severity of the punishments
which they inflicted. * The laws which remain to us
of that people seem almost to regard two points only:
the suppressing of riots and affrays, --and the regulation, of the several ranks of men, in order to adjust
the fines for delinquencies according to the dignity
of the person offended, or to the quantity of the
offence. In all other respects their laws seem very
imperfect. They often speak in the style of counsel
as well as that of command. In the collection of
laws attributed. to Alfred we have the Decalogue
* The non-observance of a regulation of police was always heavily
punished by barbarous nations; a slighter punishment was inflicted
upon the commission of crimes. Among the Saxons most crime's
were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids, -to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.
? ? ? ? ABRIDGMENT OF ENGLISH HISTORY. 818
transcribed, with no small part of the Levitical law;
in the same code are inserted many of the Saxon
institutions, though these two laws were in all respects as opposite as could possibly be imagined.
