, AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT, FROM THE SETTLEMENT OF THE SAXONS IN BRITAIN THE REVOLUTION IN 1688. TO WHICH ARE SUBJOINED, SOME DISSERTATIONS CONNECTED WITH THE HISTORY OF THE GOVERNMENT, FROM THE REVOLUTION TO THE PRESENT TIME. BY JOHN MILLAR, ESQ. Professor of Law in the University of Glasgow. IN FOUR VOLUMES. VOL. I. LONDON: PRINTED FOR J. MAWMAN, NO. 39, LUDGATE STREET, 1812. J. O. B1XKABD, rRlNTEK, MUMm-fTJUKT, LONDOJI. CHARLES JAMES FOX. SIR, V X SHALL, perhaps, be thought guilty of presumption, in wishing to draw your attention to the following pub- lication. The truth is, it appears to me scarcely possible for any man to write a constitutional history of Eng- land, without having Mr. Fox almost constantly in his thougrits. In delineating the progress of the English government, I have endea- voured to avoid those fond preposses- A a 2 IV DEDICATION. sions which Englishmen are apt to entertain upon the subject, as well as the prejudices peculiar to the two great parties, which the nature of our limited monarchy has produced. How far I have succeeded in this, must be left to the judgment of the public. But, whatever indulgence may be shown to this work, the ambition of its author will not be gratified; unless he can procure, in some degree, the approba- tion of a mind superior to prejudice ; equally capable of speculation, and of active exertion; no less conversant in elegant literature, than accustomed to animate the great scenes of national business ; possessed of the penetration to discover the genuine principles of the constitution, and of the virtue to make them an invariable rule of conduct. DEDICATION. V Impressed with the highest esteem for such a character, permit me to de- clare the satisfaction I feel from your steady perseverance in a system, which, by tending to secure the natural rights of mankind, has led to a reputation the most exalted, and the most grate- ful to a generous mind. I have the honour to be, SIR, Your most obedient Humble servant, JOHN MILLAR. College, Glasgow, 4th Dec. 1786. CONTENTS. INTRODUCTION. Page 1 BOOK I. OF THE ENGLISH GOVERNMENT, FROM THE SET- TLEMENT OF THE SAXONS IN BRITAIN TO THE REIGN OF WILLIAM THE CONQUEROR. CHAP. I. Preliminary Account of the State of _ Britain under the Dominion of the Romans. 9 MR CHAP. II. Character and Manners of the Saxons. 39 CHAP. III. Settlement of the Saxons in Britain. 62 CHAP. IV. Similarity in the Situation of the Anglo-Saxons, and of the other Barbarians who settled in the Provinces of the Western Empire. How far the Slate of all those Na- tions differed from that of every other People, ancient or modern. - - - - - --- 81 CHAP. V. The State of Property, and the dif- ferent Ranks and Orders of Men, produced by the Settlement of the Saxons in Britain. - - 127 SECT. i. Of the chief Regulations attending tJie Establishment of Christianity in the RomanEm- pire, and in the modern Kingdoms of Europe. 140 Vlii CONTENTS. Page SECT. 2. The Establishment of Christianity in Britain, under the Roman Dominion, and in the early Government of the Anglo-Saxons. 159 CHAP. VI. Institution of Ty things, Hundreds, and Counties. ---------170 CHAP. VII. Of the Wittenaaemote. - - 200 CHAP. VIII. State of the Sovereign in the pri- mitive Anglo-Saxon Government. - - - 230 CHAP. IX. Of the principal Events from the Reign of Egbert to the Norman Conquest. - 256 CHAP. X. Variations in the State of Tyfyings, Hundreds and Shires. -+ ------ 290 CHAP. XI. Changes produced in the Condition of the Vassals, and of the Peasants. - - - 302 CHAP. XII. The Influence of these C/ianges up- on the Jurisdiction and Authority of the feudal Lords. 327 CHAP. XIII. Of Ecclesiastical Courts. - - 343 CHAP. XIV. Alterations in the State of the Wittenaaemote. --------- 358 Conclusion of the Saxon Period. - - - 373 INTRODUCTION. A HE great series of events in the history of England may be divided into three parts : the first, extending from the settlement of the Saxons in Britain to the Norman conquest > the second, from the reign of William the Conqueror to the accession of the house of Stuart; the third, from the reign of James the First to the present time. The important changes exhibited in the state of the country, and in the situation of its inhabitants, appear, like a sort of natural boundaries, to mark out these different periods, and to recommend them as objects of distinct and separate exa- mination. The first period contains the conquest of England by the northern barbarians, the divi- sion of the country under the different chiefs by whom that people were conducted, the subsequent union of those principalities under one sovereign, and the course of public trans- actions under the Saxon and Danish mo- uarchs. VOL. i. B INTRODUCTION. The reign of William the Conqueror, while it put an end to the ancient line of kings, introduced into England a multitude of fo- reigners, who obtained extensive landed pos- sessions, and spread with great rapidity the manners and customs of a nation more civi- lized and improved than the English. The inhabitants were thus excited to a quicker advancement in the common arts of life, at the same time that the nation, by acquiring continental connections, was involved in more extensive military operations. By the union of the crowns of England and Scotland, upon the accession of the house of Stuart, the animosities and dissensions, with all their troublesome consequences, which had' so long subsisted between the two coun- tries, were effectually suppressed. By the im- provement of manufactures, and the introduc- tion of a considerable foreign trade, England began, in a short time, to establish her mari- time power, and to assume a higher rank in the scale of Europe. The same periods -arc also distinguished by remarkable variations in the form of govern- ment. INTRODUCTION. 3 Upon the settlement of the Saxons in Bri* tain, we behold a number of rude families or tribes feebly united together, and little accus- tomed either to subordination among them- selves, or to the authority of a monarch. Dur- ing the reigns of the Anglo-Saxon princes, we discover the effects produced by the gradual acquisition of property ; in consequence of which some individuals were advanced to the possession of great estates, and others, who had been less fortunate, were obliged to shel- ter themselves under the protection of their more opulent neighbours. Political power, the usual attendant of property, was thus gra- dually accumulated in the hands of a few great leaders, or nobles ; and the government be- came more and more aristocrat! cal; When the advances of the country in im- provement had opened a wider intercourse, and produced a more intimate union, between the different parts of the kingdom, the accu- mulated property in the hands of the king became the source of greater influence than the divided property possessed by the nobles. The prerogatives of the former, in a course of time, were therefore gradually augmented ; B 1 2 4 INTRODUCTION. and the privileges of the latter suffered a portionable diminution. From the reign of William the Conqueror in England, we may date the first exaltation of the crown, which, under his successors of the Platitaffenct and o Tudor families, continued to rise in splendor and authority. */ About the commencement of the reign of James the First, great alterations began to appear in the political state of the nation. Commerce and manufactures, by diffusing a spirit of liberty among the great body of the people, by changing the system of national defence, and by increasing the necessary ex-^ pences of government, gave rise to those dis- putes, which, after various turns of fortune, were at last happily terminated by the esta- blishment of a popular government. With reference to that distribution of pro- perty, in the early part of our history, which goes under the name of the feudal system, the constitution established in the first of these periods, may be called the feudal aristocracy ; that in the second, the feudal monarchy; and that which took place in the third, may be called the commercial government. INTRODUCTION. 5 Similar periods to those which have now been pointed out in the English history, may also be distinguished in. the history of all those kingdoms on the continent of Europe, which were established upon the ruins of the. Roman Empire, and in which the people have since become opulent and polished. Thus the reign of Hugh Capet in France, and of Otho the Great in Germany, correspond to that of Wil- liam the Conqueror in England ; as those of Lewis XIII. and Ferdinand II. in the two former countries, were analogous to that of James the First, in the latter. In the following treatise, it is proposed to take a separate view of these periods of the English history, and to examine the chief dif- ferences of the political system in each of them. As the government which we enjoy at present has not been formed at once, but has grown to o maturity in a course of ages, it is necessan r , in order to have a full view of the circum- stances from which it has proceeded, that we should survey with attention the successive changes through which it has passed. In a disquisition of this nature, it is hoped that, by considering events in the order in which they 6 INTRODUCTION. happened, the causes of every change will be more easily unfolded, and may be pointed out with greater simplicity. As the subject, how- ever, is of great extent, I shall endeavour to avoid prolixity, either from quoting authorities and adducing proofs in matters sufficiently evident, or from intermixing any detail of facts not intimately connected with the history of our constitution. With respect to the Saxon period, which comes first in order, many writers appear to have looked upon it as too remote, and as affording a prospect too barren and rude, to deserve any particular examination. But it ought to be considered, that the foundations of our present constitution were laid in that early period ; and that, without examining the principles upon which it is founded, we can- not form a just opinion concerning the nature of the superstructure. To trace the origin of a system so singular in its nature may, at the same time, be regarded as an object of rational curiosity. The British government is the only one in the annals of mankind that has aimed at the diffusion of liberty through a multitude of people, spread over a wide extent of terri- INTRODUCTION. 7 lory. The ancient republics of Greece and Rome comprehended little more than the police of a single city ; and in these a great proportion of the people, so far from being admitted to a share in the government, were, by the institution of domestic slavery, excluded from the common rights of men. The mo- dern republics of Italy, not to mention the very unequal privileges which they bestow upon different individuals, are inconsiderable in their extent. The same observation is ap- plicable to the government of the Swiss can- tons. In the Seven United Provinces of the Netherlands, the government can hardly be considered as more extensive ; for, notwith- standing the confederacy by which they are connected, every particular province, and even every single town of any consequence, belong- ing to each, having the exclusive power of making or consenting to its own regulations, forms in reality an independent political sys- tem. By what fortunate concurrence of events has a more extensive plan of civil free- dom been established in this island? Was it by accident, or by design, or from the influence of peculiar situation, that our Saxon forefathers^ INTRODUCTION. originally distinguished as the most ferocious of all those barbarians who invaded the Ro- man provinces, have been enabled to embrace more comprehensive notions of Liberty, and to sow the seeds of those political institutions which have been productive of such prosperity and happiness to a great and populous empire? To these questions it is hoped that, in the se- quel, a satisfactory answer will be given, AN HISTORICAL VIEW OF THE ENGLISH GOVERNMENT, BOOK I. OP THE ENGLISH GOVERNMENT, FROM THE SETTLEMENT OF THE SAXONS IN BRITAIN TO THE REIGN OF WILLIAM THE CONQUEROR. CHAPTER I. Preliminary Account of the State of Britain under the Dominion of the Roman*. X HE downfal of the Roman state, and the formation of those kingdoms which were built upon the ruins of it, may be regarded as one of the greatest revolutions in the history of mankind. A vast unwieldy empire, which had for ages languished under a gloomy des- pojbism, was then broken into a number of independent states, animated teith all the 10 STATE OP BRITAIN vigour, but subjected to all the violence and disorder, natural to a rising and unsettled con- stitution. The arts and literature which had grown up in the ancient world were, in agreat measure, overthrown ; and a new system of political institutions, together with a total change of manners, customs, and ways of thinking, spread itself over the greatest part of Europe. The plan of government, which the Ro- mans adopted throughout the greatest part of their dominions, was uniform and simple. After that people had enlarged their city, as far as was convenient, by incorporating some of the neighbouring tribes, and had joined to it the possession of a considerable adjacent terri- tory, they divided their future acquisitions into distinct provinces ; in each of which they placed a governor, invested with almost unli- mited authority. It cannot escape observation, that the Roman patriotism, even in the boasted times of the commonwealth, was far from be- ing directed by a liberal spirit: it proceeded from narrow and partial considerations ; and the same people who discovered so much for- titude and zeal in establishing and maintaining UNDER THE ROMANS. 1.1 the freedom of their capital, made no scruple in subjecting the rest of their dominions to an arbitrary and despotical government. The governor of every province had usually the command of the forces ; and was invested with the supreme executive and judicial powers, together with the privilege of appointing the greatest part of the inferior officers, to whom the distribution of justice, or the care of the police, was intrusted. The oppressive taxes to which the inhabitants of the provinces were subjected, and the still greater oppression which they suffered from the arbitrary and illegal exactions of their magistrates arc sufficiently known. The tribunals of Rome were at too great a distance to take a strict account of her provincial officers ; and the leading men in the Republic, who expected, in their turns, to en- rich themselves by the plunder of the provinces, Mtere seldom disposed to enter very heartily into measures for restraining such enormities. The riches amassed by the offender afforded him, at the same time, the means of prevent- ing any troublesome inquiry into his behavi- our ; and in proportion to the extent of his guilt, was commonly the degree of security which 12 STATE OF BRITAIN he afterwards enjoyed. Cicero affirms, that in the small government of Cilicia, after sav- ing to the public the amount of a full million sterling, which the former governors had ap- plied to their private use, he had, at the end of the year, about twenty thousand pounds of clear gain, But while Home was thus extending con- quest and slavery over the world, she commu- nicated to the conquered nations her know- Jedge, and her refinements in the arts of life. The great military establishment maintained in every province, in order to keep the inhabi- tants in subjection ; the large body of civil omV cers necessary in the various departments of public administration ; the numerous colonies, composed of Roman citizens, who settled in every part of the empire, and carried along with them the Roman institutions and cusr toms ; and, above ajl, the frequent resort of the chief provincial inhabitants to the capital of the empire, a natural consequence of their dependence ; these circumstances produced an universal imitation of Roman manners, anci throughout the dominions of Rome contribut- ed to spread her language, arts, and literature. UNDER THE ROMANS. 13 *These advantages compensated in some mea- sure, and were sometimes more than sufficient to counterbalance, the loss of independence. Wherever the Roman dominion was estab- lished, the ruder parts of the world were civi- lized* Among all the countries subdued by the Romans, none was in a more uncultivated state than Britain ; and it is probable that no country derived greater advantages from her subjection. A great part of the inhabitants, before they were incorporated in the Roman empire, seem to have been strangers to agri^ culture, and to have been maintained chiefly by their herds of cattle. They were divided into small independent tribes, under their seve- ral chiefs* as commonly happens in that early state of mankind ; and these little societies being much addicted to plunder, and for that reason frequently engaged in hostilities, a re- gard to mutual defence had occasionally pro- duced alliances among some of them, from which a variety of petty princes, or kings, had arisen in different parts of the country. The Roman administration of Britain does not appear to have been distinguished from 14 STATE OF BRITAIN that of the other provinces at a distance from the seat of government. After the reduction of all that part of the island accounted worth the trouble of acquiring, the first great object was, to ascertain and preserve the conquest by a permament military force. For this purpose the inhabitants were completely disarmed ; and a standing army, composed, according to the lowest account, of three legions, amount- ing to upwards of thirty-six thousand foot and six thousand horse, was introduced, and regu- larly maintained*. These troops were distri- buted over the province, and placed in sta- tions where their service could be most useful, either by overawing the natives, or by repel- ling the invasions of the unconquered tribes in the North. When not engaged in war, they were employed, according to the usual prac- tice of the Romans, in public works ; in build- ing and repairing these two northern walls, which at different times were intended as the boundary of the province ; in constructing forts ; in clearing the country of its forests *Horsety Brit. Rom. Whitaker Hist. Manchester, v. i. b. i.ch. 6. UNDER THE ROMANS. 15 and marshes ; and in opening a communica- tion between different parts of it, by an un- interrupted chain of high roads. There are said to have been, in the whole province, about a hundred and fifty Roman stations ; which were connected with inferior fortresses, erected at convenient distances, and garrisoned with regular troops*. Each of these garrisons occasioned a resort of the neighbouring inhabitants, and probably gave rise to a sort of village or town, in which a promiscuous settlement was formed by Roman families and those of the natives. The effect of such an intercourse in the communication of manners and customs, may easily be con- ceived. In particular, as the military people were often rewarded by the public with landed possessions, their example could not fail to spread the knowledge and practice of agricul- ture, while their industry in the management of their estates contributed to beautify and improve the face of the country. The connexion with Britain, which the sol- diers of the British army acquired by living * Whituker Hist. Manchester, v. i. b. i. ch. 8. 16 STATE OF BRITAIN in the country, was even seldom broke off when they were dismissed from the service. Though drawn originally from different parts of the empire, yet, having formed an attach- ment to the place in which they had so long resided, they were commonly disposed, in their old age, and when they had merited their dis- mission, to pass the remainder of their clays in the province. The offspring of these people be- came natural inhabitants : and Britain, in this manner was continually receiving fresh sup- plies of Romans, who compensated for such of the natives as, in the course of recruiting the armies, were naturalized into other provinces. After establishing a sufficient military force to maintain her authority, the attention of Rome was directed to the suppression of in- ternal disorder among her subjects, by the re- gular distribution of justice. The jealousy en- tertained by the first emperors had suggested an important regulation for limiting the dan- gerous power of their provincial governors. From the time of Augustus, the provinces near the seat of the empire, as they enjoyed the prospect of tranquillity, were distinguished from such as were situated at a distance, and UNDER THE ROMANS. 1? on that account more exposed to disturbance. In the former, the governor was merely a civil officer, and had no direction of the forces ; but in the latter, it was thought necessary that his authority should be rendered more effectual, by raising him to the head of the military, as well as the civil department*. The president or governor of Britain was in the latter situation ; having the command of the army, together with the supreme jurisdic- tion, and the appointment of inferior magis- trates. In the courts held by all these officers, the laws of Rome were considered as the stan- dard of every decision. Wherever the Romans extended their dominion, it was their constant aim to introduce their own jurisprudence ; a system which was calculated to establish good order and tranquillity among the con- quered people, as well as to promote the in- terest of the conquerors. The introduction of that system into Britain was more immedi- ately necessary, to prevent those private wars, and to restrain those acts of violence and in- justice, to which the inhabitants were so much lit * Dio. Cass. 53. Hein. ad. lib. i. dig:, tit. 16. 18. VOL. I. C 18 STATE OF BRITAIN addicted. It is not likely, however, that an innovation of such importance was accom- plished all at once. In the public administra- tion of the province, the Roman magistrates assumed an absolute authority; but, in mat- ters of private property, the British chiefs and petty princes appear, for some time after the conquest, to have retained their ancient juris- diction, and to have determined the differences of their own tenants and dependants. But this jurisdiction became gradually more cir- cumscribed, and seems at last to have been en- tirely annihilated. The continual migration of foreigners into the province, brought along with them the fashions acquired in other parts of the empire; while the multiplication and enlargement of the British towns, which, for the most part, were governed according to the policy of Rome, extended the influence of the Roman judges. The province of Britain is said to have contained about an hundred and forty towns, nine of which were of the rank of colonies ; and the customs, as well as the notions of order and justice, which prevailed in those places of common resort, were easily propagated over the surrounding country. The UNDER THE ROMANS. . 19 long continuance of the provincial govern- ment, and the progress of the natives in civili- zation, disposed them to neglect their original magistrates, and to court the favour of the ruling powers, by an immediate appeal to their protection. To procure a revenue, not only sufficient for defraying the expences of the civil and mi- litary establishments, but also capable of affording annual remittances to the emperor, was a third, and perhaps the principal object of his administration. The Britons were sub- jected to taxes of the same nature with those which were levied from the other provinces*. The proprietors of arable land paid an annual quit-rent, supposed to be equal to a tenth part of the fruits ; and the possessors of pasture ground were also loaded with a duty, propor- tioned to the number of their cattle *f. The customs and excise, in this part of the Roman dominions, are said to have been remarkably heavy ;; but the impositions which excited * See an account of the taxes throughout the Roman do- minions, in Burman. de Vect. Rom. t This tax upon cattle was called Scriptura. Strabo, lib. iv. c2 20 STATE OF BRITAIN most complaint were, a poll-tax, and a duty upon funerals. These being levied at a fixed rate, without any regard to the poverty or riches of the people, and having no immediate dependence on the prosperity of trade and ma- nufactures, were most easily increased at plea- sure, and therefore seem to have been the usual expedients for raising supplies, when every other taxation had been found ineffec- tual . The charge of collecting the revenue was committed to an imperial procurator, who had the superintendance of all the inferior officers employed in this branch of administration; and in Britain, as well as in the other provinces, the principal taxes were let to farmers for the payment of a yearly rent. From this mode of collection, so liable to abuse, and from the na- ture of the government in other respects, it may seem unnecessary to remark, that the Bri- tons were exposed to grievous extortions. If the countries near the seat of the empire, and within the observation of the sovereign, were abandoned to the arbitrary measures of the * See the terras in which Boadicea is made to complain of the two last-mentioned taxes. Xiphilinus in Nerone. UNDER THE ROMANS. 2X provincial officers, it cannot be supposed that those at a distance were in a better situa- tion. Tacitus mentions, in terms of the high- est indignation, the unfeeling rapacity of the Roman officers in Britain ; which, at an early period, excited a general revolt of the inhabi- tants*. It is well known, that the cities and pro- vinces under the Roman dominion were often reduced, by the demands of government, to such distress, as obliged them to borrow mo- ney at exorbitant interest: and that, by taking advantage of their necessities, the monied men of those times were enabled to employ their fortunes in a very profitable manner. In this trade, though prohibited by law, and however infamous in its own nature, the best citizens of Rome (such is the force of Example) were not ashamed to engage. Seneca the philosopher, whose philosophy, it seems, was not incom- patible with the love of money, lent the Bri- tons, at one time, above three hundred and twenty-two thousand pounds -f-. * Tacit. Agric. ch. 15. t XiXia? jtAVfjaiJa?, quadrigenties sestertiura; viz, 322,916. 13. 4. Xiphilinus in Nerone. STATE OF BRITAIN Were it possible to ascertain the extent of the revenue drawn from the province of Bri- tain, we might thence be enabled to form a notion of the opulence and improvement at- tained by the inhabitants. Dr. Henry, who has made a very full collection of the facts mentioned by ancient authors concerning the provincial government of this Island, supposes that its annual revenue amounted to no less than two millions sterling*. But this is a mere conjecture, unsupported by any autho- rity; and it should seem that no accounts * This supppsition is built upon a calculation of Lipsius, who makes the revenue of Gaul amount to j2,421,875. This calculation is onlj supported by a passage of Cicero, juoted by Strabo, which mentions the revenue of Egypt, in the time of Auletes, as it had been at first established, so it was afterwards entirely supported by a military force. In its original, therefore, it contained * Gallia causidicos docuit facunda Britannos. Juv. Sat. 15. 20 STATE OF BRITAIN the seeds of its destruction. As, by his tyran- nical behaviour, the reigning emperor became naturally the object of detestation and resent- ment to his subjects, he was exposed to the continual hazard of insurrection, from the disgust or caprice of that army which he kept on foot for maintaining his authority. It was, at the same time, impossible that he should command in person the different armies neces- sary for the defence of the whole empire, or that he should prevent the general of every separate army from acquiring influence and popularity with the troops under his direction. The greatest and most veteran of those armies were unavoidably employed on the frontiers, where their service was most needed, and where their courage and activity were most exercised ; and their leaders being too far re- moved from the chief magistrate to meet with any disturbance in forming their ambitious plans, were frequently in a condition to ren- der themselves independent, or to open a di- rect passage to the throne. But the independence of the opulent and leading men, in the distant provinces, was in- creased by another circumstance of still greater UNDER THE ROMANS. 2| .importance. The first emperors, who possess- ed the extensive and rich countries lately sub- dued by the Roman arms, enjoyed an immense revenue, and their influence must have been proportionally great ; but the oppressive nature of their government, and the unbounded li- cence which they gave to the plunder of their subjects, could not fail to discourage industry, and of course to reduce the people to poverty and beggary. The extent of the Roman em- pire had, in the mean time, become so great, that the expence of maintaining forces on a distant frontier, with a view of making any farther conquest, seemed to overbalance the advantages which it might be supposed to produce. Adrian, a prince no less distinguished for activity than wisdom, was induced to con- tract his dominions, and to abandon a part of what had been already acquired, that he might be able to preserve the remainder in greater security. Thus, while the old channels of public revenue were drained, no new sources could be provided to supply the deficiency. In this situation the emperor felt a gradual decline of his authority; and as he became less able to protect the inhabitants of the provinces, 28 STATE OF BRITAIN i or to punish their disobedience, they were more disposed to shake off their allegiance, and emboldened to follow the fortunes of any ad- venturer who found himself in a condition to disturb the public tranquillity. For preventing these disorders, it was thought a prudent measure to associate dif- ferent leaders in the supreme power. The first traces of this practice may be discovered about the time of Trajan and the Antonines ; who partly, as it should seem, from affection, and partly from political motives, adopted in their own life-time a Casar, or successor to the crown. The same plan was farther ex- tended by Dioclesian ; who divided the sove- reignty between two emperors and two Caesars ; and who seems to have thought that, to pre- serve the empire from falling in pieces, it was requisite to submit to the manifest inconve- niences arising from the jealousy and bad agreement of so many independent heads. The emperor Constant! ne rendered this division more permanent, by erecting a great Eastern capital, which became the rival, and even su- perior, in opulence and dignity, to that of the west. THE ROMANS. 29 In conformity to such views of dividing the sovereignty among those leaders who might otherwise be disposed to tear the empire asun- der, subdivisions were made in those territories which had formerly composed a single pro- vince ; and in each subdivision a chief officer was appointed, whose authority might serve to limit and circumscribe that of him who had the government of the whole. Thus the same prince who founded Constantinople, having disbanded the whole praetorian guards, whose power had long been so formidable, distributed the whole empire into four great prefectures, corresponding to the four joint sovereigns already established. Each prefecture he di- vided into certain large territories, called juris- dictions, under their several governors; and each jurisdiction he parcelled out into smaller districts, under the denomination of provinces, which were committed to the care of deputy- governors. Britain, which originally formed a single province, but which, by the emperor Severus, had been divided into two, was, according to this arrangement, multiplied into five pro- vinces; and the vicar or governor of the whole, 2 STATE OF BRITAIN enjoyed a paramount authority to that of its five deputy-governors. The direction of the civil, and that of the military establishment, were, for the same rea- son, separated, and placed in different hands. After the dismission of the praetorian guard, and of its commander, two military officers were appointed, the one of which had the command of the infantry, and the other of the cavalry, throughout the empire ; and under them the number of generals, in particular districts, appears to have been considerably increased. The Roman forces in this Island came, in the later periods of its provincial government, to be under the direction of three independent officers; the duke of Britain, who commanded on the northern frontier ; the count of Britain, who conducted the troops in the interior parts of the country; and the count of the Saxon shore, employed in superintending the defence of the southern and eastern coasts, which, from about the beginning of the third century, had been exposed to frequent incur- sions from the Saxons. All these precautions, however, by which the Roman emperors endeavoured to maintain UNDER THE ROMANS. 31 subordination and dependance in the different parts of their dominions, were ineffectual in opposition to the prevailing current of the times. The same unhappy system which tended to loosen the bands of government, contributed also to render the military esta- blishment unfit for defence against a foreign enemy. As all power and distinction were ultimately derived from the army, it was the interest of every general to court the favour of the troops under his command, not only by en- riching them with donations and emoluments, but by treating them with every kind of indul- gence. The natural consequence of such a situation was the procuring to the soldiers ail exemption from the laborious duties of their profession. Feeling their own consequence, the military people set no bounds to their licentious demands, and were rendered inactive and effe- minate, in the same proportion as they became haughty and insolent. The heavy armour, which in former times had been used with so much advantage, was therefore laid aside, as too cumbersome and fatiguing ; and the an- cient military discipline, the great cause of all their victories, was at length entirely neglected. 32 STAf E OF BRITAIN It was thus that the Romans, being deprived of that superiority which they had formerly possessed, in their encounters with rude and ignorant nations, found themselves unable to resist the fierce courage of those neighbouring barbarians, who, about the fifth century, were invited to attack them by the prospect of plun- der and of new settlements. In this declining state of the Roman empire, the revenue of the provinces, by suffering a gradual diminution, became at length insuffi- cient for the support of their civil and military establishments ; and whenever any country had been reduced to such a degree of poverty as to be no longer able to repay the trouble and expence of maintaining it, good policy seemed to require that it should be abandoned. To such an unfruitful condition the distant pro- vinces, and Britain more especially, appear to have been fast approaching, in the reign of Arcadius and Honorius, when a deluge of bar- barians, pressing on all sides, threatened the state with sudden destruction, and made it ne- cessary to withdraw the forces from this Island, in order to defend the richer and more import- ant parts of the empire. UNDER THE ROMANS. S3 The situation of Britain, when thus deserted by the Romans, was no less new and singular, than it was alarming and unhappy. When mankind are formed into political societies, and have acquired property, they are usually provided with one set of regulations for repel- Jing the attacks of their enemies, and with another for securing internal tranquillity. But the Britons, upon this extraordinary emer- gency, were left equally destitute of both. From the distrustful jealousy of Rome, they had been removed from all concern in military transactions, at least in their own country, and made to depend for their safety upon an army composed entirely of foreigners. In such a state they had remained for more than three centuries, enjoying the protection of their masters, without any cajl to exert themselves in their own defence, and cultivating those arts which tend to soften the manners, while they inspire an aversion from the dangers and hardships of a martial life. Thus the Britons, in their advances towards civility, lost the cou- rage and ferocity of barbarians, without ac- quiring the skill and address of a polished nation; and they ceased to be warriors by VOL. I. D 34 STATE OF BRITAIN nature, without being rendered soldiers by discipline and education. But the departure of the Romans from Bri- tain was no less fatal to all the institutions of civil government. The governors and other officers, who directed the administration of public affairs, the farmers engaged in the dif- ferent departments of the revenue, the magis- trates of Roman appointment, who determined both civil and criminal causes, and who had now acquired a complete jurisdiction over the whole province, had no longer occasion to re- main in a country which was totally aban- doned by its master, and in which, by the re- moval of the army, they had lost the means of maintaining their authority. The courts of justice, therefore, were dissolved ; the taxes were abolished ; and all order and subordina- tion were destroyed. Even private indivi- duals, of Roman extraction, who had acquired estates in Britain, endeavoured to dispose of their fortunes; and by leaving the Island, avoided the storm that appeared to be gather- ing around them. The disasters which followed were of such a nature as might be expected from the anar- UNDER THE ROMANS. 35 chy and confusion which prevailed in the country. The Scots and Picts, who, in the northern part of the Island, had remained un- conquered, and retained their primitive bar- barous manners, took advantage of this favour- able opportunity, to invade and plunder their more opulent neighbours. They met with little resistance from the Britons, who, giving way to their fears, and conscious of their infe- riority, seemed to place their only refuge in the protection of their ancient rulers. The abject manner in which they, at different times, solicited that, protection ; the behaviour of their ambassadors, who in the presence of the emperor rent their garments, and putting ashes upon their heads, endeavoured to excite commiseration by tears and lamentations ; the letter which they wrote to ./Etius, the praefect of Gaul, inscribed the groans of the Britons, and in which they say, the barbarians drive us into the sea, the sea throws us back upon the bar- barians, and we have only the hard choice left us, of perishing by the sword, or by the waves ; these particulars, which are handed down by historians, exhibit the shocking picture of a peo- ple totally destitute of spirit, and unable to col- D 2 36 STATE OF BRITAIN lect resolution even from despair. Upon two occasions they obtained from Rome the aid of a military force, by which their enemies were surprised, and repulsed with great slaughter ; but the relief which this afforded was merely temporary, and they received a peremptory declaration, that, from the embarrassed con- dition of the empire, no future supplies of this kind could be spared*. The consternation of the Britons, in this~ helpless condition, may easily be conceived, though in the rude annals of that period it is, perhaps, painted with some degree of exagge- ration. Time and necessity, however, sug- gested the means of guarding against the evils to which they were exposed. The proprie- tors of land possessed a natural influence over the people whom they maintained upon their estates ; and this was the source of a jurisdic- tion, which, during the subsistence of the Ro- man dominion, had been in great measure extinguished, but which, upon the dissolution of the Roman courts, was of course revived and rendered independent. The same influ- * Gilds Hist. Beds Hist. Eccles. UNDER THE ROMANS. 3T cnce enabled these persons to call out their tenants to war, and to assume the direction of their conduct during a military enterprize. By these two branches of authority, a very simple form of government was gradually in- troduced. The whole country was broken into separate districts, according to the extent of territory in the possession of individuals ; and fell under the civil and military power of so many chiefs, the most opulent of whom ap- pear to have been dignified with the title of princes. By the efforts of these leaders, it is likely that private robbery and violence were, in some degree, restrained, and the people were encouraged to return to their tillage and ordinary employments, from the neglect of which, it is said, a famine had been produced. But their great object was to oppose the nor- thern invaders. For this puprose they elected a general of their united forces, upon whom, after the example of the Romans, they be- stowed the appellation of the duke of Britain. The same person presided in the assemblies held by the chiefs, in which the great affairs of the nation appear to have been determined* After the government had remained for 38 STATE OF BRITAIN, &C. some time in this channel, Voltigcrn, one of the most opulent of their princes, was pro- moted to that high dignity; and upon a new alarm of an invasion from the Scots and Picts, he is said to have called a national council, in which it was agreed to solicit the assistance of the Saxons. As this measure was fatal in its consequences, it has been universally decried, and stigmatised as the height of imprudence ; but we ought to consider that it proceeded from the same system of policy which has been practised and approved in all ages, that of courting the alliance of one nation, in order to form a balance against the formidable power of another ; and the censures which, in this instance, have been so liberally bestowed upon the Britons, are a plain proof how ready we are to judge of actions from the good or bad success which attends them, or how difficult it is to establish any general rules of conduct, that will not appear grossly defective in a mul- titude of the particular cases to which they may be applied. CHAPTER II. Character and Manners of the Saxons. those barbarians who passed under the denomination of Saxons, and who, at the time when they were invited to assist the Britons, inhabited the northern parts of Ger- many, it is of little moment to ascertain the origin, or to trace the several places in which they had previously resided. The Germans, who subdued the western provinces of the Roman empire, have been supposed to possess a singular character among the rude inhabi- tants of the world, and to be distinguished by their eminent qualities and virtues. Such an opinion may be ascribed to the elegant descrip- tion of that people by the masterly pen of Tacitus ; to the great revolutions which they achieved in Europe ; and, above all, to that national vanity which is more extravagant than the vanity of individuals, because the multi- tude of persons who are influenced by the same weakness keep one another in countenance. But there is reason to believe that the ancient inhabitants of Germany exhibited the same 40 CHARACTER AND MANNERS dispositions and manners, and adopted similar institutions and customs, to those which may be discovered in such barbarians, of every age or country, as have been placed in similar cir- cumstances. Deriving their chief subsistence from the pasturing of cattle, they generally possessed considerable wealth in herds and flocks ; but as they were little acquainted with tillage, they seem to have had no idea of property in land. Like the early nations described in the Sacred History, they were accustomed frequently to change their abode. Regarding chiefly the interest of their cattle, they often found it convenient to wander from one place to an- other, according as they were invited by the prospect of new pastures ; and in their migra- tions, they were under no restraint, either from the cares of husbandry, or from the nature of their possessions. But while the management of their cattle constituted the ordinary employment of these people, they were also frequently engaged in war. In common with all other barbarous nations, they were much addicted to theft and rapine. The right of property must be loDg OP THE SAXONS. 41 established, before the violations of it can be regarded as heinous offences ; and it is neces- sary that men should be habituated to an ex- tensive intercourse of society, before they are presented with sufficient inducements to sacri- fice the immediate profits of fraud and vio- lence, to the distant but superior advantages, derived from their living together upon good terms, and maintaining an amicable corre- spondence. The ancient Germans inhabit- ing a country almost entirely overgrown with wood, or covered with marshes, were often re- duced to great scarcity of provisions ; and were therefore strongly instigated, by hunger and misery, to prey upon one another. Example* in such a case, found no difficulty to excuse or vindicate what custom had rendered universal. The rude inhabitants of the earth appear, in all ages and countries, to have been divided into separate tribes and villages ; a consequence of their hostile dispositions. When, from ac- cidental circumstances, a family of such people had been planted, at so great a distance from their friends and acquaintance as to pre- vent all correspondence with them, its mem- bers, from inclination, as well as from a re- 42 CHARACTER AND MANNERS gard to mutual defence, were usually dis- posed to live together, and to avoid much inter- course with neighbours by whom they were likely to be treated as enemies. If their mul- tiplication rendered them too numerous to be all maintained under the same roof, they na- turally subdivided themselves into different families, who erected their huts beside one an- other ; and if at length their village had been so enlarged as to produce a difficulty in finding subsistence, they were led, by degrees, to re- move that inconvenience, by sending out little colonies, with which, notwithstanding their distance, they frequently preserved an alliance and connection. The German tribes became larger and more extensive, according as, by the increase of their c attle, they were enabled to live in greater affluence. In that part of Ger- many which was known to the Romans, there have been enumerated about forty different tribes or nations, many of which appear to have enjoyed considerable opulence and power. But concerning the number or extent of the Tillages belonging to each of these, little or no account can be given. The political regulations established among 4 OF THE SAXONS, &C. 43 the ancient Germans were few and simple, and such as their situation could hardly fail to sug- gest. Every society, whether great or small, that had occasion to act in a separate military capacity, required a separate leader : for which reason, as every family was under the direction of the father, so every village had its own chief; and at the head of the whole tribe or nation there was a great chief or king. How far the king, or the inferior chiefs, enjoyed their dignity by election, or by hereditary de- scent; it may be difficult to determine; but their authority was far from being absolute. It was the business of every chief to compose the differences, and, probably, to command the forces, of that village over which he presided. The king too seems to have acted with their advice in the ordinary administration of public affairs; but in matters of great moment, such as the making' of laws, or the trial of capital offences, he was obliged to procure the con- currence of a great council* composed of all the heads of families*. * c< In pace, nullus est communis magistrates ; sed prin " cipes regionum atque pagorum inter sues jug dicunt, con- " troversiasque minuunt. Ulii quis ex principibuy in co 44 CHARACTER AND MANNERS The general character of these barbarians was such as might be expected from their manner of life. It consisted not of many fea- tures, but they were distinctly and strongly marked. As in the carnivorus brute animals, obliged very often to fight for their food, and exposed to continual strife and contention in the pursuit of mere necessaries, their passions, rt cilio dixit se ducem fore qui sequi velint profiteantur ; " consurgunt ii qui et causam et hominem probant, suum- " que auxilium pollicentur, atque ab multitudine conlau- " dantur : qui ex iis secuti non sunt, in desertorum ac prodi- ct torum numero ducuntur, omniumque iis rerum postea " fides derogatur." Caesar de Bel. Gal. 6. 23. " Re- " ges ex nobilitate, duces ex virtute sumunt. Nee regibus <( infinita aut libera potestas; et duces exemplo potiusquam li imperio, si prompt!, si conspicui, si ante aciem agunt, ad- " miratione praesunt." " De minoribus rebus principes " consultant, de majoribus omnes : ita tamen, ut ea quoque, " quorum penes plebem arbitrium est, apud principes per- il tractentur." " Ut turbas placuit, considunt armati. *' Silentium per sacerdotes, quibus turn et coercendi jus est, '* imperatur. Mox rex, vel principes, prout aetas cuique, '* prout nobilitas, prout decus bellorum prout facundia est, Ci audiuntur, auctoritate suadendi magis quara jubendi po- " testate." " Licet apud concilium accusare quoque, et " discrimen capitis intendere." " Eliguntur in iisdem u conciliis et principes, qui jura per pagos vicosque red- dunt." Tacit, de Mor. German, c.7. 11. 12. OF THE SAXONS. 45 though excited by few objects, were strong and violent. Their situation, at the same time, occasioned a wonderful similarity in the dis- positions and habits of individuals. In every polished nation, the labour and application of the people is usually so divided, as to pro- duce an endless variety of characters in those who follow different trades and professions. The soldier, the clergyman, the lawyer, the physician, the taylor, the farmer, the smith, the shopkeeper ; all those who earn a livelihood by the exercise of separate employments, whether liberal or mechanical, are led, by the different objects in which they are conversant, to con- tract something peculiar in their behaviour and turn of thinking. But the ancient inhabitants of Germany had made too little progress in arts, to require that a single person should bestow his whole attention upon any one branch of labour, in order to acquire the usual degree of skill and proficiency in it. Every man therefore was ac- customed to exercise indiscriminately the few employments with which they were acquaint- ed. Every family built its own cottage, fa- shioned its own tools and utensils, managed its own cattle, and took precautions for its own 46 CHARACTER AND MANNERS support and defence. Thus the whole peo- ple, being employed nearly in the same man- ner, and having no pursuits but such as were suggested by their most immediate wants, were trained up in an uniform sort of disci- pline, and acquired that uniformity of man- ners and customs, which is commonly observ- ed in persons of the same trade or profession. Even the nations inhabiting the most distant regions of that extensive country appear to have been no otherwise discriminated than by the different shades of barbarism and ferocity which the climate or situation, more or less favourable to improvement, might easily be supposed to produce. Among people who are constantly exposed to the attacks of their neighbours, and who are almost continually employed in war, cou- rage and other military qualities are naturally intitled to hold the first rank. There is an active and a passive courage, which may be distinguished from each other, as they seem to depend upon different principles, and are not always to be found in the same persons. The former is displayed in the voluntary encounter- ng of danger, the latter in bearing pain and OF THE SAXONS. 47 distress with firmness and constancy. Valour, which demands a sudden and violent effort of resolution, may be regarded as a masculine quality ; while fortitude, which, in many cases, is the fruit of calmer but more continued ex- ertion, is often conspicuous in the weaker sex. In order that, with our eyes open, we may expose our lives to imminent danger, we must be excited by a strong desire of procuring esteem and applause, either from others, or from the reflection of our own minds. Efforts of this kind, it is evident, are most likely to be made in those countries where, from long prac- tice, and frequent emulation in fighting, mar- tial exploits have come to be universally admir- ed, and looked upon by every one as the infal- lible road to honour and distinction. Forti- tude under pain and distress may, on the con- trary, be promoted by the opposite circum- stances, by the want of sensibility, or by a con- viction that our sufferings are beheld with un- o concern and indifference. To complain or repine, in the midst of affliction, is an attempt to procure relief, or at least compassion, from others ; and when we find that our complaints are disregarded, or treated with scorn and deri- 48 CHARACTER AND MANNERS sion, we are led to exert our utmost resolution in order to smother and restrain them. The savages, who live by hunting and fish- ing, are placed in a situation more favourable to fortitude than to valour. Exposed by their manner of life to innumerable hardships and calamities, they are too much loaded by the pressure of their own wants and sufferings, to feel very sensibly those of their neighbours. They disdain, therefore, to solicit that sympa- thy, which they know by experience will not be afforded them ; and having, from their daily occurrences, been long inured to pain, they learn to bear it with astonishing firmness, and even to endure every species of torture without complaining. As, on the other hand, they live in very small societies, and, in order to find subsistence, are obliged to remove their different villages to a great distance from one another, they are not apt to be engaged in frequent or extensive military enterprizes, nor to attain any degree of refinement in the me- thods of conducting their hostilities. The punctilios of military honour are unknown to them. They scruple not to take any unfair advantage in fighting, and can seldom be OF THE SAXONS. 49 brought to expose themselves in the open field. The unrelenting and blood-thirsty In- dian of America is accustomed to lie concealed for weeks, that he may have a convenient op* portunity of shooting his enemy, and may then with safety enter his cabin, to rob and murder the family. Nations who subsist by pasturing cattle, as they live in larger societies, and are supplied with food in greater abundance, are more at leisure, and have greater incitements to culti- vate their social dispositions. But their mag- nanimity, in bearing pain and affliction with apparent unconcern, is naturally diminished by their advancement in humanity ; and ac- cording as individuals discover that their dis* tresses meet with greater attention from their companions and acquaintance, they are more encouraged to display their sufferings, and to seek the tender consolation of pity, by giving way to the expression of sorrow and uneasiness. They are also likely to acquire a much higher degree of the military spirit. The wandering life of shepherds is the occasion of bringing frequently into the same neighbourhood a variety of stranger tribes ; among whom any VOL. i. E 50 CHARACTER AND MANNERS accidental jealousy, or interference of interest* is apt to kindle animosity, and to produce quarrels and hostilities. In the frequent wars that arise from such a situation, and which are carried on with the ardour and ferocity natural to barbarians, the victors, having no fixed resi- dence, are at full liberty to prosecute their success without interruption ; and as, in every migration, such people are obliged to carry alone* with them their wives, and children, o and servants, together with their herds and flocks, and even their furniture and utensils, a decisive battle never fails to reduce one tribe completely under the power of another. With the same ease with which the conquerors may pursue their victory, they can incorporate with themselves the vanquished party, and make use of their assistance in any future enterprize. Thus by repeated successes, and by a gradual accumulation of forces, a single tribe may, in a short time, become so powerful, as to meet with no enemy in a condition to cope with them, and be excited with great rapidity to overrun and subdue a vast extent of country. History is accordingly filled with the rapid and extensive conquests made by nations in '' OF THE SAXONS. 51 this early state of society ; of which, in parti- cular, there occur many celebrated examples among the Arabs and Tartars. Such was the condition of the ancient Ger- mans ; of whom it is remarked by the historian, that they were less distinguished by their pa- tience of labour, or by their capacity to bear the extremities of heat and cold, of hunger and 7 O of thirst, than by their active courage, and their ardent love of military reputation*. " They " arc more easily persuaded/' says Tacitus, " to march against an enemy, and to expose " themselves in the field, than to plough the " earth, and to -wait the returns of the sea- " son. They account it Unmanly to acquire " with sweat what may be procured with ; blood. When they engage in battle, it is a " disgrace for the chief to be surpassed in va- " lour ; it is a disgrace for his followers not to " equal the bravery of their chief; it is perpe- " tual infamy to escape with safety, after the " fall of their leader. To defend and protect " his person, to devolve upon him the glory * Laboris atque operum non eadem patientia ; rainune- que sitim aestumque tolerare, frigora atque inediam coelo solove assueverunt. Tacit, de Mor. German, c. 4. E 2 52 CHARACTER AND " of all their brave actions, is the principal " point of honour. The chiefs fight for vic- " tory, their followers for the reputation and " dignity of the chief*/' The same circumstances which gave rise to frequent hostilities between the members of different tribes, produced a strong attachment between the individuals belonging to each of those little societies. United by a sense of their common danger, and by their common animosity, against all their neighbours, they were frequently required by their situation to defend and relieve one another, and even to hazard their lives for their mutual safety. Living in a small circle of acquaintance, and having scarcely any intercourse with the rest of mankind, they naturally contracted such prejudices and prepossessions as tended to flat- ter their o\vn vanity, and to increase their partial regard for that village or tribe of which they were members. But however warmly attached to their kindred and friends, it coukl not lye expected that, in their ordinary beha- viour, they would exhibit much delicacy or * Tacit, de JVIor. German, c. 14. 2 OF THE SAXONS. 53 refinement of manners. They were too little acquainted with the dictates of prudence and sober reflection, to be capable of restraining the irregular sallies of passion ; and too little conversant in the arts of polished society, to acquire a facility of yielding up their own opi- nions, and of sacrificing their own inclinations and humours, to those of their companions. The head of every family, unaccustomed to bear opposition or controul, demanded an implicit submission and obedience from all its members. When he met with great pro- vocation, it was not unusual for him to take away the life of a servant ; and this was re- garded as an exercise of domestic authority, for which he could not be subjected to any punishment*. Even the feelings of natural affection did not prevent the children from being, in like manner, subjected to the arbi- trary power of the father, and from experienc- ing, on many occasions, the unhappy effects of his casual displeasure. Neither does the condition of the mother appear to have been * " Occidere solent, non disciplina ct severitate, sed impetu et ira, ut inimicuro, nisi quod impune." Tacit, do Mor. German, c. 25. 54f CHARACTER AND MANNERS superior to that of her children : the little attention which, in a rude age, is usually be- stowed upon the pleasures of sex, and the infe- riority of the women in strength, courage and military accomplishments, deprived them of that rank and consequence which they enjoyed in a civilized nation. There is great reason to believe that the husband commonly bought his wife from her father, or other male rela- tions, and that he considered her in the light of a servant or slave. If she was guilty of adul- tery (a crime which, from the general simpli- city of manners, was probably not very fre- quent, but which, by introducing a connection with a stranger, was highly prejudicial to the interest of the family) the punishment inflicted by the husband, was that of stripping her naked, turning her out of doors, and whipping her through the village*. In the intercourse of different families, and in their common amusements, their behaviour * Tacit, de Mor. German, c. 18, 19. The conformity of the German manners with those of other barbarous na- tions, in relation to the condition of women and children, I have endeavoured to illustrate, in a treatise entitled, A,n Enquiry into the Origin of Ranks. OF THE SAXONS. 55 was suited to the spirit and disposition of a martial, but rude and ignorant people. Their military life, which was incompatible with in- dustry, prevented the growth of avarice, the usual attendant of constant labour and appli- cation in every lucrative profession. Their employments were such as united them by a common tie, instead of suggesting the idea of a separate interest, or engaging them in that struggle for riches, by which the pursuits of every man are, in some measure, opposed to those of his neighbour. Their herds and flocks, in which their wealth principally consisted, being under the management and direction of a whole village or tribe, were considered, in some sort, as the joint property of all ; so far at least, as to render individuals willing, on all occasions, to relieve their mutual wants, by sharing their goods with one another. Hence that hospitality and generosity which is so conspicuous among shepherd nations in all parts of the world. " No nation/' says the author above quoted *, *' is more hospitable than the Germans. They make no difference, in * Tacit, de Mor. Germ. Z\. 56 CHARACTER AND MANNERS " this respect, between a stranger and an ao " quaintance. When a person has been libe- " rally entertained in one house, he is con- " ducted to another, where he is received with " the same hearty welcome. If a guest, at '* his departure, should ask a present from his " entertainers, it is seldom refused ; and they " will ask any thing of him with the same " freedom. They are fond of making pre- " sents, which are scarcely understood to lay " the receiver under any obligation." Their military operations, no doubt, required a violent, though an irregular and transient exertion ; but upon the conclusion of an ex- pedition they were completely at liberty to in- dulge themselves in rest and idleness. From these opposite situations, they contracted op- posite habits, andrbecame equally restless and slothful. When not engaged in the field, the warriors disdained to assist in domestic offices, they even seldom exercised themselves in hunt- ing ; but, leaving the care of their cattle, and of their houshold, to the women and children, or to the old and infirm, they were accustomed to pass their time in listless indolence, having little other enjoyment but what they derive^ OF THE SAXOXS. 57 from food or from sleep*. That from such dis- positions they found great delight in convivial entertainments, and were given to great ex- cesses in eating and drinking, may easily be supposed* By the pleasures of intoxication, they sought to dissipate the gloom of that lan- guor and weariness with which they were op- pressed, and to enliven the barren prospect which the ordinary course of their thoughts and sentiments was capable of presenting to them. For the same reason they were addicted to games of hazard ; insomuch that persons who had lost their whole fortune at play would afterwards, it is said, venture to stake their li- berty ; and having still been unlucky, would voluntarily become the slaves of the winner-}-.. * " Quoties bella non incunt, non multum venationibus, for the most part, in their primi- tive state of barbarism. The conquest of the Saracens, and of the eastern empire, by the Turks, had a greater resemblance to the pro- gressive inroads of those who conquered the western provinces ; but it was far from prov- ing equally destructive to the former civiliza- tion of the conquered people, or from reducing them to the level of their barbarous conquerors. 2. The German or Gothic nations, who settled in the western part of Europe, were enabled, in a short time, to form kingdoms of greater extent, than are usually to be found among people equally rude and barbarous. Of all the arts which contribute to improve or to embellish society, that of government re- quires the most enlarged experience and ob- servation ; for which reason, its progress to- wards perfection is proportionably gradual and slow. In that simple age, in which labour .is not yet divided among separate artificers* AND OTHER BARBARIANS. 93 and in which the exchange of commodities is in a great measure unknown, individuals, who reside at a distance from one another, have no occasion to maintain an intimate correspon* dence, and are not apt to entertain the idea of establishing a political connection. The inhabitants of a large country are then usually parcelled out into separate families or tribes, the members of which have been led, by necessity, to contract habits of living together, and been reduced under the authority of that leader who is capable of protecting them* These little communities are naturally inde- pendent, as well as jealous of one another ; and though, from the dread of a common enemy, they are sometimes obliged to com- bine in a league for mutual defence^ yet such combinations are generally too casual and fluctuating to be the foundation of a compre- hensive and permanent union. But those barbarians who conquered the western empire were quickly induced, and enabled, to form extensive associations ; partly, from the circumstances attending the con- quest; and partly, from the state of the coun- try in which tliey formed .their settlements. 96 SIMILARITY OF ANGLO-SAXONS. With respect to the circumstances attending their conquest, it is to be observed, that their tribes were far from being large or numerous, and that they overran and subdued a very large tract of country; in consequence of which, the members of the same tribe were enabled to occupy great landed estates, and came to be settled at a proportionable dis- tance from one another. Individuals who had belonged to a small community, and who had been accustomed to fight under the same leader, were thus dispersed over an extensive territory; and, notwithstanding this change in their situation, were naturally disposed to retain their former connections and habits. The notion of uniting under a single chief, which had been established among the mem- bers of a wandering tribe of shepherds, con- tinued, therefore, to operate upon the same people, after they had acquired ample posses- sions, and had reduced multitudes under their dominion. The extent of the kingdoms, erected by those barbarous nations, was likewise affected by the state of each Roman province, in which their settlements were made. AND OTHER BARBARIANS. 97 As every Roman province constituted a part of the whole empire ; so it formed a distinct society, influenced by national views, and di- rected by a separate interest. Among the in- habitants of the same province, united by their local situation, by the ties of friendship and acquaintance, and even by that common system of oppression to which they were sub- ject, a regular intercourse was constantly main- tained. Those who lived in villages, or in the open country, carried on a variety of transac- tions with the several towns in the neighbour- hood, where they found a market for their goods, and were supplied with those conveni- encies which they required. The inhabitants of these towns, and of the whole province, were, at the same time, closely connected with the capital, where the governor resided in a kind of regal pomp and magnificence, and di- rected the various wheels and springs of ad- ministration. Here the public money, ac- cumulated from different parts, was again dis- tributed through the various channels of go- vernment ; and hither men of all descriptions, (he poor and the rich, tlie idle and the indus- VOL. i. H 98 SIMILARITY OF AKGLO-SAXONS trious, were attracted from every quarter, by the views of profit, or pleasure, or of ambition. The changes which at different periods were made in the political constitution of Rome, produced no great alteration, as has been al- ready observed, either in the extent or condi- tion of her provincial governments. The an- cient boundaries of the provinces appear to have been generally retained under the later emperors ; though, in order to secure the pub- lic tranquillity, they were often subdivided into particular districts, which were put under the direction of subordinate officers. The con- nections, therefore, between the several parts of the same province, were gradually strength- ened from the length of time during which they had subsisted. ;, by the conquest of those countries, the ancient inhabitants were not extirpated, it is natural to suppose that their former habits of intercourse were not obliterated and forgotten ; but, on the contrary, were in some degree communicated to the conquerors. They who had lived under the same government were still disposed to admit the authority of a single A3SD OTHER BARBARIANS. 99 person, and to remain in that state of union ind subordination to which they had been accustomed. Particular chiefs having occu- pied the remairiing towns belonging to a Ro- man province^ were of course rendered masters of the adjacent territory ; and he who had set himself at the head of the most powerful dis- trict, was in a fair way of becoming sovereign of the whole. It may also be worthy of notice, that as the conquering tribes adopted a number of the Roman institutions, their principal conductor was frequently in a condition to avail himself of that authority, however declining, which the Roman government continued to main- tain : and by assuming, or obtaining* the dig- nity which had belonged to the chief magi- trate of province, was enabled with greater facility to extend his dominion over the terri- tories which had formerly acknowledged the jurisdiction of that officer. Thus we find that Clovis who conquered a great part of Gaul, was, near the end of this reign^ invested with the title of consul, and probably with that cfpro-ctinwl, by the emperor Anastasius ; and that the posterity of Clovis were at the pains H 2 100 SIMILARITY OF ANGLO-SAXONS to procure, from the emperor Justinian, a resignation of all the rights of the empire over that nominal branch of his dominions*. In like manner Theodoric, the king of the Ostrogoths, who had been invested, in the eastern empire, with the title of patrician and consul, and who had obtained for himself and his followers a settlement in Thrace, was after- wards commissioned by the emperor Zeno to conquer Italy, and take possession of the coun- try f. From these causes, countries at a great dis- tance from one another were forced into a sort of political union : and the boundaries of a modern kingdom came, in most cases, to be nearly of the same extent with those of an an- cient Roman province. As Italy, which comprehended the num- berless villas, and highly-cultivated pleasure grounds, belonging to the opulent citizens of Rome, was the object of more attention than, those parts of the empire which lay at a greater distance, it was early subjected to a more ac- * Hist, de 1'Etablissement de la Mon. Fran, par 1'Abbe Du Bos. liv. 4. ch. 18. liv. 5. ch. 7. t Ibid. liv. 4. ch. 3. AND OTHER BARBARIANS. 101 curate police, and divided into smaller districts. It was distributed by Augustus, into eleven regions; and in the time of the emperor Adrian that country, together with Sicily, Sardinia, and Corsica, included no less than seventeen divisions. The smallness of the districts into which it was thus broken by the Roman go- vernment, had, no doubt, an influence upon the new arrangements which it underwent o from the invasion of the barbarians ; and made it fall more easily into a number of petty states, under the several dukes, or nobles, who as- sumed an independent authority. In England, though the most part of the territories which had composed the ancient Roman province were at last united in one kingdom, yet this union was effected more slowly, and with greater difficulty, than in many of the other European countries. The settlement of the Anglo-Saxons was produced in a different manner from that of the other German nations who settled upon the conti- nent of Europe. As the expeditions of the latter were carried on, for the most part, by land, it was usual for the whole of a tribe or nation to advance in a body, and after they 102 SIMILARITY OF ANGLO-SAXONS had defeated the Roman armies, to spread themselves over the extensive territory which fell under their dominion. The original con- nections, therefore, among the individuals of the conquering nation, co-operated with the circumstance of their settling in the same pro- vincey to facilitate their reduction, either by conquest or confederacy, under one supreme leader. The naval incursions of the Anglo- Saxons were, on the other hand, made by small detached parties, collected occasionally by any single adventurer, who, for the sake of a precarious settlement, was willing to relin^ quish his kindred and acquaintance. The fol- lowers of every separate leader were therefore too inconsiderable to occupy great landed pos- sessions ; and as they invaded Eng^apcl at dif. ferent times, and in different places,, with scarce any previous concert, and with little attachment to one another, they discovered so much the stronger disposition to remain in separate states, and to preserve their primitive independence. From these circumstances, we may account for the division of England into so many independent kingdoms ; which were jiot reduced under one monarch till between. AND OTHER BARBARIANS. 105 three and four centuries after the first settle- ment of those invaders. 3. The great extent of the kingdoms that "were formed upon the ruins of the western empire, together with the rudeness of the people by whom they were established, appears to have occasioned that system of feudal te- nures, which is commonly regarded as the most distinguishing peculiarity in the policy of modern Europe. The disposition to theft and rapine, so pre- valent among rude nations, makes it necessary that the members of every family should have a watchful eye upon the conduct of all their neighbours, and should be constantly upon their guard to preserve their persons from out- rage, and their property from depredation. The first efforts of civil government are in- tended to supersede this necessity, by punish- ing such offences, and enabling the individuals of the same community to live together in peace and tranquillity. But these efforts, it is evident, are likely to be more effectual in a small state than in a large one; and the public magistrate finds it much more difficult to ex- tend an 150 STATE OF PROPERTY PRODUCED BY promote her temporal interest. From this period, therefore, the donations of land to the church were greatly increased, and the bishops, abbots, and other dignified clergymen, who reaped the chief advantage from these bene- factions, became possessed of estates, which enabled them in some degree to rival the greater thanes of the country. From the same causes the contributions made by every congregation for the support of their minister, were gradually augmented. To augment these contributions, and to render them per- manent, the church employed the utmost ad- dress and influence of all her members. What was at first a voluntary offering came after- wards by the force of custom, to be regarded as a duty. Having gradually raised this taxa- tion higher and higher, the clergy, after the example of the Jewish priests, demanded at length a tenth part of the annual produce of land, as due to them by divine appointment. Not contented with this, they in some places insisted upon the same proportion of the an- nual industry ; and it came to be maintained, that they had even a right to the tenth part of the alms given to beggars, as well as of the THE SETTLEMENT OP THE SAXONS. 151 hire earned by common prostitutes in the exer- cise of their profession*. To inforce the ob- ligation of submitting to these monstrous ex- actions, was for a long time, it is said, the great aim of those discourses which resounded from every pulpit, and of the pious exhortations de- livered by each ghostly father in private. The right of levying tythes, which was first estab- lished in France, and which afterwards made its way through all the western parts of Chris- tendom, created to the church a revenue of no less value than what she derived from her landed possessions^. The tythes of every parish were collected by its own minister, but a large proportion of those duties came to be demanded from the inferior clergy by the bishop of the diocese. When the provinces of the western empire were broken into a number of independent kingdoms, it might have been expected that the church establishment in those countries would experience a similar revolution, and that the clergy of every separate kingdom, being * F. Paul's History of Benefices. t The councilof Mascon, in 585, excommunicated all Chose who refused to pay tythes. Ibid. 152 STATE OP PROPERTY PRODUCED BY detached from those of every other, would form a separate ecclesiastical system. It is not difficult, however, to discover the circum- stances which prevented such a separation; and which, notwithstanding the various oppo- sitions of civil government, united the church of all the western countries of Europe in one great ecclesiastical monarchy. The patriarchs of Rome and Constantinople, of whom the one, as has been already observed, became the head of the western, and the other of the eastern part of Christendom, were in a different situation with respect to the establish- ment of their power and dignity. The patri- arch of Constantinople, from his connection with the principal seat of government, appears* for some time to have been exalted above hia western rival, and to have enjoyed superior au- thority. But after he had attained a certain pitch of exaltation, the very circumstance which had hitherto promoted Jiis advancement^ tended immediately to stop the progress of it; for no sooner did he become an object of jea- lousy to the civil power, than the vicinity of the imperial residence contributed the more i ,*''.' '*:(' , . effectually to thwart and controul every pro- THE SETTLEMENT OF THE SAXONS. 153 ject for 'this extension of his privileges. The Roman pontiff, on the other hand, when he had risen to such opulence and dignity as Alight have excited the envy and disgust of the civil magistrate, was, by the dissolution of the western empire, freed from the trouble- some inspection of monarchs, who probably would have checked the growth of his power ; and being placed in the situation of an inde- pendent prince, was at full liberty to put in practice every politic measure which might either enlarge his temporal dominions, or ex- tend his authority over that numerous body of clergy who already owned his supremacy. It may further explain the history of the western church to observe, that while the bishop of Rome was thus in a condition to avail himself of that superiority which he had acquired, the circumstances of the clergy were such as made it their interest to unite in one body, and to court his protection. The cha- racter of churchmen was* from the nature of their profession, a good deal different from that of the laity, and incited them to very opposite pursuits. The former, in a military and rude age, -were generally drawn from the 4 inferior 4 154 STATE OF PROPERTY PRODUCED BY ranks of life ; at the same time that, from the prevalence of superstition, they possessed great influence over the minds of the people, and were daily advancing their claims to power and emoluments. By the ancient nobility, therefore, or leading men of every country, and still more by the sovereign, the haughtiness, the insolence, and the rapacity of these upstarts, was often beheld with indignation and resent- ment, and produced continual jealousies and disputes between those different orders; the latter endeavouring to maintain and to extend a set of immunities and privileges, which the former were no less eager to restrain. In such a contest the ecclesiastics of any particular king- dom were as much inferior to their adversaries in direct force, as they were usually superior in skill and dexterity ; and their situation natu- rally pointed out the expedient of soliciting as- sistance from their brethren in the neighbour- ing kingdoms. That assistance they very sel- dom failed to procure. The controversy of every individual was regarded as the common cause of the whole order. By adhering to one another, however disjoined in point of civil government, they became sufficiently power- THE SETTLEMENT OF THE SAXONS. 155 fill, not only to avoid oppression, but even to defend their usurpations ; and by combining, like the soldiers of an army, under one leader, their forces were directed to the best advantage. The opportunities which this great leader enjoyed, of augmenting his revenue, and of increasing his power, may easily be conceived. In the multitude of disputes which occurred between the clergy and laity in the different nations of Europe, the former, in order to obtain his protection, were obliged to sub- mit to various taxes, and to the extension of his prerogatives. Hence the payment of the first fruits, and such other impositions upon the livings of churchmen, were established in favour of the holy see. In like manner, during the wars that were carried on between the different potentates of Europe, the contending parties, finding that the countenance and approbation of the Ro- man pontiff would give great weight and po- pularity to their cause, were sometimes under the necessity of purchasing his favour, by rati- fying his titles, and permitting the exercise of his claims over their subjects. From the same circumstances, the temporal dominions of the 156 STATE OP PROPERTY PRODUCED BY pope in Italy were greatly enlarged, and his au- thority, as an independent sovereign, was re- cognized. Upon the conquest of Normandy by the king of France, his holiness, who had thrown his whole influence into the scale of that monarch, was rewarded with a great? pro- portion of the conquered territory; and, at the same time, was enabled to assume the privilege of conferring the imperial dignity upon the* conqueror. The disputed among the clergy themselves, more especially between the secular and regu- lar clergy, were another source of the papal; ag- grandizement. Every society of monks was subject originally to the bishop within whose diocese their monastery was situated; but as they advanced in riches and popularity, they were led' to assert their independence ; and in supporting their pretensions, having to struggle with the whole body of secular clergy, they were induced to court the head of the church, by such obedience and compliances as were likely to gain him over to their interest. In the eastern church, where these causes did not operate in the same degree, neither the authority of the clergy, nor that of the THE SETTLEMENT OF THE SAXONS. 15? patriarch of Constantinople, rose to the same height. The payment of tythes, though it was there warmly asserted by churchmen, as well as in the west, was never inforced by pub- lic authority ; nor was the head of the church in that part of the world in a condition to establish such an extensive revenue as had been acquired by the Roman pontiff. It may be observed, on the other hand, that the same circumstances which produced an independent ecclesiastical jurisdiction in Chris- tendom, have been productive of similar effects in other religions, and in different parts of the world. Among illiterate nations, the clergy, by explaining the will of the Deity, or by di- recting mysterious rites and ceremonies, are naturally raised to great importance ; and if many such nations profess a common religion, and maintain an intercourse with one another, their spiritual guides, by extending their ideas of a common interest bevond the bounds of a V* single kingdom, are easily reduced under one great ecclesiastical leader. Hence an inde- pendent system of church government is likely to arise. This was formerly the situation of the Celtic 158 STATE OF PROPERTY PRODUCED BY nations, who inhabited a great part of Europe: they were under the influence of a common religion, the ministers of which are said to have O ' possessed a jurisdiction superior to that of the civil magistrate. These druids were, at the same time, united in one society, independent of the different political states to which they belonged; and were under the direction of a chief druid, who resided in Britain,' and whose authority extended over the laity as well as the clergy, in all the nations of Celtic original. The authority of the grand Lama or high- priest of the Tartars, which is acknowledged by many tribes or nations totally independent of one another, had, in all probability, the same foundation. This ecclesiastical monarch, who resides in the country called Little Thibet, is also a temporal prince. The numerous clergy, in the different parts of Tartary, who acknow- ledge his supremacy, are said to be distinguished into different ranks or orders, somewhat analo- gous to those which take place in Christen- dom ; and the ordinary priests, or lamas, are subjected to the authority of bishops, whose jurisdiction is subordinate to that of the sove- reign pontiff. Without pretending to asccr- THE SETTLEMENT OF THE SAXONS. 159 tain, with any degree of accuracy, the church- history either of the Celtic or Tartar nations, we cannot avoid remarking the general ana- logy that appears in the origin and constitution of all these different Hierarchies. SECTION II. THE ESTABLISHMENT OF CHRISTIANITY IN BRITAIN, UNDER THE ROMAN DOMINION, AND IN THE EARLY GOVERNMENT OF THE ANGLO-SAXONS. CHRISTIANITY made its way into Britain, in the same gradual manner as into all the other parts of the Roman empire. It is sup- posed to have obtained a permanent footing in the country, under the government of Marcus Aurelius, at which time a bishop of Rome is said, upon the application of Lucius, a British king, to have sent over, to this island, several learned men, to preach and propagate the gospel. But whatever degree of credit may be due to this account, it is certain that, in the reign of the emperor Constantine, this religion was taken under the protection of 160 STATE OF PROPERTY PRODUCED BY government, in Britain, as well as in all the other provinces of Rome ; and that it conti- nued in this situation until the island was abandoned by the Romans. During this pe- riod, the Christian church had received the same form as in all the other parts of the em- pire. Particular clergymen had obtained a settlement in small districts or parishes, accord- ing to the number and situation of the inha- bitants*. Many of these districts were united under the inspection of a bishop, the minister of a cathedral church ; and a metropolitan, or archbishop, was exalted over the whole clergy of a province. But though it is probable that this ecclesiastical establishment was modelled according to the situation of the great towns, and the chief divisions introduced by the civil government of the country ; yet neither the number of the British prelates, nor the churches in which they were settled, appear to be known with any degree of certainty -f-. Men- * Gildas. Also Whitaker, Hist, of Manchester. t According to the monkish tradition, there were twenty- eight bishops in Britain, during the Roman government of that island. These corresponded to the twenty-eight THE SETTLEMENT OF THE SAXONS. 161 tion is made of three archbishops, who, it should seem, corresponded to three of the pro- vinces, in the late arrangement which the Romans made of their British territories. The first resided in London ; the second in York ; and the third, whose jurisdiction extended over Wales, appears, at different times, to have had a different place of residence*. That the Hierarchy had early acquired a settled condi- tion in Britain, and that its bishops held some rank among those of other churches, is evi- dent from their sending representatives to the council of Aries, called in the year 314, and to other remarkable councils, that were after- wards convened in different parts of Christen- dom -f\ The arrival of the Saxons in this island was productive of great disorder in the religious, as well as in the civil establishment. In those parts of the country which fell under the do- minion of the Saxons, the Christian churches considerable cities in the province. See Ranulph. Higderi. lib. i. This number of British cities is mentioned by Gil- das, Bede, and others ; and their names are transmitted br Nonnius. * Ranulph. Higden. lib. i. t Stillingfleet, Ori j. Britan- VOL. I. M 162 STATE OF PROPERTY PRODUCED fitr were frequently demolished ; the public wor- ship was interrupted ; and the clergy, in many cases, could neither be provided with a main- tenance from the public, nor continue the re- gular exercise of their jurisdiction. The altars of Thor, and Woden, were often substituted for those of Jesus Christ; and the life and im- mortality which had been brought to light by the gospel, were obscured and eclipsed by the fictions of Hela's dreary abode, and Valhalla's happy mansions, where heroes drink ale and mead from the sculls of enemies whom they have slain in battle. Wherever the ancient inhabitants were able to preserve their independence, their ecclesi- astical policy remained without any alteration. This was particularly the case in the whole western part of the island, from the southmost point of Cornwall to the Frith of Clyde ; not to mention the country to the northward, which the arms of the Saxons had not pene* trated. Jn the territories where that people had formed their settlements, there is ground to believe that, after the tumult and violence attending the conquest had subsided, the two nations frequently maintained an amicable THE SETTLEMENT Otf THE SAXONS. l63 correspondence, were in some measure united in one society * and enjoyed the free exercise of their religion*. As their long neighbour- hood produced, by degrees, a communication of civil institutions and customs, it was like- wise, in all probability, attended with some approximation of religious opinions and ob- servances ; and in this particular, it can hardly be doubted that the regular and well-establish- ed system of Christianity, to say nothing of its genuine merit in other respects, would have great advantage over the unformed and loosely connected superstition of the barbarians. In the ardour of making proselytes, and in the capacity of propagating their tenets, the pro- fessors of the former must have greatly sur- passed those of the latter; and it was natural * This was so much the case, that among the East An- gles, according to the testimony of Becle, the Christian worship, and the Saxon idolatrous rites, were performed in one and the same church ; such good neighbourhood was maintained between the two religions. " Atque in. eodem fano et altare haberet ad sacriiicium Christi et Arulam ad victimas doemoniorum. Quod videlicit fanum, ex ejusdem provincue Alduulf, qui nostra aetate fnit, usque ad suum tempus perdurasse, et se in pueritia vidisse testabatur." Bed. Hist. Eccl. lib. ii. ch. 15. M 2 164 STATE OF PROPERTY PRODUCED BY to expect that the Saxons in England would at length follow the example of all the rude nations, who had settled in the provinces upon the continent, by adopting the religion of the conquered people. What laid the foundation for a general and rapid conversion of the Saxons, was an event, which happened about an hundred and fifty years after their settlement in Britain. Ethel- bert, the sovereign of Kent, having married Bertha, the daughter of a king of the Franks ; this princess, already a Christian, made open profession of her religion, and brought over a French bishop to reside at the Kentish court. This incident suggested to the Roman pontiff, Gregory the Great, a man of unbounded ambi- tion, the idea of converting the Anglo-Saxons to Christianity, and, at the same time, of esta- blishing his authority over the British clergy, who had hitherto neither acknowledged the papal jurisdiction, nor yielded an exact con- formity to the tenets and observances of the Roman church. For these two purposes, he gave a commission to Augustine, one of the monks of a convent at Rome, with about forty assistants, to preach and propagate, the gospel 2 THE SETTLEMENT OF THE SAXONS. 165 in Britain*. By the industry of these, and of succeeding missionaries, the Christian religion, was, in the course of about half a century, established universally in all the kingdoms of the Heptarchy. The authority of the church of Rome went hand in hand with Christianity; and though the British clergy struggled for a considerable time to maintain their indepen- dence, and their peculiar doctrines, they were at length borne down by the prevailing system, and reduced into a subordinate branch of the Roman Hierarchy -f*. The conversion of the Anglo-Saxons has been commonly regarded as an entirely new plantation of the gospel, in the territories which fell under the dominion of that people ; and it seems to be imagined, that when Au- gustine entered upon his mission, there were no traces of Christianity remaining in those parts of the country. This opinion appears to have arisen, partly from the supposition, that the settlement of the Anglo-Saxons was * Bed. Hist. Ecclesiast. lib. i. c. 23, 25. t Bed. Hist. Eccles. lib. ii. seq. Stillingfleet, Origin. Brit. Henry's Hist, of Great Britain. 166 STATE OF PROPERTY PRODUCED BY accompanied with a total expulsion of the an-, cient inhabitants, and partly from a disposition in subsequent ecclesiastical writers to under- value that system of church-discipline and faith which had obtained in Britain, before it was fully subjected to the papal jurisdiction. With respect to the general extirpation of the Britons, it seems to be a perfect chimera. Neither is there any reason to believe that they underwent any persecution from the Saxons upon account of their religion. The rude polytheism, professed by those conquerors, does not seem to have taken a firm hold of their minds, or to have inspired much animo- sity against foreign deities or modes of wor- ship ; and if, during the immediate conquest of the country, the British clergy were some- times plundered or massacred, this, in all pro- bability, proceeded from no peculiar enmity to their religion, but from the ferocity natural to barbarians, who, in the heat of a military enterprize, could not be expected to shew much regard to the distinction of characters or professions. The effect of these disorders, Jiowever, was only partial and temporary. It appears tfyat,even in those parts of the country THE SETTLEMENT OF THE SAXONS. 167 xvhere the Saxons had remained the longest^ the ancient church buildings were far from being entirely destroyed ; for we learn from Bede, that, upon the arrival of Augustine in Kent, he first preached in a church, which had been erected by the Romans in honour of St. Martin, and that soon after, when the monarch of that kingdom had been baptized, orders were given to build or repair churches, for the accommodation of the Christian mis- sionaries*. Upon the full restoration of Christianity in those parts of the country where it had been corrupted by the mixture of Saxon superstition, the religious establishments, which had been introduced under the dominion of the Romans, and which had always been preserved in the imconquered parts of the island, were com- pletely revived; with this difference, that the British churches, in the degree of their sub- o mission to the papal authority, were brought into a greater conformity with the churches upon the continent. It is probable that the ancient parochial divisions had not been en- tirely lost; more especially in those districts, * Hist. Eccles. 1, j. c. 2G, 168 STATE OF PROPERTY PRODUCED BY which the Anglo-Saxons had but recently sub* dued when they embraced the religion of the former inhabitants*. The number of bishops, it is natural to sup* pose, and the extent of their jurisdiction, were likewise directed, in some measure, by the ante- cedent arrangements in the provincial govern- ment of Britain; though, from the changes produced in the state of the country, many variations were, doubtless, become necessary. Of the three archbishops, who had formerly acquired a pre-eminence over the whole of the British clergy, one appears to have been sunk by the disjunction of Wales from the English monarchy ; so that there came to be only two metropolitans under the Saxon establishment. The archbishop of the northern department resided, as formerly, at York ; but the seat of the other, from the residence of Augustine, who obtained the chief ecclesiastical dignity, was transferred from London to Canterburyf. The revenue for maintaining the clergy was the same in Britain as in all the churches * Whitaker, Hist, of Manchester; and the authorities quoted by him. i Jlanulph. Higden. lib. i. THE SETTLEMENT OF THE SAXONS. 169 acknowledging the jurisdiction of the Roman pontiff. It consisted, partly of contributions levied in every parish ; and partly of landed estates, which the superstition of the people had led them to bequeath for pious uses : but the former of these funds remained longer than in the more southern parts of Europe, before it was converted into a regular tax, and exalted to a tenth of the whole yearly produce. 'l3fiffft tatffct 176 INSTITUTION Or TYTHINGS, those little communities was naturally formed into one congregation, and annexed to a single- church. The same people who joined in pub- lic worship were also combined in their mili- tary expeditions ; and the same arrangement, under different rulers, that had been adopted in the former capacity, was easily communi- cated to them in the latter. This division of a village, with the corresponding territory be- longing to its inhabitants, into ten little zcards or districts, probably arose in those European kingdoms which had first attained a regular form, and was afterwards extended to the Saxons in England, and to the inhabitants of other countries, who remained longer in a state of anarchy and confusion. But while the members of every Anglo- Saxon town or village were thus intimately united, a connection of the same sort was gradually introduced between the inhabitants of a larger territory. Those who belonged to different towns or villages in the same neigh- bourhood had frequently occasion to assist one another against a common enemy ; and in consequence of many joint expeditions, direct* ed by a sense of mutual interest, were induced to HUNDREDS, AND COUNTIES. 177 form a regular association, under a permanent military officer. The extent of these associations was at first perhaps arbitrary and variable, but was at length settled in an uniform manner, accord- ing to the system of ecclesiastical policy which prevailed both in England and in other Euro- pean kingdoms. Upon the principle which has been formerly mentioned, every ten churches of a diocese were united under an eccle- siastical inspector, who in England, in contra- distinction to a similar officer belonging to a cathedral or monastery, was called a rural dean *. In like manner every ten villages or tythings, which were of the same extent with parishes, formed a military district, which ob- tained the appellation of a hundred, and its commanding officer that of a centenarius or hundreder-f. The connections of society being still farther extended, the members of different hundreds * Kennet's Paroch. Antiq. Burn's Eccles. LaW. v. Dean and Chapter. t Hundredus autem Latin, says Ralph Higden, sive Cantredus, Wallice et Hibernic, continet centum villas. [Peljchroriicon, lib. i.] VOL. I. N 178 INSTITUTION OF TYf KINGS, were also associated for their common defence, and fell under the direction of a greater officer, called the heretoch, a title which, in the Saxon language, is synonimous with that of duke, and which appears to have been originally given t6 some of those leaders in the Heptarchy, who afterwards assumed the title of kings. o The districts belonging to these heretochs, which were greater or less according to acci- dents, and had been varied on different occa- sions, were gradually ascertained and esta- blished, so as at length to correspond entirely with the territories that were placed under the ecclesiastical jurisdiction of the several bishops. These districts were called shires; and the officer who presided over them seems, at a la- ter period of the Anglo-Saxon government, to have changed his title for that of alder-man or earl. It is a common opinion, however, that the heretoch and the. alder-man were different persons, intrusted with different de- partments ; and that the former was the chief military, as the latter was the chief civil officer of the shire. In some parts of the country a smaller num- ber of hundreds were associated, so as to HUNDREDS, AND COUNTIES. 179 pose an intermediate district, called lathe, rape 9 or trything; and several of these districts were united in forming a shire. But this arrange- ment, peculiar to some shires, and depending upon the same principles with the divisions already mentioned, is of little consequence in our present view of the subject. Such were the military institutions of the Anglo-Saxons ; which appear to have arisen almost imperceptibly from the rude state of the country, from the natural divisions of the people, and from their progressive attempts in forming more extensive and permanent asso- ciations. From the great deficiency of Saxon records, there are, concerning these institutions, many particulars, which remain in obscurity, and which have given rise to various disputes and conjectures. The earliest historians, who have said any thing upon this subject, appear, for the most part, to have lived at a period when these institutions had undergone many variations, and in several respects had fallen into disuse. They were, at the same time, ignorant anna- lists of a barbarous age ; and their accounts, which appear to have been chiefly derived v 2 180 INSTITUTION OF TYTHINGS, from tradition, are short and unsatisfactory. It seems to have been uniformly imagined by these authors, that the institutions above men- tioned were peculiar to the government of the Anglo-Saxons; and that they were introduced by the singular policy of king Alfred, to whom the admiration of English writers has com- monly ascribed every important regulation during the Saxon period. But it is now ge- nerally known, that the establishment of tyth- ings, hundreds, and shires, was prior, in Eng- land, to the time of Alfred ; and that it was not peculiar to this country, but was probably extended over all the barbarous nations who settled in the provinces of the western empire. With respect to the establishment of ty th- ings and hundreds, it has been the general opinion that the former consisted of ten fami- lies, and that the latter, of course, were com- posed of an hundred families. That such was the exact number of families comprehended in each of these divisions, the respective names affixed to them appear to have been thought sufficient evidence. But when we examine this opinion, after all )he pains that have been taken by late writers HUNDREDS, AND COUNTIES. 181 to render it plausible, it seems to be attended with insuperable difficulties. To divide the whole people into military parties of ten and of an hundred families, without any regard to their places of residence, would mark a degree of art and contrivance hardly to be expected in a barbarous age : not to mention that it would be a most absurd regulation, as it would frequently separate near relations, and place them under the command of different officers, instead of uniting them under one common leader, with whom they had acquired a natu- ral connection ; for as the accidental collections of kindred and acquaintance, who lived in the same village or neighbourhood, could not be regularly composed of ten families, nor of any given number, they must of necessity have been split and jumbled with strangers, to make up the several ty things into which the people were thus artificially divided. If such a regu- lation ever had place in England, we must suppose that it was introduced by a political projector, neglecting, for the sake of a finical regularity, to avail himself of the usual sources of authority in a rude nation, and by a legisla- tor invested with such absolute power, as might 182 INSTITUTION OF TYTHINGS, render him capable of enforcing measures dia- metrically opposite to the natural course of things; a supposition which is neither appli- cable to the character nor to the condition of the early monarchs of Britain. As the institution of tythings, together with that of hundreds, and of shires or counties, was not limited to England, but had place in most, if not all of the feudal countries, there is good reason to believe that it was not derived from artificial or distant views of policy, suggested to any particular prince; but that it proceeded from a concurrence of circumstances in the European kingdoms, by which it was recom- mended to the great body of the people. That a ty thing was originally the same thing with a village, and that it did not comprehend any precise number of persons or families, may be concluded from this, that in the ancient law-language of England the words vill 9 town, decennary, and tything, have all the same signi- fication *. If a tything have the same mean- ing with a vill or town, it is surely impossible that it can signify a collection of ten families only, without relation to the place of their * Blackstone's Comment. Vol. I. Introd. * 4. HUNDREDS, AND COUNTIES. 183 residence. Should we, on the other hand, suppose that a tything was regularly composed of so many families, the members of the same tything must frequently have resided in dif- ferent towns or villages; in which case it would sometimes be necessary, in describing or point- ing out those persons, to mention the town which they inhabited, as distinct from the tyth- ing to which they belonged ; and these two terms, therefore, so far from being synonymous, would come, upon such occasions, to be used in direct opposition to each other. But what puts this matter in a yet more conspicuous point of view, is an early regula- tion mentioned by the English lawyers, that every tything should have a church, with cele- bration of divine service, sacraments, and bu- rials*. If the limits of a tything, and of a town or village, were the same, such a regu- lation would naturally be established. Its establishment, on the other hand, affords com- plete evidence that a parish and a tything were of the same extent. But how is it possible to conceive that a parish comprehended only ten families? According to this doctrine every * Blackstone's Comment. Vol. I. Introd. \ 4. 184 INSTITUTION OF TYTHINGS, eleventh house must have been a church, and the clergy must have composed the eleventh part of the whole people. To obviate this objection, it is held by some authors that a family is not to be understood in a literal sense, but as comprehending all the vassals and tenants of a proprietor, who in some cases were pretty numerous. Admitting, how- ever, this explanation in its fullest extent, it will only vary, instead of removing the diffi- culty. It would still be in vain to expect that a village or town should always contain exactly ten of these enlarged families, or even any number of tens ; so that it would often be re- quisite to patch up a ty thing from the rem- nants of different towns or villages ; and it would follow that these outcasts did not belong o to the church in their neighbourhood, but, however dispersed over the country, and inter- mixed with other parishes, were united in one congregation, and were provided with a sepa- rate church and minister of their own. The establishment of tythings, hundreds, and shires, was primarily intended for the mu- tual defence of the inhabitants, but it was like- wise rendered subservient to other very salutary HUNDREDS, AND COUNTIES. 185 purposes. When the people had been assem- bled in those meetings to engage in a military enterprize, or upon the conclusion of it to di- vide their booty, they had occasion to hear complaints of the injuries and disorders com- mitted among themselves. Every feudal supe- rior was the natural judge of his own tenants and vassals ; but when a dispute had arisen be- tween different allodial proprietors of the same ty thing, there was no single person possessed of sufficient authority to terminate the difference. /', The parties being independent of each other in point of property, and therefore masters of their own conduct, were under no necessity, in a matter of that kind, of submitting to the orders of any individual. They acted in the same manner with respect to the exercise of their civil rights, as with relation to peace and war. In both cases they considered themselves as free men, subject to no restraints, but such as arose from the nature of their confederacy, or were imposed by their common consent. The same motives, however, which induced a village or tything to enter into joint mea- sures for their defence against a foreign enemy, determined them also to take* precautions for J86 INSTITUTION OF TYTHINGS, * composing animosities and differences among their own members. Roused by the danger of a quarrel which might be fatal to their union, and which might render them an easy prey to their neighbours, they readily interposed with all their influence to reconcile the parties, and to enforce their observance of the rules of justice. A judicial power was thus gradu- ally assumed by every tything over the allodial or independent proprietors of which it was composed. The hundred, in like manner, came to exercise a power of determining the differences between the members of the several tythings, within the bounds of that larger district; as the meetings of the shire estab- lished a similar jurisdiction over the different hundreds comprehended in that extensive ter- ritory. These courts took cognizance of every cause, whether civil or criminal ; and as they enjoyed the sole jurisdiction, in the first in- stance, within the respective boundaries of each, they became naturally subordinate one to another ; so that from the decision of the tything there lay an appeal to the hundred, and the sentences of this latter tribunal were re- viewed in the greater meetings of the shire. HUNDREDS, AND COUNTIES. These courts were held originally by all allodial proprietors of each particular district; and the same persons had the same right of presiding in their judicial procedure, as when their meetings were called to deliberate upon military affairs. It is probable that every kind of law-suit was at first determined in full assembly, and by a plurality of voices; but in the larger meetings of the hundred, and of the shire, it should seem that when the authority of those tribunals had been confirmed by custom, and their duty had become somewhat burdensome by the increase of business, convenience introduced a practice of selecting a certain number of their members, to assist their president in the determination of each particular cause. Hence the origin of juries, the precise date of whose establishment is uncertain, because it probably arose from no general or public regulation, but from the gradual and almost imperceptible changes, au- thorized by common usage in the several dis* tricts of the kingdom. The number of jury- men was for some time different upon dif- ferent occasions; till the advantages of an uni- form practice produced a general rule, which 188 INSTITUTION OP TYTIIINGS, determined that no less than twelve persons should be called in all ordinary causes*. * The custom of choosing twelve men for distributing justice, is frequently mentioned in the Anglo-Saxon laws. Thus, in a law of king Ethelred, it is said, " Et ut habe- " antur conventus in quolibet wapentachio, et exeant seni- " ores duodecim thaui, et prefectus cum iis, etjurent super " sanctuarium quod iis in manus datur, quod nolent ullum "innocentem accusare, nee aliquem noxium celare." [Wilkins, p. 117.] In another law, ascribed to the same king, commonly called the senatus consultum de monticulis Wallice, it is enacted, for the mutual benefit of the English and Welch, that controversies between them should be de- termined by twelve law-men, the half of whom shall be Englishmen, the other half Welchmen. [Wilkins, p. 125.] These twelve persons correspond, it should seem, to the Racimburgi and the Scabini, who under the first and second races of the kings in France assisted in the decisions of the count and of the centenarius. It has been supposed by some authors that neither of these were upon the footing of modern jurymen, chosen out of the free men of a district for each cause, but that both were permanent assessors of the magistrate and mem- bers of the court. See Brady's complete Hist, of Eng. Hickes's Diss. Epistol. But that either these twelve men, or the Racimburgi or Scabini, were permanent members of the court, appeal's improbable, for the following reasons : 1. Because these twelve men were chosen among the thanes ; and it is not likely that the same persons of that rank, would subject HUNDREDS, AND COUNTIES. 189 Concerning the institution of tythings, there is one regulation, connected with the admi- nistration oi justice, that has been much taken notice of by historians, and has excited the admiration of all political writers : the mem- bers of every ty thing are said to have been re- sponsible for the conduct of one another; and the society, or their leader, might be prose* cuted and compelled to make reparation for an injury committed by any individual. If we look upon a ty thing as regularly com- posed of ten families, this branch of its police will appear in the highest degree artificial and singular ; but if we consider that society as of themselves to the drudgery of being constant assessors to the magistrate. 2. The number of Racimburgi or Scabini appears to have been varied, according to the importance of the causes which they decided. This supposes a new election in each cause. 3. If there was a regular bench of assessors to the chief magistrate of a county, it is wonderful that no traces of that institution should be found at pre- sent, more especially in Scotland, where the county-courts have been continued upon the ancient footing. Accordingly Horn, an author who lived in the time of Edward I. says expressly, in his Mirroir de Justices, that king Alfred put to death a number of his judges for de- ciding causes without a jury. 2 190 INSTITUTION O* the same extent with a town or village, we shall find that such a regulation is conformable to the general usage of barbarous nations, and is founded upon their common notions of justice. Among barbarians in all parts of the world persons who belong to the same family are un- derstood to enjoy a community of goods, and to be all jointly subjected to the same obli- gations. In those early ages when men are in a great measure strangers to commerce, or the alienation of commodities, the right of property is hardly distinguished from the privi- lege of using or possessing ; and those persons "who have acquired the joint possession of any subject are apt to be regarded as the joint pro- prietors of it. At the same time, when a debt is contracted by one of several persons who have a perfect community of goods, it must of necessity be discharged from the common funds; and the obligation of every individual becomes therefore a burden upon the whole society. After a family has been enlarged, and sub- divided into different branches, their posses- sions are not upon tlu's account entirely sepa- 1 HUNDREDS, AXD COUNTIES. rated, nor their notions of common property altogether effaced. Though the different fa* milics, who are thus formed into a tribe or village, reside in different houses, their neigh- O ' & bourhood allows them still to maintain a pro- miscuous intercourse ; and their situation dis* poses them to act in concert with each othef in all their important employments and pur- suits. As, in their expeditions of war and hunting, they go out in a body, so, according to the primitive state of agriculture, they la- bour in the field, and gather in the harvest in common; and what has been acquired by their united exertions, before it is divided among them by consent, is naturally conceived to be the joint property of all. It is no hardship, that persons connected in so intimate a manner should be liable for the obligations of one another; and when an in- dividual has become bound to a stranger, who O ' cannot easily know for whose benefit the debt was incurred, it seems reasonable that the creditors should be allowed to demand pay- ment from the community, who alone have access to distinguish the rights of their par- ticular members. 192 INSTITUTION OF TYTHItfGS* But the greater part of the debts contracted in a barbarous age arise from injuries and hos- tilities : for which it is usual to make atone- ment by pecuniary compositions : and as in such cases it commonly happens, either that the offence was originally committed by a whole village, or, if it arose from a single in- dividual, that the quarrel was afterwards adopt- ed and prosecuted by the other members of the community, this appears a sufficient reason for subjecting them to a share of the punish- ment. Thus, by the general custom of rude nations, the vengeance of the injured party for murder and other atrocious crimes is not confined to the guilty person, but is extended to his family, and even to the whole village or tribe of which he is a member. The prosecution of claims, founded upon this general custom, makes a considerable part of the history of mankind in the early periods of society. Traces of this primitive law of nations may be discovered even in some civilized countries; where, upon account of enormous offences, the criminal, to- gether with his innocent children, and other HUNDREDS, AND COUNTIES. 193 relations, have been condemned to one com* mon punishment*. Among the Jews, when a person was found murdered in the neighbourhood of a city, and the murderer was unknown, it seems to have been thought that the punishment might with justice be extended to all the inhabitants ; who are, upon that account, directed to perform art expiatory sacrifice. " And all the elders of " the city that is next unto the slain man, shall " wash their hands over the heifer that is be- " headed in the valley. And they shall an- " swer and say, Our hands have not shed this " blood, neither have our eyes seen it, Be mer- " ciful, O Lord, unto thy people Israel, whom " thou hast redeemed, and lay not innocent " blood unto thy people Israels charge. And " the blood shall be forgiven them-f-." When it is customary to demand satis- faction from a whole village for the highest personal injuries committed by an individual, it cannot appear surprising that the same privi- * See instances of this quoted by the acute author of The Historical Law Tracts, t Deuteron. chap, xxi, VOL. i. o 194 INSTITUTION Of TYTHINGS, lege should be claimed upon account of the ordinary violations of property. I am assured, from the most respectable au- thority, that, in the villages belonging to the Highlands of Scotland, a rule of this kind has been immemorially established. The stealing of cattle was formerly the only species of theft, from which the inhabitants of that country could suffer any great prejudice ; and when stolen cattle could be traced within the district of any particular village, the inhabitants were liable to repair the damage, unless they could point out the track of the cattle, passing again without their territories. This law, which was founded merely upon long usage, remain- ed in force at least as far down as the begin- ning of the present century*. It was a custom, we are told, among the ancient Irish, " that the head of every sept, and " the chief of every kindred, or family, should " be answerable and bound to bring forth " every one of that sept, and kindred under it, " at all times, to be justified, when he should * It does not seem to be supposed by historians, ttiat the Saxon regulations concerning ty things were extended to a country so inaccessible as the Highlands of Scotland. HUNDREDS, AN6 COUNTIES. 195 ;< be required, or charged with any treason, " felony, or other heinous crime*." The Irish law, in this as well as in other particulars, was probably analogous to that of the other Celtic nations. From the code of Gentoo laws published in 1776, it appears that a similar regulation has been introduced among the ancient inhabitants of Indostan. If the footsteps of a thief have been traced, or if stolen goods are found, with- in a certain distance from any town, the thief is presumed to be concealed in it, And when- ever a robbery or theft is committed in the neighbourhood of any town or city, the head- person of that town or city is bound to make up the loss-f . Upon some parts of the coast of Guinea, the villages or towns, it should seem, are liable for 4 the obligations of every sort contracted by any of their members ; for we are informed, that when a person in that country neglects to pay a debt, the creditor is under no necessity of arresting the real debtor, but, in the district, where he resides, has the liberty of seizing, at * Spencer's View of the State of Ireland. i Code of Gentoo laws, ch. 17. sect. 4. & O 2 196 INSTITUTION OF TYTHIXGS, pleasure, such a quantity of goods as will sa- tisfy the demand, leaving the sufferers to in- demnify themselves in the best manner they can*. About the middle of the thirteenth century, it appears that the states of Germany had very generally adopted a similar practice ; which is mentioned by historians as a proof of uncom- mon rudeness and barbarism -f-. * Hist. Gen. des Voyages. Mod. Univ. Hist. f The following passage is quoted from Pfefel's Abrege Chron. de 1'Histoire d'Alleraagne. " Je ne puis passer sous silence une autre nouveaute, qui prouve, on ne peut pas mieux, et le malheur de ces terns, et la barbaric des rao2urs du siecle ; c'est le droit d'Olage. [Jus obstagiorum} Rien de plus bizarre que ce droit. Un Souabe, un bour- geois d'Ulm, lese parun Liegeois, ne se donnoit pas la peine de poursuivre su partie, devant la justice ordinaire; il se contentoit de mettre la main sur le premier Liegeois qu'il pouvoit rencontrer, et le constituoit prisonnier a Ulm, c'est Ja qu'il faisoit juger sa cause, eiTOtage n'e"toit point relit che que la sentence ne flit executee. L'histoire et les archives nous fournissent mille exemples deces proces singuliers: et Lekmann rapporte que le? citojens de Spire ont fait decla- rer par des lettres patentes, qu'ils n'etoient point sujets de leur Ev^que, et que par consequent Ton ne pouvoit les arrel- ter legitimement pour les causes que regardoient les sujets de ce prince. HUNDREDS, AND COUNTIES. 197 The inhabitants of the same foreign country happening, at any one time, to reside in Lon- don, were formerly viewed in the same light ; and any one of them might be prosecuted for the debts contracted by his countrymen. In a treaty between Edward the Second and Al- phonso king of the two Castiles, it is agreed, that the merchants of Bilboa, and the other towns of Biscay, shall not for the future be arrested, nor have their goods distrained, for the debts of any Spaniard, for whom they have not become personally bound*. The small number of Spanish merchants residing in London, and the distance of their native country, made them appear as much connected as if they had been members of a single rude village or tribe. This noted regulation concerning the Saxon tythings is therefore to be regarded as the re- mains of extreme simplicity and barbarism, rather than the effect of uncommon refine- ment or poh'cy ; and in this view, it may be observed that, in consequence of some improve- ment in the manners of the people, the origi- nal obligation imposed upon every ty thing, to * Anderson's History of Commerce, INSTITUTION OF TYTHINGS, repair the injuries committed by any of its members, was, in a period subsequent to that which we are at present examining, subjected to certain limitations. By a law which has been ascribed to William the conqueror, but which is probably of an earlier date, we find it enacted, that, if a crime is committed by any member of a decennary, who escapes from jus- tice, his ty thingrnan, with two others of the same tything, together with the respective tythingmen, and two others, put of the three neighbouring tythings, shall assemble to exa- mine the state of the fact, and if the tything to which the criminal belongs is purged by the oath of these twelve persons, it shall be freecl from the obligation to pay the damage*. The progress of government, by enlarging the gene- ral intercourse of society, contributed to dimi- nish the peculiar connexion among the inha- bitants of the same village, and made it appear an intolerable hardship, that they should, with- out distinction, \>e accountable for the rnis^ deeds of one another. * See the laws collected Ivy Roger de Hoveden, and said by this author to have been made by William the conqueror in the 4th year of his reign, with the advice of. His baronsj nobles, wise men, &c. HUNDREDS, AND COUNTIES. 199 Beside the two branches of business which I have mentioned, the defence of the country and the decision of law-suits, that were can- vassed in the Saxon tythings, hundreds, and shires, those meetings were accustomed to deliberate upon matters of still greater import- ance. They received complaints concerning such abuses in administration, or grievances, as had occurred within their several districts, and by introducing new regulations endea- voured to apply a proper remedy. Thus the heads. of families or independent proprietors of every village, or ty thing, exercised a legislative power within their own liberties, but were lia- ble to be controuled, in this respect, by the meetings of the hundred, which enjoyed the same power in a larger territory ; and both of these were subordinate to the meetings of the shire, which possessed a legislative authority over all the hundreds of that extensive division How the meetings of the shire were liable to be controuled by a still greater assembly, { ; shall now proceed to inquire. 200 OF THE WITTENAGEMOTE, CHAPTER VII. Of the Wittenagemote. J5Y the gradual extension of intercourse between the different families or tribes of the Anglo-Saxons, and by the advancement of their political union, the inhabitants of larger territories were led to assemble for the regu- lation of their public concerns. As the free- men or allodial proprietors of a ty thing, of a hundred, and of a shire, determined the com- mon affairs of their several districts, and were convened for that purpose by the tythingman, the hundreder, and the alderman ; so the union of people belonging to different shires pro- duced a greater assembly, consisting of all the allodial proprietors of a kingdom, and sum- moned by the king, the great military leader, and chief magistrate of the community. This national council received the appellation of the mickle-mote, or Wittenagemote. During the continuance of the Heptarchy, each of the Saxon kingdoms had its own Wit- tenagemote; and there can be no doubt that OF THE WITTENAGEMOTE, 201 those national councils, though sometimes they might act in concert, were independent of one another. But when all the dominions of the Ano-lo-Saxons were reduced under one o sovereign, the Wittenagemotes of each parti- cular kingdom were dissolved, and there was formed a greater assembly of the same nature, whose authority extended over the whole English nation. The circumstances attending this important revolution are lost in obscurity; and we have no means of discovering with certainty, whether it was produced by the mere influence of custom, or by an express regulation. It is probable that when Egbert had subdued the different states of the Hep- tarchy, the members of every separate Wit- tenagemote were invited to that great council of the monarchy which was then established ; and that, in consequence of this, they would scarcely think it worth while to continue their attendance in those inferior meetings with which they had formerly been connected. Of the particular class or description of persons who composed the Saxon A\ ittenage- motes, either in the respective kingdoms of the Heptarchy, or in the monarchy which 202 OF THE WITTENAGEMOTE. was formed from the union of these, the his- torians of that period have given us little or no direct information. But, from a variety of circumstances, it appears highly probable that those ancient assemblies were composed of all the members of the community who enjoyed landed estates in full property ; that is, of all those who had the appellation of the Greater Thanes. 1. From the state of the country after the Saxon conquest, these persons, being indepen- dent with respect to their possessions, were masters of their own conduct, and were under no necessity of adopting public measures to which they had not consented, or upon which they had not at least had an opportunity of deliberating and giving their suffrage. With- out their advice and concurrence, therefore, the king could seldom adventure to transact any important national business ; and from the frequent practice of consulting them, they were gradually formed into a regular assembly, and became an established branch of the con- stitution. The rest of the inhabitants were either vassals, whose benefices, if not held pre- cariously, were secured to them only for a .OF THE WITTENAGEMOTE. 203 limited period ; or peasants, whose condition was yet more dependent and servile. That the king should find it necessary or expedient to summon either of these classes of people to his great council, cannot easily be conceived. Their support and assistance might be expect- ed, of course, in the execution of every measure which had been approved by their superiors ; and therefore the voice of the allodial proprie- tors of land might, on every public emer- gency, be regarded as the voice of the nation. 2. The usual designations given, by ancient authors, to those who sat in the Saxon Witte- nagemote, seem perfectly to coincide with this idea of its constituent members. The persons present in that assembly, when they happen to be particularly specified, are commonly said to be the bishops and abbots, together with the aldermen, the chiefs, the nobles, or the leading men of the kingdom*. These expressions are peculiarly applicable to the allodial pro- prietors of land. It is to be observed, that in * Principes, optimates, magnates, proceres, &c. See Spelman on Parliaments Dr. Brady, Answer to Petyt and the series of great councils before the conquest. Tyr- rell's Bibliotheca Politica, Dial. 6, 504 OF THE WITTENAGEMOTE, those times there was no such personal wealth as could create any authority ; neither was there any distinction between what is now called a nobleman and a gentleman ; but every individual, possessed of landed property, was a sort of leader, and maintained a degree of in- fluence and rank corresponding to his fortune. The dignified clergy were distinguished by their profession, as the alderman, or governors of shires, were by their office ; for which rea- son, in speaking of the persons who composed the Wittenagemote, those two classes of men are frequently mentioned in particular, while the other proprietors of land are only pointed out by a general appellation expressive of their condition. 3. The same conclusion receives an addi- tional support from the obvious analogy be* tween the Wittenagemote, and the inferior meetings of the ty things, hundreds, and shires. These inferior meetings were plainly of the same nature with the great national council. The former deliberated upon the public affairs of the several districts to which they belonged : the latter, upon the public affairs of the whole nation.. Both of these appear to have arisen OF THE WITTENAGEMOTE. 205 from the same circumstances ; and probably the one was introduced in imitation of the other. It was because the chief magistrate of every inferior district had not, of himself, suf- ficient authority to execute public measures, that he was accustomed to call meetings of o those inhabitants whose concurrence he thought was expedient ; and it was upon the same account that the king was accustomed to assemble the great national council. There is great reason to believe, therefore, that all these meetings were constituted in the same manner; and, as it seems to be universally agreed, that the court of every ty thing, hun- dred, and shire, was composed of the respec- tive proprietors of land in those districts, it can hardly be doubted that the constituent members of the Wittenagemote were the peo- ple of a similar description throughout the whole kingdom. Lastly; The probability of this opinion is farther increased, when we examine the state of the national councils, which existed about the same time in the other European king- doms. In all those kingdoms, the sovereign was under the necessity of transacting the more 206 OF THE WITTENAGEMOTfc. important parts of the public business with the concurrence of a great proportion of his subjects; and the councils which he convened for this purpose appear, in every country, to have been composed of that part of the peo- ple who enjoyed a degree of influence over the rest of the community. Thus in France, the country of modern Europe in which the greatest number of particulars concerning the primitive government has been transmitted to us, the supreme concerns of the kingdom fell under the deliberations of the assemblies of the fold of March; so called from the time of their principal meetings. From the ac-< counts delivered by some of the French writers, these councils appear to have been composed of all the free men of the nation. According to others, they consisted of the leading men or nobility*. These accounts are, at bottom, not very different. In the early periods of the French monarchy, no person could be denominated free, unless he had the independent property of land ; and every * See Observations sur 1'IIist. de France par M. 1'Abbe Mably and Memoires Historiques du Gouvernement de France, par M. le Compte de Boulainvilliers. OF THE WITTENAGEMOTE. 207 landed proprietor was, in reality, a sort of chief or nobleman*. In consequence of the disputes between the king and the people, that took place in Eng- land after the accession of the house of Stuart, there arose two political parties; the followers of which have maintained very opposite opi- nions concerning the constituent members of the Anglo-Saxon Wittenagemote. The sup- porters of the prerogative, in order to shew that the primitive government of England was an absolute monarchy, and that the privileges en- joyed by the people have all flowed from the voluntary grants and concessions of the sove- reign, were led to assert that the original mem- bers of the Wittenagemote were persons under the king's immediate influence and direction ; from which it was concluded, that, so far from being intended to controul the exercise of his power, this council was called of his own free * Hinc baud aegre colligere est, unde nostri appellarent parliamenta procerum totius regni conventus. Du Cange v. Parliamentum. The Salic laws are said to have been made with the consent of the proceres or the optimates. And even charters from the crown usually bear, that they were granted cum consensu Jidelium nostrum, or in nostra et procerum presentia* Mably, ibid. 208 OF THE WITTENAGEMOTE. choice, for the purpose merely of giving advice, and might of consequence be laid aside at pleasure. Hence it was contended, that beside the bishops and abbots, and the aldermen, both of which were supposed to be in the nomina- tion of the crown, the other members of the Wittenagemote, who received the appellation of wites or wise men, were the lawyers or judges of the kingdom, who sat in the privy council, and were likewise in the appointment of the sovereign*. Those writers, on the contrary, who defend- ed the rights of the people, appear, from their eagerness in combating this opinion, to have been betrayed into the opposite extreme. In their endeavours to prove the independent au- thority of the ancient national council, they were induced to believe, that, from the be- ginning, it had been modelled upon the same plan as at present ; and that it was originally composed of the nobility, the knights of shires* and the representatives of boroughs -f. * Hume's Hist, of England, Appendix to Anglo-Saxon period. t Sir Robert Atfcyns* Power, Jurisdiction, and Privi- leges of Parliament, Pety4, Rights of the Commons as- OF THE W1TTENAGEMOTE. 209 It requires no great sagacity or attention, at this day, to discover that both of these opi- nions are equally without foundation. They may be regarded as the delusions of preposses- sion and prejudice, propagated by political zeal, and nourished with the fondness and cre- dulity of party attachment. Nothing can be more improbable, or even ridiculous, than to suppose that the lawyers or judges of England were, immediately after the settlement of the Anglo-Saxons, a body of men so considerable as to compose the principal part of the Wit- tenagcmote, and, from a title peculiar to them- selves, to fix the general denomination of that great assembly. In a very rude age, the busi- ness of pleading causes is never the object of a separate profession ; and the deciding of law-suits does not form a characteristical dis- tinction in the chiefs or leading men, who are occasionally employed in thatmanner. We may a well suppose that, in the period of English history now under consideration, the Anglo- Saxon wites, or wisemen, were the physicians, sorted. Jani ,4nglorum facies nova. Argumentum Anti- nor manic urn. Tyrrel's Bibiiotheca Politica. Lyttelton's Hist. VOL. I. P 2tO OF THE WITTEKAGEMOTE, the surgeons, and apothecaries, or the mathe- maticians, the chymists, and astronomers of the country, as that they 7 were the retainers of the law. AVe have surely no reason to believe that the latter were, by their employment, more distinguished from the rest of the com- munity than the former. Besides, if the mtes are understood to be judges and lawyers, it will follow, that the ancient national assembly was often composed of that class of men exclusive of all others ; for, in ancient records, it is frequently said, that laws were made, or public business was trans- acted, in a council of all the witcs of the king- dom. But it is universally admitted, that the bishops and abbots, as well as the aldermen or governors O f shires, were members of the O Wittenagemote ; from which it is a natural in- O ferencc, that these two sets of people were comprehended under the general appellation of rc'ites. This may easily be explained. The term wite signifies, primarily, a man of valour, or military prowess ; and hence a man of high rank, a nobleman*. It has been used, in a * Somner's Sax. Diet. v. Wita, Of THE WITTENAGEMOTE. 211 secondary sense, to denote a wise man, from the usual connection, especially in a rude age, between military skill and experience or know- ledge : in the same manner as an old man. or **-r * greyheaded man, is, according to the idiom of many languages^ employed to signify a ruler or governor* As far as any conclusion, there- fore, can be drawn from the appellation of Wittcnagemote, or council of the wites,- it is likely that this national assembly compre- hended neither judges nor lawyers, considered in that capacity, but that it was composed of all the leading men, or proprietors of landed estates ; in which number the dignified clergy, and the governors of shires, if not particu- larly distinguished, were always understood to be included *. The other opinion is not more consistent with the state of the country, and the condi- tion of its inhabitants. It supposes that in England, soon after the settlement of the o Anglo-Saxons, the lower ranks of men were so * By a law of king Ina, it is enacted, that if any person fought in the house of an alderman, or of any illustrious wite, he should pay a fine of sixty shillings. See Anglo-Saxonica, Leges IIKP, c. 6. or THE WITTEN'AGEMOTE. independent of their superiors, as to form a separate branch of the community, invested with extensive political privileges. This opi- nion supposes, in particular, that the mercan- tile part of the inhabitants were become a dis- tinct order of the people, and had risen to such opulence and authority as entitled them to claim a share in the conduct of national mea- sures. There is not, however, the least sha- dow of probability in this supposition. What- ever improvements in trade and manufactures had been made in Britain, while it remained under the provincial government of Rome, these were almost entirely destroyed, by the convulsions which attended the Saxon con- quest, and the subjection of a great part of the island to the dominion of a barbarous people. The arts which remained in the country after this great revolution, were reduced to such as procure the mere necessaries, or a tew of the more simple convenieneies of life ; and these arts were hardly the objects of a separate pro- fession, but were practised occasionally by the inferior and servile part of the inhabitants. How is it possible to conceive, in such a state of manufactures, that the trading interest OP THE WITTENAGEMOTE. 213 would be enabled to assume the privilege of sending representatives to the great council of the nation? Even in those European states, whose advancement in arts was much earlier than that of the Anglo-Saxons, the formation of the trading towns into corporations was long posterior to the period* we are now examining ; jet this event must have preceded their acting in apolitical capacity, and, consequently, their being represented in the national assembly. But, independent of this consideration, which can hardly fail to produce conviction in such as are well acquainted with the early his- tory of modern Europe ; the fact in question may be determined in a manner still more de- cisive and satisfactory. If the representatives of boroughs, and the knights of shires, were constituent members of the ancient Wittenage- mote, it is inconceivable that no traces of their existence should have been preserved in the annals of the Saxon princes. From the nu- merous meetings of that assembly, which are mentioned in many authentic records, and of which accounts are given by historians, who lived either in that period, or not long after it, a variety of expressions must have occurred, by OF THE WXTTENAGEMOTE. which the fact might be fully ascertained. Had it been a common practice for the towns and shires to choose representatives in the na- tional assembly, is it possible to believe that this practice would never once have been al- luded to upon any occasion whatever; or that, when mention is mades^ frequently, of the bi- shops and other dignified clergy, of the alder- mn, of the wites, or leading men, who sat in this meeting, another part of its members, con- sisting of a class of people totally different from the former, would in no case, either from acci- dent or design, have been pointed out in clear and unequivocal terms ? It cannot be disputed, however, that, notwithstanding the most dili- gent search into our ancient histories and re- cords, by men of great industry and learning, and eager to prove their hypothesis, not a single unambiguous expression, to that effect, has ever been found ; and this observation is not limited to the time of the Heptarchy, but may be extended from the settlement of the Anglo- Saxons to the Norman conquest. The attempts to prove that there were re- presentatives of boroughs and shires in the Wittenagemote consist, for the most part, ifl OF THE WITTENAGEMOTE. 215 giving a forced interpretation to certain vague and general phrases, which happen to be em- ployed by ancient authors, concerning the members of that assembly. The word alder* man, for example, denoting a rider, may be extended to the ruler, or chief magistrate, ot a town, as well as of a shire ; and therefore it is contended, that when the aldermen are mentioned in old records, as a constituent part of the national council, we are to understand the representatives of boroughs, as well as the governors of shires. It is, in like manner, as* serted that, by chiefs, or leading men, and by wites, or wise men, the persons chosen to represent the commons are as propedy de^ scribed, as the nobility, or proprietors of land*. According to this reasoning, the representa- tives of the commons,, in every shape, and of every description, as they exist at present, though not separately mentioned, are included in almost every designation, applied to the ancient members of the Wittenagemote. How * Tyrrell's Bibliotheea Politica, Dial. G. It seems to be the opinion of this author, however, that the existence of the knights of shires, in the Saxon Wittenagemote, is more doubtful than that of the representatives of boroughs, 216 OF THE \VITTEXAGEMOTE. far this mode of argument may be extended it is difficult to say. The aldermen and the wites have, each of them, the capacity of lord Peter's bread, containing the quintessence of beef, mutton, veal, venison, partridge, plum- pudding, and custard. In the accounts given by ancient authors of those that were called to the national council, mention is made, in some cases, not only of the bishops, abbots, aldermen, and chiefs, but also of the people ; and the persons present are sometimes distinguished by the appellation of a great multitude*. * Thus in the record of a Wittcnagemote held by Ethel- bert in 605, it is said, " Conxocato igitur communi concilia " tarn cleri quam populi." A general council is said to have been held by Ethel- wolf, in 855, PrcBsentibus et subscribentibus jirchiepiscopis et Episcopis Anglice universis, nee non Beorrcdo rege Mer- cice, Edmundo East-Anglorum rege, Abbatum et Abbatissa- rum,Ducum, Comitum, Proc.c r unique totins terras, aliornm- que Jidelium infiniia mult'dudine, qul omnes regium chiro- graphum laudu-cerunt, dignitates vero ma tiQmina subscrip* serunt. Canute, in the fifth year of his reign, is said to have held a great council of his archbishops, dukes, earls, abbots, cum quamplurimus gregariis niititibus^ ac cumpopttli multitudine copiosa. In some other instances, expressions of a similar nature occur j such as -oulgi consensus, andpopuh audiente etvidente. OF THE WITTENACEMOTE. 217 But it cannot escape observation, that if this proves any thing, it will prove too much : it will prove that all the inhabitants, even those of the lowest rank, instead of sending repre- sentatives, were personally allowed to vote in the national council. By the appellation of the people it appears that, on some occasions, the lay-nobles are understood, in opposition to the dignified clergy ; and on others, the or- dinary proprietors of land, in opposition to those of distinguished opulence. There is, at the same time, good reason to believe, that the multitude, said to have been present at some of those meetings, was partly composed of mere spectators, who might possibly, by their acclamations, testify their approbation of the measures proposed. [See the authors above quoted as also Gurdoifs History of the Parliament.] In many of these expressions a distinc- tion is clearly pointed out between the members of the meeting and the inferior people that were merely specta- tors. It ought also to be remembered, that the greatest number of those general phrases, quoted for proving that the commons were represented in the Wittenagemote, are used only by writers after the Norman conquest; who, in translating Saxon laws, or in speaking of Saxon usages, may be supposed to accommodate their language to the ideas prevalent in their own times. 218 OF THE WITTENAGEMOTE. There is produced an instance of a Wittc- nagemote, held by one of the kings of Mercia, in the year 811, in which a royal charter is said to have been signed before " the Mercian " chiefs, bishops, leaders, aldermen, procura- " tors, and relations of the sovereign, together 4 * with Cuthred the king of Kent, and Suthred " the king of the East Saxons, and all those ** who were present in the national council*/' As the members of the Wittenagemote had immemorially the privilege of appointing any person to act for them in their absence, it has been supposed, with great probability, that the procurators here mentioned were the proxies of absent nobles. In support of this conjecture, it is observed, that they are placed next in order to the nobles, and immediately before the king's relations -)-. * Merciorum Optimates, Episcapos, Principes, Comites^ PROCURATOUES, meosque prophtquos^ nee non Cuthredum regem Centuariontm, rttqite Snlhredum rcgem Orient. Saxon, cum omnibus qui testes nostris synodalibus concilia* bulis adernnt. [Annals of Wincholcomb.] t Gurdon's History of the Parlamcnt. In a charter of Athelstan, the procurators are also mentioned. But this charter \va* wot granted in the Wittonagemote. [Ibid.] OF^THE WITTENAGEMOTE. 2 1<) But although there is no ground for believ- ing that the representatives of the commons were ever admitted into the Wittenagemote, there can be as little room to doubt that, when the different Anglo-Saxon kingdoms were first united under one monarch, it composed a very numerous assembly. As, upon the settlement of the Saxons in Britain, few persons were in a condition to occupy large estates, the num- ber of allodial proprietors was proportionably increased. It is probable that the estates of the greater part of individuals extended to no more than a hide of land, or what could be cultivated by a single plough, and that this property constituted the primitive qualifica- tion for voting in the several Wittenagemotes o o of the Heptarchy. We hear of no particular limitation in this respect, either in the reign of Egbert, or in any preceding period. It has been imagined by some authors, that the privilege of sitting in the Wittenagemote ivas originally confined to such as possessed forty hides of land ; a property of great extent, which few individuals, it is natural to suppose, could have an opportunity of acquiring; whence it seems to be inferred, that a small part only 220 OF THE WITTENAGEMOTE. of the landed gentry were admitted into the councils of the sovereign*. This opinion is founded upon a passage in the register of Ely, which mentions a distinction in point of rank, enjoyed by such of the nobles as possessed estates amounting to forty hides of land. But this passage refers to the state of the kingdom in the reign of Edward the confessor, when property had been subjected to the most important revolutions, and government had widely deviated from its original institution. No inference can thence be drawn, concerning the primitive constitution of the national council ; which must have arisen from the state of the inhabitants at the time when it was framed. How far the authority above men- / tioned is sufficient to justify that conclusion, with respect to the later periods of the Anglo- Saxon government, will fall to be afterwards examined. It is therefore highly probable that the Wittcnagemote of the Anglo-Saxons was original!}' so constituted, as to admit a great proportion of the people into a share of its * Dtigdale's preface to his Baronage. Hume's Hist, of England, appendix to Anglo-Saxon period. OF THE WITTENAGEMOTE. deliberations; and it merits attention, that even such of the inhabitants as were excluded from this assembly, were either the slaves, or the tenants and vassals of those who sat in it. The former were thus placed under the protection of the latter. Men of inferior rank, though o not formally represented in the national coun- cil, enjoyed, therefore, a degree of security from the influence of their master or superior, who had an interest to defend them from every injustice but his own, and whose jealousy was ever watchful to guard them from any op- pression of the sovereign. The powers exercised by the Saxon Witten- agemote were such as might be expected from the independent situation, and the opu- lence of its members. It possessed a similar authority over the whole kingdom, to that of any tything, hundred, or shire, over its own subordinate division. In general the Witten- agemote seems to have taken under its cog- nizance all those branches of government, which were of sufficient importance to merit its attention, and which, at the same time, could be directed, in consistency with the de- r. OF THE WITTEXAGEifOflJ. lays arising from the deliberations of a nume- rous assembly* 1 . It exercised, first of all, the power of pro- viding for the defence of the kingdom, and of determining the public military operations*. Tins was, in all probability, the primary ol> ect in calling that assembly; and for which, according to the most ancient custom, it was o regularly held twice in the year ; in the spring when the seed-time was over, to resolve upon such expeditions as were thought expedient ; and, in the autumn, bofore the harvest began, to divide the plunder. A people so rude as the early Saxons had little other business of importance but what consisted in the sowing and reaping of their grain ; and were gene- rally disposed to employ the greatest part of the summer, either in private rapine, or in hostilities against a foreign enemy. In the other kingdoms of Europe, the same seasons were observed for the meetings of the national council. We are informed that, in France; the vernal meetings were originally in the be- i * Seldon's Notes on Gov. of England, collected by Nath. Bacon, part i. chap. 20. and the authorities referred to. OF THE WITTENAGEMOTE. 225 ginning of March ; but that afterwards, from greater attention, it should seem, to the cares of husbandry, they were delayed till the first of May*. It may here be worth while to remark, that the power of declaring peace and war, which belonged indisputably to the Saxon Wittenage- mote, affords complete evidence that its mem- bers were allodial proprietors of land; for, upon the supposition of their being the vassals of the crown, they must have been bound, when called upon, to attend the sovereign in war,, and consequently their consent would not have been requisite in undertaking any military enterprize. The same authority, by which military en- terprizes were determined, made likewise a provision for carrying them into execution. As from the circumstances of a rude nation, every man was in a condition to furnish a number of soldiers proportioned to the extent of his property; it was a general law in the Saxon government, that the proprietors of land should be rated, for military service, ac- * This change is said to have been made about the beginning of the second race of the French kings. 1 Or THE WITTENAGEMOTE. cording to the number of hides which they possessed ; and if any person refused to con- tribute his proportion, he was liable to for- feit his possessions, and to be deprived of the public protection. The erecting and repairing forts and castles, as a defence against the sudden incursions of an enemy, and the maintaining a free com- munication, by roads and bridges, between the different parts of the kingdom, were objects of police which, in the same view, attracted the notice of the Wittenagemote, and for which individuals were assessed in proportion to their wealth. The magnificent works of this nature, which were executed bv the Ro- p / mans, in all the provinces of their empire, con- tributed much to facilitate the progress of their arms, and to establish their dominion over the conquered people. Prom their ex- ample, it is likely that the Saxons, in Britain, as well as the other nations, who settled upon the continent of Europe, were incited to im- provements of this nature which they would not otherwise have thought of. 2. When the members of the AVittenage- mote had been assembled, and when they had OP THE WlTfENAGEMOTE. 225 settled every point relating to their martial operations, their attention was frequently turn- ed to other objects of national concern. What- ever inconveniences had been felt from the manner of conducting public business, what- ever abuses had been committed in the ad^ ministration of government; these were can- vassed; and regulations were made for pre- venting the like evils for the future. It is not disputed that the Wittenagemote exer-* cised a legislative power over the whole king- dom ; and, of consequence, the power of re- pealing and altering the regulations introduced by the meetings of any particular tything, hundred or shire*. The imposition of taxes, the most important appendage of legislation, was likewise undoubtedly assumed by this great assembly, so far as taxes existed in that early period ; but these were in a great mea- sure unknown; the ordinary ex pence of go- vernment being defrayed out of the private estate of the king, and from the various emolu- ments annexed to the regal dignity* * See the preface to most of the fcollections e>f Saxon laws published by Welkins. VOL. I. Q 226 OF THE WITTENAGEMOTE. 3. To this legislative power was added that of directing and controlling the exercise of the royal prerogative. Thus the demesnes of the crown were considered as not entirely the private estate of the king j but as in some mea- sure the property of the public* which fell to be managed and disposed of under the public inspection. The alienation, therefore, of crown-lands, though proceeding in the name of the king, was not effectual without the concurrence of the uites; and hence royal charters were frequently granted in the Witten- agemote, and subcribed by a number of its members*. The coining of money, in order to Sax r e the trouble of weighing and assaying the metals which pass in exchange, was a privilege early assumed by the king in the respective king- doms of Europe ; and even by the nobles or great proprietors of land in the territories under their jurisdiction. In the exercise of this privilege, great frauds had been committed on * Of this privilege of the Wittenagemote there occur? a remarkable instance in the reign of Egbert, in 836, Spelui. concil. t. i. p. 340. OF THE WITTENAGEMOTE. many occasions, by debasing the coin below its usual standard ; for preventing which abused the Wittenagemote, in England, appears to have superintended the behaviour both of the king and of the nobles, and to have regulated the coinage throughout the whole kingdom*. The members of this great council had ho less authority in the government of the church than in that of the state* That they were early accustomed to take cognizance of the established religion, appears from what is re- lated of Edwin king of Northumberland, who being solicited to embrace Christianity, is said to have answered, that in a matter of such importance he would be determined by the advice of his wites and princes. In the Wit- tenagemotej all ecclesiastical laws were made; the king's nomination of bishops and other dignified clergy was confirmed ; and their number, as well as the extent of their livings, was regulated. The same national council gave sanction to the establishment of monasteries, and of the revenues with which they were endowed -f-. * Wilkins leges Athelstani. t Selden's Notes collected by N. Bacon, part 1. cli. 20, and the authorities to which this author refers. or THE WITTENAGEMOTE. Not contented with directing the exercise of the executive power, the nobles and wites assumed, in extraordinary cases, the privilege of calling the sovereign to account for the abuses of his administration. Of this a re- markable instance occurs in the reign of Sege- bert, a king of the western Saxons ; who, for his tyrannical behaviour, and after he had treated with contempt the remonstrances of his people, was, by a general assembly of the nation, expelled the kingdom; and another prince of the royal blood was elected in his place. This event is said to have happened in the year 755*. Lastly, when the members of the Witten- agemote had met to deliberate upon public business, they were accustomed also to hear complaints concerning such great quarrels and acts of injustice, as could not be effectually re- dressed by inferior judicatories, and to endea- vour by their superior authority, either to re- concile the parties, or to decide their diffe- rences. By frequent interpositions of this na- ture, that great council was at length formed into a regular court of justice ; and became * Saxon chronicle. Or THE WITTENAGEMOTE. 229 the supreme tribunal of the kingdom; in which appeals from the courts of each par- ticular shire, as well as original actions be- tween the inhabitants of different shires, were finally determined. 230 STATE OF THE SOVEREIGN IN THE CHAPTER VIII. State of the Sovereign in the primitive Anglo- Saxon Government. A HE different parties of the Saxons, who invaded Britain, were each of them under the conduct of some adventurer, whose fortunes they had followed, either from personal attach- ment, or from a confidence in his abilities. After they had settled in the country, the same person continued to have the command pf their forces, and became also the chief civil officer of the community. The longer he had remained in that high station, his posses- sion of it was rendered more secure by the con- tinuance of the same circumstances which had originally produced his elevation. His mili- tary talents, deriving lustre and importance from the distinguished point of view in which they were beheld, excited the admiration and respect of his followers ; while the dangers with which they were surrounded, and a sense of their common interest, united them in ANGLO-SAXON GOVERNMENT. 231 fighting under his banner. By every new ex- pedition they became the more accustomed to submit to his direction ; and the oftener they had found it necessary to solicit his pro- tection and assistance, under those calamities to which they were exposed, they felt more sensibly the advantages derived from his favour as well as the inconveniences arising from his displeasure. In the early history of the Anglo-Saxons, the leader of every separate tribe or party, is accordingly represented as possessing a perma- nent office, with the title of herotoch or duke, in place of which that of king was afterwards assumed. The king was in possession of a landed estate, acquired in the same manner with that of every inferior leader, by whose assistance the conquest had been made. As the booty arising from any successful enterprize, was di- vided among the free people or heads of fa- milies concerned in the adventure, and, as on those occasions, each individual obtained a portion, both of land and moveables, suited to his rank and abilities ; it may easily be con- ceiye4 that the property accumulated, in a 232 STATE OF THE SOVEREIGN IN THE course of time, by the sovereign, would be much greater than that of any one of his subjects. His estate was naturally distributed among his dependents, according to the same plan which was adopted by every other landed proprietor, A part of it was bestowed upon his kindred or free retainers, under the con- dition of military service ; and the remainder was cultivated by his villains, or bondmen, for supporting the expence of his household. Over these two classes of people, he exercised the rights of a superior, and of a master. Throughout the rest of the kingdom, exclu- sive of his own particular estate, his authority was much more limited. Every allodial pro- prietor, unaccustomed to subjection, and sup- ported by his own retainers, was more or less in a condition to maintain his independence ; and those who had acquired considerable pro- perty, beholding with jealousy the superior dignity and pretensions of the king, were com^ mpnly ready to combine against him, either in resenting or opposing, whatever they deemed an infringement of their liberties. The powers with which the sovereign came to be invested, either in the different states of ANGLO-SAXON GOVERNMENT. 233 the Heptarchy, or in the subsequent monar* chy which arose from the union of those king- doms, were such as, in order to prevent confu- sion and promote the dispatch of public busi- ness, were tacitly devolved upon him, or as, from the nature of his situation, he had found encouragement to assume, and had, without opposition, been permitted to exercise. The dignity and office of the king, though higher in degree, were perfectly similar to those of the tythingman, the hundreder, and the earl ; and he possessed nearly the same powers over the whole kinodom, which those inferior officers o enjoyed in their own particular districts. 1. By having the command of the forces in the time of battle, the original source of his greatness, he was led to direct their movements on other occasions ; to take preparatory steps for bringing them into the field ; to suggest particular enterprizes, to plan the measures for conducting them, to execute treaties with fo- reign states, and in general to superintend the defence of the kingdom, and the whole course of its military operations. 2. In consequence of his being at the head pf the military department, the king was led 234 STATE OF THE SOVEREIGN IN THE also to exert his authority in suppressing inter-, nal disorders, in quelling tumults and insurrec- tions, in res training private rapine and violence, in seizing offenders, and preventing their es- cape from justice ; in a word, he obtained the province of maintaining the ordinary police of the country, and the security of its inhabi- tants. 3, As from these two branches of power, he became the prime mover, and proposer of public measures, and as, in matters of great moment, the concurrence of the Wittenage- mote was necessary ; he acquired, of course, the exclusive privilege of calling that assembly, and of presiding in all its deliberations. The influence which he thence obtained, with re-r gard to its determinations, may easily be ima- gined. The president of every numerous assembly has many opportunities of moulding the business that comes before it, into such 3 shape as will promote his own designs ; more especially, if by the permanent enjoyment of that office, he has leisure to form a regular plan of management ; and if, by having a dis-. ere tionary power of calling the particular meet- ings, he may regulate his motions according as ANGLO-SAXON GOVERNMENT. 234 the assembly happens, in different conjunctures, to be attended by different members. But while, by these favourable circumstances, the sovereign was capable of advancing his politi-r cal interest, he enjoyed the additional advan^ tage of superior opulence and dignity ; which put him in a condition to intimidate, as well as to over-reach opposition. To a prince, therefore, possessed of much prudence, and of popular talents, it was not difficult, in ordinary cases, to procure the consent of the Witten- agemote to those measures which he thought proper to suggest; and the resolutions of that assembly, while they appeared to limit and controul the power of the crown, were at bottom, very often directed by the monarch, and rendered subservient to his will. 4. As the Wittenagemote enacted laws, distributed justice in the last resort, and regu- lated the administration of public affairs; so the duty of enforcing the decrees and regulations of that assembly, ajid, in general, the executive part of the government, were naturally de- volved upon the king. Th^t great officer, who conducted the military force of the kingdom, could hardly fail to assume the province, of 236 STATE OF THE SOVEREIGN IN THE causing the punishments decreed against of- fenders to be regularly inflicted, and of com- pelling every individual to fulfil the decisions of the law. The same person was led to pro- cure information with respect to the commis- sion of heinous crimes, and to direct that they should be prosecuted before the proper tribu- nals. In these employments, the sovereign acted as the head and representative of the community. In the same capacity, he ob- tained the nomination of many inferior officers in church and state ; the privilege of coining money, and of superintending weights and measures ; together with the exercise of all those powers, which from their nature, could not be conveniently devolved upon a popular assembly. These prerogatives, which from the natural course of things, and probably without any formal or express regulation, were gradually annexed to the crown, became the source of such perquisites and emoluments, as more than compensated the trouble with which they were attended. The chief executive officer, who prosecuted a crime in the name of the public, had a plausible pretence, upon the sam$ ANGLO-SAXON GOVERNMENT. 237 account, for levying the fine or forfeiture aris- ing from the conviction of the criminal. Be- sides, in government, as well as in religion, the bulk of men are commonly so engrossed by the image or picture, as to forget the ori ginal, and to bestow upon the representative the sentiments due to the object it represents. Thus the sovereign, who appeared to direct, and put in motion, all the wheels and springs of government, who enforced the laws, who vindicated offences, and took upon himself the whole burden of providing for the public safety, was apt to be considered as exercising, in his own right, those powers Avith which the community had invested him. Those law* which he enforced were conceived to be more immediately calculated for his own benefit: those officers whom he appointed were looked upon as the servants of the crown : and those crimes, which he prosecuted and punished, were regarded as crimes committed against him in particular, for which he was, therefore, entitled, of himself, to demand reparation. The public revenue of the Anglo-Saxons, therefore, by which the rank of the sovereign was maintained, and out of which the variou* 238 STATE OF THE SOVEREIGN IN THE expences of government were defrayed, sisted almost entirely of two branches ; the original demesnes of the king, acquired in the same manner with the private estate of each allodial proprietor ; and the various forfeitures and fines, whether of land or moveables, which, from time to time accrued, or were transmitted to him, as the head of the com- munity. From this latter source he derived a continual accumulation of wealth. The disorder and violence, that prevailed so uni- versally, gave occasion to the forfeiture of many rich individuals ; and the king was commonly disposed to neglect no opportunity of seizing and improving such favourable con- junctures. In the greater part of crimes, as it frequently happens in the infancy of govern- ment, the criminal was not punished in a man- ner adequate to the purposes of public justice j but was admitted to atone for his offence, by making a pecuniary composition with the suf- ferer. In those cases, the king exacted a com- position as well as the private party ; and the profits arising to the crown, from the innumer- able fines and amerciaments, to which this gave occasion, were one great cause of the AttGLCVSAXON GOVERNMENT. long continuance of that imperfect mode of punishing offences. In this early stage of the constitution, the revenue above mentioned was sufficient for all the charges of public administration ; which were then inconsiderable. There was no mer- cenary army to be paid by the king. The judges were either willing to determine dif- ferences among individuals, and to take cog- nizance of crimes, without any consideration for their trouble ; or they obtained a compen- sation by exacting fees from the parties who came before them. Taxes therefore were almost entirely unknown, Their introduction belongs to the history of a more advanced pe- riod of society. But even this primitive revenue of the crown appears to have laid a foundation for the Wit- tenagemote to interfere in the disposal of it ; since the estate,- acquired by the king, in the character of the chief executive officer, and as representing the community, was, in a proper sense, the estate of the public. This conclu- sion was not, indeed, applicable to the whole,- though it undoubtedly was to a considerable part of the royal demesnes. But it was not; 240 STATE OF THE SOVEREIGN IN THE the genius of that age to make nice distinctions ; and the interposition of the national council, in the management of some branches of the crown revenue, might easily be extended to others that were placed in different c^rcum- stances. We find that, not only in England, but in the other states upon the continent of Europe, the arrangements which took place in the ma- nagement of the king's household, and private estate, had necessarily great influence upon the government of the kingdom. According as the sovereign advanced in opulence and dignity, he was led to employ a greater num- ber of servants in the several branches of his domestic economy ; and the same persons, who enjoyed the chief confidence of their master in that private capacity, became, in course of time, his ministers in conducting the business of the nation. In all the European feudal kingdoms, the management of the king's household was anciently divided into five principal departments, and fell under the inspection of so many great officers. 1. The first of these was the steward ', or master of the household, called* upon the ANGLO-SAXON GOVERNMENT. 241 Continent, the major domo, the mayor of the palace, or seneschall ; who had originally the care of the king's table* Upon him was na- turally devolved the business of gathering in the rents of the crown lands: for, as those rents were all payable in kind, and were in* tended for immediate consumption, it was most convenient, that they should be delivered into the hands of that person by whom they were afterwards to be laid out for the support of the king's family. We may easily believe that, from the na- ture of his office, the master of the houshold was in a condition to acquire much influence over all the tenants and vassals of the crown. He was the person with whom they were obliged to settle their accounts ; and who, from his minute acquaintance with their circum- stances, was the most capable of giving his master information concerning them. He was, therefore, the person most likely to be employed in adjusting their differences with one another; and in consequence of his being the deputy judge upon the royal demesne, he came, at a subsequent period, to be entrusted VOL. i. R 242 STATE OP THE SOVEREIGN IN THE by the crown, with a similar power over the whole kingdom*. 2. As the Collection and management of the victuals, with which the king's table was supplied, fell under the direction of the stew- ard ; so the care of the liquors was committed to a separate officer, the cup-bearer, or butler. In all the Gothic nations, persons of wealth and distinction lived in great splendor, and were much addicted to drinking; for which reason, it is not surprising that the accommo^ dation of the sovereign, in this respect, was * Speltnan, v. major domo. This author supposes three different orders of major domo in the houshold of the Go- thic monarchs. The first, who had the care of the king's table : the second, who presided over the whole houshold : and the third, who was employed under the king as chief executive officer of the kingdom. It seems evident, how- ever, that these officers were originally derived from one, who, as he became great, appointed deputies to discharge the inferior branches of duty incumbent upon him. In England the steward, in the king's houshold, is men- tioned under the name of Oeconomus as early as the year 749. [See discourse on this office by Mr. Thynn irt Hearne's Coll. of Antiquities.] But he does not seem to have acquired great power, as a minister of the crown, till the Norman conquest. [See same collection.] ANfcLO-SAXON GOVERNMENT. 243 exalted into a separate employment, and be- came an object of suitable importance. 3. The care of the chambers was committed to a third officer, the chamberlain ; whose busi- ness it was to superintend the lodging of his master's family. As this officer was entrusted with whatever required to be locked up in the house, for the future service of the houshold, he seems* upon this account, to have become the keeper of the wardrobe, and, at a subse- quent period, when the crown rents were paid in money, the king's treasurer or super- intendant of the finances*. 4. Another of the king's principal servants obtained the inspection of the stable, and was denominated the comes stabuli, or constable. When, by the keeping of many horses, this department was rendered extensive, it appears to have been divided into two branches ; the one belonging to the chief groom, or constable; and the other to the mareschal, or smith. It is difficult to mark the period when this divi- * It is probable that the butler [pincerna] was, fora long time, not separated from the steward ; and in the early his- tory of England neither he nor the chamberlain seem to have been much distinguished. R 2 STAf OF THE SOVEREIGN ITS THE sion was completed : nor is it an easy matter to ascertain the relative degrees of importance and rank which might then be annexed to these two kindred employments. When the use of cavalry in war became frequent, we may easily suppose, that the per- sons, who had been accustomed to rear and manage the king's horses, would stand forth, as claiming superior distinction, and as having a peculiar title to be consulted. They were thus employed, under the sovereign, in con- ducting that important part of the troops ; and, by an easy transition, acquired a juris- diction in, such controversies, as were either of a militarj^ nature, or had arisen in the army while it remained in the field*. />. The writing of the king's letters, and the executing of the charters, or other deeds, that issued from, the crown, became also the subject of a distinct occupation, that of the secretary. In those times, when the clergy had acquired great influence, and when apro- * Tiiis officer was known to the Anglo-Saxons under the name of Stallarius. Spelm. Gloss, v. Constabularius. The mareschal seems to have been considered as the deputy of the constable. ANGLO-SAXON GOVERNMENT. 245 ficiency in the art of writing supposed an un- common degree of literary education, the only person likely to be qualified for this employ- ment was the chaplain ; who might be con- sidered as, in some degree, the keeper of the king's conscience ; and who, from the nature of those religious offices which he performed could seldom fail to acquire the confidence of his master. When signatures were introduced, for as- certaining the authenticity of writings, the office of keeping the king's seal, and of ap- pending it to his deeds, was committed to the same person who had been employed in writing them. As in determining law-suits, it was found expedient, in many cases, to take down the sentence of the judge in writing, the secretary was naturally employed for this purpose ; and became keeper of the records of the king's court. From this branch of his duty, he got the appellation of chancellor ; which is said to have originally denoted a scribe, or notary; being derived from -cancella, the place under the Roman government, allotted to persons 246 STATE OF THE SOVEREIGN IX THE of that profession for carrying on their busi- ness*. As this arrangement in the domestic ad- tninistration of the sovereign, supposes con- siderable wealth and magnificence; it was probably of a later origin in England than in several of the kingdoms upon the conti- nent. Jt is reasonable to suppose that the whole of the king's houshold was at first committed to one principal servant; whose business having been, by little and little, aug. inented and rendered more burdensome, was at length divided into these five different de- partments, A similar plan of administration, in a more limited sphere, was adopted by every great landed proprietor ; who naturally multiplied his chief domestics, in proportion to the extent of his wealth ; and often fol- lowed the example of the king, by dividing the affairs of his houshold into the same num- ber of branches *f*. The longer these great officers had been *This officer is clearly distinguishable in the Anglo- Saxon government. Spelm. v. Cancellarius. in speaking pf these great officers of the ANGLO-SAXON GOVERNMENT. established, they rose to higher degrees of con- sideration; and their authority was farther extended, from the superintendence of the king's houshold, to the direction and manage- ment of the kingdom. As, for the most part, they were originally chosen by the sovereign, upon account of their superior wealth, or abilities, which rendered them capable of sup* porting his dignity in the execution of the % business committed to them ; so the trust and confidence which he reposed in them, to- gether with the share of public administration which they enjoyed, afforded them numberless opportunities of augmenting their private for* tunes, and of increasing their influence. In proportion to their advances in wealth ancj houshold observes, that tfiey were gradually established ii; the families of the great lords and gentlemen. " Parquoy " estoient dessus tous c cinq estats plus estimez, le chance- 4{ Her, grand chambellan, grand maistre, grand eschan^on, u que nos anciens appelloient grand bouteeller, et con- " nestable. Nous estant par cecy monstree une grand " ceconomie : car aussi n'y a jl majson qui vueille tant soit " peu paroitre, en laquelle ces cjnq estats ne se trouvent w estre necessaires, encore qne ce ne soit avec tiltrcs d$ '* telle splejwjeur." Rccherches de la France, liv. iL chap. 248 STATE OF THE SOVEREIGN IN THE power, they were in a condition to render their offices more permanent. They were originally nominated by the king during plea- sure ; but that superiorit}', which had been the inducement to their first promotion, became commonly more and more conspicuous during the continuance of their employments. It was, therefore, seldom found convenient to displace them : and, even after their decease, the heir of that estate, which they had ac- quired, was naturally regarded as the person best qualified, and who had a preferable claim to inherit their dignity. By long usage, these offices were thus rendered hereditary in parti- cular families. To this observation, however, the office of chancellor, in most European countries, is an exception. As the chancel-, lor was unavoidably a clergyman, who held his rank in the church, and the estate con- nected with it, only during life, he had com- monly neither any opportunity of securing the office to his family, nor any desire of annex- ing it to his ecclesiastical dignity, Of the influence established by the great officers of the king's houshold, the political constitution of Germany affords a remarkable ANGLO-SAXON GOVERNMENT. 1249 instance. When the dominions of that em pire, by the conquest of large territories in Italy, and in the southern part of France, had been so enlarged as to comprehend three distinct kingdoms, the emperor was induced, in that situation, to appoint three different secretaries*. The officers of his household were, upon this account, increased to the number of seven. In the progress of the Ger- man government, the power of these great officers advanced, as that of the emperor declined ; and after the imperial dignity had become entirely elective, they assumed the privilege of proposing, to the national assembly, the successor to the crown ; from which they at length proceeded to claim the sole right of electing him, Hence the origin of that precise number of persons who composed the primitive German electors. The steward w r as originally the officer of the greatest importance in the king's houshold ; * The first was the secretary for Germany, properly so called; the second for Italy, and the third for Aries. It is remarkable that these chancellors, having become secular princes, their offices have been attached to their ecclesias tical d STATE OF THE SOVEREIGN IN THE because the supplying of his majesty's table with provisions was regarded as the chief con- cern of the family. We accordingly find that, in several countries of Europe, the person who enjoyed this hereditary office, attained a Degree of rank and opulence which rendered him formidable to the sovereign. In France, the mayors of the palace, after having for a long time possessed the real power and au- thority of the crown, were at length embold- ened to throw off the mask, and openly to mount the throne. When the use of cavalry in war had be- come very extensive, and when that part of the feudal armies had the principal share in deciding the fate of battles, the constable, or marishal, was frequently in a condition to dis* pute the superiority with the steward or mayor of the palace. Thus, in Germany, when the throne happened to be vacant, the Elector Palatine, the mayor of the palace, was an* ciently appointed, for preventing the bad consequences of an inter-regnum, to be the vicar of the empire. But in a subsequent period, this high dignity was claimed by the elector of Saxony, the constable ; and, after ANGLO-SAXON GOVERNMENT. 251 violent disputes, and various determinations of the diet, was at last divided between those powerful competitors. In the ages of greater civility and im- provement, when, from the complicated con- nexions of society, its laws became numerous and of difficult interpretation, and when, from the anxiety of individuals to ascertain their rights, the charters and writings proceeding from the crown were multiplied in proportion, the secretary, or chancellor, to whom the king committed that branch of business, was invested with powers of the greatest conse- quence, and therefore was exalted to the highest rank. In those opulent and polished nations which have long been reduced under an equal and regular government; in which the impartial distribution of justice is looked upon as almost a matter of course ; and in which the sove- reign is accustomed to govern by influence, more than by the exertion of his prerogative ; in such nations, the person who presides over the public treasury, who may be regarded as the substitute of the chamberlain, becomes the great channel through which the revenue 252 STATE OF THE SOVEREIGN IN THE of the state is conveyed, and by which the authority of the crown is maintained. It is hardly necessary to remark, that this distribution of the business in the king's household, into five departments, reaches far below the simple period of the Anglo-Saxon government which we are now considering. But, on the other hand, it merits attention, that when the exaltation of the sovereign had multiplied the occupations belonging to these different branches, it became expedient, in some of them, to appoint a variety of deputies; many of whom, in particular kingdoms, rose by degrees to such consideration and rank, as to appear no longer in a subordinate station, and even to make the origin of their appoint- ment be forgotten. This circumstance must not be overlooked in perusing the enumeration, given by many historians, of the principal of- ficers in the court, or household, of particular princes. From the foregoing imperfect sketch of the powers of the sovereign, as well as of the con- stitution and privileges of the WittenagemoU\ we may be enabled, notwithstanding the dark- ness of our ancient history, to form an idea of 1 ANGLO-SAXON GOVERNMENT. 253 the original English constitution. How remote this was from an absolute monarchy, must be apparent to every one, who considers that the privilege of legislation, together with that of determining peace and war, and even that of controuling the executive power, was lodged in the national assembly. Neither can this government be deemed in a high degree aristocratical ; since the national council was composed, not of a small junto of nobles, but of all the landed proprietors, comprehending a great proportion of the whole people. It seems, in fact, to be that sort of political system which is likely to be established in all rude and extensive countries ; before a few in- dividuals have accumulated so much wealth as enables them to domineer over their infe- riors; and before the king, in consequence of his high station and prerogatives, has had lei- sure to acquire a revenue sufficient to over- throw and bear down any opposition that can be apprehended from the most opulent of his subjects. It cannot, however, escape observa- tion, that, although the powers committed to the monarch by the early Saxon constitution were small, they were not accurately de- 254 STATE OF THE SOVEREIGN Itf THE fined ; and that, in the exercise of them, he en joyed, upon this account, a good deal of lati- tude. Accurate limitations of power, and a regular system of subordination, the fruit of experience and foresight, cannot be expected to characterize the institutions of a simple peo- ple, who are usually guided by their feelings more than by reflection, and who attend more to the immediate effects of any measure, than to its remote consequences. As the Anglo- Saxon princes were entrusted with every branch of public administration, in which the Wittenagemote did not think proper to interfere ; their conduct was directed, in a great measure, by particular conjunctures, and by the different unforeseen events which ac- cidentally required their interposition. We need not be surprised, therefore, if in pe- rusing the history of that period, while we discover strong marks of the weakness of the crown, we should also meet with some extra- ordinary exertions of the prerogative, and should at the same time observe, that these were suffered to pass without censure, or even without notice. It is a common source of mistake, among political writers, to con~ ANGLO-SAXON GOVERNMENT. 255 sider these extraordinary exertions as proofs of the ordinary state of the government ; and to adduce as an illustration of the general practice, what is only the random and casual exercise of a power, not yet brought to a re- gular standard. We shall now examine the changes produced in the English constitution from the reign of Egbert to the Norman con- quest. 256 PRINCIPAL EVENTS FROM CHAPTER IX. Of the principal Events from the Jteign of Eybert to the Norman Conquest. \VlIILE England, by the union of the different states of the heptarchy, was emerg- ing from barbarism, and laying the foundation of a great and powerful kingdom, a new enemy involved her in a series of fresh cala- mities; and contributed to retard the progress of her improvements. The inhabitants of the northern part of Germany, who retained their ancient manners, and were still much addicted to piracy, continued to infest the coasts of Britain and France, and of such other European countries as, by some advancement in cultivation, presented an inviting prospect of plunder. About the reign of Egbert, se- veral bands of those pirates, known by the general name of Danes, landed in England ; and, after committing great ravages, were ge- nerally successful in carrying off their booty. Upon, the death of that prince, whose vigour TO THE NORMAN CONQUEST. 257 had kept them under some restraint, their in- cursions became bolder and more frequent ; they made their attacks in larger parties ; and, having been often victorious over the forces that could be assembled against them, they were at length encouraged to form settlements in different parts of the country. From the time when the kingdoms of the heptarchy were united, to that of the Norman conquest; a period extending to about two hundred and fifty years, and comprehending a series of nine- teen monarchs ; the English were, with little interruption, engaged in a course of hostilities with those invaders; and subjected to perpetual inquietude and disorder. In the reign of Alfred, the grandson of Egbert, the Danish arms had been so successful, and their acqui- sitions had become so extensive, as to threaten an entire conquest of the kingdom. The history of that prince exhibits a pattern of the hero and statesman, equal to whatever is recorded of ancient patriotism, and even to whatever correct fiction has been able to sug- gest, in order to excite admiration and esteem During the reign of Etherecl, his elder brother, by whom he was unjustly deprived of the TOL. i. s 358 PRINCIPAL EVENTS FROM EGBERT patrimony left him by his father, he discover- ed neither any marks of resentment for the private injury he had sustained, nor of what prevailed so universally among the princes of that age, an ambition to possess the crown ; but with uniform alacrity seconded all the public measures of the king; and, while yet at an early period of life, displayed uncommon valour and talents, in opposing the enemies of bis country. When he afterwards succeeded to the throne, his magnanimity and firmness were put to a severe trial in the school of ad- versity. Though he had been victorious over the Danes in many conflicts ; yet the swarms of those invaders multiplied so fast ; and from every quarter pushed their depredations with such rapidity, that the English, throughout the greater part of the kingdom, became quite disheartened and submitted to the conquerors. His ancient subjects, the western Saxons, alone retained their fideli ty, and supported the inte- rest of their monarch : but these were incapa- ble of resisting the torrent which broke in upon them, from the accumulated force of their enemies. After many fruitless efforts, and upon a sudden report of a new invasion TO THE NORMAN CONQUEST. 259 by a powerful body of Danes, that spread uni- versal consternation, the king found himself almost entirely abandoned: and, being able no longer to keep the field, was obliged to dis- band his remaining adherents, and to provide for his present safety ; he was even under the necessity of concealing himself by various arti- fices, and in mean disguises. The distresses to which he was exposed, and the private ad- ventures which he met with, in that situation, appear not unworthy of notice ; as they relate to a person of such eminence ; and as the fate of England depended upon his surmounting the difficulties in which he was involved. In the garb of a common soldier he remained for some time unknown, in the house of one of his own herdsmen : upon which occasion, his- torians have mentioned a little incident, which exhibits a ludicrous picture of royalty placed in awkward circumstances without being; de- O graded by them. While the king was one day sitting by the fireside, and trimming his bow and arrows, the woman of the house, who had no suspicion of the quality of her guest, happened to be toasting bread ; and, having occasion to go about some other affairs, PRINCIPAL EVENTS FROM EGBERT she found, at her return, that the cakes were burned ; with which being greatly provoked, she heartily scolded his majesty, telling him, that though he neglected to turn her cakes, he was always very ready to eat them. Meanwhile the royal demesnes became a prey to the Danish forces ; who being no longer restrained by the apprehension of an enemy, gave a loose to their cruelty and rapacity. Alfred, reduced in this manner, to the condi- tion of an outlaw in his own dominions, and having collected a few faithful followers, wan- dered for some time from place to place, find- ing shelter from the woods and marshes, which covered a great part of the country, and which were of difficult access even to the natives themselves. But his principal retreat was in the middle of an extensive morass, formed by the rivers Thone and Parret in Somersetshire ; which was almost entirely surrounded with water ; and which afforded great plenty of fallow deer, and other wild animals fit for subsistence. In this place the king took up his residence ; and erecting some fortifications, remained for near the space of a twelvemonth. Here he had leisure to reflect upon the uncer- TO THE GORMAN CONQUEST. 26l tainty of human grandeur; to weigh the real value of all human enjoyments ; and to revolve in his mind those benevolent and patriotic plans, by the execution of which he came af- terwards to be revered by his countrymen, and has excited the admiration of mankind. From this retreat he made many secret excur- sions, in order to procure information or plun- der, and to revive the drooping courage and spirits of his companions. At length the earl of Devonshire, having suddenly attacked and routed a large party of the Danes, presented to Alfred a favourable opportunity of appearing once more in the open field, and of animating his subjects to hazard another attempt for the recovery of the kingdom. Amid all the difficulties and dangers to which this monarch was exposed, he appears to have uniformly discovered a mind cool and diliberate, resolute with cau- tion, fruitful in expedients, and dexterous in executing such measures as the singular and desperate posture of his affairs made it advisc- able to adopt. On this occasion he is said to have employed a stratagem, suited to the state of discipline in the armies of that age, and 263 PRINCIPAL EVENTS FROM EGBERT which recals the memory of those military adventures related in the early periods of anti- quity. In the disguise of a minstrel and for- tune-teller, attended only by one companion, he visited the Danish camp; and supported the character with so much address, as to af- ford universal entertainment, and to pass through every quarter, not exceptng even the general's tent, without incurring the least sus- picion. Having thus procured every possible information, and having, by means of a previ- ous intercourse with his nobles, suddenly col- lected a great body of his subjects, he found himself at the head of a powerful army, exult- ing in the recovery of their monarch, and eager to be revenged of their oppressors. With this force he fell unexpectedly upon the enemy ; and entirely defeated them. His victory was so complete, that the Danes were incapable of any further opposition ; and in a little time after were entirely subdued. Some part of them were driven out of the kingdom ; the rest were under the necessity of submitting to such terms as he thought proper to impose. The moderation and clemency of this prince, and the prudence which he displayed in the TO THE NORMAN CONQUEST. 263 improvement of these advantages, were no less conspicuous, than the vigour and abilities by which they were obtained. The Danes who submitted to him were sent to reside in East Anglia, Northumberland, and some of the neighbouring parts of the kingdom, where many of their countrymen had long been set- tled ; and they were admitted to the enjoyment of the same privileges with his other subjects. By the zealous interposition of Alfred, they were also happily persuaded to embrace the Christian religion ; a circumstance necessary to remove their prejudices against the ancient inhabitants, and to unite those different tribes of people in one community. Upon the restoration of peace, the first at* tefition of tile monarch was employed in pro- viding a fleet, sufficient to oppose any new invasion of the Danish pirates ; in erecting fortifications upon the coasts more immedi- ately exposed to their depredations ; ki making regulations for assembling the inhabitants upoA any sudden emergency ; in rebuilding th towns that had been destroyed ; a*id in repair- ing the waster and desolation which the 4 264 PRINCIPAL EVENTS FROM EGBERT try had suffered from a long course of rapine and violence. To compile and publish a code of statutes, is, in a rude nation, a measure of the highest utility, for instructing an ignorant people in those rules by which they are to be governed ; and accordingly we find that this has been the great object of almost all the distinguished princes of an early period. It appears that Alfred bestowed much labour and time upon a work of this nature ; of which the greatest part is now lost. It is probable, that, from the various feudal institutions and customs, which had prevailed either in England or upon the neighbouring continent, he selected such as were accounted the most beneficial, and most adapted to the peculiar circumstances of his time and country ; and that, having established these regulations by the authority of his great council, he endeavoured, in the most effectual manner, to produce a degree of uniformity in law and government, throughout the whole of the kingdom. We are not, however, to imagine, that all differences in the customs of different parts of the country were thus en^ r*3TO THE NORMAN CONQUEST. 265 tirely abolished. On the contrary, we find that, in consequence of the new settlements in the northern part of the kingdom, a multi- tude of Danish customs had been introduced; and that the people were now distinguished into three great branches, according to the varieties in the system of private law, esta- blished among the Western Saxons, the Mer- cians, and the Danes. But the promulgation of good laws is, for the most part, and especially in a country re- mote from civilization, a matter of less diffi- culty and importance than the vigorous and impartial execution of them. When a regu- lation is made, the beneficial objects, which it is intended to promote, are commonly surveyed in that distant and dispassionate view which admits the full exertion of patriotic affections; but when it comes to be enforced by the pu- nishment of transgressors, it then frequently assumes a different aspect : and the interest of the public is likely to be obscured and counter- acted by the private connections, and by the partiality and prejudice of individuals : not to mention that the splendor and eclat, which accompany the temporary interpositions of the 266 PRINCIPAL EVENTS FROM EGBERT legislature, do not descend to the unremitting and laborious attention, to the painful and in- vidious task, of those inferior magistrates who render the law effectual. It was here that the genuine virtue of Alfred appeared most conspi- cuous. From the long course of depredation to which England had been exposed, that country was become a scene of the utmost license and disorder ; exhibiting, on the one hand, a people fierce and barbarous in their manners, accustomed to live by robbery and violence ; and on the other, a set of nobles, in reality the leaders of different pillaging parties, abusing that authority and jurisdiction with which they were invested, by protecting their adherents from punishment, and by oppressing those who had fallen under their displeasure. Yet such was the attention of this monarch to the inferior departments of government, so great was his vigilance in examining the con- duct of judges, and his rigour in punishing them for malversation in office, that, in a short time, these evils were in a great measure removed, and an equal and regular adminis- tration of justice was introduced. In one year of his reign no fewer than forty-four raagis- TO THE NORMAN CONQUEST. 267 trates, it is said, were put to death, for misbe- haviour in their judicial capacity; a proof that corruption and licentiousness had risen to an amazing pitch. There can be little doubt, that in the accounts transmitted by historians, the accuracy and regularity of the police, established by Alfred, has been greatly exag- gerated ; but even these exaggerations, the usual effects of wonder and admiration, may serve to convince us, that he made great im- provements upon the former system. We are informed that, in order to try the success of his institutions, he caused golden bracelets to be hung up near the highway ; and that no person, such was the terror of the magistrate, adventured to touch them. By the establishment of good order and tranquillity, the people were encouraged to follow those peaceable occupations which had been totally interrupted by the preceding dis- orders. The king was indefatigable in his efforts to promote manufactures, and to excite the industry of his subjects; by employing artificers in great public works ; by inviting foreigners to settle in the country ; and by re- warding the inventors of new arts. He con- PHINCIPAL EVENTS FROM EGBERT tributed, in a particular manner, to the exten- sion of foreign commerce, by protecting it with his fleet, and by bestowing marks of his favour upon such as became eminent for their skill in navigation. He was no less attentive to the encourage- ment of literature, not only by his patronage, but also by his example. His ardour, in this respect, was the more remarkable, as it sur- mounted the disadvantages he lay under from the neglect of his early education ; for, among the anecdotes which have come down to us concerning the private life of Alfred, it is re- lated, that he was twelve years of age before he had been taught to read ; and that he first felt a desire of being instructed, in this particular, from the recital of certain pieces of poetry, with which the queen his mother was much de- lighted. Prompted-, however, by a strong in- clination for literary pursuits, he soon became, not only a proficient in the Latin language, and in such branches of learning as were respected in that age, but even a writer of eminence, both in prose and in verse. As a poet, he seems to have employed himself chiefly in translating, or composing, fables, or apologues TO THE NORMAN CONQUEST. 269 These compositions are usually the first at- tempts, in a rude nation, to illustrate, by sim- ple and familiar examples, the proverbs, or maxims for the conduct of life, which observa- tion and experience have suggested, and which, as containing important information to an illiterate people, are frequently repeated, and appealed to, in ordinary conversation. The labours of this eminent statesman appear, in that particular, to have coincided with those of the first great teacher of morality among the Greeks. It is probable that those two cele- brated personages were directed in the choice of their subject by a similarity of character ; and it may perhaps be suspected, that both of them were more remarkable for their philoso- phy and public spirit, than for their poetry. Historians have mentioned the bodily ac- complishments of Alfred, as corresponding to the extraordinary endowments of his mind. He was distinguished by the strength and ac- tivity, as well as by the dignity and graceful- ness of his person ; and while his dexterity and address, in martial exercises, excited universal ^applause, he gained the hearts of his subjects by an affable and engaging deportment. 270 PRINCIPAL EVENTS FROM EGBERT After all, though the history of this monarch may be accounted sufficiently authentic, to afford a solid conviction of his exalted merit ; some allowance, no doubt, must be made for the colouring produced by that admiration which was due to his character, and which has been heightened by the remoteness of the period in which he lived. We need not be surprised, therefore, to meet with errors and prejudices, concerning his public transactions; and in particular, to find that he was supposed to be the author of several regulations, which he only revived, or brought to greater perfec- tion than they had formerly attained. The great changes which he produced in the state of his country, by bringing it from anarchy and confusion into a degree of order and regu- larity, led his countrymen, in subsequent ages, to fix their attention upon h ; m, as the person from whom they had derived the entire model of their constitution. He is thus held, by many historians, to have first divided the king- dom into ty things, hundreds, and shires, and to have introduced a peculiar system of policy connected with those divisions; though itseemf now to be clearly proved, that these regulations TO THE NORMAN CONQUEST. 271 existed in England before his time, and that they extended to other European kingdoms. The institution of juries has, in like manner, been ascribed to this monarch ; though there is good reason to believe that it arose from the general situation of the Gothic nations ; and that it had a very early establishment in all of them. Alfred, in a word, has become the English Lycurgus ; and his interposition is the great engine which politicians have employed for explaining the origin of such particulars, in the English government, as have excited uncommon attention, and are too remote, iu their beginnings, to fall within the limits of authentic history. For near eighty years after the death of that prince, England appears to have been success- fully defended against every foreign invasion ; though she experienced a variety of disturb- ances, occasioned by the domestic quarrels and insurrections of the Danes and other inhabi- tants of the country. During this period we may distinguish the reigns of Edward the elder, the son of Alfred, of Athelstan, and of Edgar, as remarkably vigorous ; and as filled with ex- ploits, which, if they make no very splendid 72 PRINCIPAL EVENTS FROM EGBERT figure in the general scale of historical events, were, however, of considerable consequence to the peace and internal tranquillity of the kingdom'. Those princes are said to have adopted a measure, which, in that early age, appears ex- tremely singular. They are said to have kept in pay a regular body of troops, collected from their Danish subjects; whose military charac- ter, it seems, was superior to that of the other inhabitants. Though the bulk of the people were not unfit for war, and, by their ordinary employments, were not hindered from taking the field upon very short preparation ; yet the numerous piratical invasions to which they were exposed, and by which they were held in continual warfare, suggested the same sort of military establishment that has been found convenient in all civilized nations. The Danish families were employed, in preference to the English, from the same policy, which, in later times, made the inhabitants of Switzerland be engaged in the service of many European princes. As those mercenaries, however, were quartered about the country, and were pro- bably not much under the controul of the TO THE NORMAN CONQUEST. 273 civil magistrate, they were guilty of many irregularities, and rendered themselves uni- versally odious. They possessed all the power, and discovered, we may suppose, all the inso- lence of a standing army ; unrestrained by the watchfulness of a regular government, or by the influence of civilized manners. Hence the appellation of a lurdane, or lord-done, which was bestowed upon them, came to be used as a term of reproach ; and signified an idler and oppressor. Their situation led them, at the same time, to seek distinction, by the superior elegance of their dress and behaviour ; and we are told, that they were accustomed frequently to change their cloaths, to comb their hair once a day, and to bathe or wash themselves every Sunday. By these effeminate arts they became the favourites of the women ; and were so successful in their gallantries, as to debauch the wives and daughters of many noble families*. In the reign of Ethelred, a weak and pusil- * " Habebant etiam ex consuctudine patriae unoquoque " die comam pectere, sabbatis balneare, saepe etiam vesti- " turam mutare, et forinam corporis inultis talibus frivolis " adjuvare ; unde et matronarum castitati insideabantur, et " filias etiam nobilium concubinarum nomine detinebant." Chron. Joan. Wallingford. VOL. I. T 274 lanimous prince, England was again infested by more numerous swarms of the Northern pi- rates ; and at length was invaded by a formid- able army under Sweyn, the king of Den- mark, and Olave the king of Norway. Ethel- red, unable to resist these united forces, had recourse to the ineffectual and ruinous expe- dient of purchasing peace by the offer of a pe- cuniary composition ; and when those princes had returned to their own country, he excited his English subjects, to gratify their resent- ment against the Danes, by taking advantage of their security, and putting them to death in cold blood. The extent of this massacre, so disgraceful to the monarch, and to the nation, cannot easily be ascertained. The greater part of the historians consider it as extending to the whole of the Danish race at that time to be found in England ; but the improbabi- lity of this, together with the authority of one ancient author, makes it reasonable to suppose, with Mr. Hume, that the slaughter was, for the most part, limited to those mercenaries against whom the rage of the populace was more immediately directed. To revenge an act of so much perfidy and TO THE NORMAN CONQUEST. 2.75 cruelty, Sweyn, without loss of time, made another descent into Britain ; and after destroy- ing many of the towns, and desolating a great part of the country, he seems to have medi- tated an entire conquest of the kingdom. He did npt live to complete his designs ; but these were prosecuted by his son Canute; who met with little opposition ; and in a short time ad- ded the English monarchy to that of Denmark, which he possessed by inheritance. This prince, by his abilities, by the prudence and lenity of his administration, and by the extent of his dominions, was justly entitled to the appellation of great, which he has received from posterity. In England, after the first effects of the conquest were over, he endea- voured to procure the good-will of his subjects, by reducing the English and Danish inhabi- tants under the same laws, and by abolishing all distinctions between them. He published a collection of laws, which has been preserved. After this monarch, two of his sons reigned successively in England ; but, as they died without issue, the crown was restored to a prince of the Saxon line, known by the name of Edward the Confessor. T 2 276 PRINCIPAL EVENTS FROM EGBERT The conquest of England by the Danes ap- pears to have been productive of no other po- litical consequences, beside the interruption given to improvements, by the bloody and destructive wars by which it was attended. When Britain was deserted by the Romans, and fell under the Anglo-Saxon government, the country, which had made considerable progress in arts and civilization, was, of a Sudden, reduced into a state of barbarism, and underwent a total revolution of its political system. By the Danish conquest, one set of barbarians were subjected to another, of kin- dred origin and manners ; so that the sceptre was placed in different hands, without any alteration in the maxims by which it was swayed, or the authority by which it was maintained. From the beginning to the end of the pe- riod, which is the immediate subject of this review, the circumstances of the kingdom were such, as contributed to render the government more and more aristocratical. It has been already observed, that the landed estates, originally occupied by the Saxon conquerors of England, were of mode* TO THE NORMAN COXQUEST. 277 rate extent ; for which reason there came to be a great number of allodial or independent proprietors. This was what might be expected, from the very limited power and opulence of the several heads of families who settled in the country, and from their want of the knowledge and experience requisite for the management of extensive possessions. During the conti- nuance of their settlement, however, and the consequent improvement of their circum- stances, the industry and abilities, or the good fortune, of individuals, were attended with gradual accumulations of wealth, and with proportional differences in the distribution of anded property. From the reign of Egbert, when England became an extensive kingdom, the sovereign was necessarily removed to a distance from a great part of his subjects ; who, for that rea^ son, were equally beyond the reach of his pro- tection, and of his authority. For putting a stop to those predatory incursions, by which the inhabitants of different districts were fre- quently harassing and injuring one another, the forces employed by the crown could sel- dom be brought to act, either with sufficient 278 PRINCIPAL EVENTS FROM EGBERT quickness to relieve the sufferer, or with suffi- cient perseverance to chastise the offender. It was necessary, therefore, when the property of any person was invaded, or threatened with invasion, by a superior power, that the owner should not, in many cases, depend upon the interposition of the sovereign or public magis- trate, but should endeavour to procure the immediate assistance of some of his neighbours. As the reciprocal acts of hostility, which were frequently committed, gave rise to hereditary feuds among particular families ; so they occa- sioned, among other families in the same neigh- bourhood, a variety of combinations and alli- ances for mutual defence and security. When the parties, who thus formed a defensive alli- ance, had been exposed to the same difficulties, and expected to derive an equal benefit from their agreement, they were led to unite upon equal terms, and remained in a state of inde- pendence. Of the societies formed in this manner, we have many instances, both in England, and in the other countries of Europe*. *They have been called sodalitia^ fraternitatcs. Dr. Hickes,Diss. Epist. p. 21. TO THE NORMAN CONQUEST. 279 But it happened more frequently that small proprietors, being exposed to continual op- pression, and to every sort of injustice, from persons of greater opulence, were obliged to so- licit the aid of one powerful neighbour, in or- der to shelter them from the attacks of another. In such a situation they could not pretend to form an alliance upon the footing of equality ; but were commonly reduced to the necessity of purchasing protection by the offer of sub- mission and services. As they were to obtain, from their protector, the same advantages which he bestowed upon his ancient military servants, it was reasonable that they should, in like manner, acknowledge his jurisdiction, and contribute to the advancement of his power and authority. Thus, in some cases, by a formal agreement, in others, perhaps, by a long and uniform submission to the feudal ser- vices, many renounced that allodial property which they were no longer able to maintain ; and, from the prospect of living in greater security, allowed themselves to be degraded into the state of military retainers or vassals. From a similarity of circumstances, these transactions were often repeated in different 280 PRINCIPAL EVENTS FROM EGBERT parts of the country, and were gradually ex- tended over the whole kingdom. The more the demesnes of particular barons had been increased by such voluntary resignations, the remaining proprietors of small estates were the less able to retain their independence; and found it the more expedient to provide for their own safety, by incorporating themselves in some great feudal dependency. The allo- dial proprietors were, in this manner, conti- nually diminishing; the landed property of England was daily accumulated in fewer hands ; and the districts possessed by parti- cular barons, who profited by the reduction of their neighbours into a state of subordina- tion, were proportionably enlarged. By these changes, the nobility, it is evident, must have obtained more weight in the scale of government. While the landed estates of individuals were so small as barely to supply the necessaries of life, the owners were too in- considerable to procure influence over others, and too numerous to prosecute an uniform plan for the advancement of their common interest. But in proportion as particular persons had acquired extensive possessions, they were ena- TO THE NORMAN CONQUEST. 281 bled to maintain a train of dependants and followers, directed on all occasions by the will of their feudal superior, and inured, by long habits, to scruple at nothing, in order to gratify his ambition, or to exalt his dignity. From the smallness of their number, these great pro- prietors might, at the same time, be combined with more facility, in opposing the exertions of the prerogative. The sovereign, we may suppose, was not an idle spectator of these alterations in the con- dition of his subjects. As every opulent baron obliged his poorer neighbours to become his vassals, the king also exerted himself in the protection of such as resided near the royal de- mesnes, and acquired over them the rights of a feudal superior. But the accessions acquired in this manner, to the revenue of the crown, and to the number of crown vassals, were pro- bably not sufficient to counterbalance the vast accumulation of landed property under the lords of particular districts. We find accord- ingly, that about the reign of Edward the Confessor, a Godwin, earl of Wessex, a Leofric, duke of Mercia, a Si ward, duke of Northum- berland, with a few more barons, had become so powerful, as to be the objects of constant 282 PRINCIPAL EVENTS FROM EGBERT alarm and jealousy to the crown, and in a great measure masters of the government. The authority of the Anglo-Saxon princes was, on the other hand, weakened, in many cases, and prevented from acquiring stability by the defects of their title to the sove- reign ty. The rules of succession to the crown appear, in all countries, to have been founded upon the same principles which govern the inheri- tance of private estates. According to the primitive notions of mankind, it was held, that, upon the death of any person, his estate should belong to his nearest relations, who, by being members of the same family, appeared to have the most intimate connexion with the family goods, of which they had formerly been a sort of joint possessors with the deceased. But in that state of the world, in which every family required a military leader to provide for their defence, the person invested with this office was by degrees permitted to assume the management, and at length to acquire the property, of that family-estate which was com- mitted to his protection. Hence the right of primogeniture in succession ; which, in oppo- sition to the feelings of natural justice, has TO THE NORMAN CONQUEST. 283 been introduced from considerations of ex- pediency. The eldest of the sons, being com- monly the first who acquired experience and reputation in war, was, upon the death of the parent, admitted to be the leader and heir of the family ; and when a general practice in his favour had once been established from the ordinary course of things, it was maintained by the force of custom, even in singular cases, where he had not the same superiority. In the succession to a monarchy there occurred a double reason for introducing this right of primogeniture ; as the monarch was not only the leader and representative of the nation, but also the heir of that private estate, which had been the original source, and was the principal support of his dignity. But in kingdoms of great extent, and which had made but small progress in the arts of government, the indi- visible succession of the crown was often maintained with greater difficulty than oc- curred in the transmission of private estates ; because the several districts of an extensive monarchy, being at a great distance, and feebly united, were apt, upon the death of a monarch, to fall asunder, and to embrace the 284 PRINCIPAL EVENTS FROM EGBERT party of those different members of the royal family, who might be tempted to aim at the sovereignty. The rules of succession to the crown of England appear, in the period now under ex- amination, to have been gradually advancing towards a regular standard ; but were far from having yet attained a perfect uniformity. Among the nineteen princes who reigned from the union of the Heptarchy to the Norman conquest, we meet with no fewer than eight, who, according to the notions of the present age, must be regarded as usurpers ; and several of these obtained the crown by titles, which, though considered as in some degree irregular, had not, in that rude age, been entirely ex- ploded. Instead of the eldest son inheriting the estate of a family, it is common, in early ages, that the children should be altogether supplanted by the brothers and other collateral relations ; who, by having arrived at a greater maturity, and possessing superior prowess, are enabled to put themselves at the head of their kindred. Thus in many of the hordes, or petty nations, upon the coast of Guinea, the children are said 4 TO THE NORMAN CONQUEST. 285 to inherit nothing from their father but his arms; his other effects are carried off by the older relations of the family. In the succes- sion of the ancient kings of Numidia, though a country far advanced beyond the state of primi- tive barbarism, the brother, as we are inform- ed by Livy, was preferred to the children of the preceding monarch. A similar practice may be discovered in several parts of the eas- tern world. It obtains at present in the La- drone island ; as it formerly regulated the transmission of the crown in the kingdom of Siam, and in some dynasties of the Chinese empire. Of this preference of the brothers, or other relations to the direct descendants, there are many traces in the early history of modern Europe; and among the Anglo-Saxon kings, even after the reign of Egbert, we meet with four instances of it; in the person of Al- fred the Great, of Edred, of Ethelred, and of Edwy ; the three first of whom succeeded to a brother ; the last to an uncle ; and all of them, in prejudice to the children of the pre- decessor. To these may be added, Edgar, surnamed the Peaceable, by whom Edwy his brother was dethroned. 286 PRINCIPAL EVEXTS FROM EGBERT According to the manners of a rude people, there is frequently little difference, with regard to the right of succession, between the chil- dren produced by a concubine and those who are born in marriage. It is the circumstance of living in the father's house, and having a sort of joint possession of the family estate, that is apprehended chiefly to bestow upon the children a title to the inheritance; and, in a country so destitute of refinement or delicacy, that the wife is indifferent about the fidelity of her husband, or is of so little con sequence that her jealousy is not regarded, his bastards are likely to be often brought up under his ow n eye, and to receive a promiscuous maintenance with his legitimate offspring. This observa- tion may be illustrated from the history of early nations, both ancient and modern, and in all quarters of the world. It is remarkable that, among the Israelites, in the time of their judges, the lawful children of Gilead had, ap- parently, no other way of preventing Jeph- thah, their bastard brother, from succeeding to the father's estate, than by driving him out of the family*. * See Judges, chap. ix. TO THE NORMAN CONQUEST. 287 The strictest of morals introduced by Chris- tianity, contributed in Europe to diminish the privileges of bastard children. It does not, however, appear, that, even so late as the time of the Norman conquest, they were under- stood, in any European country, to be totally disqualified from inheriting estates. In Eng- land, not to mention the instances that might be collected among the kings of the Hep- tarchy, we find that Athelstan, the natural son of Edward the elder, was permitted to mount tbe throne, in preference to the lawful chil- dren of his father. The accession of Canute was merely the effect of conquest ; though that prince endca-' voured to support his claim by means of a stipulation, real or pretended, with the former king. Upon the restoration of the Saxon line, the nobles had acquired so much power as enabled them to dispose of the vacant throne. To their favour Edward the Confessor, who usurped the right of the lineal heir, was prin- cipally indebted for the crown ; and the ad- vancement of Harold had confessedly no other foundation. By these numerous deviations from the re- 283 PRINCIPAL EVENTS FROM EGBERT gular course of succession, the monarch was prevented from acquiring that accumulation of hereditary influence, which is the effect of an uninterrupted and long-continued lineal descent ; at the same time that those princes who obtained the crown in an irregular man- ner were, upon that account, subjected to dif- ficulties, from which they were obliged to ex- tricate themselves by courting the nobility, and by making such concessions as tended to alter the balance of the constitution. From a singular incident, in the reign of the first Edmund, and which occasioned the death of that prince, we may easily discover that the Anglo-Saxon kings depended, in a great mea- sure, upon the arbitrary assistance of their fol- lowers, for maintaining the dignity and au- thority of the crown ; and were far from being provided with proper resources for securing a decent respect and obedience to their com- mands. " As Edmund, one day, was solem- " nizing a festival in the county of Glocester, " he remarked, that Leolf, a notorious robber, " whom he had sentenced to banishment, had " yet the boldness to enter the hall where he " dined, and to sit at table with his attendants. TO THE NORMAN CONQUEST. 289 " Enraged at this insolence, he ordered him " to leave the room ; but on his refusing to obey, the king, whose temper, naturally cho- leric, was inflamed by this additional insult, leaped on him himself, and seized him by " the hair ; but the ruffian, pushed to ex- " tremity, drew his dagger, and gave the " king a wound, of which he immediately " expired*/' * Hume's History of England, VOL. VARIATIONS irf THE STATE OF CHAPTER X. Variations in the State of Tyihings, Hundreds, and Shires, A HE resignations of land, made by allodial proprietors in order to procure the patron- age and protection of a feudal superior, were moulded in a particular manner, and received a peculiar direction, from the institutions for- merly mentioned, of tythings, hundreds, and shires ; as, on the other hand, the state of these institutions underwent a great alteration from the progress of those resignations. A tything was composed of a number of heads of families, who, possessing allodial pro- perty of small extent, and therefore having few dependents, found it convenient to live together in the same village or neighbourhood, for their mutual defence and security. The bulk of the free people, or allodial proprietors, appear to have been originally incorporated in the different tythings, throughout the king- dom ; though it is probable at the same time, TYTHINOSj HUNDREDS, AND SHIRES. that there were particular thanes, or military Ieaders 3 who, from their superior wealth and power, had ho occasion to join in any ty thing; and who Jived, in a state of greater independ- ence and dignity, at the head of their own bondmen, or tenants and vassals. Beside the villages, therefore, which were composed of the freemen* and which had the denomination of ty things, there were others, composed of the dependants of a feudal superior, placed under his immediate jurisdiction and authority*. The primitive borsholder, or tythingman* was elected by the freemen of the ty thing over which he presided ; and at first was probably but little superior to them in opulence. By degrees, however, the rank which he enjoyed, * See the laws ascribed to Edward the Confessor, pub- lished by Lambard and Wilkins. L. 21. is translated as follows : " Archiepiscopi,- episcopi, comites, barones, et " omnes qtti habuerintsacham et soccw, thol^ theatn et infang- '* thefe, etiara milites suds, et proprios servientes, scilicet " dapiferos, pincernas, camerarios$ pistores et cocos, sub " suo friborgo habeant. Et ham isti suos armigeros, vel *' alios sibi servientes fub suo friborgo. Quod si cui foris- i( facerent et clamor vicinorum de eis assurgeret, ipse tine- " rent cos rectitudini in curia sua : illi dico qui haberent 11 sacham et socani, thol et thcam, et infangthefe," r 2 VARIATIONS IN THE STATE Of together with the influence, and the perqui* sites, which he derived from thence, enabled him to increase his fortune, and to extend his authority over the different members of the community. Upon his decease therefore, the person who inherited his estate, obtaining a great part of the weight and consideration of the predecessor, was naturally promoted to the same office ; which after being continued for many generations in the same family, and be- stowing upon the representative of it succes* sive accumulations of property, was at last re- garded as no longer elective, but as a perma- nent hereditary dignity. The borsholder came thus, in his own right, to demand military service from the members of the ancient tyth* ing ; and to claim the privilege of being their judge both in civil and criminal matters. The ty thing, in short, was converted into a barony ; and that voluntary combination of the inhabi- tants, intended for their mutual defence and security, was now lost in the more intimate connection between a superior and his vassals. As the president of a tything advanced in the acquistion of this hereditary dignity, and found that his authority depended less upon, TYTHINGS, HUNDREDS, AND SHIRES. 293 the consent of his original constituents, he became less attentive, we may suppose, to the inferior duties of his office ; and the police of the village, in matters of small moment, was at length committed to a deputy. The re- mains of this inferior officer seem to be still preserved, in the annual election of a person to preside in each of the towns or parishes of England ; who in some cases retains the old appellation of headborough or tythingman ; but who, from the branches of business that have since devolved upon him, is more com- monly called the petty constable. Similar causes produced a change of the same sort in the condition of the centenarhts, This magistrate, like the tythingman, was originally chosen by the freemen of the district over which he presided ; but as the richest man of the district was most likely to carry the election, so the longer any individual had re- mained in the office, he became, from the many opportunities it afforded of increasing his riches, the more secure of holding it for the future ; and for the same reason, the heir of his private fortune, to whom he communi- cated his family interest, had likewise the pro- VARIATIONS IN THE STATE OF bability of obtaining the same dignity in pre- ference to every competitor. Thus the leader of the hundred was, through length of time, converted into an hereditary officer; and, from the superiority of his original office, was enabled to establish a permanent authority over the several tythingmen of his district. When these last had become the hereditary leaders of tythings, they were frequently reduced, there- fore, into a state of feudal subordination to the hundreder. In other cases, the influence of this greater magistrate was exerted in bringing particular tythings under his immediate pro- tection, and in checking and supplanting the tythingmen, who might otherwise have ac- quired a feudal authority in these little so- cieties. When the centenarius became a person of too much consequence to execute the inferior branches of business connected with his de- partment, a deputy was appointed for that purpose ; whence the office of the high con- stable, elected annually in those districts, ap- pears to have been derived. With respect to the alderman or chief ma- gistrate of a shire, it has been disputed whe- TYTHINGS, HUNDREDS, AND SHIRES. 295 ther he was originally nominated by the king, or elected by the freemen of the territory over, which he presided. From what has been already observed, the latter of these opinions if much more probable than the former. Con- sidering how little power was usually possessed by the sovereign in the infancy of government* not only among the Saxons, but in all the mo- dern states of Europe ; and considering that he had neither the nomination of the borsholder, nor of the centenaritis ; it is not likely, that he would assume the appointment of those who presided over the greater divisions of the king- dom. It is universally admitted, that the Anglo- Saxon officers, who, in the early periods of the Heptarchy, received the appellation of Here- tochs, were elected by the people whom they were appointed to command. These Herej- tochs were the leaders of considerable bodies of the Saxons, who upon the settlement of their followers, became the governors of provinces ; and of consequence they were in reality the same sort of magistrates with those who, upon the more accurate division of the county into shires, were better known by the name of 296 VARIATIONS IN THE STATE OP aldermen or earls. It is therefore highly pro- bable, that the first aldermen were appointed in the same manner with their predecessors the Heretochs. By degrees, however, the chief magistrate of a shire was intrusted with the collection and management of several branches of the crown revenue within the bounds of his district ; and for the execution of this part of his duty he became, of course, accountable to the king. This afforded the sovereign a pretence for interfering in the ap- pointment; and, from the effect which his interference could hardly fail to produce, ap- pears to have given him a negative upon the election*. How long the aldermen were ap- pointed in this manner, it is not easy to disco- ver : but from the same circumstances which had operated in the case of the tythingman, and the hundreder; from the necessity of appointing the most opulent thane of a shire, who alone was able to command respect from * In the reign of Alfred, the earldoms were all held dur- ing the pleasure of the king. Asser. de gest. Alfredi. In the reign of Edward the Confessor they had a third part of all fines, forfeitures, and other profits of the shire, for their Jabour. Brady's Complete Hist, of England. TYTHINGS, HUNDREDS, AND SHIRES. 297 the inhabitants ; and from the accumulation ef property, and of interest, arising from the possession of that high station ; the office was frequently continued in the same families ; and was, in the end, annexed to them as a perma- nent dignity. We accordingly find, that, in the latter part of the Anglo-Saxon line, the aldermen, or earls, as they were then more commonly called, had in general become here- ditary. In France it appears that the same change in the state of the counts and dukes was, in like manner, completed before the accession of Hugh Capet; which corresponds to the English period of the Norman conquest. We may easily conceive that the hereditary governor of a shire, who had, in his own right, the privilege of assembling and commanding the forces, as well as of holding the chief tri- bunal for distributing justice, in that extensive territory, was possessed of great influence and authority ; and that many allodial proprietors would find they had no better means of se- curing themselves from insult and depredation than by courting his protection. Even the leaders of hundreds, who had acquired a feuded superiority over their own districts, but who 398 had been placed in a station subordinate to the ear], were sometimes induced, by motives of interest, to become his immediate vassals, and to promise the same service and submis- sion to him, which they exacted from their own military retainers. In particular tythings, more immediately situated within the sphere of his influence, the powerful protection of the earl superseded that of their own ty thingmen, and, by a natural consequence, rendered the inhabitants more desirous of yielding homage and fealty to that superior magistrate, than to their own proper officers. In such cases the authority of the smaller magistrates was lost and swdllc.ved up in that of the greater. The advancement of the earl gave occasion to the appointment of an inferior officer, the sheriff; upon whom was devolved the real business connected with the office. This offi- cer was originally chosen by the free inha- bitants, or allodial proprietors of the shire ; though the extensive department committed to his care, and the great privileges with which he was invested, had the same ten- dency, as in the case of the chief governors, to vary the mode of his appointment, and, in TYTHINGS, HUNDREDS, AND SHIRES. 299 the course of time, to bestow upon him an i dependent authority, It was in this manner that allodial was ge- nerally converted into feudal property, and that an enlarged system of military dependen- cies was at length established. The necessity of defence produced the primitive associations of ty things, hundreds, and shires, composed of allodial proprietors, with their respective bond* men or vassals. But, from the disorders of society, these combinations were too loose and feeble, to answer the purposes for which they were intended. To protect and rescue the individuals in each of these communities, it was requisite that their leader should be in* vested with greater authority than had origi- nally been bestowed upon him ; and that his associates or followers should become his per- manent military servants. Tythings, hun* dreds, and even a considerable part of shires, were thus changed into fiefs ; and the tything- man, the hundreder, and the earl, became the feudal superiors over such districts as found it expedient to court their protection. A subor- dination, too, was introduced among the leaders of those districts ; and the tytliingmen 300 VARIATIONS IN THE STATE OF of a hundred became frequently the vassals of the hundreder; as many of the hundreders belonging to a shire became vassals of that greater baron, the earl. As these changes were produced very slowly and gradually, it is not surprising that they should be overlooked by cotemporary annalists. The meetings of the ty thing, the hundred, and the shire, appear to have retained the same names, and to have transacted the same sort of business, long after the two former were entirely, and the last, in a great measure, converted into the courts of a barony. The alteration, in reality, consisted merely in a different shade of authority acquired by the leader or chief magistrate of those divisions. It seems worthy of notice, that this conver- sion of allodial associations into feudal depen- dencies, while it promoted the aristocracy, was calculated to improve the police of the country. When the tythingman, the hun- dreder, and the earl were exalted to the rank of hereditary barons, they were more capable than formerly of maintaining good order in their several districts; and, as every feudal su- perior was responsible to the public for TYTHINGS, HUNDREDS, AND SHIRES. 301 conduct of his vassals and retainers, he had an interest to exert his authority in preventing rapine and violence. Unhappily, indeed, they were often too powerful to submit to this part of their duty ; and, instead of repairing the injuries done by their dependants, were fre- quently disposed to screen them from the pu- nishment due to their offences. 302 CHANGES IN THE CONDITION 6* CHAPTER XI. Changes produced in the Condition of tfie and of tJte Peasants* A FIE members of every feudal dependency consisted of the military retainers or vassals, and of the peasants, or churles ; both of whom, in the latter part of the Anglo-Saxon government, experienced a great alteration in their circumstances. In that state of society which determined allodial proprietors to shelter themselves under the protection of a feudal superior and by which the number of military retainers was therefore gradually augmented, the privileges belonging to this order of men were naturally increased ; and their condition was rendered more secure and comfortable. The original vassals of any person were the members of his Own family, who, from natural affection, and from ancient habits, were strongly attached to his interest, and upon whom, from a reciprocal regard, as well as from the consideration of THE VASSALS AND PEASANTS. 30$ expediency, when they became too numerous to live in his own house, he voluntarily be- stowed the possession of lands for their main- tenance. As the superior had no reason to suspect that these men would ever be deficient in fidelity, or seek to withdraw their allegi- ance ; so they entertained no apprehension that, while they were willing to fulfil their duty, they should ever be dispossessed of their lands. The intimate connexion between the parties, and the simplicity of their manners, made them place a mutual confidence in each other, and prevented their being apprehensive of any future disputes : so that neither the superior required any specification of the services to be performed, nor the vassal, any express stipula- tion, with respect to the duration or terms of his possession. Thus the original vassals, though, in fact, their land was commonly per- mitted to remain with them and their poste- rity, were properly no more than tenants at will, and therefore entirely dependent upon the superior, But when persons originally independent, had, with a view to certain advantages, allowed themselves to fall into a feudal subordination. S04 CHANGES IN THE CONDITION O# or had agreed to exalt an equal or a stranger to the rank of a superior, it could hardly be ex- pected that these new vassals would be willing to hold their lands in so precarious a manner. Cautious of yielding any greater submission than their circumstances required, or suspicious of neglect or oppression from the person whom they had chosen for their protector, they na- turally insisted, that the precise conditions of their tenure should be expressly ascertained ; while the superior, distrusting the fidelity and attachment of men over whom he had no natural authority, and who submitted to him, perhaps, with reluctance, and from the mere pressure of temporary difficulties, was no less anxious to specify the nature of their service, and to secure the performance of it, by sub- jecting them, in case of negligence or disobe- dience, to severe penalties and forfeitures. From a variety of conjunctures, individuals might be laid under the necessity of submitting to harder conditions, upon some occasions than upon others ; but, in general, when a feudal tenure was constituted by the consent of any allodial proprietor, it seems to have been ex- pressly provided, that the fief should not only THE VASSALS AXD PEASA.VTSi 30j remain with the vassal during life, but should descend, either to his heirs male, or to such of his heirs as were specified in the grant. By the establishment of those hereditary fiefs, the vassal, instead of being a precarious tenant, became, in effect, the proprietor of the feudal estate, and the interest of the superior was reduced to a reversion in default of the vassal's heirs, together with a right of levying, in particular cases, a variety of perquisites or casual emoluments. Of these casual emolu- ments or incidents, as they are called, which might still accrue to the superior from the estate of his vassal, after it was made trans- missible to heirs, the feudal writers have com- monly enumerated seven different sorts. 1. Though fiefs had been rendered heredi- O tary, yet, as every person who enjoyed them was liable for the feudal services, it was neces- sary that an heir, before he obtained the inves- titure, should solemnly undertake the perform- ance of them, and come under an oath of fide- lity to the superior. Upon the death of any vassal, therefore, the superior laid hold of the lands, and detained them in his possession, un- til the heir should claim a renewal of the VOL. i. x 506 CHANGES IN THE CONDITION OF feudal engagement. This privilege gave rise to what is called the incident of non-entry. 2. When the feudal tenures were precari- ous, the sons of the vassals frequently endea- voured, by a present, to procure the favour of the superior, and to obtain the continuance of their ancestor's possession. Even after fiefs became hereditary, it still was found ex- pedient to secure, by means of a bribe, what, though a matter of right, was not easily ex- torted by force; and the original arbitrary donation was converted into a regular duty, under the name of relief. 3. If the heir of a former vassal was inca- pable of performing the feudal service, he had no right to claim the possession of the lief. While he was under age, therefore, the lands were possessed by the superior ; who, at the same time, from a regard to his own interest, if not from affection to the family of his old vassal, was induced to assume the guardian- ship and protection of the minor, his future military servant. Hence the complex bur- then, and privilege, which went under the name of wardship. 4, During the disorders which prevailed THE VASSALS AND PEASANTS. 30? under the feudal governments, it was of groat consequence that the military vassals should not contract an alliance with the enemy of their liege lord ; which might have a tendency to corrupt their fidelity. When fiefs therefore were secured upon a permanent footing, a provision was made against an event of this dangerous nature; and the vassals who married without the superior's consent, or who even refused to marry according to his desire, be- came liable to a pecuniary composition or pe- nalty. Such was the incident of marriage ; a perquisite suited to the rude and barbarous manners which occasioned its establishment. 5. Beside the ordinary revenue which the superior drew from his estate, he was accus-* tomed, upon extraordinary emergencies, to apply to his vassals, and to request from them a contribution in order to relieve him from his immediate embarrassment. While they held their lands precariously, a request of this nature was equal to a command ; since the superior might at pleasure seize upon the whole estate of his tenants. But when the vassals had obtained a more permanent right, it became necessary to settle the particular x 2 .'308 CHANGES IN THE CONDITION OF occasions upon which those contribution* were to be made, as well as the extent of the sum that might be demanded ; and in this manner, aids or benevolences came to be enu- merated among the duties payable to a supe- rior. Three cases are mentioned, in which, over all the feudal kingdoms, these contribu- tions might be exacted ; to redeem the supe- rior from captivity ; to portion his eldest daughter, at her marriage; and to defray the expence of making his eldest son a knight. 6. Though a fief had been rendered here- ditaty; yet, upon the total failure of heirs, it necessarily returned to the superior. The vas- sal might also forfeit his right to the lands, by his neglect to perform the feudal service, or by any violation of his duty. This forfeiture, or termination of the fief, was called an escheat^ 1. From the primitive state of the feudal tenures, the vassal had no title to alienate his fief, which he possessed as the wages merely of his military service. But when fiefs, by being transmissible to heirs, began to assume the appearance of property ; when the general advancement of arts had rendered land more frequently an object of commerce ; and when, THE VASSALS AND PEASANTS. 309 upon the suppression of the former disorders, the military service of the vassal was rendered of less importance, it became customary, by the payment of a sum of money, to compound with the superior for the privilege of selling the feudal estate. This produced the perqui- site of superiority, called thejineof alienation. These feudal incidents may be considered as the remains of that absolute property of the fief, which the superior had formerly enjoyed : but which, with reservation of such casual emoluments, was now conveyed to the vassal. After this new species of military retainers had become numerous* and had spread them- selves over the country, it is natural to sup- pose that their privileges would, by the force of example, be communicated to the ancient vassals. The ancient feudal tenants, who, from the more extended connections of the superior, had probably become less the objects of his peculiar attention, and were not always treated with those marks of distinction to which they supposed themselves entitled, beheld with envy and jealousy the stability and security enjoyed by his new vassals ; and were solicitous to hold their lands under the same permanent tenure, 310 CHANGES IN THE CONDITION OT A concession of this nature, by which the old and faithful followers of a chief were placed upon a footing of equality with strangers, could seldom be decently withheld from them ; and in cases where he stood in immediate need of their assistance, was likely to be easily ob- tained , As these privileges were slowly and gradually introduced, and as they were often accelerated or retarded by the situation of particular baronies, not to mention a variety of accidental circumstances, it is impossible to mark the precise period at which their establishment was completed ; though it is probable that, before the Norman conquest, they were extended to the greater part, if not the whole, of the ancient vassals. While the incidents due to the superior were thus ascertained with accuracy, the in- terest of the vassals made it no less necessary, that the extent and duration of their military service should be exactly determined. In Bri- tain, and probably in several kingdoms upon the continent, it was limited accordingly to forty days for each year ; a period that might appear fully sufficient for those desultory en- terprises which the superior had occasion to THE VASSALS AND PEASANTS. 311 undertake. If ever he chose, after the expi- ration of this period, to retain his vassals in the field, he was under the necessity of pro- curing their consent, and was obliged to bear the charges of their maintenance. The effect of these changes in the state of the military tenures could not fail to be dis- cernible in the administration and government of every feudal dependency. Though it still was, no doubt, the interest of the vassals to avoid all contention with the superior, and to merit his favour by their fidelity and alacrity in the discharge of their duty, yet they were not under the same necessity of paying an implicit obedience to his commands. To whatever inconveniences they might be sub- jected from the manner of levying the feudal incidents, yet, while they punctually performed their services, they could not, without gross injustice, be deprived of their possessions ; and they had a right to follow their own inclina- tion in the management of their private con- cerns. Sensible of this alteration in their cir- cumstances, the superior was induced to be more cautious of disobliging them, to pay more deference to their opinions, to listen and give 312 CHANGES IN THF, CONDITION OF way to their remonstrances, and, in public measures of importance, to act with their ad- vice and concurrence. Thus, while the influ- ence and power of the great lords was gradu- ally extended by the multiplication of their vassals, their authority over each particular vassal was necessarily reduced ; and they were obliged to exercise it with greater moderation, as well as to endeavour, by the arts of popu- larity, and even, sometimes, by pecuniary rewards and advantages, to gain the effectual support of their followers. The improvements made in agriculture, produced alterations, of no less importance, in the state of the peasants or churles. The peasants, as has been formerly observed, were originally bondmen or slaves. But as from the nature of their employment, and from their living at such a distance as to be beyond the reach of the master's inspection, it was found expedient to excite their industry by bestowing upon them successive gratuities and privileges ; many of them were enabled, 'it an early period, to acquire considerable property ; and some of them were advanced to the con- dition of tenants, intrusted by the master with THE VASSALS AND PF.ASAVTS. 313 a discretionary management of their farms. In the natural course of things, these tenants were afterwards raised to a still better situation. When, in consequence of some experience in husbandry, they were about to undertake an expensive melioration of their farms, common prudence required that they should be secure of the possession, for such a period as might afford them a reasonable prospect of a return for their labour and expence. By offering an advanced rent to the master, they sometimes prevailed upon him to make an agreement of that nature, and to grant them a lease for a certain number of years. From the improv- ing circumstances of the tenant, he sometimes obtained, not only a right of holding the es- tate for life, but of transmitting it to heirs ; and there appear to have been some occasions, though it is probable these were not very common, on which, by the payment of a full price, he was enabled to make an entire pur- chase of the lands. Those churles who had acquired a landed estate transmissible to heirs, to be held for pay ^ meat of a yearly rent, were denominated soc- 314- CHANGES IN THE CONDITION OF cage vassals. From their employment and character, they were of an inferior rank to the military vassals ; but they had the same permanent right to their estates. They were also liable to the same incidents of superiority ; excepting those of wardship and marriage ; the former, because the superior was disposed to pay no attention to the education of such of his dependants as were employed merely in agriculture ; the latter, because the alliances which they contracted were deemed of little consequence to him. The churles who made a full purchase of a landed estate should have become allodial proprietors, and have acquired the rank and privileges of nobility ; but the influence of an- cient usage prevented so sudden and violent a change in the rank of individuals; and as the proprietor who sold his lands, was unwilling entirely to resign his dignity, so the purchaser had not the presumption to deprive him of it. To retain a faint shadow of the ancient con- nection, the latter became bound, as an ac- knowledgement of the superiority, to pay to the former an elusory annual duty, if ever it THE VASSALS AND PEASANTS, 315 should be demanded*. We find that, by a statute in the reign of king Athelstan, a churle who had purchased an estate consisting of five hides of land, with certain appendages, usually possessed by gentlemen of that fortune, was declared to have a right to all the privileges of a thane ; by which those of a lesser thane, or military vassal, were probably understood f-. From this law, which demonstrates that the encouragement of agriculture was become an object of public attention, it may be inferred, that though in some cases the churles were enabled to acquire landed property, they had not been understood, upon that account, to obtain of course the privileges of the military people ; since these were not conferred upon them without a special interposition of the le- gislature ; nor even by that statute, except upon such as had accumulated a very considerable estate. Such was the original inferiority of the peasants, and so strong were the habits connected with their primitive condition, that * This tenure has been frequently confounded with the ordinary soccage ; but sometimes is distinguished by the name of blanch. t Judicia civitatis Lundonifc. Wilkins, Leg. Sax. p. 70. 316 CHANGES IN THE CONDITION OF tliough they had been raised to independent circumstances, it was with some difficulty they were permitted to hold the rank of gen- tlemen, and procured the treatment suitable to men of that superior class. The freedom acquired by a great proportion of the peasants, together with the advances in husbandry from which it proceeded, gave rise to an immediate improvement in arts and manufactures. The first artificers were vil- leins, or servants of the greater thanes ; who happening to discover some ingenuity in the common mechanical arts, were employed by the master in those branches of manufacture, which he found requisite for his accommo- dation. The possession of their farms, accord- ing to the rude manner in which agriculture was then practised, did not hinder them from exercising this collateral employment. When these people began to be emancipated from their ancient bondage, they were at liberty to work, not only for their former master, but for every person who chose to employ them ; and by working for hire, they drew a regular profit for their labour. A competition was then introduced among different workmen, THE VASSALS AND PEASANTS. 317 which contributed to promote their industry and skill ; at the same time that the improve- ments which have been mentioned in the con- dition of the lower class of people, by increas- ing their opulence, produced an increase of de- mand for the ordinary conveniences of life ; and therefore afforded greater encouragement to the occupations by which those conveni- ences were supplied. Particular branches of manufacture, or of labour, coming in this manner to be more in request, occasioned more constant employment to individuals ; who, at length, found it their interest to abandon every other occupation, and to depend, for their livelihood, upon that single branch in which they had attained a peculiar profici- ency. A variety of trades and mechanical profes- sions were thus introduced ; and the artificers and labourers composed a separate order of men in the community.. As these grew up and were multiplied, they became the chief part of the inhabitants in those villages where they resided ; which were gradually enlarged into towns, of more or less extent according o as their situation, or other circumstances, proved more favourable to manufactures. 318 CHANGES IX THE CONDITION OF It is unnecessary to observe, that the sepa- ration of trades and professions, among the different inhabitants, occasioned, of course, a decree of traffic or exchange of commodities. o o When the artisans, as well as the fanners, confined themselves to a single employment, they were able, by their own labour, to produce only one sort of commodity ; and if they want- ed any thing of a different sort, they had com- monly no other method of procuring it, than by an exchange with the person who had pro- duced it. This exchange was at first limited, we may suppose, to the inhabitants of the same town or village ; but, according as dif- ferent places began to excel in manufacturing goods of different kinds, it was extended to neighbouring towns, or to the more distant parts of the country. Upon the opening of such intercourse between places at a distance, the inhabitants found it, in some cases, incon- venient to go themselves to purchase the goods which they wanted, and had occasion there- fore to employ some of their neighbours for that purpose; from which there arose, by de- grees, a common carrier, upon whom this branch of business was frequently devolved. As this person acquired a fittle stock, he ad- THE VASSALS AND PEASANTS. 319 ventured sometimes at his own risk, to buy commodities in one place, with a view* of selling them in another; and his employment was at length improved into that of a pedlar or travelling merchant. Although these tradesmen and mechanics were no longer in a servile condition, they had still much dependence upon the original mas- ter, or feudal superior, of that village or town in which they resided. He defended them from the attacks of the military people around them ; to which, from the turbulence and disorder of the times, they were greatly ex- posed ; and which, from their unwarlike dis- positions, they were of themselves but ill quali- fied to resist. He also encouraged and pro- moted their trade, by permitting them to hold fairs and markets, or stated seasons of ren- dezvous, between the merchants and cus- tomers of different places ; by supplying them with warehouses, and with measures and weights, for the sale of their goods ; and by such other kinds of assistance as, from the rude state of the country, and in the infancy of commerce, their circumstances mack' them 320 CII.ANCJKS rx riri; CONDITION- OF stand in need of. In return for these advan- tages, he levied from them such tolls and c? duties as they were able to hear ; and of con- sequence augmented bisrcvepue in proportion to the increase of their wealth. According as the patron and protector of these manufacturing and trading towns was possessed of greater influence and power, their trade was likely to be the more prosperous and flourishing. Some of those towns, having o o sprung from the peasantry of the crown-de- mesnes, were under the immediate patronage of the sovereign ; others, being situated upon the estates of the greater thanes, were under the protection of those nobles. The former, it is evident, enjoyed a great superiority over the latter. The protection of no particular nobleman could reach beyond the limits of his own estate; but that of the sovereign ex- tended, in some measure, over the whole of the kingdom : not to mention that the king, by residing occasionally in the towns of which he was the immediate protector, and which he was naturally desirous of encouraging, pro- duced a resort of the nobility and gentry to 1 THE VASSALS AND PEASANTS, those places ; and, by the expensive living in- cident to a court, created an additional con- sumption of their commodities* The extent of the trade of England, before the Norman conquest, cannot, at this distance of time, be ascertained with any degree of pre- cision ; but there is reason to believe that it was not very considerable. Of this we need require no further evidence than the small size of the principal towns in the reign of William the conqueror *. It appears, however, that, for more than a century before that period, the commerce and manufactures of the coun- try had been making advances which attracted the notice of the legislature. By a law of king Athelstan it is enacted, that a merchant who, upon his own account, had made three trading voyages to a foreign country, should acquire the privileges of a thane -f*. Such extensive trade, it was probably thought at that time, * With regard to this point, see Doomsday-book and Dr. Brady on Boroughs. t Et si mercator tamen sit, qui ter trans altum mare " per facilitates proprias abeat, ille postea jure thani sit M dignus." [Judicia civitatis Lundoniae. Wilkins, JLeg. Sax. p. 71.] VOi. I. Y 322 CHANGES IN THE CONDITION OP could be attempted only by a person of un- common spirit, and in affluent circumstances ; whose elevation, while it served as an incite- ment to commercial enterprize, might be re- garded as no disparagement to the military people. In other statutes which have been preserved, of the same, and of subsequent princes, we meet with some of those funda- mental regulations, which commonly have place in every country, upon the first efforts to introduce a regular commerce ; such as the establishment of certain formalities in com- pleting mercantile transactions*; and the ap- pointment of a mint in the principal towns-f-; together with that of a common standard of money, and of weights or measures J. By the addition of artificers and tradesmen to the different orders formerly mentioned, the whole people of England came now to be. distinguished into four great classes ; which, from their differences in rank or employment, in characters and habits of living, were sepa- rated and kept at a distance from one another. * Wilkins, Leg. Sax. p. 80, 81. t Ibid. p. 59. * Ibid. p. 78, ; THE VASSALS AND PEASANTS. 323 Those who exercised the honourable profession of arms, whether in the station of greater or lesser thanes, of superiors or vassals, thought it inconsistent with their dignity to engage in any lucrative occupation ; and disdained to contract alliances with farmers or manufac- turers*. The two latter orders of men, though nearly of the same rank, were by their situation prevented from living together, and led to acquire very different manners, and ways of thinking. The solitary and robust employment of the farmer was not apt to form a similar style of behaviour and accomplish- ments to that which was produced by the sedentary town-life of the manufacturer ; and in a country where improvements had not been carried so far as to create an intimate corres- pondence among all the members of society, those two sets of men were not likely to ex- change their professions. The children of the * After the Norman conquest, we find that the superior lord was prohibited by statute to marry his female ward to a villain or a burgess. It is probable that the rank of the two last- mentioned orders of men had risen considerably, before this prohibition was thought necessary. Y2 324 CHANGES IN TfcE CONDITION O? farmers, as well as those of the tradesmen and mechanics, ^rere commonly disposed to follow that way of life with which they had been early acquainted. They were even bred up m most cases, to their father's employment, be- fore they could well have an opportunity of comparing it with any other. Not only were those two orders of men, in general, confined to their respective professions, but the me- chanics, employed in the several branches of manufacture, frequently transmitted their oc rupations to their posterity; and continued them, for many generations, in the same fami- lies. The clergy, who formed a numerous and powerful body, were no less distinguished from the three other classes, by their peculiar edu- cation, by their separate views of interest, and by their professional character and manners. The celibacy, indeed, of the clergy, which, however, was introduced in England after the period that we are examining, prevented this- order of men from being so entirely separated, from the rest of the inhabitants, as might other- wise have been expected. When church* men were prohibited from having posterity THE VASSALS AXD PEASANTS, 325 of their own, it was necessary that their pro- fession should be supplied from the other ranks of the society. From the natural course of things, it should seem, that in every country where religion has had so much influence as to introduce a great body of ecclesiastics, the people, upon the first advances made in agriculture, and in manu- factures, are usually distributed into the same number of classes or orders. This distribution is, accordingly, to be found, not only in all the European nations, formed upon the ruins of the Roman empire; but in other ages, and in very distant parts of the globe. The ancient inhabitants of Egypt are said to have been di- vided into the clergy, the military people, the husbandmen, and the artificers; and these four descriptions of men were, by a public re- gulation, or more probably by the influence of custom, derived from the early situation of the country, kept invariably distinct from one an- other. The establishment of the four great castes, in the country of Indostan, is precisely of the same nature. This division of the peo- ple, which goes back into the remotest anti- quity, has been ascribed, by historians and po- 326 CHANGES IN THE CONDITION, &C litical writers, to the positive institution of Brama, the early, and perhaps fabulous legis- lator of that country ; but, in all probability, it arose from the natural separation of the principal professions or employments in the state : as it has been since retained by that ex- cessive indolence, to which the inhabitants of those warm and fertile regions are addicted, and which has hitherto checked their improve- ments, by producing an aversion to every species of innovation. 327 CHAPTER XII. The Influence of these Clianges upon the Juris- diction and Authority of the feudal Lords. JL HE advancement of the Anglo-Saxon vassals and peasants to greater security and freedom, and the separation of the trading people from the class of husbandmen, could not fail to limit the authority of the superior, and more especially to affect the state of his jurisdiction. When his military retainers held their benefices precariously, and when the other members of his barony were either bond- men, or merely tenants at will, he found him- self under no restraint, in deciding their differ- ences, and in punishing their offences; but after the former had obtained hereditary fiefs, and a great proportion of the latter had been exalted to the rank of soccage-vassals, he was obliged to relax his claim to their obedience, and to distribute justice among them with greater moderation and circumspection. The retainers of every feudal superior were 328 INFLUENCE OF CHANGES UPON THE bound, not only to the performance of military or other services, but also to assist him in main- taining good order and tranquillity within his barony ; and therefore, when any of them complained of injustice from another, or was accused of a crime, the .baron found it ex- pedient, instead of deciding by virtue of his own authority, to call a number of his other vassals, and to proceed with their advice ancj concurrence, in trying their cause. This ex- pedient was the most equitable for the person concerned in the trial, as well as the best cal- culated for giving weight to the decision. The assessors of the judges were the pares curia, men of the same rank with one another, and with the parties ; they were chosen occasion- ally, and varied in each cause, to avoid bur- .dening any individual more than his just pro- portion ; and they were commonly selected from the neighbourhood of the place where the accusation or dispute had taken its rise, that, from their own private knowledge, they might be enablecj to form a better judgment of the facts in question. Thus the trial by an inquest or jury, which had formerly taken place in the tribunals of JURISDICTION OF FEUDAL LORDS. 329 the shire, and of the hundred, was introduced into those of a feudal barony. The causes, however, of this institution, in the former and in the latter, were somewhat different. A jury was found convenient, in the courts of the shire, and of the hundred, to supersede the attendance of all their members ; and might be regarded as a sort of committee, in place of a full and regular meeting. In the courts of the baron, its interpositions became necessary, in place of the decisions formerly given by the judge himself, in order to supply his deficience in authority over vassals whose fiefs had been secured to them by a permanent right. A jury was therefore an institution less popular than that which had formerly obtained in the county or the hundred courts, but more so, than the mode of jurisdiction originally dis- played in the courts of the baron. It is rea- sonable, at the same time, to suppose, that, when allodial proprietors had been changed into vassals, the custom of jury-trials in the courts of the former, would facilitate the in- troduction of a similar practice in the judicial establishments of the latter. That this form of trial obtained universally 350 INFLUENCE OP CHANGES UPON THE in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any ac- counts of the constitution and procedure of the feudal courts, it appears that law-suits of every sort, concerning the freemen or vassals of a barony, were determined by the pares curia i and that the judge took little more upon him, than to regulate the method of proceeding, or to declare the verdict of the jury- The number of jurymen was originally varied in each cause, according as the opu- lence and power of the parties, or the magni- tude of the dispute, rendered it more or less difficult to enforce the decision. So little, after all, was the authority of the court, that, in many cases, the party aggrieved by the verdict assumed the privilege of challenging the jurymen to single combat*. From the progress of regular government, and in conse- quence of the disposition among mankind to be governed by general rules, a certain number t)f jurymen became customary in ordinary * Spirit of Laws. JURISDICTION OF FEUDAL LORDS. 331 causes; and at last was universally established. From accidental circumstances, of little im- portance, a different number has been estab- lished in different countries ; as that of twelve in England and fifteen in Scotland. With respect to the time when trials by jury were first introduced into the court of every feudal barony, we are left in the same obscurity, as concerning their previous intro- duction among the allodial proprietors, in the courts of the hundred and of the county. But considering the circumstances from which the superior was induced to adopt this mode of procedure, there is ground to believe that it arose upon the establishment of hereditary fiefs, and became gradually more universal, according as the number of the feudal tenants, who had obtained a perpetual right to their possessions, was increased. In this view, it seems probable that the practice of juries, in the baron-courts, was not very common in England till near the end of the Anglo-Saxon government. In the opinion of some antiquaries, the first vestige of a jury-trial, in the English history, is pos- terior to the Norman invasion ; a mistake / INFLUENCE OF CHANGES UPON THt which appears to have arisen from the sup- position, that before this period hereditary fiefs were unknown in England. o Though the fact seems now to be admitted* that jury-trials were established in the baron courts of every feudal kingdom, yet the origin of that institution has been the subject of much doubt and controversy. Some au- thors have thought that jurymen were origi- nally cowpurgators, called by a defendant, to swear that they believed him innocent of the facts with which he was charged. In the church courts, a person accused of a crime was understood to be guilty, unless he could clear himself by what was called the oath of purgation; and in some cases, unless his own oath was confirmed by that of a number of other persons acquainted with his behaviour. The injustice of this general presumption of guilt, the very opposite of what should be en- tertained in every court of justice, was the less observable, as the consequence of it was merely to draw upon the guilty person a spi- ritual admonition, or censure, for the good of his soul. From the influence of ecclesiastical procedure, the same rule, however, was after- JURISDICTION OF FEUDAL LORDS. 333 wards adopted in the temporal courts; where it came to be much more oppressive. But the province of Compurgators, in those courts, and that of jurymen, were so totally different, as to make it scarcely possible to conceive that the latter could arise out of the former. Compurgators were merely wit- nesses ; jurymen were, in reality, judges. The former were called to confirm the oath of the party, by swearing, according to their belief, that he had told the truth : the latter were ap- pointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty. Compurgators, for this reason, were called by the party himself: the jury, on the contrary, were named by the magistrate. In consequence of the different departments, occupied by these two descriptions of men, it should seem that, in most of the feudal go- vernments, they existed at one and the same time; and that juries were accustomed to as- certain the truth of facts, by the defendant's oath of purgation, together with that of hi* Compurgators. We can have no doubt that this was formerly the practice; since it is, i i 334- INFLUENCE OF CHANGES I'PON even at present, retained by the English, in what is called the wager of law. There are two particulars in which we difr- cover a resemblance between the procedure of compurgators and of jurymen ; whence, in all probability, the opinion abovementioned has arisen. Both of them were obliged to swear, that they would tell the truth ; and both were subjected to confinement until they had given their declaration. But these regulations con- cerning jurymen afford no proof that they were ever considered in the light of com pur- gators. According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact ; and it was thought, that no man, who knew the real circum- stances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted. It was, at the same time, sus- pected, that individuals drawn occasionally from the common mass of the people, to give judgment in a law-suit, might be exposed to improper influence; for which reason pre- cautions were taken to prevent their having the least intercourse with the parties or their connexions. JURISDICTION OF FEUDAL LORDS* 335 As to the unanimity required in the Eng- lish juries, a circumstance in which they agree with the ancient compur gators, it has not been universally established in the feudal govern- ments. President Montesquieu, who, at the same time, accounts for it, from a point of ho- nour observed by the pares curia in their judi- cial decisions, that they should agree with one another in pronouncing a verdict; because they were obliged to fight either of the parties who might give them the lie. The same form of procedure which took place in the administration of justice, among the vassals of a barony, was gradually extended to the courts held in the trading towns. Not- withstanding the freedom acquired by the mercantile people, they still submitted to the jurisdiction of that person to whom they were indebted for protection, and were reduced by him under a system of government, similar to that which he established among his vassals. In as much as they held lands, for which they paid him a certain rent, they were in reality a species of feudal tenants. The ancient jurisdiction of the greater thanes, or feudal superiors, came thus to be 336 1NTLUEXCE OF CHANGES UPON THE exercised in two different courts. The one, in which causes were determined with the assist- ance of a jury, took cognizance of the military and soccage vassals, together with the inhabi- tants of the trading towns, under the protec- tion of the superior. The other, which pro- ceeded without that formality, was held for the trial of such members of the barony as were still in a state of greater dependance. The former is that which, according to some ' O authors, was properly called the court-lcet ; being the court of the Liti, or free people. The latter, in which the superior retained his ancient authority, received by Way of distiiic* tion, it is said, the general appellation of the court-baron*. It is worthy of notice, that the king, con- sidered as a feudal superior, was in the same circumstances with the greater thanes ; and that, by the gradual multiplication of his vas- sals, his authority over them underwent a * Bacon's discourse on tho government of "England, col- lected from the MS. notes of Mr. Seldon, chap. 33. Also The Mirror. " Liti ac Litones idem ac Lassi et Liberti censentur.'* Muratori Ant. Med. ^Eri. torn. i. dissert. 15. JURISDICTION OF FEUDAL LORDS. 33? similar limitation. The same regulations, therefore, concerning the distribution of jus* tice by the intervention of juries, with the same distinction in this respect between his vassals and bondmen, were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property. The improvements which I have mentioned, in the state of the feudal courts, could not fail to produce a more equal and impartial dis- tribution of justice ; and this circumstance, to- gether with the general advancement of civil society, contributed to increase the business of those tribunals. From the greater diffusion of property among the people of inferior con- dition, law-suits became somewhat more numerous; and from their being frequently decided by men of the same rank with the parties, were likely to procure a fuller and more deliberate hearing. As the exercise of jurisdiction was thus rendered more tedious and burdensome, the great lords, as well as the king, who had been accustomed to pre- side in the trial both of civil and criminal causes, within their several baronies, were less YOL. I. z 338 INFLUENCE OF CHANGES UPON THK disposed to give the necessary attendance; and by appointing deputy judges, endeavoured to relieve themselves from a great part of the labour. The same circumstances which gave o rise to these inferior officers, contributed af- terwards to enlarge their powers ; and from the negligence of their constituents, who seldom interfered in controuling their deci- sions, and at last entirely abandoned the em- ployment of judging, they became the ordi- nary magistrates in the several demesnes or territories committed to their direction. The transference of jurisdiction, from the primitive judges to their deputies, laid a foun- dation for one of the most important altera- tions in the system of judicial policy. The tixecnti-ce and judiciary powers, with which every feudal baron was originally invested, were in this manner separated from each other ; and the exercise of the latter became the sole occupation of particular persons ; who, upon that account, were likely to give greater application, as well as to acquire more experi- ence and knowledge in the determination of law-suits. The judges of a barony, though nominated by the baron, had necessarily their JURISDICTION OF FEUDAL LORDS. 339 own views of right and wrong ; and having a character to support, might be supposed, in some cases, to conduct themselves without re- gard to the interest of their constituents. It happened likewise from the natural course of things, that as the most opulent vassals were found the best qualified for maintaining the dignity of a judge, the same persons were fre- quently enabled to secure the office during life, and even sometimes to render it heredi- tary. In either case the judge became in a great measure independent of the feudal lord from whom his authority had been derived. It must be acknowledged, however, that long after the period which we are now examining, the king's judges continued under a precarious appointment. A distinguished political author has pointed out the separation of the judicial power from the king's prerogative, as one of the great sources of the liberty enjoyed by the subjects of Britain. To those who speculate upon the conduct of human affairs, it is amusing to dis- cover, that this important regulation was nei- ther introduced from any foresight of its be- neficial consequences, nor extorted from the z 2 340 IXFLUEXCK or CHANGES UPON THE monarch by any party that were jealous of his power ; but was merely the suggestion of indolence ; and was adopted by the king, in common with other feudal superiors, to relieve them from a decree of labour and attention o which thev did not chuse to bestow. It was, / in reality, a consequence of the general pro- gress of society, by which employments of every sort, both liberal and mechanical, have been distributed among different individuals, and have become the object of separate pro- fessions and trades. As soon as the business of a judge became the sole employment of particular persons, it was necessary that they .should obtain a main- tenance in return for their labour. This was acquired without any difficulty, from the very exercise of their profession ; as the superior by whom they were appointed, empowered them to exact a fee or perquisite from every party whose cause they had occasion to determine. These exactions, which came to be fixed, in every step of judicial procedure, according to the degree of trouble it was understood to pro- duce, were not only sufficient for maintaining the judge, but afforded also an emolument to JURISDICTION OP FEUDAL LOUDS. 341 the superior, who demanded from his deputy a strict account of the fees he had levied. To prevent any embezzlement in this respect, a clerk was appointed to sit in court along with the judge, and to keep a record of judicial proceedings. Such was probably the first in- tention, not only in England, but in all the feudal countries, of recording the decisions of a judge; though the practice was afterwards made subservient to other purposes of the highest utility. Of the fees, or perquisites, drawn by the judges under the appointment of the crown, the sovereign acquired a considerable propor- tion, which formed an additional branch of the public revenue. From this method of maintaining judges, they had obviously an interest to increase their perquisites by encouraging law-suits, and multiplying the forms of judicial procedure. Hence there occurred a new reason for the interposition of juries in the court of a barony ; that they might prevent the unreasonable de- lay of justice. It may, at the same time, per- haps be admitted, that the interested activity and vigilance of the magistrate was, in that 342 INFLUENCE OF CHANGES, &C. early and rude age, more beneficial in pre- venting disorder and violence, than it was hurtful, either by promoting litigiousness, or by introducing tedious and absurd formalities into the system of judicial discussion. OF ECCLESIASTICAL COURTS. 343 .M^^lMkJM^d " ' CHAPTER X11I. Of Ecclesiastical Courts. WHILE the nobles were gradually ex- tending their power, and reducing that of the sovereign, the ecclesiastical order was advancing, with hasty strides, to the establish- ment of an authority independent of either. The barbarism and superstition that suc- ceeded the downfal of the Roman empire, and the system of ecclesiastical government erected in the western part of Europe, had a uniform tendency, as has been already ob- served, to increase the wealth and influence of the church. Were we to consider merely the progress of superstition, we should expect that the usurpations of the clergy would be most rapid in those European countries, which were at the greatest distance from the incitements to cultivation, and in which the ignorance and simplicity of the inhabitants disposed them to follow more implicitly the direction of their spiritual guides. But the fact wa* other- .344 OF ECCLESIASTICAL COURTS. wise. The kingdoms in the neighbourhood of the pope's residence, and of his temporal dominions, were nearer the center of that art- ful policy, which by taking advantage of con- junctures, exalted no less the power and pri- vileges of the church than the dignity and authority of her leader. Thus the right ot levying the tythcs, that enormous imposition for the support of the clergy, and which marks the prodigious extent of ecclesiastical influ- ence, was introduced in France, and over a great part of Italy, as early at least as the timeof Charlemagne ; which corresponds to that of Egbert among the Anglo-Saxons ; and the same tax was afterwards extended, by de- grees, to the other countries of Europe. It appears to have been finally established in England, during the reigns of Alfred and of Athclstan ; patriotic princes, who, doubtless, found themselves under the necessity of giving way to the current of the 'times, by submit- ting to such an oppressive exaction. The increasing opulence of the clergy, as it was an effect of the blind zeal, and the ge- neral debasement of the people, so it was ac- companied by a corresponding perversion of OF ECCLESIASTICAL COURTS. 345 religious opinions, and by an increase of super- stitious observances. The real virtues of so- ciety, whose intrinsic value recommends them to our observance, and which frequently ap- pear to cost us nothing, came to be little es- teemed, in comparison of penances and mor- tifications ; from which nature is disposed to shrink ; and which are submitted to, for no other purpose, but that of appeasing the wrath of an offended deity. These last were ac- counted highly meritorious in persons of every description : but were thought more especially suitable to the profession and character of churchmen ; upon whom it was incumbent to set an example to others. The monks, in particular, who, by their original institution, had no other means of distinction, were in- cited to procure admiration by the austerity of their lives, and by the severe and painful dis- cipline which they underwent. As they ad- vanced in reputation and popularity, they ac- quired more numerous and wealthy establish- ments ; their influence in religious matter? became proportionably extensive ; and they not only rose to great consideration in the go- vernment of the church, but frequently, too, 346 OF ECCLESIASTICAL COURTS. interfered in that of the state. From the con- tinent of Europe, the same practices, and ways of thinking, were communicated to Britain ; where, about the middle of the tenth century, we find St. Dunstan, at the head of the regular clergy, possessed of such power and credit, as enabled him to controul the administration of government, and even to dispose of the crown. Among the several branches of mortification imposed by the monastic rules, that of celibacy, or a total abstinence from the intercourse of the sexes, was deemed the most important ; whether on account of the difficulties which must be surmounted in counteracting the most violent propensities of nature; or on ac- count of that variation of temperature in the human frame, which, however irresistible those propensities may be at certain seasons, yet, on other occasions, renders the indul- gence, or even the expression of them, an ob- ject of aversion and disgust. This, therefore, became now the usual topic of declamation to the English monks ; who, finding the se- cular clergy to be their great rivals in the public esteem, and being impatient of that superior authority which they possessed, in- OF ECCLESIASTICAL COURTS. 347 veigbed against their married life, as in con* sistent with the purity of a Christian pastor ; representing their wives in the light of con- cubines or prostitutes, and their children as bastards. Though the doctrine inculcated by these fanatical zealots was not carried into execution until a subsequent period, it appears, even at this time, to have been approved and supported by the general voice of the people. From the situation of the Christian clergy, and from the influence and authority which */ they enjoyed, they were led early to assume the cognizance of judicial business, and to form a number of tribunals for the exercise of their jurisdiction. Even before the time of Constantine, when they received no protection or countenance from the civil government, they were accustomed to enquire into the faith and manners of Christians, and, after repeated admonitions, to excommunicate those indivi- duals who persisted in opinions, or practices, which the church had condemned. This juris- diction was at first exercised by the clergy- man, together with the most respectable among the laity, of each particular church; but when the zeal of the latter, from the greater OF ECCLESIASTICAL COURTS. ion of the gospel, had begun to slacken, they became weary of interfering in such matters ; and as they gradually lost their privilege by disuse, the business remained entirely in the hands of the former. When a number of churches were afterwards united in one dio- cese, the clergy of that latter district, under the authority of the bishop, exercised a juris- diction of a like nature over the whole of the inhabitants. In the meetings that were called, however, for this purpose, after the intro- duction of wealth had produced very different degrees of rank among churchmen, the paro- chial, or inferior clergy, were by degrees over- looked, or endeavoured to excuse themselves from attendance; and the care of maintaining ecclesiastical discipline, throughout the dio- cese, was appropriated to the bishop and clergy of his cathedral church. This diocesan court, which, from a perfect uniformity of circum- stances, was formed upon the same plan in every diocese of the kingdom, was every where liable to the review of a similar court, in a still more extensive district, convened by the archbishop ; and from the decrees of this last, at a period when the papal authority had OF ECCLESIASTICAL COURTS. 349 arrived at its height, there lay an appeal to the Roman pontiff'. Together with this judicial authority, which was properly of a spiritual nature, the Christian clergy came also to be invested with a tem- poral jurisdiction. After the Christian religion was taken under the protection of the Roman government, and after the fashion of making donations to the church, for pious uses, had become prevalent, the dignified clergy, both secular and regular, as has been formerly men- tioned, were enabled to acquire great landed estates. These, upon the settlement of the Gothic nations in the western part of Europe, were gradually reduced under the same feudal policy that obtained in the landed property of the lay-barons ; and a great proportion of the lands of every bishop, or abbot, was commonly distributed among his villeins or vassals ; over whom he exercised the jurisdiction and au- thority of a temporal lord and superior. Tin-, estate, or benefice, which from the piety of well-disposed persons, or from whatever cause, had been mortified to the church, and had come into the hands of some particular church- 350 OF ECCLESIASTICAL COTRTS. man, was afterwards, in like manner as hap- pened to the other fiefs of the kingdom, in- creased by the voluntary submission of neigh- bouring small proprietors ; who, in order to purchase his protection, resigned their allodial property, and became his vassals. As the dignified ecclesiastics were not only possessed of a degree of influence corresponding to the extent of their benefices, but were supported by the spiritual arm of the church, they were often better qualified than many of the nobles, to secure their dependants from oppression ; and of consequence the opportunities of aug- menting their wealth, by an artful interpo- sition in behalf of the inferior people, were proportionably more frequent. In those circumstances, a bishop came to be invested with a civil as well as an eccle- siastical jurisdiction ; the one extending to the people who lived upon his own estate ; the other to all the inhabitants of his diocese. By virtue of the former, he punished the crimes, and determined the pecuniary differences of his tenants and vassals. In con sequence of the latter, he enquired inu> the opinions and be- OF ECCLESIASTICAL COURTS. 351 haviour of such as were under his direction in religious matters ; and censured them, either for heresy or immorality. It required no great penetration to discover, that this temporal jurisdiction of the bishop might be extended, under cover of the spi- ritual jurisdiction. Every crime; every trans- gression of a rule of justice, whether of a public or private nature, may be considered as a sin, or as an offence in the sight of God ; and in that view it might, consistently with the system of church-discipline, become an object of ecclesiastical censure. Whatever, therefore, could be the ground of an action before the civil magistrate, might be brought, at the same time, under the cognizance of the spiritual judge. The professed purpose of the former was, indeed, very different from that of the latter, who pretended to act merely with the view of promoting the good of the party in a future world. But when the church had acquired great authority over the people, it was not difficult for the ecclesiastical judge to frame his sentences in such a manner as to affect also the interest of men in the present life. In making atonement for a sin, the Of ECCLESIASTICAL COURTS. offender might be ordained to indemnify the injured person, or even to submit to a public punishment. This extension of ecclesiastical jurisdiction was made with greater or less rapidity, in different parts of Christendom, and with re- gard to persons or causes of different descrip- tions. It began with regard to the clergy themselves. To maintain the dignity and credit of the church, it was necessary that she should pay the utmost attention to the behaviour of her own members, and be careful to avoid scan- dal, by censuring their offences with impar- tiality and rigour. She found, at the same time, the least difficulty in compelling church- men to obey her decrees ; for, as soon as the Christian Church had come to be established by law, the excommunication of a clergyman must have inferred a forfeiture of his benefice ; since a person, who had been cast out of the society of Christians, could not consistently be permitted to hold any ecclesiastical dignity or employment. From the severe discipline, which the church exercised over her own members, it became customary to exhibit com- OF ECCLESIASTICAL COURTS. 353 plaints against them before the ecclesiastical, rather than before the civil judge,- and to pro- secute them in the church court, either for private debts, or for public offences. After this practice had become general, it was regarded by churchmen as a matter of privilege. The peculiar functions and cha- racter of a clergyman required a peculiar de- licacy, it was pretended, in judging of his conduct, which could not with propriety fall under the cognizance of the civil magistrate, and of which the clergy themselves were the only competent judges. In the progress of church power, this exemption from the juris- diction of temporal courts was gradually esta- blished through the greater part of Christen- dom. It was introduced in the diocese of Rome by a law of Alaric, which provided that the clergy of that district should only be prosecuted, in the first instance, before their own bishop; but from his decision an appeal was admitted to the civil magistrate. In the Eastern empire, the inferior clergy ob- tained a similar privilege, in civil actions, by a law of the emperor Justinian ; though, in criminal causes, not properly ecclesiastical, VOL. i. A A Of ECCLESIASTICAL COURTS. they might still be prosecuted either in th* spiritual or temporal court. The higher orders of churchmen, however, together with nuns, were, by the regulation of this emperor, per- mitted, in all cases, to decline the jurisdiction of laic judges*. When the exemption of the clergy from the jurisdiction of the civil magistrate, which, with the exception of a few causes, became universal in the Western part of Europe, had been completely established, the church was, in reality, independent of the state ; since* whatever regulations were enacted by the le- gislature of any country, they might, -with safety, be disregarded by churchmen, who could not be punished for the violation of any law, unless they thought proper to enforce it by their own courts -f-. The power of the church, in the adminis- tration of justice to her own members, was followed by a similar jurisdiction over the laity, in those law-suits by which her own * V. Nov. S3. 123. 79. Also Gianone, Hist, of Naples. t There were certain great crimes, such as high treason, and sacrilege, to which this exemption did not extend. ,OF ECCLESIASTICAL ..QO.UItTS. interest .might, in any degree, be affected, or wlu'clv appeared, however indirectly, to have an influence upon any ecclesiastical matter. But, in England, this encroachment upon the province of the civil magistrate was posterior to the Norman conquest ; and therefore does not fall under our present consideration. Dur- ing the government of the Anglo-Saxon princes, the clergy did not claim a separate cognizance in the temporal causes of the laity; but they laid the foundation of such a claim, in a future period, by assuming a privilege of assisting the ordinary magistrates in the deter- mination of such causes. The extent of a dio- cese being the same with that of a shire, the bishop sat along with the earl or sheriff, as a judge, in the county courts ; and the rural dean, whose ecclesiastical district coincided with the hundred, appears, in like manner, to have been associated with the centenaries, in the determination of such differences as arose among the people of that division. It is not improbable that the union of the civil and ecclesiastical powers was carried still lower, and that the parson of a parish was accustomed to judge along with the tythingman, in the A A 2 356 OF ECCLESIASTICAL COURTS* court of the decennary : this is what might be expected from the correspondence between the limits of a parish and a ty thing, and from the analogous practice in the superior courts ; though the accounts transmitted by early his- torians are too vague and general to afford any positive evidence of the fact. This arrangement of the Saxon tribunals was a natural consequence of the influence possessed by the spiritual and the temporal go- vernors, in the territories over which they pre- sided. It seems, at the same time, to have been esteemed a wise regulation ; in as much as by uniting the opinion of those two officers, in the distribution of justice, it was likely that the decisions would be tempered in such a manner, as might correspond to the interest, and the views, of every set of men in the com- munity. The experience and foresight of that age was too limited to discover the incon- veniency of confounding the plain and accu- rate rules of justice, with the intricate subtle- ties of casuistry, which naturally introduce themselves into the judgments of a spiritual director : not to mention the danger of com- mitting a share of the judicia,! power, in those OF ECCLESIASTICAL COURTS. 357 times of ignorance, to a set of men, who, by their superior education, were likely to be an over-match for the civil magistrate, and who, by their situation, having acquired a separate interest, were led to seek their own aggrandize- ment at the expence of the great body of thfi people. 358 ALTERATIONS IN THE STATE 'tf> CIIAPf ER XIV. Alteration in th* ' Sfdfe of the WMenai/emote. - A HE progressive changes in the state of property, and in the constitution and circum- stances of the people, of which an account has been given, must have contributed, in many particulars, to alter the constitution and procedure of the Wittenagcmote. As this national counsel was composed of all the allodial proprietors of land, whose estates, according to the primitive distribution of pro- perty, were generally of small extent, there can be no doubt that, upon the union of tho different kingdoms of the Heptarchy, it formed a very numerous, and, in some degree, a tumultuary meeting. The measures which came under its deliberation were proposed, it should seem, by such of its members as were distinguished by their influence or abilities; and its determinations were signified, not by col- lecting exactly the number of suffrages, but by a promiscuous acclamation, in which the OF THE WITTENAQEMOTE. 359 foy-standers, it is not unlikely, were accus- tomed frequently to join with those who iiad the right of voting. This, ill all probability, is what is meant by the early historians, when they speak of the people being present in the ancient Wittenagemote, and of their assisting, and giving their consent, in forming the re- solutions of that assembly. It cannot escape observation, that this early constitution of the national council, while it contained a mixture of democracy and aristo- cracy, was, in some respects, favourable also to the interests of the crown. In so numerous and, disorderly an assembly, there was great room for address, in managing parties, and in conducting the subjects of public deliberation ; so that the king, the chief executive officer, had many opportunities of promoting the suc- cess of a favourite plan, as well as of parrying, and removing out of sight, those measures which were disagreeable to him. o The frequent resignations of land which, during the progress of the Saxon government, were made by the small allodial proprietors, in order to shelter themselves under the protection of a feudal superior, necessarily withdrew those ALTERATIONS IN THE STATE individuals from the Wittenagemote ; and re- ducrd them under the jurisdiction and authority of that particular thane whom they had chosen for their protector. As they became his mi- litary servants, they were bound, on every occasion, to espouse his quarrel, and to follow his banner. They were bound, at the same time, to attend his baron-court, and to assist in deciding causes, as well as in making regu- lations, with regard to his vassals. In con- sistency with that subordinate station, they could not be permitted to sit in the same council with their liege lord, to deliberate with him upon public affairs ; but, on the contrary, were understood to be represented in the Wittenagemote by the person who had undertaken to protect them, and to whom they owed submission and obedience. Thus, according as the vassals of the nobility, throughout the kingdom, were multiplied, the constituent members of the Wittenagemote became less numerous ; and the right of sit- ting in that assembly was more and more limited, to a few opulent barons, who had acquired the property of extensive districts,, OF THE WITTEXACEMOTE. 36l and reduced the inhabitants under their do- minion. This change of circumstances was no less o unfavourable to the king, on the one hand, than it was, on the other, to the great body of the people. For although the vassals of the crown were, by the gradual resignations of allodial propert} r , increased in the same, or even in a greater proportion than those of particular noblemen, the sovereign was not thence enabled to preserve his former weight in the determination of public measures. The more the national council had been reduced to a small junto of nobles, it was the more diffi- cult to impose upon them, or by any stra- tagem to divert them from prosecuting their own views of interest or ambition. By the accidental combination of different leaders, they sometimes collected a force which no- thing could resist ; and were in a condition, not only to defend their own privileges, but even to invade the prerogative. It was often yain for the sovereign, in such a situation, to appeal to the sword from the decisions of the "Wittenagemote. Those haughty and am- bitious subjects were generally prepared for ALTERATIONS IX THE STATE such a determination ; and, as they came into the assembly, supported by their vassals, armed and ready to take the field, they got frequently the start of his majesty. To give way, there- fore, to their demands* and to wait for some future opportunity of recovering what had been yielded, was in many cases unavoidable. In that early period of the Anglo-Saxon state, when the allodial proprietors were nu- merous, and when their estates were generally small, they were understood to be all of the same rank and condition. Although some persons might be distinguished above others, by their abilities, or military reputation, the superiority derived from thence, being acci- dental and temporary, was not productive of any permanent authority or privileges. But when, from the causes which had been men- tioned, a few great lords had become masters of an extensive landed property, their exalta- tion in power and dignity was a necessary con- sequence. Those individuals, on the contrary, who remained in the possession of small estates, thousjh by anv fortunate concurrence f o +/ ** of events they had been enabled to retain their independence, were degraded in proportion to OF THE WITTENAGEMOTE. 36,1 their poverty. They could maintain but few retainers to support their influence. Hardly in a condition to defend themselves, and afraid of every contest which might endanger their property, and their personal safety, they were deterred from claiming political consideration, and from interfering in public business. It was their interest to live upon good terms with their neighbours, and, by their peaceable and inoffensive behaviour, to shun every ground of jealousy and resentment. If the}' came into the Wittenagemote, their voice was but little heard ; or if they ventured to differ from others of greater opulence, it was likely to be treated with neglect, or with derision. They had but small encouragement, therefore,, to attend the meetings of that assembly ; where, at the same time that they incurred an expence not suited to their fortunes, they were subjected to continual mortification, and were incapable of procuring respect. In these circumstances, it is probable that the allodial proprietors, whose estates were inconsiderable, appeared but seldom in the Wittenagemote ; and that, unless upon extraordinary occasions, when great unanimity was of the highest importance, 364 ALTERATION'S IX THE STATE their absence was cither dispensed with, or in a great measure overlooked. It was to be expected that this very unequal distribution of property, as it produced a real difference in the consideration and import- ance of individuals, would come at length to be accompanied with corresponding marks of distinction ; and that so much wealth as ena- bled the possessor to live according to a cer- tain standard of magnificence, might become the foundation of suitable dignity. Thus, in the latter part of the Anglo-Saxon govern- ment, such of the nobles as enjoyed an estate, extending to forty hides of land, were distin- guished in rank and condition from those who o possessed an inferior property. This appears from a passage in the register of Ely, in which mention is made of a person who, " though he " wus a nobleman, could not be numbered " among the proceres, because his estate did not " amount to forty hides of land*." * Habuit enim (speaking of the abbot of Ely) fratrem Gudmundum vocabulo, cui filiam praepotentis viri in matri- monium conjungi paraverat. Sedquoniamillequadraginta hidarum tcrrae clominium minime obtineret, licet nobilis esset, inter proceres tune numerari non potuit; eumpuella ropudiavit. Historia Eliensis, lib. ii. cap. 40. OF THE WITTENAGEMOTE. From this passage, political writers have been led to advance t\vo conjectures, to which it gives no countenance whatever. They consider the rank or privileges, attached to the possession of forty hides of land, as having existed from the original settlement of the O Anglo-Saxons ; although the writer of that passage speaks only, and that, by the by, of what was established in the reign of Edward the confessor. They also maintain, that per- sons whose estates were below forty hides of land, were entirely excluded from the right of sitting in the "Wittenagemote. But the pas- sage referred to makes no mention of the right of sitting in the Wittenagcmote, nor gives the least hint concerning it ; but only points out the extent of property which entitled a person to be ranked among the proceres. There is no reason to believe, either from this, or from any other ancient author, that, even in the latter part of the Anglo-Saxon government, the pro- prietors of such great estates were the only members of the national assembly ; though it is, no doubt, highly probable, that they would be more apt, than persons of a lower station, to give a punctual attendance upon its meetings. 566 ALTERATIONS IX THE STATE The superior dignity, however, enjoyed, in the reign of Edward the confessor, by such of the nobility as were possessed of a certain ex- tent of property, is the more worthy of atten- tion, as it became still more remarkable after the Norman conquest, and hi id the foundation of that noted distinction between the greater or smaller barons, which was productive of important changes in the constitution. As the Wittenagemote was diminished by the reduction of many allodial proprietors into a state of vassalage ; it may be questioned whether it did not, on the other hand, receive a gradual supply of new members, by the ad- vancement of the churles, who, in consequence of the law of king Athelstane, were, upon the acquisition of five hides of land, admitted to the privileges of a thane. Concerning this point the following observations will occur. 1st. That though many of the peasants appear, in the latter periods of the Anglo-Saxon go- vernment, to have become free, and even opulent, it is probable that they held their possessions upon the footing of vassalage, rather than of allodial property ; in consequence of which, they could only be ranked, from the OF THE WITTEN'AGEMOTE, 367 law above-mentioned, among the lesser tha?ics 9 who had no right of sitting in tlie Witte- nagemote : 2dly, Supposing that any of these churles acquired allodial estates, and that they were strictly entitled to a voice in the \\ itte- nagemote ; yet, about the time when tliis privilege was bestowed, a much greater pro- perty than five hides of land, the quantity spe- cified in the law of king Athelstane, was re- quired for giving the proprietor any weight or consideration in that assembly, or for making his attendance upon it a desirable object. This was a privilege, therefore, which they would be more apt to decline from its incon- veniencies, than to exercise, or to boast of, on account of its advantages. It may also be a question, whether those merchants who performed three voyages into a foreign country, and who, by another law of the same prince, are said to have obtained the rights of a thane, were admitted into the Wittena Demote. But, as these mercantile o adventurers were not required to possess any estate, real or personal, it is not reasonable to suppose that they could be allowed to partici- pate, with the ancient nobility, in the delibti- 368 ALTERATIONS IN THE STATE rations of the supreme national council. It has already been observed, that by the privi- leges of a thane, bestowed as an encourage- ment to a certain degree of cnterprize in trade, were probably understood those of a lesser thane, or vassal ; who, though not a member of the Wittenagemotc, was of a condition greatly superior to that of the original pea- sants and mechanics. As it does not appear that individuals among the merchants had, independent of any landed estate, the privilege of sitting in the Wittenagemote ; so there is no evidence that, collectively, the trading interest were, even in the latter part of the Anglo-Saxon history, entitled to send representatives to that as- sembly. Of this we may be satisfied from the particulars, relative to the constitution of the national council, which have been formerly mentioned. The facts which were then ad^ duced, in order to shew that in the Saxon Wittenagemote there were no representatives, cither from towns, or from the small pro- prietors of land, appear conclusive with regard to the whole period of the English govern- ment before the Norman conquest. If the OF THE WITTENAGEMOTE. original constitution of that assembly admitted of no representatives from either of those two classes of men, it must be supposed, that the subsequent introduction of them, more espe- pecially if it had happened near the end of the Saxon period, when historical events are better ascertained, would have excited the attention of some historian or other, and have been thought worthy of transmission to future ages. But upon this point, of so much im- portance in the political system, and so un- likely to pass without notice, the later as well as the early Saxon historians are entirely silent* The advancement of arts and manufactures, towards the end of the Saxon line, was, in- deed, so considerable, as to have enlarged par- ticular towns, and to have exempted the inha- bitants from those precarious duties and ser- vices to which they had anciently been sul> jected. They were permitted to form societies^ or gilds, for the benefit of their trade ; which appear to have at length suggested the practice of incorporating the whole of a town with par- ticular privileges and regulations*. By a series of progressive improvements, the trading peo- * Madox firma burgi. VOL. I. B B 370 ALTERATIONS IN THE STATE pie were thus gradually prepared and qualified for that political consideration which they af- terwards acquired by the establishment of re- presentatives in the national council. But the acquisition of this important privilege was the work of a later period, when they rose to a higher pitch of opulence and independence. The original meetings of the Wittenage- mote in England, as well as those of the na- tional council, in most of the kingdoms upon the neighbouring continent, appear, as was formerly observed, to have been held regularly 3t two seasons of the year; at the end of spring, for deliberating upon the military ope- rations of the summer, and at the beginning of autumn, for dividing the fruit of those depre- dations. The same times of meeting were, for similar reasons, observed, in the courts be- longing to the several shires and baronies of the kingdom. But as, in England, from her insular situation, military enterprises against a foreign enemy were less regular than upon the continent of Europe, those meetings fell soon into disuse ; and as, on certain great fes- tivals, the king was accustomed to appear, with great pomp and solemnity, among hi* 9 OF THE WITTENAGEMOTE. 371 nobles; it was found convenient, on those oc- casions, to call the Wittenagemote. Hencfc the meetings of that council came to be held uniformly at three different seasons ; at Christ- mas, at Easter, and at Whitsuntide. The increase of the national business, par- ticularly with respect to the distribution of justice, a consequence of the gradual progress of authority in the public, made it necessary that the Wittenagemote should be held more fre- quently than in former times ; and therefore, in any extraordinary exigence, which arose between the different festivals above mention- ed, a particular meeting of that council was called by the king. Thus there came to be two sorts of Wittenagemote; the one held by custom, and at three stated periods ; the other called occasionally, by u special summons from the king*. Both were composed of the same persons, if they chose to -attend; but com- monly a much less regular attendance was given in the latter than in the former. At the occasional meetings of the great council, such of the nobility as lived at a distance? were seldom * The former were called courts de wore, being founded upon immemorial custom. B B 2 372 at the trouble of appearing ; and the business, of course, devolved upon those members who happened to be in the king's retinue, and who might be said to compose his privy-council. For this reason, the occasional meetings of the Wittenagemote usually confined them- selves to matters of less importance than were discussed in the old customary meetings. The chief employment of the former was the hear- ing of appeals from inferior courts : but legis* lation, and other weighty transactions, were generally reserved to the latter. If, however, it was found necessary, in the interval between the three great festivals, to deliberate upon public business of importance, the king issued an extraordinary summons to his nobles ; in which he expressly required their attendance, and specified the cause of their meeting*. It may here be proper to remark, that the smaller occasional meetings of the Wittenage- mote appear to have suggested the idea of the aula regis; a separate court, which, after the Norman conquest, was formed out of parlia- * % ment for the sole purpose of deciding law-suits. * Gurdon's History of the high court of Parliament. OF THE WITTENAGEMOTE. 373 As the occurrences which demanded the im- mediate interposition of the Wittenagemote could not be foreseen, the king was led to de- termine the particular cases in which the de- liberation of that assembly was requisite ; and in the exercise of this prerogative, he was ori- ginally under no restraint. The powers exer- cised by the crown seem, at first, to have been all discretionary ; and to have remained with- out limitation, until experience had shewn the danger of their bei no; abused. o We shall afterwards have occasion to ob- serve, that, under the princes of the Norman and Plantawnet race, the ancient and regular o o meetings of the national council were more and more disregarded, and at length entirely disused ; in consequence of which the whole parliamentary business came to be transacted 1 n extraordinary meetings, which were called ' O at the pleasure oi the sovereign. The at- tempts to limit this important branch of the royal prerogative will be the subject of future discussion. Conclusion of the Sa.roti Period. SUCH appear to be the outlines of the English government under the administration 374 ALTERATIONS IN THE STATE of the Anglo-Saxon princes. To the subjects of Britain, who consider the nature of their present constitution, and compare it with that of most of the nations upon the neighbouring continent, it seems natural to indulge a pre- possession, that circumstances peculiarly for- tunate must have concurred in laying the foundation of so excellent a fabric. It seems natural to imao'ine, that the government of the O J O Anglo-Saxons must have contained a propor- tion of liberty as much greater than that of the neighbouring nations, as our constitution is at present more free than the other Euro- pean governments. When we examine, at the same time, the state of our country, in that remote age ; the uniform jurisdiction and authority possessed by every allodial proprietor; the division of the country into various districts, subordinate one to another; the perfect correspondence between the civil and ecclesiastical divisions ; the similarity in the powers exercised by the meetings of the tything, the hundred, and the shire, in their respective territories, and those of the Wittenagemote over the whole king- dom ; the analogy between the office of the t.ythingman, the hundrcder, and the earl, in OP TUE WITTENAGEMOTE. 375 their inferior departments, and that of the sovereign in his more exalted station; when, I say, we examine these, and other particu- lars relating to the Anglo-Saxon government, in which we may discover so much order and regularity, such a variety of regulations, nicely adjusted to one another, and calculated for the most beneficial purposes ; it is natural to suppose, that the whole has originated in much contrivance and foresight ; and is the result of deep-laid schemes of policy. In both of these conclusions, however, we should undoubtedly be mistaken. When we look round and examine the state of the other European kingdoms about the same period ; and when we observe, in each of them, the close and minute resemblance of its poli- tical system to that of England, how little soever the apparent intercourse of the inha- bitants ; we feel ourselves under the necessity of abandoning our former supposition, and of acknowledging that the regulations esta- blished in all of these countries proceeded from no artificial or complicated plans of le- gislation ; but were such as occurred succ sively to the people, for the supply of their immediate wants, and the removal- of inri- ALTERATIONS IN THE STATE, &C. dental inconveniencies ; in a word, every where, a kind of natural growth, produced by the peculiar situation and circumstances of the society. Neither was the Anglo-Saxon government calculated j in any peculiar manner, to secure the liberty and the natural rights of mankind* The sovereign, indeed, in the long period during which this government subsisted, and through all the successive alterations which it underwent, was at no time invested with abso- lute power. The supreme authority in the state was originally possessed by a numerous body of landed proprietors ; but the rest of the community were either slaves, or tenants at the will of their master. The number of those who enjoyed a share in the government was afterwards greatly diminished : at the same time that, upon this advancement of the aris- tocracy, the lower part of the inhabitants be- came somewhat more free and independent, The increase of political power in men of a superior class was thus compensated by some little extension of privileges in the great body of the people. END OF VOL. i. . 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