CHAPTER III.

THE CONSTITUTION OF ENGLAND IN THE TENTH AND ELEVENTH CENTURIES.[82]

I have no intention whatever of entering, in the present Chapter, into

any examination of the minute details of our early English legal

antiquities, still less into the controversies to which many points

relating to them have given rise. I wish merely to give such a sketch of

the political condition of England, at the time when England and

Normandy began to influence each other’s affairs, as may make the

narrative of their mutual intercourse intelligible. [Sidenote: The

Old-English constitution survived the Norman Conquest.] What the

constitution was under Eadgar, that it remained under William. This

assertion must be taken with all the practical drawbacks which are

involved in the forcible transfer of the crown to a foreign dynasty, and

in the division of the greater part of the lands of the kingdom among

the followers of the foreign King. But the constitution remained the

same; the laws, with a few changes in detail, remained the same; the

language of public documents remained the same. The powers which were

vested in King William and his Witan remained constitutionally the same

as those which had been vested in King Eadgar and his Witan a hundred

years before. [Sidenote: The changes immediately following on the

Conquest practical, not formal.] The change in the social condition of

the country, the change in the spirit of the national and local

administration, the change in the relation of the kingdom to foreign

lands, were changes as great as words can express. The practical effect

of these changes was a vast increase of the royal power, and the

introduction of wholly new relations between the King and every class of

his subjects. But formal constitutional change there was none. I cannot

too often repeat, for the saying is the very summing up of the whole

history, that the Norman Conquest was not the wiping out of the

constitution, the laws, the language, the national life of Englishmen.

The changes which distinguish the thirteenth and fourteenth centuries

from the [Sidenote: Various causes of the ultimate results of the

Conquest.] tenth and eleventh are not owing to any one cause. Many of

them are merely the natural results of altered circumstances. Many of

them are the work of lawgivers legislating for a new state of things,

and, in not a few cases, confirming or restoring ancient English

institutions under foreign names. Many of them are due to the ingenuity

of lawyers whose minds were full of theories of law wholly alien to the

principles of ancient English jurisprudence. All these changes were in

some sort the final results of the Conquest. Some of them were actually

caused by the Conquest; others were hastened by it. But of very few

[Sidenote: Change in the monarchy from the old Teutonic to the later

mediæval type.] indeed was it the direct and immediate cause. The

English kingship gradually changed from a kingship of the old Teutonic

type into a kingship of the later mediæval type. The change began before

the Norman Conquest; it was hastened by the Norman Conquest; but it was

not completed till long after the Norman Conquest. Such a change was

not, and could not be, the work of one man or of one generation. But

English kingship, like the other main features of the English polity,

may be said to have fully put on its later form when the absent Edward

was proclaimed in the place of his father, when the King was for the

first time held to reign before he had received the rite which clothed

him with the kingly office.

§ 1. _Origin of the Old-English Kingship._

[Sidenote: Question proposed, Origin and nature of the ancient English

Kingship.]

What then was the nature, and what was the origin, of that kingship,

which the election—the constrained and unwilling election, but still the

election—of the Witan of all England did, on Midwinter-day, eight

hundred years back,[83] entrust to William, Duke of the Normans—from

that day forward William, King of the English? That election transferred

to him the same internal power over his own kingdom, the same external

power over the dependent kingdoms, which had been held by Eadgar and

Æthelred, and which an earlier forced election of a foreign conqueror

had transferred to the hands of Cnut the Dane. [Sidenote: Summary of the

growth of Wessex.] We have already traced the course of the events by

which those powers, internal and external, grew up. Two Saxon chiefs,

_Ealdormen_ or _Heretogan_, formed a settlement on the [Sidenote: 495.]

south coast of Britain. After some years of successful [Sidenote: 519.]

warfare, they assumed the kingly title over their own tribe.[84] One of

their successors incorporated some of the [Sidenote: 823–828.] other

Teutonic kingdoms with his own realm, and obtained an external supremacy

over all the other Teutons in the island and over a portion of the

Celts. A series of his [Sidenote: 878–954.] successors, after long

struggles, incorporated all the Teutonic states into one kingdom, and

obtained an external Empire over all the Celtic states. The Ealdorman of

the Gewissas thus gradually grew into the King of the West-Saxons, the

King of the Saxons,[85] the King of the English, the Emperor of all

Britain. The external aspect of this process, the dates of its several

stages, I have already marked. I must now dwell a little longer on the

real origin and nature of the various powers implied in those different

descriptions of the ruler. Each stage marks an advance in the extent of

territorial dominion; each stage marks also an advance in the amount of

political authority enjoyed by the sovereign.

[Sidenote: Modern political controversies alien to the question.]

In following up these researches into our earliest political antiquities

it is absolutely necessary to cast away all thoughts of modern political

controversies. Time was when the whole fabric of our liberties was held

to depend on the exact nature of the entry made by William the Bastard.

Time was when supporters and opponents of parliamentary reform thought

to strengthen their several positions by opposite theories as to the

constitution of the Witenagemót. To this day a popular orator will

sometimes think that he adds point to a declamation by bringing in Saxon

Ælfred as the author of Trial by Jury, perhaps of every other privilege

which other lands are held either not to possess or to have borrowed

from ourselves. Every notion of this kind must be wholly cast away, if

we would fairly and impartially learn what the institutions of our

Teutonic forefathers really were. The lover of freedom certainly need

not shrink from the inquiry. [Sidenote: The present shape of our

political institutions not to be looked for in early times,] He will not

indeed find that the finished systems of the nineteenth or of the

seventeenth century were brought over ready made in the keels of Hengest

and Horsa. He will not even find that they appeared in their perfect

form in the Imperial Witenagemót of Eadgar the Peaceful. He will not

find the legislative authority vested in a representative assembly to

which every shire and borough sends the men of its choice. He will not

find a King the freedom of whose will is at once hampered and protected

by the tutelage of ministers responsible to that representative

assembly. He will not find tribunals in which issues of law are

determined by Judges independent alike of King and people, while issues

of fact are determined by the people themselves in the form of jurors

taken at haphazard from among them. Not one of these things will he find

in the finished shape in which he is familiar [Sidenote: but the germs

of later institutions may be traced from the beginning.] with them. But

he will find the first principles from which all of them were derived;

he will find the germs out of which all of them were developed. He will

not find the relations of King, Lords, and Commons accurately balanced

in the first Teutonic settlement on the shores of Kent. But he will find

the rudiments of all three in days which were ancient in the days of

Hengest. Let him go as far back as history or tradition throws any light

on the institutions of our race, and he will find the germs alike of the

monarchic, the aristocratic, and the democratic [Sidenote: Necessity of

comparison with other Teutonic nations.] branches of our constitution.

When positive evidence within our own land fails us, we must go for

illustration and explanation, not to the facts, the theories, the

controversies, of modern politics, but to the kindred institutions of

the kindred nations of the mainland. Our Parliament is the true and

lawful representative, by true and lawful succession, of the ancient

Meeting of the Wise; but, if we would search out the origin and

constitution of that Meeting of the Wise, we must go, not to the

parliamentary traditions of the last six hundred years, but to the

_Marzfeld_ of the Frankish Kings, to the _Landesgemeinden_ of Schwyz and

Uri, to those yet earlier assemblies which still rise before us in full

life in the pages of the first inquirer into the habits and institutions

of our [Sidenote: Records of Teutonic Law from Tacitus onwards.] race.

From the _Germania_ of Tacitus onwards, through the Barbaric Codes,

through the Capitularies of the Frankish Kings and Emperors, through the

records of our own insular legislation from the Dooms of Æthelberht to

the so-called Laws of Henry the First, we have a series of witnesses,

showing what were the general principles of Teutonic law, and what were

the particular forms which it took in particular times and places. In

truth we may go beyond the records of our own immediate race. The early

history of the Teuton is constantly illustrated by [Sidenote: Analogies

with the Homeric Achaians.] the early history of his Aryan kinsmen, and

the living picture of the old Achaians of Homer brings vividly before us

many an institution of our own forefathers and many an incident of their

early history.

[Sidenote: Origin of Teutonic kingship.]

The sketch which has been given in the last Chapter has shown that the

Imperial lordship of all Britain, as held by Æthelstan and his

successors, and even the supremacy of Wessex over the other English

kingdoms, as established by Ecgberht, were institutions of comparatively

late growth. But it must not be thought that even the full-grown local

kingship, such as we find it held by Æthelberht in Kent and by Eadwine

in Northumberland, was a thing which had been from the beginning. In the

days of Tacitus some of the Teutonic tribes had kings and [Sidenote:

Kingship not universal; government by Ealdormen or Heretogan.] others

had not; in the time of Cæsar it would seem that kingship was the

exception and not the rule.[86] The chieftains of the first settlers in

our own island bore no higher title than _Ealdorman_ or _Heretoga_.

These two names express two different sides of the same office. The same

man is Ealdorman as a civil ruler and Heretoga as a military chieftain.

The former name survives in our [Sidenote: Force and history of the

names.] language, but with sadly diminished dignity; the title which

once expressed a rank which, among worldly dignities, was inferior to

kingship alone, has taken refuge with a class of municipal magistrates,

reaching downwards to the pettiest boroughs. The other name, always much

more rarely in use, has dropped altogether out of our tongue, while,

among the continental Teutons, the cognate word _Herzog_ expresses a

dignity the distinction between which and modern kingship must be drawn

by the courtier and not by the politician. The name of Ealdorman is one

of a large class; among a primitive people age implies command and

command implies age; hence, in a somewhat later stage of language, the

_elders_ are simply the rulers, and the _eldest_ are the highest in

rank, without any thought of the number of years which they may really

have lived. [Sidenote: Import of the change from Ealdormen to Kings.] It

is not perfectly clear in what the authority or dignity of the King

exceeded that of the Ealdorman, but it is clear that the title of King

did carry with it an advance in both respects. Even the smallest kingdom

was probably formed by the union of the districts of several Ealdormen.

It is probable too that the King was distinguished by some religious

sanction of heathen times, analogous to the ecclesiastical consecration

which in later times the Church bestowed on kings, but not on princes of

lower rank. It is certain that kingship required descent from the Gods;

it may be that no such divine origin was [Sidenote: Instances in Britain

and elsewhere.] needed by the mere Ealdorman. At all events, we find the

change from Ealdorman to Kings taking place in more than one kingdom of

Teutonic Britain, as well as among many of the kindred tribes on the

mainland. We have already seen that the kingdoms of Northumberland and

East-Anglia were formed by the union of several smaller [Sidenote: The

West-Saxon Ealdormen become Kings. 495–519.] states whose rulers did not

assume the royal title.[87] In Wessex the account is still more

remarkable. Cerdic and Cynric entered the land with the title of

Ealdorman; they did not assume kingship till after the arrival of fresh

reinforcements, and till a decisive victory over the Welsh had

strengthened their position in the country. During the whole period

commonly called that of the Heptarchy the whole land was full of petty

princes, some of whom undoubtedly bore the title of King, though others

may have [Sidenote: Alleged return of Wessex to ealdormanship. 673–685.]

reigned simply as Ealdormen. According to one account, the West-Saxons,

as late as the seventh century, were for ten years without any common

sovereign, while the Ealdormen or Under-kings reigned independently.

This falling back on an older system has its parallels; there is one

noted case in Lombard history; but it would be specially remarkable in a

kingdom which had, from the beginning, greater [Sidenote: Distinction

between King and Ealdorman from Ecgberht onwards.] unity than most of

its fellows. But at least from the time of Ecgberht onwards there is a

marked distinction between the King and the Ealdorman. The King is a

sovereign, the Ealdorman is only a magistrate. The King may be hampered

in the exercise of his power by the rights of his people or by the joint

action of the great men of his realm; he may be chosen by his Witan and

he may be liable to be deposed by them; still he is a sovereign,

inasmuch as he does not rule by delegation from any personal superior.

[Sidenote: Distinction between the Ealdorman and the dependent King.] He

may even be, by original grant or more probably by _commendation_,

dependent on some more powerful King; but even such dependence does not

degrade him from his sovereign rank. His relation to his over-lord binds

him to certain external services, but in his internal government he

remains perfectly independent, with his power limited only by the laws

of his own realm. But the Ealdorman has become distinctly a subject. He

may hold the fullest royal power within his own district; he may be the

descendant of former Ealdormen and even of former Kings; he may have a

reasonable hope that he may hand on his dignity to his own children;

still he is not a sovereign, but a subject. The King is supreme; the

Ealdorman is simply sent by him. He is a Viceroy appointed by the King

and his Witan; he is liable to be removed by them, and he is responsible

to them for the exercise of his [Sidenote: Position of Ealdorman

Æthelred in Mercia. 880–912.] authority. When the kingdom of Mercia was

broken up, Ælfred entrusted the government of the part which fell to his

share to his son-in-law Æthelred as Ealdorman. Æthelred was a man of

royal descent; he exercised full royal power in Mercia; but he exercised

it simply as a Governor General or Lord Lieutenant, the representative

of a sovereign whose higher authority he carefully acknowledges

[Sidenote: Case of Northumberland. 954.] in his charters.[88] So, when

Northumberland was finally incorporated with England under Eadred,

kingship was abolished, and the government was entrusted to a magistrate

with the title of Ealdorman or its Danish [Sidenote: Contrary process in

the Empire.] equivalent Earl.[89] By the exactly contrary process,

Princes of the Empire, Dukes—that is, Ealdormen or Heretogan—and not

only Dukes, but Counts, Margraves, Landgraves, all of them originally

mere magistrates under the Emperor-King, have gradually grown into

sovereign princes, and have at last, in several cases, ventured to

assume the kingly title.[90]

[Sidenote: Title of King (Cyning); its origin.]

The mere title of _King_ seems to be comparatively recent among the

Teutonic nations. It is not found in the earliest Teutonic prose

writing, the Gothic Gospels; but in our own language it seems to be as

old as the English settlements in Britain. Most of the questions which

have arisen as to the etymology of the word only show how modern a thing

scientific etymology is.[91] _Cyning_, by contraction _King_, comes from

the same root as the word _cyn_ or _kin_. And the connexion is not

without an important meaning. The King is the representative of the

race, [Sidenote: The Teutonic kingship national, not territorial.] the

embodiment of its national being. A King, in the old Teutonic sense, is

not the King of a country, but the King of a nation. Such titles as King

of England or King of France are comparatively modern, and the idea

which they express is equally so.[92] The Teutonic King is not the lord

of the soil, but the leader of the people. The idea of the King of a

country would have been hardly intelligible to our forefathers. Every

King is King of a people. He is King of Goths, Franks, Saxons, wherever

Goths, Franks, Saxons, may happen to settle. The Goths and their Kings

moved from the Danube to the Tiber, and from the Tiber to the Tagus; but

Alaric and Athaulf were equally Kings of the Goths, in whatever quarter

of the world the Goths might be. So in our own island, the King is King

of the West-Saxons, Mercians, or Northumbrians. [Sidenote: No names for

the English kingdoms as distinguished from the people.] In truth the

countries themselves, as distinguished from their inhabitants, can

hardly be said to have any names. We talk for convenience’ sake of

Wessex, Mercia, and so forth; but the correct description is the Kingdom

of the West-Saxons, the Kingdom of the Mercians. [Sidenote: The King is

King of the English (not of England), but Emperor of Britain.] So, when

the West-Saxon King had swallowed up all his brethren, he became, not

King of England, but King of the English. It is only in their Imperial

character, in their character, not as chiefs of a nation, but as lords

over all the dwellers within the isle of Britain, that our Kings ever

assume the territorial description. Indeed [Sidenote: Name of England

hardly known.] England itself has hardly yet found a geographical name.

_Englaland_ is a late form, scarcely found before the Danish Conquest.

The common name for the land is the name of the people, _Angel-cyn_.[93]

[Sidenote: Growth of the kingly power by mere extension of territory.]

The King’s power and dignity gradually grew. They grew by the mere

extension of his dominions. The larger a prince’s territory becomes, the

greater is the distance at which he finds himself from the mass of his

subjects. He becomes more and more clothed with a sort of mysterious

dignity; he comes to be more and more looked upon as something different

from ordinary men, even from ordinary civil magistrates and military

leaders. The prince of a small territory is known to all his people; he

is, according to the character of his government, their personal friend

or their personal enemy; if worthy himself and the descendant of worthy

ancestors, he may command a strong feeling of clannish loyalty, but he

cannot hedge himself in with the fence of any special divinity. A King

who reigns over all Wessex is, in the nature of things, more of a

King[94] than one who reigns only over Wight, and a King who reigns over

all England is more of a King than one who reigns only over Wessex.

Through this cause only, every fresh addition of territory added fresh

power and dignity to the Kings of the House of Cerdic in their progress

from the ealdormanship of a corner of Hampshire to the Imperial crown of

the Isle of Britain. But this cause was by no means the only one. The

growth of the royal power was greatly helped by another cause, fully to

understand which we must go back to the very earliest accounts which we

have of the political [Sidenote: Two elements in Teutonic political

life, the free Community and the _Comitatus_.] institutions of the

Teutonic race. From the very beginning of our history two opposing

elements may be seen, one of which in the end gained the complete

mastery over the other. The one is the original self-governing Teutonic

community; the other is the King or other lord with his personal

following.[95]

§ 2. _The Early Teutonic Constitution and its Decay._

[Sidenote: The Teutonic Free Community; its monarchic, aristocratic, and

democratic elements.]

I said above that, in the very earliest glimpses of Teutonic political

life, we find the monarchic, the aristocratic, and the democratic

elements already clearly marked. There are leaders, with or without the

royal title; there are men of noble birth, whose noble birth, in

whatever the original nobility may have consisted, entitles them to

pre-eminence in every way; but beyond these there is a free and armed

people, in whom the ultimate sovereignty resides. Small matters are

decided by the chiefs alone, great matters are submitted by the chiefs

to the assembled nation.[96] Such a system is far more than Teutonic; it

[Sidenote: Analogy of the Homeric Achaians,] is a common Aryan

possession; it is the constitution of the Homeric Achaians on earth and

of the Homeric Gods on Olympos. Zeus or Agamemnôn is King; he has his

inner Council of great Gods or of great leaders; he has his general

Assembly of all the divine race or of all the [Sidenote: and the

historical Macedonians.] warriors who fought before Ilios.[97] The

constitution of legendary Hellas remained the constitution of historical

Macedonia; the assembly of the Macedonian nation—in war-time of the

Macedonian army—remained, even under Philip and Alexander, the

constitutional authority to decide on questions of succession to the

throne and the tribunal in which was vested the power of adjudging a

[Sidenote: The system a natural one in a small state.] Macedonian to

death.[98] In short, the division of powers between the supreme leader,

the Council, and the general Assembly, is the form into which the

government of a small state or independent tribe almost necessarily

throws itself. The hereditary prince and the aristocratic council may be

exchanged for an elective chief magistrate and an elective council; but

the division of powers remains the same, and in either case the ultimate

sovereignty remains in the general Assembly, in the _Agorê_, the

_Ekklêsia_, the _Comitia_, the _Marzfeld_, the _Landesgemeinde_. Of the

nature and functions of such an assembly I shall have presently to

speak, when I trace out the origin and nature of the Old-English

Witenagemót. My present point is the distinction [Sidenote: Distinction

of _Eorl_ and _Ceorl_.] of orders in the state. Tacitus sets before us a

marked distinction between the noble and the common freeman, that is, in

Old-English phrase, between the _Eorl_ and the _Ceorl_. The modern

English forms of these words have altogether lost their ancient meaning.

The word _Earl_, after several fluctuations, has settled down as the

title of one rank in the peerage; the word _Churl_ has come to be a word

of moral reprobation, irrespective of the rank of the person who is

guilty of the offence. But in the earlier meaning of the words, _Eorl_

and _Ceorl_—words whose happy jingle causes them to be constantly

opposed to each other—form an exhaustive division of the free members of

the state. The distinction in modern language is most nearly expressed

by the words _Gentle_ and _Simple_. The ceorl is the simple freeman, the

mere unit in the army or in the assembly, whom no distinction of birth

or office marks out from his fellows. It must not be forgotten that,

among the ancient English, as among all other Teutonic nations, the

system of slavery was in full force. The ceorl therefore, like the

ancient Greek citizen, though he might be looked down upon by an

aristocratic class, was actually a privileged person as compared with a

large number of human beings in his own city or district.[99] The origin

of the distinction it is in vain to search after; the difference of the

eorl and the ceorl is a primary fact from which we start; it is as old

as the earliest notices of Teutonic institutions, and the only attempt

at its explanation is to be found in an ingenious mythical story in a

Northern saga.[100] Nor is it very easy to see in what the privileges of

the eorl consisted, or how far they were secured by definite laws.

[Sidenote: Analogy of the democratic Cantons of Switzerland.] Perhaps we

may gain some light by looking at those communities which have preserved

the old Teutonic system of government with the least alteration, the

democratic [Sidenote: Traditional predominance of certain families.]

Cantons of Switzerland.[101] There, amid the purest democracy in the

world, where every adult freeman has a direct and equal vote in the

Assembly, we still find that certain families, enjoying no legal

privileges above their fellows, were long held in a kind of hereditary

reverence, and that members of those families were preferred above all

others to the highest offices in the state. Such were the houses of

Reding in Schwyz, of Tschudi in Glarus, of the Barons of Attinghausen in

Uri. The office of Landammann, the chief magistracy of the commonwealth,

conferred by the yearly vote of the Landesgemeinde, commonly fell to the

lot of members of these great houses; the same man was constantly

re-elected year after year, and, when he died, [Sidenote: Comparison of

old county families among ourselves.] his son was often elected in his

place. Or without going so far from home, we may see what is essentially

the same thing in the position of old county families, holding no legal

advantages above their fellows, but which still enjoy an hereditary

respect and preference at their hands. The eorl and the ceorl in fact

answer pretty nearly to the esquire and the yeoman;[102] the modern

artificial peerage is something quite different, and we shall presently

perhaps see its beginnings.

[Sidenote: The territory or _Mark_ of the Community.]

The primitive Teutonic community is thus set before us as one consisting

of eorls and ceorls, headed by a King, Ealdorman, or other leader,

temporary or permanent, elective or hereditary. Such a community

occupies its own territory, its _Mark_,[103] which territory consists of

land of two kinds. There is the common land, either applied to the

general use of the community or else held by individuals on such terms

as the community, in its character of landowner, may think good to

allow. There are also the particular possessions of individuals,

portions assigned to them by common consent, which are the absolute

property of their owners, held of no superior, but simply subject to

such burthens as the community, in its political character, may think

good to impose on its members. All this again is in no way distinctively

Teutonic; it is the story of the ancient commonwealths of Greece and

Italy over again. [Sidenote: _Folkland_ or _Ager Publicus_.] The

_folkland_[104] of England and the _ager publicus_ of Rome are the same

thing. The English and the Latin names translate one another; they both

describe the land which still belongs to the community as a body, and of

which individuals cannot be more than the occupiers.[105] The whole

history of the Roman Agrarian Laws, so long misunderstood, turns simply

on the regulation of this common land of the state. In the time of Cæsar

it would seem that the whole territory of a Teutonic community was

_folkland_; individuals could obtain no right in it beyond that of a

yearly tenancy.[106] But the custom of allotting portions of the common

stock in absolute property gradually advanced. A conquest like that of

Britain would be highly favourable to the growth of the practice. When a

band of Teutonic warriors took possession of a district and slew or

dispossessed its former inhabitants, we cannot doubt that, besides

[Sidenote: Allodial property, _eðel_ or _odal_.] the stock reserved as

common property, each man who had borne his share in the labours and

dangers of the conquest would claim his reward in the absolute ownership

of some portion of the conquered territory. The eorls, who would

doubtless act as the leaders of the expedition, may well have received a

larger allotment; but we may be sure that no freeman bearing arms went

altogether without some share of the spoil. Such an allotment in

absolute property, held of no superior, subject to nothing but the laws

of the state, is called in different Teutonic dialects _eðel_, _odal_,

or _alod_. It is an estate, great or small, which the owner does not

hold either of the King or of any other lord, but in regard to which he

knows no superior but God and the law.

These communities of freemen, among whom some had a pre-eminence in

rank, and doubtless in wealth, but among [Sidenote: The primitive

democracy gives way to the institution of] whom every freeman was a

member of the state, form one of the elements of Teutonic life as we see

it in its very earliest pictures. But those same pictures set no less

strongly before us another element, which grew up alongside of the

primitive democracy, and which was destined in the long run to supplant

it more or less completely in nearly every Teutonic country. The ancient

Teutonic community can now be seen in its purity only in a few of the

smallest Swiss Cantons, and in several even of these[107] the ancient

freedom had to be reconquered and was not uninterruptedly retained.

Everywhere else it is as much as we can do to trace out some faint

footsteps of the ancient system, such as we see in common lands, in some

forms of communal institutions, in petty and half obsolete local

[Sidenote: the _Comitatus_, the personal following of the Chiefs.]

tribunals. The thing itself has given way to the other institution

described by Tacitus, the _Comitatus_, the personal following of the

chiefs. Every Teutonic King or other leader was surrounded by a band of

chosen warriors, personally attached to him of their own free

choice.[108] The chief and his followers were bound together by the

strongest ties of mutual trust, and a lack of faithfulness on either

side was reckoned among the most shameful of crimes. The followers

served their chief in peace and in war; they fought for him to the

death, and rescued or avenged his [Sidenote: Nature of the relation.]

life with their own. In return, they shared whatever gifts or honours

the chief could distribute among them; and in our tongue at least it was

his character of dispenser of [Sidenote: The _Hlaford_ and his

_Gesiðas_.] gifts which gave the chief his official title. He was the

_Hlaford_, the _Loaf-giver_,[109] a name which, through a series of

softenings and contractions, and with an utter forgetfulness of its

primitive meaning, has settled down into the modern form of _Lord_. His

followers were originally his _Gesiðas_ or _Companions_, a word which

Ælfred uses to express the Latin _Comes_, but which must have dropped

out of use [Sidenote: Origin of _Þegnas_ (Thanes).] very early, as it is

not found in the Chronicles. The _Gesið_ or _Companion_ became the

_Þegn_ (_Thegn_, _Thane_) or _Servant_, a change of name which might

seem to imply a lowering of the nature of the relation, and which

perhaps in a manner did so.[110] As Kings grew in power and dominion, it

was not unnatural that a certain element of servility should find its

way into the relation of the _Comitatus_, of which there is no trace in

the primitive shape of that institution. The service of the King or

other great lord conferred dignity even on the freeman. This is a notion

altogether foreign to the ideas of republican Greece and Rome; but here

again the primitive Teuton is but the [Sidenote: Homeric analogies.]

reproduction of the primitive Achaian. The Homeric Kings have their

_comitatus_, their _Gesiðas_ or ἑταῖροι, their _Þegnas_ or θεράποντες,

free, noble, the cherished companions of their lords, but who do for

those lords, without any loss of their own dignity, services which in

later Greece none but slaves would have rendered. Eteôneus,

Automedôn,[111] Mêrionês, the divine Patroklos himself, all appear in

this relation; all are connected by this voluntary personal tie to a

chieftain of higher rank. They are the very counterparts of Lilla, the

faithful Thegn of Eadwine,[112] and of those true companions who fought

to the death for [Sidenote: Contrast with the republican Greeks and

Romans.] Cynewulf and Cyneheard.[113] The republican Greek knew no lord

but the law.[114] He was a member of a civil community, and as a good

citizen he obeyed the magistrates whom the choice of the community

clothed with a limited and temporary power. But personal dependence on

another human being seemed to him the distinguishing mark of the slave

as opposed to the citizen. The republican Roman shared the same feeling;

the early Cæsars were served by slaves or freedmen;[115] it was only as

the Empire gradually grew into an avowed monarchy, and gradually assumed

somewhat of the pomp of eastern kingship, that service about the person

of the Emperor began to be looked upon as honourable in a man of free

Roman birth. In the Teuton, as in the Homeric Achaian, the feeling of

the civil community, though far from unknown, was less strong, and the

tie of personal dependence was not felt to imply degradation. Indeed the

Teuton carried the principle of personal service far further than the

Roman ever did. It was held that purely menial services, when rendered

to persons of higher rank, in no way degraded the ordinary freeman. It

was even held that men of any rank short of the highest were actually

honoured by rendering such services to those who were one degree higher

than themselves. None of the old Cæsars ever held such lordly state

[Sidenote: Developement of the principle in the later Empire and in

modern Kingdoms.] as those among their successors who, while keeping

hardly a trace of real Imperial power, still saw Kings and sovereign

Dukes doing services about their person and household which, in the days

of Augustus, would have been deemed a degradation to the meanest Roman

citizen. So, among ourselves, offices about the person and household of

the lord became high and honourable. The King’s _dish-thegn_, his

_bower-thegn_, his _horse-thegn_ or _staller_, all became great

dignitaries of the kingdom, high in rank and influence,[116] as some of

them, among all the changes in our institutions, still remain. There

thus arose a new kind of nobility, nobility by service, the nobility

which gradually attached [Sidenote: The _Thegns_ supplant the old

_Eorls_.] to the _Thegns_ or _Servants_ of Kings and Ealdormen; and this

nobility gradually supplanted the elder nobility of immemorial

descent.[117] Men pressed into the service of powerful leaders, till

such service became the necessary badge of anything like distinguished

rank. The _Thegn_, whose name might sound at first hearing like the

exact opposite of the ancient _Eorl_, gradually took his place. The word

_Thegn_ became equivalent to _noble_ or _gentle_. The King’s Thegns

formed the highest class of gentry; the Thegns of Ealdormen and Bishops

formed a lower class. Again to use a modern parallel, the ancient _Eorl_

answers to the gentleman of ancient family, looked at simply as the

descendant of certain forefathers and the owner of certain property; the

_Thegn_ answers to the gentleman, whether with or without such ancestry,

looked at as holding, by royal commission, his place in the local

magistracy and the local military force.

The _Comitatus_—the _Thegnhood_, as we may call it—thus [Sidenote:

Effects of the growth of the Thegnhood.] grew and developed, and became

the central institution of the state. With every advance of the kingly

power—and every accession of territory, every free or constrained union

of one district with another, implied an advance of the kingly power—the

dignity of the King’s Thegns rose along with the dignity of their

_Hlaford_. In one way [Sidenote: Favourable to individual Ceorls, but

depressing to the class.] the change was a liberalizing one. The Ceorl

could not become an Eorl, simply because a man cannot change his

forefathers; but several ways were open to him of becoming a Thegn.[118]

And now Thegn’s rank had become practically equivalent to Eorl’s rank.

But though individual Ceorls might thus rise, there can be no doubt that

the growth of the Thegnhood was on the whole depressing to the Ceorls,

the simple freemen, as a class. The idea of the simple _landman_—I must

borrow a word from our continental brethren, as the word _citizen_

brings in quite other ideas—the undistinguished, but still free and, in

a sense, equal member of a free community, gradually died out. The

institution of the _Comitatus_, which in its origin was essentially

voluntary, was pressed, as it were, upon all men, till at last it became

a principle that no man should be without his lord. The freeman might

choose his lord; he might determine to whom, in technical phrase, he

should _commend_[119] [Sidenote: Commendation.] himself; but a lord he

must have, a lord to act at once as [Sidenote: Every man must have a

Lord.] his protector and as his surety, at once to watch over him and to

give a guaranty for his good behaviour. The lordless man became a kind

of outlaw, while in the older state of things the whole community would

be lordless, except those who might of their own free will have entered

[Sidenote: Depression of the Ceorls towards the period of the Conquest.]

the _Comitatus_ of some chief.[120] And there is little doubt that the

condition of the Ceorls had greatly changed for the worse in the later

times as we approach the Norman Conquest. Some classes among them seem

to have been fast approaching to the condition of villainage or even to

that of serfdom. This change is not peculiar to England; but it is the

peculiar glory of England that the bondage of the mass of its people

began later, and that it certainly ended sooner, than in any other

western country where such bondage existed. The peasantry of Germany

gradually sank into a lower state of serfdom than ours, and they

remained in it much longer. The free peasantry of Russia did not sink

into serfdom till villainage was nearly forgotten in England, but their

deliverance from the yoke has been reserved for our own times.

[Sidenote: Elements of Feudalism in England, but no Feudal System.]

This sketch of the growth of the Thegnhood and its effects at once

suggests the question, Did the Feudal System exist in England before the

Norman Conquest? One might perhaps be allowed to answer this question by

another, Did the Feudal System ever exist anywhere? In England, before

the Norman Conquest, the Feudal _System_ most certainly did not exist.

There was no systematic feudalism, but the elements of feudalism were

there. [Sidenote: Two elements of Feudalism;] Feudalism consists of two

main elements; the feudal relation implies the union of two other

relations. There is [Sidenote: the relation of the _Comitatus_ and the

holding of land by military service.] the personal relation of lord and

vassal, lord and man,[121] bound together by mutual will and mutual

fidelity, the one owing service, the other owing protection; there is in

short the old Teutonic relation of the _Comitatus_, the relation of the

_Hlaford_ and his _Thegn_. But alongside of this, the feudal relation

commonly implies the holding of land by military service. To grant land

on such a tenure is in truth one form, one among several, of that bounty

of the lord to his followers to which his very title of _Hlaford_ is

[Sidenote: Military tenures suggested by the relation of the

_Comitatus_,] owing. The lord makes his follower a grant of land as the

reward of past services, and he makes the continuation of those services

the condition of his follower’s keeping the land so granted. But there

can be no doubt that the tendency to this particular form of bounty was

greatly strengthened by the example of the Roman practice of [Sidenote:

and also by the Roman tenures on the frontier.] granting out frontier

lands to be held by military service.[122] The holders of such lands

held them of the Roman Republic, and to the Roman Republic their service

was due. They stood in no personal relation to the Emperor; they were

not his men, his vassals, his _Gesiðas_, his Thegns; their service was

due to him only so far as he was the head and [Sidenote: The two

elements united produce Feudalism.] representative of the commonwealth.

But the union in the same person of the Teutonic tie of the _Comitatus_

and the Roman tie of land held by military service would produce a

relation coming very near to the strictly feudal relation. The Roman

custom would easily suggest to the Teutonic conquerors the practice of

rewarding their followers with grants of lands—in short with benefices

or fiefs—as the most convenient and honourable form which the bounty of

the lord could take. In Britain indeed, [Sidenote: Growth of Feudalism

slower in England than on the Continent.] where Roman institutions were

so utterly swept away, this influence would hardly exist; at any rate it

would be far weaker than it was on the continent. Hence we find

feudalism growing up far more slowly in England than in Gaul or even in

Germany; in our old constitution we find the elements of feudalism; but

they were not as yet worked into a systematic shape; they had not as yet

become the materials of an elaborate jurisprudence. Homage was there;

for the relation of every man to his lord was a relation of homage.

Heriots too and other incidents of a feudal character already existed.

But these feudal elements had not yet been wrought together into any

harmonious feudal system. The _Comitatus_, the germ of feudalism, had

thriven and developed and was now dominant; but the old Teutonic

constitution had not been [Sidenote: Feudal elements strengthened by the

Norman Conquest.] utterly wiped out. The Norman Conquest no doubt

strongly tended to promote the further developement of the feudal

element; but, as in every other case, it only opened and prepared the

way for further changes.

[Sidenote: Earlier form of military service; the _Trinoda Necessitas_.]

The military service due from land held by a feudal tenure is strictly

due to the lord as the lord. That lord may be the King; but if so, the

service is still in strictness owing to him, not as head of the state,

but as lord of the fief. But there is another obligation to military

service which is older than this. All land in England was, by the

earliest Common Law, subject to three burthens, to contributions to the

three works most necessary for the defence of the country. These were

the famous _Trinoda Necessitas_, the obligation to service in the field

(_fyrd_) and to a share in the repairs of fortresses and of

bridges.[123] But these are duties owed by the citizen to the

commonwealth, or by the subject to the sovereign, not duties owed by a

personal vassal to a personal lord. Land, in an age when there was

little property except in land, is simply taken as the measure of the

contribution due from each man to the common defence. From these

burthens, as a rule, no land could be free; even church lands were

regularly subject to them, though in some cases their owners contrived

to obtain exemptions.[124] These ancient obligations pressed alike on

the ancient allodial possession and on the land held by any more modern

tenure. They were not feudal services, but a tax paid to the state. They

were in fact the price paid to the commonwealth for the protection which

it gave; or rather they were the share which each member of the

commonwealth was bound to take in the protection of himself and his

neighbours.

[Sidenote: Folkland and Bookland.]

I have already mentioned the _folkland_, the common land of the

community or of the nation, out of which the ancient allodial

possessions were carved. This process of turning public property into

private went on largely in later times. The alienation was now commonly

made by a document in writing, under the signatures of the King and his

Witan; land so granted was therefore said to be _booked_ to the grantee,

and was known as _bookland_. Portions of the folkland were thus cut off

from the public ownership, and were booked to private individuals or

corporations. The greater number of the existing ancient charters

consists of grants of this kind. [Sidenote: Conversion of Folkland into

Bookland in favour of the Church and of the King’s Thegns.] A vast

number are of course in favour of the Church, but those which are made

to the King’s faithful Thegns are hardly less common. In either case

portions of the folkland are alienated, _booked_, to private use with

the consent of the Witan. The booking might of course be made on any

terms; any sort of tenure might be created; but the great object of the

grantee was to get the land on the same terms as an ancient _eðel_,

subject only to the three burthens, which not even the most favoured

Thegn, hardly the most favoured churchman, could hope to escape.[125]

[Sidenote: Conversion of Folkland into Bookland required the assent of

the Witan.]

The folkland, the common property of the state, was of course at the

disposal of the state, and of the state only. It was granted by the

King, but only by the consent and authority of his Witan. That is to

say, in modern language, the change of folkland into bookland required

an Act of Parliament, but acts to that effect were passed constantly and

without difficulty. The folkland belonged to the nation and not to the

King. The King was only its chief administrator, enjoying its use, so

far as he enjoyed it, only as the head and representative of the nation.

[Sidenote: The King’s private estate.] But the King, like any other man,

had his private estate. Like any other man, he might have his ancient

allodial property, or he might, like any other man, have land booked to

him, land which followed the ordinary course of legal succession or

testamentary disposal.[126] It was indeed needful that the King should

have such private possessions; for, in our ancient elective monarchy,

the reigning King had no certainty that the crown, and the possessions

attached to the crown, would ever pass to [Sidenote: Folkland passes

into _Terra Regis_,] his descendants. But after the Norman Conquest, as

the royal power increased, and as the modern notion of hereditary right

was gradually developed, these two kinds of possession got confounded.

On the one hand, the nation was forgotten or merged in the person of its

chief; the folkland was held to be the King’s land, _Terra Regis_; the

King was led to look on the possessions of the nation as his own, and to

grant them away at his own pleasure without the consent of Parliament.

On the other hand, lawyers brought in the strange doctrine that the King

could hold no private property, but that, on his accession to the crown,

his private estate was merged in what was now held to be the royal

domain. By one of those curious cycles which so often come round in

human affairs, both these wrongs have been redressed, one formally, the

other practically. Our modern Kings have recovered the ancient right,

common to them with other men, of inheriting, purchasing, and

bequeathing [Sidenote: and becomes Folkland again.] private estates. On

the other hand, now that the royal domain is given up to the nation to

be controlled by Parliament, it is practically brought back to its

ancient condition of folkland. That is to say, after so many centuries

of usurpation, the land of which the Kings had defrauded the nation has

come back to its lawful owners.[127]

[Sidenote: The old Teutonic constitution gradually dies out everywhere

but in Switzerland.]

By these various means the old system of free Teutonic communities

gradually died out in England, as it died out in all parts of the

continent save one. It lingered in Friesland till the fifteenth

century;[128] in the primitive Switzerland it lingers still.

Everywhere else it has utterly [Sidenote: It yields in England to a

real national monarchy, in Germany to the dominion of petty princes.]

vanished, or has left only such faint traces as it has left among

ourselves. But England did not suffer from the change as Germany did.

Our free marks and shires gradually gave way, but they gave way before

the developement of a real national life, before the establishment of

a really national sovereignty. But in Germany local freedom was rooted

out, not in favour either of the nation or of its sovereign, but for

the advantage of that crowd of princes, great and small, which were

for ages the curse of the land. The free communities of Germany

vanished; but the German nation gained nothing, the German King gained

nothing; the liberties and rights alike of the King, of the nation,

and of the local communities, were confiscated to the profit of a

brood of petty despots. The constitution which Tacitus saw and

wondered at, the constitution for which Arminius fought and conquered,

the constitution whose working may still be seen year by year in the

free air of Uri and Appenzell, gave way in the great Teutonic realm to

the dominion of princes who represented nothing but themselves, who

embodied no national or provincial being, who were the mere creation

of modern dynastic and diplomatic arrangements,—arrangements which did

their best to wipe out every historic name and every national memory,

and to assign to each of their princely creatures an arbitrary extent

of dominion traced out at haphazard upon the map.[129] Such was the

fate of the Teutonic mainland; such was not the fate of the Teutonic

island. The uprooting of the old free communities, the growth of the

power of the King and of his Thegns, no doubt tended in England, as

elsewhere, to the degradation, at least for a while, of the lowest

class of [Sidenote: Ceorldom sinks into Villainage, but the Villains

are gradually emancipated.] freemen. The ceorl was fast sinking into

the villain. Still, even in the worst times, enough of the old spirit

remained in our laws to give the villain those means of obtaining

enfranchisement which gradually did enfranchise the whole class,

without the institution of villainage ever being formally done away

with. And the uprooting of the old [Sidenote: Change of the old

constitution necessary.] communities was needful, if England was ever

to become a great and united nation. We must remember that the

kingdom, like all our ancient divisions, from the shire, perhaps from

the hundred, upwards, was formed by the aggregation of smaller

divisions.[130] The unit is the _mark_, roughly represented by the

modern parish or manor. The shire must not be looked on as a division

of the kingdom,[131] nor the hundred or the mark as a division of the

shire. [Sidenote: Shires formed out of Marks, and Kingdoms out of

Shires.] The hundred is in truth formed by an aggregation of marks,

the shire by an aggregation of hundreds, the kingdom by an aggregation

of shires. The aggregation of marks into shires is indeed mainly to be

inferred from local nomenclature and from the analogy of other

Teutonic countries; but the aggregation of shires into kingdoms is

[Sidenote: The Mark-system probably less perfect in England than

elsewhere.] matter of recorded history. It is even possible that the

circumstances of the English Conquest of Britain may have hindered the

mark from ever possessing the same amount of independence in England

which it possessed in the older Teutonic lands. When every English

settlement had to defend itself, and if possible to extend itself, in

the teeth of a hostile Welsh population, the different settlements

must have kept up a very close union; there must have been from the

beginning, if not centralization, yet at any rate something like

federation. The first followers of Cerdic no doubt settled themselves

in marks, forming self-governing communities; but all must have held

themselves ready to march at Cerdic’s bidding, whenever it was needful

to repel an inroad of the Welsh, whenever things promised well for a

fresh inroad upon them. Still such communities, the mark and the

shire, however dependent externally on some central authority, were

doubtless internally self-governed from the beginning. We have already

seen[132] how shires, ruled each one by its own Ealdorman, came

together into kingdoms under a single [Sidenote: Formation of the

greater Kingdoms.] King. We have seen also that the nature of the

process differed in different parts of the country, that in Mercia,

for instance, wholly independent states were thus brought into union,

while in Wessex, though there were many Ealdormen and even many Kings,

there was still a certain unity from the first. There was always a

head King of the West-Saxons, and all the Under-kings were most likely

Æthelings of the blood of Cerdic. Gradually the connexion became

closer, the process no doubt being quicker in Wessex than in Mercia or

Northumberland. The head King became the only King, the only

independent executive; and the assembly of his Witan became the only

independent legislature. In place of Kings, independent or dependent,

the shires received Ealdormen, named by the King and his Witan, and

liable to be removed by [Sidenote: Process of amalgamation; royal

officers in the Shires.] them. The folkland of the shire became the

folkland of the whole kingdom. A crowd of royal officers[133] of

various ranks, whose main duty was to look after the royal interests,

were scattered over all parts of the country. The Ealdorman still

remained, the shadow of ancient kingship, and so far the

representative of local independence. But beside him arose a new

officer, the _Scírgerefa_, _Shirereeve_, or _Sheriff_, the immediate

officer of the King, the agent of the central authority, the

representative of the dependence of each local division on the common

King and Assembly of the nation. Once the shires were the units, out

of the union of which the kingdom was formed; now the kingdom forms a

new whole, of which the shires have sunk to be mere administrative

divisions. In Mercia we have seen[134] that, after the Danish

conquest, the country was artificially mapped out again into fresh

shires, which must have been felt to be still more completely mere

administrative divisions than those West-Saxon shires which had once

been separate principalities.

§ 3. _Origin and Powers of the Witenagemót._

By these means those great kingdoms were formed which produced

Bretwaldas and which strove for the supremacy of Britain. Each stage of

union increased the kingly power; each stage lessened the independence

of local communities and lessened the importance of their [Sidenote:

Democratic constitution of the old Assemblies.] individual members. The

democratic character of the old Teutonic system contained the seeds of

its own destruction, whenever it should be applied to districts of any

great extent. We may be sure that every Teutonic freeman had [Sidenote:

The Assembly of the Mark,] a voice in the assembly—the _Gemót_, the

_Gemeinde_, the _Ekklêsia_—of his own mark. In fact he in some sort

keeps it still, as holding his place in the parish vestry. He had a

voice; it might be too much to say that he had a vote; for in an early

state of things formal divisions are not likely to be often taken; the

temper of the assembly is found out by easier means. But the man who

clashed his arms to express approval, or who joined in the unmistakeable

sound which expressed dissent,[135] practically gave as efficient a vote

as if he had solemnly walked out into a lobby. The Homeric _Agorê_ is

the type of every such assembly, and the likeness of the Homeric _Agorê_

may [Sidenote: of the Shire.] be seen in an English county-meeting to

this day.[136] The voice which the simple freeman, the ceorl, had in the

assembly of his mark, he would not lose in the assembly of his shire,

the _Scirgemót_. The county court is to this [Sidenote: The right

becomes less valuable with each extension of area.] day an assembly of

all the freeholders of the shire.[137] But the right of attending the

assembly of the shire would become really less valuable than the right

of attending the assembly of the mark. The larger the assembly, the more

distant the place of meeting, the more difficult, and therefore the more

rare, does the attendance of individual members become, and the smaller

is the importance of each individual member when he gets there. We

cannot doubt that the assemblies of the mark, of the shire, and of the

kingdom all went on side by side: but at each stage of union the

competence of the inferior assembly [Sidenote: Every freeman had a

theoretical right to attend the National Assembly.] would be narrowed.

We cannot doubt that every freeman kept in theory the right of appearing

in the assembly of the kingdom, no less than in the assemblies of the

mark and of the shire. Expressions are found which are quite enough to

show that the mass of the people were theoretically looked on as present

in the national assembly and as consenting to its decrees.[138] But such

a right of [Sidenote: The right goes practically out of use.] attendance

necessarily became a mere name. The mass of the people could not attend;

they would not care to attend, they would find themselves of no account

if they did attend. They would therefore, without any formal abrogation

of their right, gradually cease from attending. The idea of

representation had not yet arisen; those who did not appear in person

had no means of appearing by deputy; of election or delegation there is

not the slightest trace, though it might often happen that those who

stayed away might feel that their rich or official neighbour who went

would attend to their wishes and would fairly act in their interests. By

this process an originally democratic assembly, without any formal

exclusion of any class of its members, gradually shrank up into an

aristocratic assembly. I trust that I have shown in another work[139]

how, under closely analogous circumstances, the Federal Assembly of

Achaia, legally open to every Achaian citizen, was commonly attended

only by those who were both rich and zealous, and how it often happened

that the members of the inner body, the Senate, themselves alone formed

the [Sidenote: The Assembly practically an Assembly of the King’s

Thegns.] assembly. In the same way, an assembly of all the freemen of

Wessex, when those freemen could not attend personally and when they had

no means of attending by representatives, gradually changed into an

assembly attended by few or none but the King’s Thegns. The great

officers of Church and State, Ealdormen, Bishops, Abbots, would attend;

the ordinary Thegns would attend more laxly, but still in considerable

numbers; the King would preside; a few leading men would discuss; the

general mass of the Thegns, whether they formally voted or not, would

make their approval or disapproval practically felt; [Sidenote: Vestiges

of the old popular rights.] no doubt the form still remained of at least

announcing the resolutions taken to any of the ordinary freemen whom

curiosity had drawn to the spot; most likely the form still remained of

demanding their ceremonial assent, though without any fear that the

habitual “Yea, yea,” would ever be exchanged for “Nay, nay.”[140] It is

thus that, in the absence of representation, a democratic franchise, as

applied to a large country, gradually becomes unreal or delusive.

[Sidenote: Primary Assemblies suited only to small commonwealths.] A

primary assembly, an _Ekklêsia_, a _Landesgemeinde_, is an excellent

institution in a commonwealth so small as to allow of its being really

worked with effect. But in any large community it either becomes a

tumultuous mob, like the later Roman _Comitia_ or the Florentine

Parliament, or else it gradually shrinks up into an aristocratic body,

as the old Teutonic assemblies did both in England and on the continent.

When the great statesmen of the thirteenth century, Earl Simon and King

Edward, fully established the principle of representation, they did but

[Sidenote: The Ancient right restored in another shape in the thirteenth

century.] bring back the old state of things in another shape. The

ordinary freeman had gradually lost his right of personal attendance in

the national assembly; it was inexpedient and impossible to restore that

right to him in its original shape; he may be looked on as having in the

thirteenth century legally surrendered it, and as having received in its

stead the far more practical right of attending by his representatives.

Thus was formed that famous assembly of our forefathers, called by

various names, the _Mycel Gemót_ or _Great Meeting_, the

_Witenagemót_[141] or _Meeting of the Wise_, sometimes the _Mycel

Getheaht_ or _Great Thought_.[142] [Sidenote: The Witenagemót.] But the

common title of those who compose it is simply the _Witan_, the

_Sapientes_ or _Wise Men_. In every English kingdom we find the royal

power narrowly limited by the necessity under which the King lay of

acting in all matters of importance by the consent and authority of his

Witan, in other words, of his Parliament. [Sidenote: The Gemót of Wessex

becomes the general Legislature, those, of the other kingdoms surviving

as local bodies.] As the other kingdoms merged in Wessex, the Witan of

the other kingdoms became entitled to seats in the Gemót of Wessex, now

become the common Gemót of the Empire. But just as in the case of the

assemblies of the mark and the shire, so the Gemóts of the other

Kingdoms seem to have gone on as local bodies, dealing with local

affairs, and perhaps giving a formal assent to the resolutions of the

central body.[143] [Sidenote: Lack of information as to the constitution

of the Assembly.] As to the constitution of these great councils in any

English kingdom our information is of the vaguest kind. The members are

always spoken of in the loosest way. We find the Witan constantly

assembling, constantly passing laws, but we find no law prescribing or

defining the constitution of the assembly itself. We find no trace of

representation or election; we find no trace of any property

qualification;[144] we find no trace of nomination by the crown, except

in so far as all the great officers of the court and the kingdom were

constantly present. On the other hand we have seen that all the leading

men, Ealdormen, Bishops, Abbots, and a considerable body of other

Thegns, did attend; we have seen that the people as a body had in some

way a share in the legislative acts of their chiefs, that those acts

were in some sort the acts of the people themselves, to which they had

themselves assented, and were not merely the edicts of superiors which

they had to obey. There is no doubt that, on some particular occasions,

some classes at least of the people did actually take a part in the

proceedings of the national council; thus the citizens of London are

more than once recorded to have taken a share in the election of

Kings.[145] No theory that I know of will explain all these phænomena

except that which I have just tried to draw out. This is, that every

freeman had an abstract right to be present, but that any actual share

in the proceedings of the assembly had, gradually and imperceptibly,

come to be confined to the leading men, to the King’s Thegns,

strengthened, under peculiarly favourable circumstances, by the presence

of exceptional classes of freemen, like the London citizens.[146] It is

therefore utterly vain for any political party to try to press the

supposed constitution of our ancient national councils into the service

[Sidenote: The Witenagemót proves nothing in modern political

controversies.] of modern political warfare. The Meeting of the Wise has

not a word to utter for or against any possible Reform Bill. In one

sense it was more democratic than anything that the most advanced

Liberal would dare to dream of; in another sense it was more oligarchic

than anything that the most unbending Conservative would dare to defend.

Yet it may in practice have fairly represented the wishes of the nation;

and if so, no people ever enjoyed more complete political freedom, than

the English did in these early times. [Sidenote: Extent of the powers of

the Assembly; greater than those of a modern Parliament.] For the powers

of the ancient Witenagemót[147] surpassed beyond all measure the powers

which our written law vests in a modern Parliament. In some respects

they surpassed the powers which our conventional constitution vests in a

modern House of Commons. The King could do absolutely nothing without

the consent of his Wise Men. First of all, it was from them that he

derived his political being, and it was on them that he depended for its

continuance. The Witan chose the King and the [Sidenote: Power of

deposing the King.] Witan could depose him. The power of deposition is a

power which, from its very nature, can be exercised but rarely; we

therefore do not find many Kings deposed by Act of Parliament either

before or since the Norman Conquest. But we do find instances, both

before and since the Norman Conquest, which show that, by the ancient

constitution of England, the Witan of the land did possess the right of

deposing the sovereign, and that on great and emergent occasions they

did not shrink from exercising that right. I will not attempt to grapple

with the confused history of Northumberland, where at one time Kings

were set up [Sidenote: Instances in Northumberland;] and put down almost

daily. Such revolutions were doubtless as much the result of force as of

any legal process; still we can hardly doubt that the legal forms were

commonly observed, and sometimes we find it distinctly recorded that

they were. Let us keep ourselves to the more certain history of the line

of Cerdic. Five times—we [Sidenote: in Wessex.] might more truly say six

times—thrice before and twice since the Norman Conquest, has the King of

the West-Saxons or of the English been deprived of his [Sidenote:

Sigeberht. 755.] kingly office by the voice of his Parliament.[148]

Sigeberht of Wessex, in the eighth century, was deposed by the vote of

the general assembly of his kingdom, and another King [Sidenote:

Æthelred deposed, 1013; restored, 1014.] was elected in his stead.

Æthelred the Second was deposed by one act of the Legislature and

restored by another. Harthacnut, in the like sort, was deposed, while

still uncrowned, from his West-Saxon kingdom, though he [Sidenote:

Harthacnut deposed, 1037; re-elected, 1040.] was afterwards re-elected

to the whole kingdom of England. [Sidenote: Edward the Second deposed,

1327; Richard the Second, 1377.] Edward the Second was deposed by

Parliament; so was Richard the Second. At a later time the Parliament

[Sidenote: Case of James the Second.] of England shrank from the formal

deposition of James the Second, and took refuge in a theory of

abdication which, though logically absurd, practically did all that was

wanted. But the Parliament of Scotland had no such scruples, and that

body, in full conformity with ancient examples, declared the crown of

Scotland to be forfeited. In a land where everything goes by precedent,

a right resting on a tradition like this, though its actual exercise may

have taken place only five or six times in nine hundred years, is surely

as well established as any other. Under our modern constitution the

right is likely to remain dormant. The objects which in past times

required the deposition of the King, if not from his office, at least

from his authority, can now be gained by a parliamentary censure of the

Prime Minister, or in the extremest case by bringing an impeachment

against him.

[Sidenote: The King elected by the Witan.]

The history of the Norman conquest of England, its causes and its results, Volume 1 (of 6) · 第 3 / 17 章