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.]