more meanly fortified; there was scarcely any thing that deserved the name of a strong place in the kingdom; there was no fortress, which, by retarding the progress of a conqueror, might give the people an opportunity of recalling their spirits, and collecting their strength. To these we may add, that the pope's approbation of William's pretensions gave them great weight, especially amongst the clergy; and that this disposed and reconciled to submission a people, whom the circumstances we have mentioned had before driven to it. They began to cast an eye on the Crown, and distracted the nation by cabals to compass their designs. At the same time they nourished the most terrible feuds amongst themselves. The feeble government of Edward established these abuses. He could find no method of humbling one subject grown too great, but by aggrandizing in the same excessive degree some others. Thus he endeavoured to balance the power of Earl Goodwin by exalting Leofric duke of Mercia, and Seward duke of Northumberland, to an extravagant greatness. The consequence was this, he did not humble Goodwin, but raised him potent rivals. When therefore this prince died, the lawful successour to the crown, who had nothing but right in his favour, was totally eclipsed by the splendour of the great men, who had adorned themselves with the spoils of royalty. The throne was now the prize of faction; and Harold, the son of Goodwin, having the strongest faction, carried it. By this success the opposite parties were inflamed with a new occasion of rancour and animosity; and an incurable discontent was raised in the minds of Edwin and Morcar, the sons of Duke Leofric, who inherited their father's power and popularity; but this animosity operated nothing in favour of the legitimate heir, though it weak-without learning, without arts, without industry, ened the hands of the governing prince. CHAP. VII. OF THE LAWS AND INSTITUTIONS OF THE SAXONS. BEFORE we begin to consider the laws and constitutions of the Saxons, let us take a view of the state of the country from whence they are derived, as it is portrayed in ancient writers. This view will be the best comment on their institutions. Let us represent to ourselves a people solely pleased and occupied with war, neglecting The death of Harold was far from putting an agriculture, abhorring cities, and seeking their end to these evils; it rather unfolded more at large livelihood only from pasturage and hunting, the fatal consequences of the ill measures which through a boundless range of morasses and forests. had been pursued. Edwin and Morcar set on foot Such a people must necessarily be united to each once more their practices to obtain the crown; other by very feeble bonds; their ideas of governand when they found themselves baffled, they re- ment will necessarily be imperfect, their freedom tired in discontent from the councils of the na- and their love of freedom great. From these tion; withdrawing thereby a very large part of dispositions it must happen of course, that the its strength and authority. The council of the intention of investing one person, or a few, with nation, which was formed of the clashing factions the whole powers of government, and the notion of a few great men, (for the rest were nothing,) of deputed authority or representation, are ideas, divided, disheartened, weakened, without head, that never could have entered their imaginations. without direction, dismayed by a terrible defeat, When, therefore, amongst such a people any resosubmitted, because they saw no other course, to a lution of consequence was to be taken, there conqueror, whose valour they had experienced, was no way of effecting it but by bringing toand who had hitherto behaved with great appear-gether the whole body of the nation, that every ances of equity and moderation. As for the individual might consent to the law, and each regrandees, they were contented rather to submit ciprocally bind the other to the observation of it. to this foreign prince, than to those whom they This polity, if so it may be called, subsists still in regarded as their equals and enemies. all its simplicity in Poland. With these causes other strong ones concurred. For near two centuries the continual and bloody wars with the Danes had exhausted the nation; the peace, which for a long time they were obliged to buy dearly, exhausted it yet more; and it had not sufficient leisure, nor sufficient means of acquiring wealth, to yield at this time any extraordinary resources. The new people, which after so long a struggle had mixed with the English, had not yet so thoroughly incorporated with the ancient inhabitants, that a perfect union might be expected between them; or that any strong uniform national effort might have resulted from it. Besides, the people of England were the most backward in Europe in all improvements, whether in military or in civil life. Their towns were meanly built, and But, as in such a society as we have mentioned the people cannot be classed according to any political regulations, great talents have a more ample sphere, in which to exert themselves, than in a close and better formed society. These talents must therefore have attracted a great share of the publick veneration, and drawn a numerous train after the person distinguished by them, of those, who sought his protection, or feared his power, or admired his qualifications, or wished to form themselves after his example, or in fine, of whoever desired to partake of his importance by being mentioned along with him. These the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans called them Comites. Over these their chief had a consider able power, and the more considerable, because it | depended upon influence rather than institution; influence among so free a people being the principal source of power. But this authority, great as it was, never could by its very nature be stretched to despotism; because any despotick act would have shocked the only principle, by which that authority was supported, the general good opinion. On the other hand, it could not have been bounded by any positive laws, because laws can hardly subsist amongst a people, who have not the use of letters. It was a species of arbitrary power, softened by the popularity from whence it arose. It came from popular opinion, and by popular opinion it was corrected. If people so barbarous as the Germans have no laws, they have yet customs, that serve in their room; and these customs operate amongst them better than laws, because they become a sort of nature both to the governours and the governed. This circumstance in some measure removed all fear of the abuse of authority, and induced the Germans to permit their chiefs to decide upon matters of lesser moment, their private differences, for so Tacitus explains the minores res. These chiefs were a sort of judges, but not legislators; nor do they appear to have had a share in the superiour branches of the executive part of government, the business of peace and war, and every thing of a publick nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans; that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our constitution, which has since been so nobly fashioned and so highly finished. This fine system, says Montesquieu, was invented in the woods; but whilst it remained in the woods, and for a long time after, it was far from being a fine one; no more indeed than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their barbarity. The ancient state of the Germans was military; so that the orders, into which they were distributed, their subordination, their courts, and every part of their government, must be deduced from an attention to a military principle. The ancient German people, as all the other northern tribes, consisted of freemen and slaves; the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age separated the boys from men. For when a young man approached to virility, he was not yet admitted as a member of the state, which was quite military, until he had been invested with a spear in the publick assembly of his tribe; and then he was adjudged proper to carry arms, and also to assist in the publick de They had no other nobility; yet several families amongst them were considered as noble. Arma sumere non ante cuiquam moris, quàm civitas suffecturum probaverit.-Tacitus de Mor. Germ. 13. Nihil autem neque publicæ neque privatæ rei nisi armati agunt. Id. ibid. This liberations, which were always held armed. spear he generally received from the hand of some old and respected chief, under § whom he commonly entered himself, and was admitted among his followers. No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in the strictest dependence, which was confirmed by an oath,|| and to his brethren in a common vow for their mutual support in all dangers, and for the advancement and the honour of their common chief. This chief was styled senior, lord, and the like terms, which marked out a superiority in age and merit; the followers were called ambacti, comites, leuds, vassals, and other terms, marking submission and dependence. This was the very first origin of civil, or rather military, government amongst the ancient people of Europe; and it arose from the connexion, that necessarily was created between the person who gave the arms, or knighted the young man, and him that received them; which implied, that they were to be occupied in his service who originally gave them. These principles it is necessary strictly to attend to, because they will serve much to explain the whole course both of government and real property, wherever the German nations obtained a settlement; the whole of their government depending for the most part upon two principles in our nature,-ambition, that makes one man desirous, at any hazard or expence, of taking the lead amongst others; and admiration, which makes others equally desirous of following him from the mere pleasure of admiration, and a sort of secondary ambition, one of the most universal passions among men. These two principles, strong both of them in our nature, create a voluntary inequality and dependence. But amongst equals in condition, there could be no such bond, and this was supplied by confederacy; and as the first of these principles created the senior and the knight, the second produced the conjurati fratres, which, sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws and histories. The relation between the lord and the vassal produced another effect,--that the leader was obliged to find sustenance for his followers; and to maintain them at his table, or give them some equivalent in order to their maintenance. It is plain from these principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely in the free choice of the parties. But it is impossible, that such a polity could long have subsisted by election alone. For in the first place, that natural love, which every man has to his own kindred, would make the chief willing to perpetuate the power and dignity he acquired § Cæteri robustioribus ac jam pridem probatis aggregantur. Id. ibid. Illum defendere, tueri, sua quoque fortia facta ejus gloriæ assignare præcipuum sacramentum est. Id. 14. in his own blood; and for that purpose, even during his own life, would raise his son, if grown up, or his collaterals, to such a rank, as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or fell by natural course, leaving his offspring destitute, the lord could not so far forget the services of his vassal as not to continue his allowance to his children; and these again growing up, from reason and gratitude, could only take their knighthood at his hands from whom they had received their education; and thus, as it could seldom happen but that the bond, either on the side of the lord or dependant, was perpetuated, some families must have been distinguished by a long continuance of this relation, and have been therefore looked upon in an honourable light from that only circumstance, from whence honour was derived in the northern world. Thus nobility was seen in Germany; and in the earliest Anglo-Saxon times, some families were distinguished by the title of Ethelings, or of noble descent. But this nobility of birth was rather a qualification for the dignities of the state than an actual designation to them. The Saxon ranks are chiefly designed to ascertain the quantity of the composition for personal injuries against them. But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connexion; and if a father left his son under a military age, so as that he could neither lead nor judge his people, nor qualify the young men, who came up under him, to take arms;-in order to continue the cliental bond, and not to break up an old and strong confederacy, and thereby disperse the tribe; who should be pitched upon to head the whole, but the worthiest of blood of the deceased leader? he, that ranked next to him in his life:* and this is Tanistry, which is a succession made up of inheritance and election; a succession, in which blood is inviolably regarded, so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferiour chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, was entirely passed over, and his uncle, or some remoter relation, raised to the Crown; but there is not a single instance where the election has carried it out of the blood. So that in truth the controversy, which has been managed with such heat, whether in the Saxon times the Crown was hereditary or elective, must be determined, in some degree, favourably for the litigants on either side; * Deputed authority, guardianship, &c. not known to the for it was certainly both hereditary and elective within the bounds which we have mentioned. This order prevailed in Ireland, where the northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it; which if they had done, there is no doubt but many things, of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries, had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded amongst the ancient Germans, and even preferred to that of the immediate possessour, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed. And this is upon the principles of Tanistry; and the rule seems to have taken such deep root, as to have much influenced a considerable article of our feudal law. For what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century. Thus we have seen the foundation of the northern government, and the orders of their people, which consisted of dependence and confederacy; that the principal end of both was military; that protection and maintenance were due on the part of the chief, obedience on that of the follower; that the followers should be bound to each other, as well as to the chief; that this headship was not at first hereditary, but that it continued in the blood by an order of its own, called Tanistry. All these unconnected and independent parts were only linked together by a common council; and here religion interposed. Their priests, the Druids, having a connexion throughout each state, united it. They called the assembly of the people; and here their general resolutions were taken; and the whole might rather be called a general confederacy, than a government. In no other bonds, I conceive, were they united before they quitted Germany. In this ancient state we know them from Tacitus. Then follows an immense gap, in which undoubtedly some changes were made by time; and we hear little more of them until we find them Christians, and makers of written laws. In this interval of time the origin of kings may be traced out. When the Saxons left their own country in search of new habitations, it must be supposed, that they followed their leaders, whom they so much venerated at home; but as the wars, which made way for their establishment, continued northern nations; they gained this idea by intercourse with the Romans. for a long time, military obedience made them fa- | miliar with a stricter authority. A subordination too became necessary among the leaders of each band of adventurers: and being habituated to yield an obedience to a single person in the field, the lustre of his command, and the utility of the institution, easily prevailed upon them to suffer him to form the band of their union, in time of peace, under the name of king. But the leader neither knew the extent of the power he received, nor the people of that which they bestowed. Equally unresolved were they about the method of perpetuating it; sometimes filling the vacant throne by election without regard to, but more frequently regarding, the blood of the deceased prince; but it was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus their polity was formed slowly; the prospect clears up by little and little; and this species of an irregular republick we see turned into a monarchy as irregular. It is no wonder, that the advocates for the several parties among us find something to favour their several notions in the Saxon government, which was never supported by any fixed or uniform principle. Hallmote or Court-Baron. retained in his own hands a parcel of land, near his house, which in the Saxon times was called inland, and afterwards his demean, which served to keep up his hospitality; and this land was cultivated either by slaves, or by the poorer sort of people, who held lands of him by the performance of this service. The other portion of his estate he either gave for life or lives to his followers, men of a liberal condition, who served the greater thane, as he himself served the king. They were called Under Thanes, or according to the language of that time, Theoden. They served their lord in all public business; they followed him in war; and they sought justice in his court in all their private differences. These may be considered as freeholders of the better sort, or indeed a sort of lesser gentry; therefore as they were not the absolute dependants, but in some measure the peers, of their lord, when they sued in his court, they claimed the privilege of all the German freemen, the right of judging one another; the lord's steward was only the register. This domestick court, which continued in full vigour for many ages, the Saxons called Hallmote, from the place in which it was held; the NorTo comprehend the other parts of the govern- mans, who adopted it, named it a ment of our ancestors, we must take notice of the Court-Baron. This court had another department, orders into which they were classed. As well as in which the power of the lord was more absolute. we can judge in so obscure a matter, they were From the most ancient times the German nobility divided into nobles or gentlemen; freeholders; considered themselves as the natural judges of freemen that were not freeholders; and slaves. those, who were employed in the cultivation of Of these last we have little to say, as they were their lands; looking on husbandmen with connothing in the state. The nobles were called tempt, and only as a parcel of the soil, which they Thanes, or servants. It must be remembered, that tilled; to these the Saxons commonly allotted the German chiefs were raised to that honourable some part of their out-lands to hold as tenants at rank by those qualifications, which drew after them will, and to perform very low services for them. a numerous train of followers and dependants.* If The differences of these inferiour tenants were deit was honourable to be followed by a numerous cided in the lord's court, in which his steward sat train, so it was honourable in a secondary degree as judge; and this manner of tenure probably gave to be a follower of a man of consideration; and an origin to copyholders. Their estates were at this honour was the greater in proportion to the will, but their persons were free; nor can we supquality of the chief, and to the nearness of the pose, that villains, if we consider villains as synoattendance on his person. When a monarchy was nymous to slaves, could ever by any natural course formed, the splendour of the Crown naturally have risen to copyholders; because the servile condrowned all the inferiour honours; and the attend-dition of the villain's person would always have ants on the person of the king were considered as the first in rank, and derived their dignity from their service. Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he should have a suitable attendance and sway amongst the people. To support him in both of these, it was necessary, that he should have a competent estate. Therefore, in this service of the king, this attendance on himself, and this estate to support both, the dignity of a thane consisted. I understand here a thane of the first order. prevented that stable tenure in the lands, which the copyholders came to in very early times. The merely servile part of the nation seems never to have been known by the name of villains or Ceorles; but by those of Bordars, Esnes, and Theowes. As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britains not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to find some method of uniting and governing these detached parts of the nation, which had not been brought into order by any private dependence. To answer this end, the whole kingdom was divided into shires; these nuerunt tenementa sua per libera servitia vel per liberas consuetudines. For the original of Copyholds, see Bracton, 1. i. fo. 7. Tithing court. of the peace, small debts, and such matters as rather required a speedy than a refined justice. into hundreds, and the hundreds into tithings. This division was not made, as it is generally imagined, by King Al- There was in the Saxon constitution a great fred, though he might have introduced better simplicity. The higher order of courts were but regulations concerning it; it prevailed on the the transcript of the lower, somewhat more excontinent, wherever the northern nations had tended in their objects and in their power; and obtained a settlement; and it is a species of order their power over the inferiour courts proceeded extremely obvious to all, who use the decimal no- only from their being a collection of them all. tation; when for the purposes of government they The county or shire court was the County court. divide a county, tens and hundreds are the first great resort for justice (for the four modes of division which occur. The tithing, great courts of record did not then exist). It which was the smallest of these divisions, consisted served to unite all the inferiour districts with one of ten heads of families, free, and of some con- another, and those with the private jurisdiction of sideration. These held a court every fortnight, the thanes. This court had no fixed place. The which they called the Folkmote, or Leet, and there alderman of the shire appointed it. Hither came became reciprocally bound to each other, and to to account for their own conduct, and that of those the publick, for their own peaceable behaviour, beneath them, the bailiffs of hundreds, and tithings, and that of their families and dependants. Every and boroughs, with their people; the thanes of man in the kingdom, except those who belonged either rank, with their dependants; a vast conto the seigneurial courts we have mentioned, course of the clergy of all orders; in a word, of was obliged to enter himself into some tithing; all, who sought or distributed justice. In this to this he was inseparably attached; nor could mixed assembly the obligations contracted in the he by any means quit it without license from inferiour courts were renewed; a general oath of the head of the tithing; because, if he was allegiance to the king was taken; and all debates guilty of any misdemeanour, his district was oblig- between the several inferiour co-ordinate jurisdiced to produce him, or pay his fine. In this tions, as well as the causes of too much weight manner was the whole nation, as it were, held for them, finally determined. In this court preunder sureties; a species of regulation undoubt-sided (for in strict signification he does not seem edly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to the spot, were depressed with all the ideas of their original littleness, and by all that envy, which is sure to arise in those, who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Every thing was new to them, and therefore every thing was terrible; all activity, boldness, enterprise, and invention, died away. There may be a danger in straining too strongly the bonds of government; as a life of absolute license tends to turn men into savages. The other extreme of constraint operates much in the same manner; it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires, and hundreds, and tithings, was common to them with the neighbouring nations, yet the Frankplege seems to be a peculiarity in the English constitution; and for good reasons they have fallen into disuse, though still some traces of them are to be found in our laws. Ten of these tithings made an hunHundred court. dred; here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined causes concerning breaches Ibi debent populi omnes et universæ gentes singulis annis semel in anno (scilicet in capite cal. Maii) et se fide et sacramento non fracto ibi in unum et simul confederare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos unâ cum domino suo rege, et terras et honores illius omni fidelitate cum eo servare et quod illi ut do to have been a judge) an officer of great con- Concerning the right of appointing the alderman of the shire, there is some uncertainty. That he was anciently elected by his county is indisputable; that an alderman of the shire was appointed by the Crown seems equally clear from the writings of King Alfred. A conjecture of Spelman throws some light upon this affair. He conceives, that there were two aldermen with concurrent jurisdic mino suo regi intra et extra regnum universum Britanniæ fideles esse volunt. LL. Ed. Conf. c. 35. Of Heretoches and their election, vide Id. eodem. Prohibitum erat etiam in eâdem lege ne quis emeret vivum animal vel pannum usitatum sine plegiis et bonis testibus. Of other particulars of buying and selling, vide Leges Ed. Cont. 38. |