The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12)

A.D. 1003In this state of shame and misery, their sufferings suggested to them a design rather desperate than brave. They resolved on a massacre of the Danes. Some authors say, that in one night the whole race was cut off. Many, probably all the military men, were so destroyed. But this massacre, injudicious as it was cruel, was certainly not universal; nor did it serve any other or better end than to exasperate those of the same nation abroad, who the next year landed in England with a powerful army to revenge it, and committed outrages even beyond the usual tenor of the Danish cruelty. There was in England no money left to purchase a peace, nor courage to wage a successful war; and the King of Denmark, Sweyn, a prince of capacity, at the head of a large body of brave and enterprising men, soon mastered the whole kingdom, except London. Ethelred, abandoned by fortune and his subjects, was forced to fly into Normandy.

Edmund Ironside, A.D. 1016.As there was no good order in the English affairs, though continually alarmed, they were always surprised; they were only roused to arms by the cruelty of the enemy, and they were only formed into a body by being driven from their homes: so that they never made a resistance until they seemed to be entirely conquered. This may serve to account for the frequent sudden reductions of the island, and the frequent renewals of their fortune when it seemed the most desperate. Sweyn, in the midst of his victories, dies, and, though succeeded by his son Canute, who inherited his father's resolution, their affairs were thrown into some disorder by this accident. The English were encouraged by it. Ethelred was recalled, and the Danes retired out of the kingdom; but it was only to return the nest year with a greater and better appointed force. Nothing seemed able to oppose them. The king dies. A great part of the land was surrendered, without resistance, to Canute. Edmund, the eldest son of Ethelred, supported, however, the declining hopes of the English for some time; in three months he fought three victorious battles; he attempted a fourth, but lost it by the base desertion of Edric, the principal author of all these troubles. It is common with the conquered side to attribute all their misfortunes to the treachery of their own party. They choose to be thought subdued by the treachery of their friends rather than the superior bravery of their enemies. All the old historians talk in this strain; and it must be acknowledged that all adherents to a declining party have many temptations to infidelity.

Edmund, defeated, but not discouraged, retreated to the Severn, where he recruited his forces. Canute followed at his heels. And now the two armies were drawn up which were to decide the fate of England, when it was proposed to determine the war by a single combat between the two kings. Neither was unwilling; the Isle of Alney in the Severn was chosen for the lists. Edmund had the advantage by the greatness of his strength, Canute by his address; for when Edmund had so far prevailed as to disarm him, he proposed a parley, in which he persuaded Edmund to a peace, and to a division of the kingdom. Their armies accepted the agreement, and both kings departed in a seeming friendship. But Edmund died soon after, with a probable suspicion of being murdered by the instruments of his associate in the empire.

The Danish race.

Canute.

Harold I., A.D. 1035.

Hardicanute, A.D. 1035

The Saxon line restored.Canute, on this event, assembled the states of the kingdom, by whom he was acknowledged King of all England. He was a prince truly great; for, having acquired the kingdom by his valor, he maintained and improved it by his justice and clemency. Choosing rather to rule by the inclination of his subjects than the right of conquest, he dismissed his Danish army, and committed his safety to the laws. He reëstablished the order and tranquillity which so long a series of bloody wars had banished. He revived the ancient statutes of the Saxon princes, and governed through his whole reign with such steadiness and moderation that the English were much happier under this foreign prince than they had been under their natural kings. Canute, though the beginning of his life was stained with those marks of violence and injustice which attend conquest, was remarkable in his latter end for his piety. According to the mode of that time, he made a pilgrimage to Rome, with a view to expiate the crimes which paved his way to the throne; but he made a good use of this peregrination, and returned full of the observations he had made in the country through which he passed, which he turned to the benefit of his extensive dominions. They comprehended England, Denmark, Norway, and many of the countries which lie upon the Baltic. Those he left, established in peace and security, to his children. The fate of his Northern possessions is not of this place. England fell to his son Harold, though not without much competition in favor of the sons of Edmund Ironside, while some contended for the right of the sons of Ethelred, Alfred and Edward. Harold inherited none of the virtues of Canute; he banished his mother Emma, murdered his half-brother Alfred, and died without issue after a short reign, full of violence, weakness, and cruelty. His brother Hardicanute, who succeeded him, resembled him in his character; he committed new cruelties and injustices in revenging those which his brother had committed, and he died after a yet shorter reign. The Danish power, established with so much blood, expired of itself; and Edward, the only surviving son of Ethelred, then an exile in Normandy, was called to the throne by the unanimous voice of the kingdom.

Edward the Confessor, A.D. 1041.

A.D. 1053

A.D. 1066.This prince was educated in a monastery, where he learned piety, continence, and humility, but nothing of the art of government. He was innocent and artless, but his views were narrow, and his genius contemptible. The character of such a prince is not, therefore, what influences the government, any further than as it puts it in the hands of others. When he came to the throne, Godwin, Earl of Kent, was the most popular man in England; he possessed a very great estate, an enterprising disposition, and an eloquence beyond the age he lived in; he was arrogant, imperious, assuming, and of a conscience which never put itself in the way of his interest. He had a considerable share in restoring Edward to the throne of his ancestors; and by this merit, joined to his popularity, he for some time directed everything according to his pleasure. He intended to fortify his interest by giving in marriage to the king his daughter, a lady of great beauty, great virtue, and an education beyond her sex. Godwin had, however, powerful rivals in the king's favor. This monarch, who possessed many of the private virtues, had a grateful remembrance of his favorable reception in Normandy; he caressed the people of that country, and promoted several to the first places, ecclesiastical and civil, in his kingdom. This begot an uneasiness in all the English; but Earl Godwin was particularly offended. The Normans, on the other hand, accused Godwin of a design on the crown, the justice of which imputation the whole tenor of his conduct evinced sufficiently. But as his cabals began to break into action before they were in perfect ripeness for it, the Norman party prevailed, and Godwin was banished. This man was not only very popular at home by his generosity and address, but he found means to engage even, foreigners in his interests. Baldwin, Earl of Flanders, gave him a very kind reception. By his assistance Godwin fitted out a fleet, hired a competent force, sailed to England, and having near Sandwich deceived the king's navy, he presented himself at London before he was expected. The king made ready as great a force as the time would admit to oppose him. The galleys of Edward and Godwin met on the Thames; but such was the general favor to Godwin, such the popularity of his cause, that the king's men threw down their arms, and refused to fight against their countrymen in favor of strangers. Edward was obliged to treat with his own subjects, and in consequence of this treaty to dismiss the Normans, whom he believed to be the best attached to his interests. Godwin used the power to which he was restored to gratify his personal revenge, showing no mercy to his enemies. Some of his sons behaved in the most tyrannical manner. The great lords of the kingdom envied and hated a greatness which annihilated the royal authority, eclipsed them, and oppressed the people; but Godwin's death soon after quieted for a while their murmurs. The king, who had the least share in the transactions of his own reign, and who was of a temper not to perceive his own insignificance, begun in his old age to think of a successor. He had no children: for some weak reasons of religion or personal dislike, he had never cohabited with his wife. He sent for his nephew Edward, the son of Edmund Ironside, out of Hungary, where he had taken refuge; but he died soon after he came to England, leaving a son called Edgar Atheling. The king himself irresolute in so momentous an affair, died without making any settlement. His reign was properly that of his great men, or rather of their factions. All of it that was his own was good. He was careful of the privileges of his subjects, and took care to have a body of the Saxon laws, very favorable to them, digested and enforced. He remitted the heavy imposition called Danegelt, amounting to 40,000l. a year, which had been constantly collected after the occasion had ceased; he even repaid to his subjects what he found in the treasury at his accession. In short, there is little in his life that can call his title to sanctity in question, though he can never be reckoned among the great kings.

CHAPTER VI.

HAROLD II.—INVASION OF THE NORMANS.—ACCOUNT OF THAT PEOPLE, AND OF THE STATE OF ENGLAND AT THE TIME OF THE INVASION

Harold II., A.D. 1066.Though Edgar Atheling had the best title to the succession, yet Harold, the son of Earl Godwin, on account of the credit of his father, and his own great qualities, which supported and extended the interest of his family, was by the general voice set upon the throne. The right of Edgar, young, and discovering no great capacity, gave him little disturbance in comparison of the violence of his own brother Tosti, whom for his infamous oppression he had found himself obliged to banish. This man, who was a tyrant at home and a traitor abroad, insulted the maritime parts with a piratical fleet, whilst he incited all the neighboring princes to fall upon his country. Harold Harfager, King of Norway, after the conquest of the Orkneys, with a powerful navy hung over the coasts of England. But nothing troubled Harold so much as the pretensions and the formidable preparation of William, Duke of Normandy, one of the most able, ambitious, and enterprising men of that age. We have mentioned the partiality of King Edward to the Normans, and the hatred he bore to Godwin, and his family. The Duke of Normandy, to whom Edward had personal obligations, had taken a tour into England, and neglected no means to improve these dispositions to his own advantage. It is said that he then received the fullest assurances of being appointed to the succession, and that Harold himself had been sent soon after into Normandy to settle whatever related to it. This is an obscure transaction, and would, if it could be cleared up, convey but little instruction. So that whether we believe or not that William had engaged Harold by a solemn oath to secure him the kingdom, we know that he afterwards set up a will of King Edward in his favor, which, however, he never produced, and probably never had to produce. In these delicate circumstances Harold was not wanting to himself. By the most equitable laws and the most popular behavior he sought to secure the affections of his subjects; and he succeeded so well, that, when he marched against the King of Norway, who had invaded his kingdom and taken York, without difficulty he raised a numerous army of gallant men, zealous for his cause and their country. He obtained a signal and decisive victory over the Norwegians. The King Harfager, and the traitor Tosti, who had joined him, were slain in the battle, and the Norwegians were forced to evacuate the country. Harold had, however, but little time to enjoy the fruits of his victory.

Scarce had the Norwegians departed, when William, Duke of Normandy, landed in the southern part of the kingdom with an army of sixty thousand chosen men, and struck a general terror through all the nation, which was well acquainted with the character of the commander and the courage and discipline of his troops.

The Normans were the posterity of those Danes who had so long and so cruelly harassed the British islands and the shore of the adjoining continent. In, the days of King Alfred, a body of these adventurers, under their leader, Rollo, made an attempt upon England; but so well did they find every spot defended by the vigilance and bravery of that great monarch that they were compelled to retire. Beaten from these shores, the stream of their impetuosity bore towards the northern parts of France, which had been reduced to the most deplorable condition by their former ravages. Charles the Simple then sat on the throne of that kingdom; unable to resist this torrent of barbarians, he was obliged to yield to it; he agreed to give up to Rollo the large and fertile province of Neustria, to hold of him as his feudatory. This province, from the new inhabitants, was called Normandy. Five princes succeeded Rollo, who maintained with great bravery and cultivated with equal wisdom his conquests. The ancient ferocity of this people was a little softened by their settlement; but the bravery which, had made the Danes so formidable was not extinguished in the Normans, nor the spirit of enterprise. Not long before this period, a private gentleman of Normandy, by his personal bravery, had acquired the kingdom of Naples. Several others followed his fortunes, who added Sicily to it. From one end of Europe to the other the Norman name was known, respected, and feared. Robert, the sixth Duke of Normandy, to expiate some crime which lay heavy upon his conscience, resolved, according to the ideas of that time, upon a pilgrimage to Jerusalem. It was in vain that his nobility, whom he had assembled to notify this resolution to them, represented to him the miserable state to which his country would be reduced, abandoned by its prince, and uncertain of a legal successor. The Duke was not to be moved from his resolution, which appeared but the more meritorious from the difficulties which attended it. He presented to the states William, then an infant, born of an obscure woman, whom, notwithstanding, he doubted not to be his son; him he appointed to succeed; him he recommended to their virtue and loyalty; and then, solemnly resigning the government in his favor, he departed on the pilgrimage, from whence he never returned. The states, hesitating some time between, the mischiefs that attend the allowing an illegitimate succession, and those which might arise from admitting foreign pretensions, thought the former the least prejudicial, and accordingly swore allegiance to William. But this oath was not sufficient to establish a right so doubtful. The Dukes of Burgundy and Brittany, as well as several Norman noblemen, had specious titles. The endeavors of all these disquieted the reign of the young prince with perpetual troubles. In these troubles he was formed early in life to vigilance, activity, secrecy, and a conquest over all those passions, whether bad or good, which obstruct the way to greatness. He had to contend with all the neighboring princes, with the seditions of a turbulent and unfaithful nobility, and the treacherous protection of his feudal lord, the King of France. All of these in their turns, sometimes all of these together, distressed him. But with the most unparalleled good fortune and conduct he overcame all opposition, and triumphed over every enemy, raising his power and reputation above that of all his ancestors, as much as he was exalted by his bravery above the princes of his own time.

Such was the prince who, on a pretended claim from the will of King Edward, supported by the common and popular pretence of punishing offenders and redressing grievances, landed at Pevensey in Sussex, to contest the crown with Harold. Harold had no sooner advice of his landing than he advanced to meet him with all possible diligence; but there did not appear in his army, upon this occasion, the same unanimity and satisfaction which animated it on its march against the Norwegians. An ill-timed economy in Harold, which made him refuse to his soldiers the plunder of the Norwegian camp, had created a general discontent. Several deserted; and the soldiers who remained followed heavily a leader under whom there was no hope of plunder, the greatest incitement of the soldiery. Notwithstanding this ill disposition, Harold still urged forward, and by forced marches advanced within seven miles of the enemy. The Norman, on his landing, is said to have sent away his ships, that his army might have no way of safety but in conquest; yet had he fortified his camp, and taken every prudent precaution, that so considerable an enterprise should not be reduced to a single effort of despair. When the armies, charged with the decision of so mighty a contest, had approached each other, Harold paused awhile. A great deal depended on his conduct at this critical time. The most experienced in the council of war, who knew the condition of their troops, were of opinion that the engagement ought to be deferred,—that the country ought to be wasted,—that, as the winter approached, the Normans would in all probability be obliged to retire of themselves,—that, if this should not happen, the Norman army was without resources, whilst the English would be every day considerably augmented, and might attack their enemy at a time and manner which might make their success certain. To all these reasons nothing was opposed but a false point of honor and a mistaken courage in Harold, who urged his fate, and resolved on an engagement. The Norman, as soon as he perceived that the English, were determined on a battle, left his camp to post himself in an advantageous situation, in which his whole army remained the night which preceded the action.

This night was spent in a manner which prognosticated the event of the following day. On the part of the Normans it was spent in prayer, and in a cool and steady preparation for the engagement; on the side of the English, in riot and a vain confidence that neglected all the necessary preparations. The two armies met in the morning; from seven to five the battle was fought with equal vigor, until at last the Norman army pretending to break in confusion, a stratagem to which they had been regularly formed, the English, elated with success, suffered that firm order in which their security consisted to dissipate, which when William observed, he gave the signal to his men to regain their former disposition, and fall upon the English, broken and dispersed. Harold in this emergency did everything which became him, everything possible to collect his troops and to renew the engagement; but whilst he flew from place to place, and in all places restored the battle, an arrow pierced his brain, and he died a king, in a manner worthy of a warrior. The English immediately fled; the rout was total, and the slaughter prodigious.

The consternation which this defeat and the death of Harold produced over the kingdom was more fatal than the defeat itself. If William had marched directly to London, all contest had probably been at an end; but he judged it more prudent to secure the sea-coast, to make way for reinforcements, distrusting his fortune in his success more than he had done in his first attempts. He marched to Dover, where the effect of his victory was such that the strong castle there surrendered without resistance. Had this fortress made any tolerable defence, the English would have had leisure to rouse from their consternation, and plan some rational method for continuing the war; but now the conqueror was on full march to London, whilst the English were debating concerning the measures they should take, and doubtful in what manner they should fill the vacant throne. However, in this emergency it was necessary to take some resolution. The party of Edgar Atheling prevailed, and he was owned king by the city of London, which even at this time was exceedingly powerful, and by the greatest part of the nobility then present. But his reign was of a short duration. William advanced by hasty marches, and, as he approached, the perplexity of the English redoubled: they had done nothing for the defence of the city; they had no reliance on their new king; they suspected one another; there was no authority, no order, no counsel; a confused and ill-sorted assembly of unwarlike people, of priests, burghers, and nobles confounded with them in the general panic, struck down by the consternation of the late defeat, and trembling under the bolts of the Papal excommunication, were unable to plan any method of defence: insomuch that, when he had passed the Thames and drew near to London, the clergy, the citizens, and the greater part of the nobles, who had so lately set the crown on the head of Edgar, went out to meet him; they submitted to him, and having brought him in triumph to Westminster, he was there solemnly crowned King of England. The whole nation followed the example of London; and one battle gave England to the Normans, which had cost the Romans, the Saxons, and Danes so much time and blood to acquire.

At first view it is very difficult to conceive how this could have happened to a powerful nation, in which it does not appear that the conqueror had one partisan. It stands a single event in history, unless, perhaps, we may compare it with the reduction of Ireland, some time after, by Henry the Second. An attentive consideration of the state of the kingdom at that critical time may, perhaps, in some measure, lay open to us the cause of this extraordinary revolution. The nobility of England, in which its strength consisted, was much decayed. Wars and confiscations, but above all the custom of gavelkind, had reduced that body very low. At the same time some few families had been, raised to a degree of power unknown in the ancient Saxon times, and dangerous in all. Large possessions, and a larger authority, were annexed to the offices of the Saxon magistrates, whom they called Aldermen. This authority, in their long and bloody wars with the Danes, it was found necessary to increase, and often to increase beyond the ancient limits. Aldermen were created for life; they were then frequently made hereditary; some were vested with a power over others; and at this period we begin to hear of dukes who governed over several shires, and had many aldermen subject to them. These officers found means to turn the royal bounty into an instrument of becoming independent of its authority. Too great to obey, and too little to protect, they were a dead weight upon the country. 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 endeavored to balance the power of Earl Godwin by exalting Leofric, Duke of Mercia, and Siward, Duke of Northumberland, to an extravagant greatness. The consequence was this: he did not humble Godwin, but raised him potent rivals. When, therefore, this prince died, the lawful successor to the crown, who had nothing but right in his favor, was totally eclipsed by the splendor 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 Godwin, having the strongest faction, carried it. By this success the opposite parties were inflamed with a new occasion of rancor and animosity, and an incurable discontent was raised in the minds of Edwin and Morcar, the sons of Duke Leofric, who inherited their father's power and popularity: but this animosity operated nothing in favor of the legitimate heir, though it weakened the hands of the governing prince.

The death of Harold was far from putting an end to these evils; it rather unfolded more at large the fatal consequences of the ill measures which had been pursued. Edwin and Morcar set on foot once more their practices to obtain the crown; and when they found themselves baffled, they retired in discontent from the councils of the nation, withdrawing thereby a very large part of its strength and authority. The council of the nation, which was formed of the clashing factions of a few great men, (for the rest were nothing,) divided, disheartened, weakened, without head, without direction, dismayed by a terrible defeat, submitted, because they saw no other course, to a conqueror whose valor they had experienced, and who had hitherto behaved with great appearances of equity and moderation. As for the grandees, they were contented rather to submit to this foreign prince than to those whom they regarded as their equals and enemies.

With these causes other strong ones concurred. For near two centuries the continual and bloody wars with the Danes had exhausted the nation; the peace, which for a long time they were obliged to buy dearly, exhausted it yet more; and it had not sufficient leisure nor sufficient means of acquiring wealth to yield at this time any extraordinary resources. The new people, which after so long a struggle had mixed with the 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 more meanly fortified; there was scarcely anything that deserved the name of a strong place in the kingdom; there was no fortress which, by retarding the progress of a conqueror, might give the people an opportunity of recalling their spirits and collecting their strength. To these we may add, that the Pope's approbation of William's pretensions gave them great weight, especially amongst the clergy, and that this disposed and reconciled to submission a people whom the circumstances we have mentioned had before driven to it.

CHAPTER VII.

OF THE LAWS AND INSTITUTIONS OF THE SAXONS

Before we begin to consider the laws and constitutions of the Saxons, let us take a view of the state of the country from whence they are derived, as it is portrayed in ancient writers. This view will be the best comment on their institutions. Let us represent to ourselves a people without learning, without arts, without industry, solely pleased and occupied with war, neglecting agriculture, abhorring cities, and seeking their livelihood only from pasturage and hunting through a boundless range of morasses and forests. Such a people must necessarily be united to each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen, of course, that the intention of investing one person or a few with the whole powers of government, and the notion of deputed authority or representation, are ideas that never could have entered their imaginations. When, therefore, amongst such a people any resolution of consequence was to be taken, there was no way of effecting it but by bringing together the whole body of the nation, that every individual might consent to the law, and each reciprocally bind the other to the observation of it. This polity, if so it may be called, subsists still in all its simplicity in Poland.

But as in such a society as we have mentioned the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves than in a close and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn a numerous train after the person distinguished by them, of those who sought his protection, or feared his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans called them Comites. Over these their chief had a considerable power, and the more considerable because it depended upon influence rather than institution: influence among so free a people being the principal source of power. But this authority, great as it was, never could by its very nature be stretched to despotism; because any despotic act would have shocked the only principle by which that authority was supported, the general good opinion. On the other hand, it could not have been bounded by any positive laws, because laws can hardly subsist amongst a people who have not the use of letters. It was a species of arbitrary power, softened by the popularity from whence it arose. It came from popular opinion, and by popular opinion it was corrected.

If people so barbarous as the Germans have no laws, they have yet customs that serve in their room; and these customs operate amongst them better than laws, because they become a sort of Nature both to the governors and the governed. This circumstance in some measure removed all fear of the abuse of authority, and induced the Germans to permit their chiefs[49 - They had no other nobility; yet several families amongst them were considered as noble.] 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 superior branches of the executive part of government,—the business of peace and war, and everything of a public nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans, that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Constitution, which has since been so nobly fashioned and so highly finished. This fine system, says Montesquieu, was invented in the woods; but whilst it remained in the woods, and for a long time after, it was far from being a fine one,—no more, indeed, than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.

The ancient state of the Germans was military: so that the orders into which they were distributed, their subordination, their courts, and every part of their government, must be deduced from an attention to a military principle.

The ancient German people, as all the other Northern tribes, consisted of freemen and slaves: the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age separated the boys from men. For when a young man approached to virility,[50 - Arma sumere non ante cuiquam moris, quàm civitas suffecturum probaverit.—Tacitus de Mor. Germ. 13.] 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 public assembly of his tribe; and then he was adjudged proper to carry arms, and also to assist in the public deliberations, which were always held armed.[51 - Nihil autem neque publicæ neque privatæ rei nisi armati agunt.—Tacitus de Mor. Germ. 13.] This 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.[52 - Cæteri robustioribus ac jam pridem probatis aggregantur.—Id. ibid.] 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,[53 - Illum defendere, tueri, sua quoque fortia facta gloriæ ejus as signare, præcipuum sacramentum est.—Id. 14.] and to his brethren in a common vow for their mutual support in all dangers, and for the advancement and the honor of their common chief. This chief was styled Senior, Lord, and the like terms, which marked out a superiority in age and merit; the followers were called Ambacti, Comites, Leudes, Vassals, and other terms, marking submission and dependence. This was the very first origin of civil, or rather, military government, amongst the ancient people of Europe; and it arose from the connection that necessarily was created between the person who gave the arms, or knighted the young man, and him that received them; which implied that they were to be occupied in his service who originally gave them. These principles it is necessary strictly to attend to, because they will serve much to explain the whole course both of government and real property, wherever the German nations obtained a settlement: the whole of their government depending for the most part upon two principles in our nature,—ambition, that makes one man desirous, at any hazard or expense, of taking the lead amongst others,—and admiration, which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, one of the most universal passions among men. These two principles, strong, both of them, in our nature, create a voluntary inequality and dependence. But amongst equals in condition there could be no such bond, and this was supplied by confederacy; and as the first of these principles created the senior and the knight, the second produced the conjurati fratres, which, sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws and histories.

The relation between the lord and the vassal produced another effect,—that the leader was obliged to find sustenance for his followers, and to maintain them at his table, or give them some equivalent in order to their maintenance. It is plain from these principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely in the free choice of the parties.

But it is impossible that such a polity could long have subsisted by election alone. For, in the first place, that natural love which every man has to his own kindred would make the chief willing to perpetuate the power and dignity he acquired in his own blood,—and for that purpose, even during his own life, would raise his son, if grown up, or his collaterals, to such a rank as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or fell by natural course, leaving his offspring destitute, the lord could not so far forget the services of his vassal as not to continue his allowance to his children; and these again growing up, from reason and gratitude, could only take their knighthood at his hands from whom they had received their education; and thus, as it could seldom happen but that the bond, either on the side of the lord or dependant, was perpetuated, some families must have been distinguished by a long continuance of this relation, and have been therefore looked upon in an honorable light, from that only circumstance from whence honor was derived in the Northern world. Thus nobility was seen in Germany; and in the earliest Anglo-Saxon times some families were distinguished by the title of Ethelings, or of noble descent. But this nobility of birth was rather a qualification for the dignities of the state than an actual designation to them. The Saxon ranks are chiefly designed to ascertain the quantity of the composition for personal injuries against them.

But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connection; and if a father loft 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?[54 - Deputed authority, guardianship, &c., not known to the Northern nations; they gained this idea by intercourse with the Romans.] And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon, empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferior chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, 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 favorably for the litigants on either side; for it was certainly both hereditary and elective within the bounds, which we have mentioned. This order prevailed in Ireland, where the Northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it,—which if they had done, there is no doubt but many things of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded amongst the ancient Germans, and even preferred to that of the immediate possessor, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed: and this is upon the principles of Tanistry. And the rule seems to have taken such deep root as to have much influenced a considerable article of our feudal law: for, what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century.

Thus we have seen the foundation of the Northern government and the orders of their people, which consisted of dependence and confederacy: that the principal end of both was military; that protection and maintenance were due on the part of the chief, obedience on that of the follower; that the followers should be bound to each other as well as to the chief; that this headship was not at first hereditary, but that it continued in the blood by an order of its own, called Tanistry.

All these unconnected and independent parts were only linked together by a common council: and here religion interposed. Their priests, the Druids, having a connection throughout each state, united it. They 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 for a long time, military obedience made them familiar with a stricter authority. A subordination, too, became necessary among the leaders of each band of adventurers: and being habituated to yield an obedience to a single person in the field, the lustre of his command and the utility of the institution easily prevailed upon them to suffer him to form the band of their union in time of peace, under the name of King. But the leader neither knew the extent of the power he received, nor the people of that which they bestowed. Equally unresolved were they about the method of perpetuating it,—sometimes filling the vacant throne by election, without regard to, but more frequently regarding, the blood of the deceased prince; but it was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus their polity was formed slowly; the prospect clears up by little and little; and this species of an irregular republic we see turned into a monarchy as irregular. It is no wonder that the advocates for the several parties among us find something to favor their several notions in the Saxon government, which was never supported by any fixed or uniform principle. To comprehend the other parts of the government of our ancestors, we must take notice of the orders into winch they were classed. As well as we can judge in so obscure a matter, they were divided into nobles or gentlemen, freeholders, freemen that were not freeholders, and slaves. Of these last we have little to say, as they were nothing in the state. The nobles were called Thanes, or servants. It must be remembered that the German chiefs were raised to that honorable rank by those qualifications which drew after them a numerous train of followers and dependants.[55 - Jud. Civ. Lund. apud Wilk. post p. 68.] If it was honorable to be followed by a numerous train, so it was honorable in a secondary degree to be a follower of a man of consideration; and this honor was the greater in proportion to the quality of the chief, and to the nearness of the attendance on his person. When a monarchy was formed, the splendor of the crown naturally drowned all the inferior honors; and the attendants on the person of the king were considered as the first in rank, and derived their dignity from their service. Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he should have a suitable attendance and sway amongst the people. To support him in both of these, it was necessary that he should have a competent estate. Therefore in this service of the king, this attendance on himself, and this estate to support both, the dignity of a thane consisted. I understand here a thane of the first order.

Hallmote, or Court-Baron.Every thane, in the distribution of his lands, had two objects in view: the support of his family, and the maintenance of his dignity. He therefore retained in his own hands a parcel of land near his house, which in the Saxon times was called inland, and afterwards his demesne, which served to keep up his hospitality: and this land was cultivated either by slaves, or by the poorer sort of people, who held lands of him by the performance of this service. The other portion of his estate he either gave for life or lives to his followers, men of a liberal condition, who served the greater thane, as he himself served the king. They were called Under Thanes, or, according to the language of that time, Theoden.[56 - Spelman of Feuds, ch. 5.] They served their lord in all public business; they followed him in war; and they sought justice in his court in all their private differences. These may be considered as freeholders of the better sort, or indeed a sort of lesser gentry therefore, as they were not the absolute dependants, but in some measure the peers of their lord, when they sued in his court, they claimed the privilege of all the German freemen, the right of judging one another: the lord's steward was only the register. This domestic court, which continued in full vigor for many ages, the Saxons called Hall mote, from the place in which it was held; the Normans, who adopted it, named it a Court-Baron. This court had another department, in which the power of the lord was more absolute. From the most ancient times the German nobility considered themselves as the natural judges of those who were employed in the cultivation of their lands, looking on husbandmen with contempt, and only as a parcel of the soil which they tilled: to these the Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these inferior tenants were decided in the lord's court, in which his steward sat as judge; and this manner of tenure probably gave an origin to copyholders.[57 - Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines.—For the original of copyholds, see Bracton, Lib. I. fol. 7.] Their estates were at will, but their persons were free: nor can we suppose that villains, if we consider villains as synonymous to slaves, could ever by any natural course have risen to copyholders; because the servile condition of the villain's person would always have prevented that stable tenure in the lands which the copyholders came to in very early times. The merely servile part of the nation seems never to have been known by the name of Villains or Ceorles, but by those of Bordars, Esnes, and Theowes.

Tithing Court.As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to 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 into Hundreds, and the Hundreds into Tithings.[58 - Ibi debent populi omnes et gentes universæ singulis annis, semel in anno scilicet, convenire, scilicet in capite Kal. Maii, et se fide et sacramento non fracto ibi in unam et simul confœderare, 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 domino suo regi intra et extra regnum universum Britanniæ fideles esse volunt—LL. Ed. Conf. c. 35.—Of Heretoches and their election, vide Id. eodem.Probibitum erat etiam in eadem lege, ne quis emeret vivum animal vel pannum usatum sine plegiis et bonis testibus.—Of other particulars of buying and selling, vide Leges Ed. Conf. 38.] This division was not made, as it is generally imagined, by King Alfred, though he might have introduced better regulations concerning it; it prevailed on the continent, wherever the Northern nations had obtained a settlement; and it is a species of order extremely obvious to all who use the decimal notation: when for the purposes of government they divide a county, tens and hundreds are the first modes of division which occur. The Tithing, which was the smallest of these divisions, consisted of ten heads of families, free, and of some consideration. These held a court every fortnight, which they called the Folkmote, or Leet, and there became reciprocally bound to each other and to the public for their own peaceable behavior and that of their families and dependants. Every man in the kingdom, except those who belonged to the seigneurial courts we have mentioned, was obliged to enter himself into some tithing: to this he was inseparably attached; nor could he by any means quit it without license from the head of the tithing; because, if he was guilty of any misdemeanor, his district was obliged to produce him or pay his fine. In this manner was the whole nation, as it were, held under sureties: a species of regulation undoubtedly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to the spot, were depressed with all the ideas of their original littleness, and by all that envy which is sure to arise in those who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Everything was new to them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the bonds of government. As a life of absolute license tends to turn men into savages, the other extreme of constraint operates much in the same manner: it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires and hundreds and tithings was common to them with the neighboring nations, yet the frankpledge seems to be a peculiarity in the English Constitution; and for good reasons they have fallen into disuse, though still some traces of them are to be found in our laws.

Hundred Court.Ten of these tithings made an Hundred. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined causes concerning breaches of the peace, small debts, and such matters as rather required a speedy than a refined justice.

County Court.

Ealdorman and Bishop.There was in the Saxon Constitution a great simplicity. The higher order of courts were but the transcript of the lower, somewhat more extended in their objects and in their power; and their power over the inferior courts proceeded only from their being a collection of them all. The County or Shire Court was the great resort for justice (for the four great courts of record did not then exist). It served to unite all the inferior districts with one another, and those with the private jurisdiction of the thanes. This court had no fixed place. The alderman of the shire appointed it. Hither came to account for their own conduct, and that of those beneath them, the bailiffs of hundreds and tithings and boroughs, with their people,—the thanes of either rank, with their dependants,—a vast concourse of the clergy of all orders: in a word, of all who sought or distributed justice. In this mixed assembly the obligations contracted in the inferior courts were renewed, a general oath of allegiance to the king was taken, and all debates between the several inferior coördinate jurisdictions, as well as the causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an officer of great consideration in those times, called the Ealdorman of the Shire. With him sat the bishop, to decide in whatever related to the Church, and to mitigate the rigor of the law by the interposition of equity, according to the species of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the bishop was the chief acting person in this court. The reverence in which the clergy were then held, the superior learning of the bishop, his succeeding to the power and jurisdiction of the Druid, all contributed to raise him far above the ealdorman, and to render it in reality his court. And this was probably the reason of the extreme lenity of the Saxon laws. The canons forbade the bishops to meddle in cases of blood. Amongst the ancient Gauls and Germans the Druid could alone condemn to death; so that on the introduction of Christianity there was none who could, in ordinary course, sentence a man to capital punishment: necessity alone forced it in a few cases.

Concerning the right of appointing the Alderman of the Shire there is some uncertainty. That he was anciently elected by his county is indisputable; that an alderman of the shire was appointed by the crown seems equally clear from the writings of King Alfred. A conjecture of Spelman throws some light upon this affair. He conceives that there were two aldermen with concurrent jurisdiction, one of whom was elected by the people, the other appointed by the king. This is very probable, and very correspondent to the nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the ordinary business of the nation was then transacted, the state would have hardly differed from a pure democracy. Besides, as the king had in every county large landed possessions, either in his demesne, or to reward and pay his officers, he would have been in a much worse condition than any of his subjects, if he had been destitute of a magistrate to take care of his rights and to do justice to his numerous vassals. It appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year only, and that the royal alderman held his place at the king's pleasure. This latter office, however, in process of time, was granted for life; and it grew afterwards to be hereditary in many shires.

The Sheriff.

Sheriff's Tourn.We cannot pretend to say when the Sheriff came to be substituted in the place of the Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from the nature of the thing itself. As several persons of consequence enough to obtain by their interest or power the place of alderman were not sufficiently qualified to perform the duty of the office, they contented themselves with the honorary part, and left the judicial province to their substitute.[59 - Sheriff in the Norman times was merely the king's officer, not the earl's. The earl retained his ancient fee, without jurisdiction; the sheriff did all the business. The elective sheriff must have disappeared on the Conquest; for then all land was the king's, either immediately or mediately, and therefore his officer governed.] The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or alderman, who was in the shire what the thane was in his manor, for the same reasons officiated by his deputy, the shire-reeve. This is the origin of the Sheriff's Tourn, which decided in all affairs, civil and criminal, of whatever importance, and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to the court there being left nothing more than the cognizance of pleas under forty shillings, unless by a particular writ or special commission. But by what steps such a revolution came on it will be our business hereafter to inquire.

Witenagemote.The Witenagemote or Saxon Parliament, the supreme court, had authority over all the rest, not upon any principle of subordination, but because it was formed of all the rest. In this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and greater thanes, with the other officers of the crown.[60 - How this assembly was composed, or by what right the members sat in it, I cannot by any means satisfy myself. What is here said is, I believe, nearest to the truth.] So far as we can judge by the style of the Saxon laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly, at least whilst it acted deliberatively. It is true that great numbers of all ranks of people attended its session, and gave by their attendance, and their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This may be explained by considering the analogy of the inferior assemblies. All persons, of whatever rank, attended at the county courts; but they did not go there as judges, they went to sue for justice,—to be informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at the Witenagemotes, not to make laws, but to attend at the promulgation of the laws;[61 - Hence, perhaps, all men are supposed cognizant of the law.] as among so free a people every institution must have wanted much of its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in these early times the commons sat, as they do at this day, by representation from shires and boroughs; and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such appearances as no other explanation can account for.

To the reign of Henry the Second, the citizens and burgesses were little removed from absolute slaves. They might be taxed individually at what sum the king thought fit to demand; or they might be discharged by offering the king a sum, from which, if he accepted it, the citizens were not at liberty to recede; and in either case the demand was exacted with severity, and even cruelty. A great difference is made between taxing them and those who cultivate lands: because, says my author, their property is easily concealed; they live penuriously, are intent by all methods to increase their substance, and their immense wealth is not easily exhausted. Such was their barbarous notion of trade and its importance. The same author, speaking of the severe taxation, and violent method of extorting it, observes that it is a very proper method,—and that it is very just that a degenerate officer, or other freeman, rejecting his condition for sordid gain, should be punished beyond the common law of freemen.

I take it that those who held by ancient demesne did not prescribe simply not to contribute to the expenses of the knight of the shire; but they prescribed, as they did in all cases, upon a general principle, to pay no tax, nor to attend any duty of whatever species, because they were the king's villains. The argument is drawn from the poverty of the boroughs, which ever since the Conquest have been of no consideration, and yet send members to Parliament; which they could not do, but by some privileges inherent in them, on account of a practice of the same kind in the Saxon times, when they were of more repute. It is certain that many places now called boroughs were formerly towns or villages in ancient demesne of the king, and had, as such, writs directed to them to appear in Parliament, that they might make a free gift or benevolence, as the boroughs did; and from thence arose the custom of summoning them. This appears by sufficient records. And it appears by records also, that it was much at the discretion of the sheriff what boroughs he should return; a general writ was directed to him to return for all the boroughs in a shire; sometimes boroughs which had formerly sent members to Parliament were quite passed over, and others, never considered as such before, were returned. What is called the prescription on this occasion was rather a sort of rule to direct the sheriff in the execution of his general power than a right inherent in any boroughs. But this was long after the time of which we speak. In whatever manner we consider it, we must own that this subject during the Saxon times is extremely dark. One thing, however, is, I think, clear from the whole tenor of their government, and even from the tenor of the Norman Constitution long after: that their Witenagemotes or Parliaments were unformed, and that the rights by which the members held their seats were far from being exactly ascertained. The Judicia Civitatis Londoniæ afford a tolerable insight into the Saxon method of making and executing laws. First, the king called together his bishops, and such other persons as he thought proper. This council, or Witenagemote, having made such laws as seemed convenient, they then swore to the observance of them. The king sent a notification of these proceedings to each Burgmote, where the people of that court also swore to the observance of them, and confederated, by means of mutual strength and common charge, to prosecute delinquents against them. Nor did there at that time seem to be any other method of enforcing new laws or old. For as the very form of their government subsisted by a confederacy continually renewed, so, when a law was made, it was necessary for its execution to have again recourse to confederacy, which was the great, and I should almost say the only, principle of the Anglo-Saxon government.

What rights the king had in this assembly is a matter of equal uncertainty.[62 - Debet etiam rex omnia rite facere in regno, et per judicium procerum regni.—Debet … justitiam per consilium procerum regni sui tenere.—Leges Ed. 17.] The laws generally run in his name, with the assent of his wise men, &c. But considering the low estimation of royalty in those days, this may rather be considered as the voice of the executive magistrate, of the person who compiled the law and propounded it to the Witenagemote for their consent, than of a legislator dictating from his own proper authority. For then, it seems, the law was digested by the king or his council for the assent of the general assembly. That order is now reversed. All these things are, I think, sufficient to show of what a visionary nature those systems are which would settle the ancient Constitution in the most remote times exactly in the same form in which we enjoy it at this day,—not considering that such mighty changes in manners, during so many ages, always must produce a considerable change in laws, and in the forms as well as the powers of all governments.

We shall next consider the nature of the laws passed in these assemblies, and the judicious manner of proceeding in these several courts which we have described.

Saxon laws.

The Anglo-Saxons trusted more to the strictness of their police, and to the simple manners of their people, for the preservation of peace and order, than to accuracy or exquisite digestion of their laws, or to the severity of the punishments which they inflicted.[63 - The non-observance of a regulation of police was always heavily punished by barbarous nations; a slighter punishment was inflicted upon the commission of crimes. Among the Saxons moat crimes were punished by fine; wandering from the highway without sounding an horn was death. So among the Druids,—to enforce exactness in time at their meetings, he that came last after the time appointed was punished with death.] The laws which remain to us of that people seem almost to regard two points only: the suppressing of riots and affrays,—and the regulation of the several ranks of men, in order to adjust the fines for delinquencies according to the dignity of the person offended, or to the quantity of the offence. In all other respects their laws seem very imperfect. They often speak in the style of counsel as well as that of command. In the collection of laws attributed to Alfred we have the Decalogue transcribed, with no small part of the Levitical law; in the same code are inserted many of the Saxon institutions, though these two laws were in all respects as opposite as could possibly be imagined. These indisputable monuments of our ancient rudeness are a very sufficient confutation of the panegyrical declamations in which some persons would persuade us that the crude institutions of an unlettered people had attained an height which the united efforts of necessity, learning, inquiry, and experience can hardly reach to in many ages. We must add, that, although as one people under one head there was some resemblance in the laws and customs of our Saxon ancestors throughput the kingdom, yet there was a considerable difference, in many material points, between the customs of the several shires: nay, that in different manors subsisted a variety of laws not reconcilable with each other, some of which custom, that caused them, has abrogated; others have been overruled by laws or public judgment to the contrary; not a few subsist to this time.

Purgation by oath.