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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 chiefs⁴⁹ 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 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 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 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 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 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 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 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 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 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.