The History of England in Three Volumes, Vol. I., Part A. · David Hume
THE ANGLO-SAXON GOVERNMENT AND MANNERS.
The government of the Germans, and that of all the northern nations who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, were more guided by persuasion than authority in the submission which they paid to their princes. The military despotism which had taken place in the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people; and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments of liberty, honor, equity, and valor superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians.
The Saxons who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence which they had inherited from their ancestors. The chieftains, (for such they were, more properly than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority; and as the Saxons exterminated, rather than subdued, the ancient inhabitants, they were indeed transplanted into a new territory, but preserved unaltered all their civil and military institutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pencil of Tacitus, will suit those founders of the English government. The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which, though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community.
It is easy to imagine that an independent people, so little restrained by law and cultivated by science, would not be very strict in maintaining a regular succession of their princes. Though they paid great regard to the royal family, and ascribed to it an undisputed superiority, they either had no rule, or none that was steadily observed, in filling the vacant throne; and present convenience, in that emergency, was more attended to than general principles. We are not, however, to suppose that the crown was considered as altogether elective; and that a regular plan was traced by the constitution for supplying, by the suffrages of the people, every vacancy made by the demise of the first magistrate. If any king left a son of an age and capacity fit for government, the young prince naturally stepped into the throne: if he was a minor, his uncle, or the next prince of the blood, was promoted to the government, and left the sceptre to his posterity: any sovereign, by taking previous measures with the leading men, had it greatly in his power to appoint his successor: all these changes, and indeed the ordinary administration of government, required the express concurrence, or at least the tacit acquiescence of the people; but possession, however obtained, was extremely apt to secure their obedience, and the idea of any right, which was once excluded was but feeble and imperfect. This is so much the case in all barbarous monarchies, and occurs so often in the history of the Anglo-Saxons, that we cannot consistently entertain any other notion of their government. The idea of an hereditary succession in authority is so natural to men, and is so much fortified by the usual rule in transmitting private possessions, that it must retain a great influence on every society, which does not exclude it by the refinements of a republican constitution.
But as there is a material difference between gov-* *ernment and private possessions, and every man is not as much qualified for exercising the one as for enjoying the other, a people who are not sensible of the general advantages attending a fixed rule are apt to make great leaps in the succession, and frequently to pass over the person, who, had he possessed the requisite years and abilities, would have been thought entitled to the sovereignty. Thus these monarchies are not, strictly speaking, either elective or hereditary; and though the destination of a prince may often be followed in appointing his successor, they can as little be regarded as wholly testamentary. The states by their suffrage may sometimes establish a sovereign; but they more frequently recognize the person whom they find established: a few great men take the lead; the people, overawed and influenced, acquiesce in the government; and the reigning prince, provided he be of the royal family, passes undisputedly for the legal sovereign. It is confessed that our knowledge of the Anglo-Saxon history and antiquities is too imperfect to afford us means of determining with certainty all the prerogatives of the crown and privileges of the people, or of giving an exact delineation of that government. It is probable, also, that the constitution might be somewhat different hi the different kingdoms of the Heptarchy, and that it changed considerably during the course of six centuries, which elapsed from the first invasion of the Saxons till the Norman conquest.[*] But most of these differences and changes, with their causes and effects, are unknown to us; it only appears that, at all times and in all the kingdoms, there was a national council, called a wittenagemot, or assembly of the wise men, (for that is the import of the term,) whose consent was requisite for enacting laws, and for ratifying the chief acts of public administration.
The expressions employed by all ancient historians in mentioning the wittenagemot, seem to contradict the latter supposition. The members are almost always called the “principes, satrapæ, optimates, magnates, proceres;” terms which seem to suppose an aristocracy, and to exclude the commons. The boroughs also, from the low state of commerce, were so small and so poor, and the inhabitants lived in such dependence on the great men,[****] that it seems nowise probable they would be admitted as a part of the national councils. The commons are well known to have had no share in the governments established by the Franks, Burgundians, and other northern nations; and we may conclude that the Saxons, who remained longer barbarous and uncivilized than those tribes, would never think of conferring such an extraordinary privilege on trade and industry. [* Sometimes abbesses were admitted; at least they often sign the king’s charters or grants. Spelm. Gloss. in verbo Parliamentum.] [** Wilkins, passim.] [*** See note G, at the end of the volume.] [**** Brady’s Treatise of English Boroughs, p. 3, 4, 5, etc.]
The military profession alone was honorable among all those conquerors: the warriors subsisted by their possessions in land: they became considerable by their influence over their vassals, retainers, tenants, and slaves: and it requires strong proof to convince us that they would admit any of a rank so much inferior as the burgesses, to share with them in the legislative authority. Tacitus indeed affirms that, among the ancient Germans, the consent of all the members of the community was required in every important deliberation; but he speaks not of representatives; and this ancient practice, mentioned by the Roman historian, could only have place in small tribes, where every citizen might without inconvenience be assembled upon any extraordinary emergency. After principalities became extensive, after the difference of property had formed distinctions more important than those which arose from personal strength and valor, we may conclude that the national assemblies must have been more limited in their number, and composed only of the more considerable citizens. But, though we must exclude the burgesses or commons from the Saxon wittenagemot, there is some necessity for supposing that this assembly consisted of other members than the prelates, abbots, alderman, and the judges or privy council. For as all these, excepting some of the ecclesiastics,[*] were anciently appointed by the king, had there been no other legislative authority, the royal power had been, in a great measure, absolute, contrary to the tenor of all the historians, and to the practice of all the northern nations.
When any of the associates is in danger, and calls for the assistance of his fellows, they promise, besides flying to his succor, to give information to the sheriff; and if he be negligent in protecting the person exposed to danger, they engage to levy a fine of one pound upon him; if the president of the society himself be wanting in this particular, he binds himself to pay one pound; unless he has the reasonable excuse of sickness, or of duty to his superior. When any of the associates is murdered, they are to exact eight pounds from the murderer; and if he refuse to pay it, they are to prosecute him for the sum at their joint expense. If any of the associates, who happens to be poor, kill a man, the society are to contribute, by a certain proportion, to pay his fine,--a mark apiece, if the fine be seven hundred shillings; less if the person killed be a clown or ceorle; the half of that sum, again, if he be a Welshman But where any of the associates kill a man wilfully and without provocation, he must himself pay the fine. If any of the associates kill any of his fellows in a like criminal manner, besides paying the usual fine to the relations of the deceased, he must pay eight pounds to the society, or renounce the benefit of it; in which case they bind themselves, under the penalty of one pound, never to eat or drink with him, except in the presence of the king, bishop, or alderman. There are other regulations to protect themselves and their servants from all injuries, to revenge such as are committed, and to prevent their giving abusive language to each other; and the fine which they engage to pay for this last offence is a measure of honey.
Security was provided by the Saxon laws to all members of the wittenagemot, both in going and returning, “except they were notorious thieves and robbers.” The German Saxons, as the other nations of that continent, were divided into three ranks of men--the noble, the free, and the slaves.[A] This distinction they brought over with them into Britain. [A] Nithard. Hist. lib. iv. The nobles were called thanes; and were of two kinds, the king’s thanes and lesser thanes. The latter seem to have been dependent on the former, and to have received lands, for which they paid rent, services, or attendance in peace and war.[*] We know of no title which raised any one to the rank of thane, except noble birth and the possession of land. The former was always much regarded by all the German nations, even in their most barbarous state; and as the Saxon nobility, having little credit, could scarcely burden their estates with much debt, and as the commons had little trade or industry by which they could accumulate riches’ these two ranks of men, even though they were not separated by positive laws, might remain long distinct, and the noble families continue many ages in opulence and splendor. There were no middle ranks of men, that could gradually mix with their superiors, and insensibly procure to themselves honor and distinction. If, by any extraordinary accident, a mean person acquired riches, a circumstance so singular made him be known and remarked; he became the object of envy, as well as of indignation, to all the nobles; he would have great difficulty to defend what he had acquired; and he would find it impossible to protect himself from oppression, except by courting the patronage of some great chieftain, and paying a large price for his safety.
There are two statutes among the Saxon laws, which seem calculated to confound those different ranks of men; that of Athelstan, by which a merchant, who had made three long sea voyages on his own account, was entitled to the quality of thane;[**] and that of the same prince, by which a ceorle, or husbandman, who had been able to purchase five hides of land, and had a chapel, a kitchen, a hall, and a bell, was raised to the same distinction.[***] But the opportunities were so few, by which a merchant or ceorle could thus exalt himself above his rank, that the law could never overcome the reigning prejudices; the distinction between noble and base blood would still be indelible; and the well-born thanes would entertain the highest contempt for those legal and factitious ones. Though we are not informed of any of these circumstances by ancient historians, they are so much founded on the nature of things, that we may admit them as a necessary and infallible consequence of the situation of the kingdom during those ages. [* Spel. Feus and Tenures, p. 40.] [** Wilkins, p. 71.] [*** Selden, Titles of Honor, p, 515. Wilkins, p. 7.]
But the most numerous rank by far in the community to have been the slaves or villains, who were the property of their lords, and were consequently incapable themselves of possessing any property. Dr. Brady assures us, from a survey of domesday-book,[*] that, in all the counties of England, the far greater part of the land was occupied by them, and that the husbandmen, and still more the socmen, who were tenants that, could not be removed at pleasure, were very few in comparison. This was not the case with the German nations, as far as we can collect from the account given us by Tacitus. The perpetual wars in the Heptarchy, and the depredations of the Danes, seem to have been the cause of this great alteration with the Anglo-Saxons. Prisoners taken in battle, or carried off in the frequent inroads, were then reduced to slavery, and became, by right of war,[**] entirely at the disposal of their lords. Great property in the nobles, especially if joined to an irregular administration of justice, naturally favors the power of the aristocracy; but still more so, if the practice of slavery be admitted, and has become very common. The nobility not only possess the influence which always attends riches, but also the power which the laws give them over their slaves and villains. It then becomes difficult, and almost impossible, for a private man to remain altogether free and independent.
There were two kinds of slaves among the Anglo-Saxons; household slaves, after the manner of the ancients, and praedial, or rustic, after the manner of the Germans.[***] These latter resembled the serfs, which are at present to be met with in Poland, Denmark, and some parts of Germany. The power of a master over his slaves was not unlimited among the Anglo-Saxons, as it was among their ancestors. If a man beat out his slave’s eye or teeth, the slave recovered his liberty:[****] if he killed him, he paid a fine to the king, provided the slave died within a day after the wound or blow; otherwise it passed unpunished.[*****] The selling of themselves or children to slavery, was always the practice among the German nations,[******] and was continued by the Anglo-Saxons.[*******] [* General Preface to his Hist. p. 7, 8, 9, etc.] [** LL. Edg. sect. 14, apud Spel. Concil. vol. i. p. 471.] [*** Spel. Gloss, in verbo Servus.] [**** LL. Ælf. sect. 20] [***** LL. Ælf. sect. 17.] [****** Tacit, de Mor. Germ] [******* LL. Inse, sect. 11. LL. Ælf. sect. 12.] The great lords and abbots among the Anglo-Saxons possessed a criminal jurisdiction within their territories, and could punish without appeal any thieves or robbers whom they caught there.[*] This institution must have had a very contrary effect to that which was intended, and must have procured robbers a sure protection on the lands of such noblemen as did not sincerely mean to discourage crimes and violence.
Among a people who lived in so simple a manner as the Anglo-Saxons, the judicial power is always of greater importance than the legislative. There were few or no taxes imposed by the states; there were few statutes enacted; and the nation was less governed by laws, than by customs, which admitted a great latitude of interpretation. Though it should, therefore, be allowed, that the wittenagemot was altogether composed of the principal nobility, the county courts, where all the freeholders were admitted, and which regulated all the daily occurrences of life, formed a wide basis for the government, and were no contemptible checks on the aristocracy. But there is another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility; and the degree of it which prevails, cannot be determined so much by the public statutes, as by small incidents in history, by particular customs, and sometimes by the reason and nature of things. The highlands of Scotland have long been entitled by law to every privilege of British subjects; but it was not till very lately that the common people could in fact enjoy these privileges.
The powers of all the members of the Anglo-Saxon government are disputed among historians and antiquaries: the extreme obscurity of the subject, even though faction had never entered into the question, would naturally have begotten those controversies. But the great influence of the lords over their slaves and tenants, the clientship of the burghers, the total want of a middling rank of men, the extent of the mon archy, the loose execution of the laws, the continued disorders and convulsions of the state,--all these circumstances evince that the Anglo-Saxon government became at last extremely aristocratical; and the events, during the period immediately preceding the conquest, confirm this inference or conjecture. Both the punishments inflicted by the Anglo-Saxon courts of judicature, and the methods of proof employed in all causes, appear somewhat singular, and are very different from those which prevail at present among all civilized nations.
We must conceive that the ancient Germans were little removed from the original state of nature: the social confederacy among them was more martial than civil: they had chiefly in view the means of attack or defence against public enemies, not those of protection against their fellow-citizens: their possessions were so slender and so equal, that they were not exposed to great danger; and the natural bravery of the people made every man trust to himself and to his particular friends for his defence or vengeance. This defect in the political union drew much closer the knot of particular confederacies: an insult upon any man was regarded by all his relations and associates as a common injury: they were bound by honor, as well as by a sense of common interest, to revenge his death, or any violence which he had suffered: they retaliated on the aggressor by like acts of violence; and if he were protected, as was natural and usual, by his own clan, the quarrel was spread still wider, and bred endless disorders in the nation.
But when the German nations had been settled some time in the provinces of the Roman empire, they made still another step towards a more cultivated life, and their criminal justice gradually improved and refined itself. The magistrate, whose office it was to guard public peace, and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, or to his family, he thought himself entitled to exact a fine, called the “fridwit,” as an atonement for the breach of peace, and as a reward for the pains which he had taken in accommodating the quarrel. When this idea, which is so natural, was once suggested, it was willingly received both by sovereign and people. The numerous fines which were levied, augmented the revenue of the king; and the people were sensible that he would be more vigilant in interposing with his good offices, when he reaped such immediate advantage from them; and that injuries would be less frequent, when, besides compensation to the person injured, that they were exposed to this additional penalty.[**] [* Tacit, de Mor. Germ. The author says, that the price of the composition was fixed; which must have been by the laws, and the interposition of the magistrates.] [** Besides paying money to the relations of the deceased, and to the king, the murderer was also obliged to pay the master of a slave of vassal a sum, as a compensation for his loss. This was called the “manbote” See Spel. Gloss, in verb. Fredum, Manbot.]
These attempts of Edmond, to contract and diminish the feuds, were contrary to the ancient spirit of the northern barbarians, and were a step towards a more regular administration of justice. By the salic law, any man-night, by a public declaration, exempt himself from his family quarrels: but then he was considered by the law as no longer belonging to the family; and he was deprived of all right of succession, as the punishment of his cowardice.[******] The price of the king’s head, or his weregild, as it was then called, was by law thirty thousand thrimsas, near thirteen hundred pounds of present money. The price of the prince’s head was fifteen thousand thrimsas; that of a bishop’s or alderman’s, eight thousand; a sheriff’s, four thousand; a thane’s or clergyman’s, two thousand; a ceorle’s, two hundred and sixty-six. These prices were fixed by the laws of the Angles. By the Mercian law, the price of a ceorle’s head was two hundred shillings; that of a thane’s, six times as much; that of a king’s, six times more.[*******] By the laws of Kent, the price of the archbishop’s head was higher than that of the king’s.[********] Such respect was then paid to the ecclesiastics! It must be understood, that where a person was unable or unwilling to pay the fine, he was put out of the protection of law, and the kindred of the deceased had liberty to punish him as they thought proper.
These institutions are not peculiar to the ancient Germans. They seem to be the necessary progress of criminal jurisprudence among every free people, where the will of the sovereign is not implicitly obeyed. We find them among the ancient Greeks during the time of the Trojan war. Compositions for murder are mentioned in Nestor’s speech to Achilles, in the ninth Iliad, and are called [Greek: apoinai]. The Irish, who never had any connections with the German nations, adopted the same practice till very lately; and the price of a man’s head was called among them his “eric;” as we learn from Sir John Davis. The same custom seems also to have prevailed among the Jews.[*******] Theft and robbery were frequent among the Anglo-Saxons In order to impose some check upon these crimes, it was ordained, that no man should sell or buy any thing above twenty pence value, except in open market;[********] and every bargain of sale must be executed before witnesses.[*********] [1: Lindenbrogius, passim.] [2: Tacit, de Mor. Germ.] [3: LL. Ælf. sect. 12. Wilkins, p. 29. It is probable that by wilful murder Alfred means a treacherous murder, committed by one who has no declared feud with another.] [4: LL. Ælf. sect. 4. Wilkins, p. 35.] [5: LL. Ælf. sect. 40. See also LL. Ethelb. sect. 34, etc.]
Text from Project Gutenberg, public domain in the United States.