2.The witan deliberated upon the making of new laws which were to be added to the existingfolcriht[505], and which were then promulgated by their ownand the king’s authority[506].Beda, in a passage just cited, says of Æðelberht:—“Amongst other benefits which consulting, he bestowed upon his nation, he gave her also, with the advice of his witan, decrees of judgments, after the example of the Romans: which, written in the English tongue, are yet possessed and observed by her[507].” And these laws were enacted by their authority, jointly with the king’s. The Prologue to the law of Wihtrǽd declares:—“These are the dooms of Wihtrǽd, king of the men of Kent. In the reign of the most clement king of the men of Kent, Wihtrǽd, inthe fifth year of his reign, the ninth indiction[508]. the sixth day of the month Rugern, in the place which is called Berghamstead[509], where was assembled a deliberative convention of the great men[510]; there was Brihtwald the high-bishop[511]of Britain, and the aforenamed king; also the bishop of Rochester; the same was called Gybmund, he was present; and every degree of the church in that tribe, spake in unison with the obedient people[512]. There the great men decreed, with the suffrages of all, these dooms, and added them to the lawful customs of the men of Kent, as hereafter is said and declared[513].”
The prologue to the laws of Ini establishes the same fact for Wessex; he says,—“Ini, by the grace of God, king of the Westsaxons, with the advice and by the teaching of Cénred, my father, and of Hedde my bishop, and Ercenwold my bishop, with all my ealdormen, and the most eminent witan of my people, and also with a great assemblage of God’s servants[514], have been considering respecting our soul’s heal, and the stability of our realm; so that right law, and right royal judgments might be settled and confirmed among our people; so thatnone of our ealdormen, nor of those who are subject unto us, should ever hereafter turn aside these our dooms[515].”
And this is confirmed in more detail by Ælfred. This prince, after giving some extracts from the Levitical legislation, and deducing their authority through the Apostolical teaching, proceeds to engraft upon the latter the peculiar principle of bót or compensation which is the characteristic of Teutonic legislation[516]. He says,—“After this it happened that many nations received the faith of Christ; and then were many synods assembled throughout all the earth, and among the English race also, after they had received the faith of Christ, of holy bishops, and also of their exalted witan. They then ordained, out of that mercy which Christ had taught, that secular lords,with their leave, might without sin take for almost every misdeed—for the first offence—the bót in money which they then ordained; except in cases of treason against a lord, to which they dared not to assign any mercy; because Almighty God adjudged none to them thatdespised him, nor did Christ, the son of God, adjudge any to him that sold him unto death: and he commanded that a lord should be loved like oneself[517]. They then, in many synods, decreed a bót for many human misdeeds; and in many synod-books they wrote, here one doom, there another.
“Then I, Ælfred the king, gathered these together, and commanded many of those which our forefathers held, and which seemed good to me, to be written down; and many which did not seem good to me, I rejected by the counsel of my witan, and commanded them in other wise to be holden; but much of my own I did not venture to set down in writing, for I knew not how much of it might please our successors. But what I met with, either of the time of Ini my kinsman, or of Offa, king of the Mercians, or Æðelberht who first of the English race received baptism, the best I have here collected, and the rest rejected. I then, Ælfred king of the Westsaxons, showed these to all my witan, and they then said, that it liked them well so to hold them.”
The laws of Eádweard like those of Hloðhere and Eádríc have no proem: next in order of time are those of Æðelstán. The council of Greatley opens with an ordinance which the king says was framed by the advice of Wulfhelm, archbishop of Canterbury and his other bishops: no other witan are mentioned. Now it is remarkable enough that this ordinance refers exclusively to tithes, and otherecclesiastical dues, and works of charity. But the secular ordinances which follow conclude with these words: “All this was established in the great synod at Greátanleá; in which was archbishop Wulfhelm, with all the noblemen and witan whom Æðelstán the king [commanded to] gather together[518].”
The witan at Exeter, under the same king, are much more explicit as to their powers: in the preamble to their laws, they say: “These are the dooms which the witan at Exeter decreed, with the counsel of Æðelstán the king, and again at Feversham, and a third time at Thundersfield, where the whole was settled and confirmed together[519].”
The concurrence of these witan is continually appealed to in the Saxon laws which follow[520], and which are supplementary to the threegemótsmentioned. But in a chapter (§ 7) concerning ordeals, the regulation is said to be by command of God, the archbishop and all the bishops, and the other witan are not mentioned; probably because the administration of the ordeal was a special, ecclesiastical function. Again in theJudicia Civitatis Londoniaethe joint legislative authority of the king and the witan is repeatedly alluded to[521].
Eádmund commences his laws by stating that he had assembled a greatsynodin London at Easter, at which the two archbishops, Oda and Wulfstan, were present, together with many bishops and persons of ecclesiastical as well as secular condition[522].And having thus given the authority by which he acted, he proceeds to the details of his law, which he again declares to have been promulgated, after deliberation with the council of his witan, ecclesiastical and lay[523]. The council of Culinton, held under the same prince, commences thus: “This is the decree which Eádmund the king and his bishops, with his witan, established at Culinton, concerning the maintenance of peace, and taking the oaths of fidelity.”
Next comes Eádgár, whose law commences in these words: “This is the ordinance which Eádgár the king, with the counsel of his witan, ordained, to the praise of God, his own honour, and the benefit of all his people[524].”
In like manner, Æðelred informs us that his law was ordained, “for the better maintenance of the public peace, by himself and his witan at Woodstock, in the land of the Mercians, according to the laws of the Angles[525].” In precisely similar terms he speaks of new laws made by himself and his witan at Wantage[526]. In a collection of laws passed in 1008, under the same prince, we find the following preamble[527]: “This is the ordinance which the king of the English, with his witan, both clerical and lay, have chosen[528]and advised;” and every one of the first five paragraphs commences withthe same solemn words, viz. “This is the ordinance of our lord, and of his witan,” etc.
But far more strongly is this marked in the provisions of the council of Enham, under the same miserable prince. These are not only entitled, “ordinances of the witan[529],” but throughout, the king is never mentioned at all, and many of the chapters commence, “It is the ordinance of the witan,” etc. If it were not for one or two enactments referring to the safety of the royal person, and the dignity of the crown, we might be almost tempted to imagine that the great councillors of state had met, during Æðelred’s flight from England, and passed these laws upon their own authority, without the king. The laws of 1014 commence again with the words so often repeated in this chapter[530], and such also usher in the very elaborate collection which Cnut and his witan compiled at Winchester[531].
Now I think that any impartial person will be satisfied with these examples, and admit that whoever the witan may have been, they possessed a legislative authority, at least conjointly with the king. Indeed of two hypothetical cases, I should be far more inclined to assert that they possessed it without him, than that he possessed it without them: at least, I can find no instance of the latter; while I have shown that there was at least a probability of the former: and even Æðelred himself says, twice: “Wise in former days were thosesecular witan[532]who first added secular laws to the just divine laws, for bishops and consecrated bodies; and reverenced for love of God holiness and holy orders, and God’s houses and his servants firmly protected.” Again[533]: “Wise were those secular witan who to the divine laws of justice added secular laws for the government of the people; and decreed bót to Christ and the king, that many should thus, of necessity, be compelled to right.”
Is it not manifest that he, like Ælfred, really felt the legislative power to reside in the witan, rather than in the king?
3.The witan had the power of making alliances and treaties of peace, and of settling their terms.
The defeat of the Danes by Ælfred, in 878, was followed, as is well known, by the baptism of Guðorm Æðelstán, and the peaceful establishment of his forces in portions of the ancient kingdoms of Mercia, Essex, Eastanglia and Northumberland. The terms of this treaty, and the boundaries of the new states thus constituted were solemnly ratified, perhaps at Wedmore[534]; the first article of this important public act, by which Ælfred obtained a considerable accession of territory, runs thus[535]: “This is the peace that Ælfred the king, and Gyðrum the king, and the witan of all the English nation, and all the people that are in Eastanglia, have all ordained and confirmed with oaths, for themselves and for their descendants, born and unborn, whodesire God’s favour or ours. First, concerning our land-boundaries,” etc. In like manner the treaty which Eádweard entered into with the same Danes, is said to have been frequently (“oft and unseldan”) renewed and ratified by the witan[536].
We still have the terms of the shameful peace which Æðelred bought of Olafr Tryggvason and his comrades in 994. The document, which was probably signed at Andover[537], commences with the following words: “These are the articles of peace and the agreement which Æðelred the king and all his witan have made with the army which accompanied Anlaf, and Justin and Guðmund, the son of Stegita[538].”
Many other instances might be cited, as for example the entry in the Chronicle, anno 947, where it is stated that Eádred made a treaty of peace with the witan of Northumberland at Taddenes scylf, which was broken and renewed in the following year: but further evidence upon this point seems unnecessary[539].
4.The witan had the power of electing the king.
The kingly dignity among the Anglosaxons was partly hereditary, partly elective: that is to say, the kings were usually taken from certain qualified families, but the witan claimed the right of choosing the person whom they would have to reign. Their history is filled with instances of occasions whenthe sons or direct descendants of the last king have been set aside in favour of his brother or some other prince whom the nation believed more capable of ruling: and the very rare occurrence of discontent on such occasions both proves the authority which the decision of the witan carried with it, and the great discretion with which their power was exercised. Only here and there, when the witan were themselves not unanimous, do we find any traces of dissensions arising out of a disputed succession[540]. On every fresh accession, the great compact between the king and the people was literally, as well as symbolically, renewed, and the technical expression for ascending the throne is being “gecoren and áhafen tó cyninge,” elected and raised to be king: where theáhafenrefers to the old Teutonic custom of what we still at election times call chairing the successful candidate; and thegecorendenotes the positive and foregone conclusion of a real election. Alfred’s own accession is a familiar instance of this fact: he was chosen, to the prejudice of his elder brother’s children; but the nation required a prince capable of coping with dangers and difficulty, and Asser tells us that he was not only received as king by the unanimous assent of the people, but that, had he so pleased, he might have dethronedhis brother Æðelred and reigned in his place[541]. His words are: “In the same year (871) the aforesaid Ælfred, who hitherto, during the life of his brother, had held a secondary place, immediately upon Æðelred’s death, by the grace of God, assumed the government of the whole realm, with the greatest goodwill of all the inhabitants of the kingdom; which indeed, even during his aforesaid brother’s life, he might, had he chosen, have done with the greatest ease, and by the universal consent; truly, because both in wisdom and in all good qualities he much excelled all his brothers; and moreover because he was particularly warlike, and successful in nearly all his battles[542].”
Not one word have we here about his nephews, or any rights they might possess: and Asser seems to think royalty itself a matter entirely dependent upon the popular will, and the good opinion entertained by the nation of its king. I shall conclude this head by citing a few instances from Saxon documents of the intervention of the witan in a king’s election and inauguration.
In 924, the Chronicle says: “This year died Eádweard the king at Fearndún, among the Mercians ... and Æðelstán was chosen king by the Mercians, and consecrated at Kingston.”
Florence of Worcester, an. 959, distinctly assertsthat Eádgar was elected by all the people of England,—“ab omni Anglorum populo electus ... regnum suscepit.”
In 979, the Chronicle again says: “This year Æðelred took to the kingdom; and he was soon after consecrated king at Kingston, with great rejoicing of the English witan.”
In 1016, the election of Eádmund írensída is thus related: “Then befel it that king Æðelred died ... and then after his death, all the witan who were in London, and the townsmen, chose Eádmund to be king.” Again in 1017: “This year was Cnut elected king.”
In 1036 again we have these words: “This year died Cnut the king at Salisbury ... and soon after his decease there was agemótof all the witan (‘ealra witena gemót’) at Oxford: and Leófríc the eorl, and almost all the thanes north of the Thames, and thelithsmenin London chose Harald to be chief of all England; to him and his brother Hardacnut who was in Denmark.” This election was opposed unsuccessfully by Godwine and the men of Wessex.
The Chronicle contains a very important entry under the date 1014. Upon the death of Swegen, we are told that his army elected Cnut king: “But all the witan who were in England, both clerical and lay, decided to send after king Æðelred[543]; and they declared that no lord could be dearer to them than their natural lord, if he wouldrule them more justly than he had done before. Then the king sent his son Eádweard hither, with his messengers, and commanded them to greet all his people[544]; and he said that he would be a loving lord to them, and amend all those things which they all abhorred; and that everything which had been said or done against him should be forgiven, on condition that they all, with one consent and without deceit, would be obedient to him. Then they established full friendship, by word and pledge on either side, and declared every Danish king an outlaw from England for ever.”
Cnut nevertheless succeeded; but after the extinction of his short-lived dynasty, we are told that all the people elected Eádweard the Confessor king. “1041. This year died Hardacnut.... And before he was buried, all the people elected Eádweard king, at London.” Another manuscript reads:—“1042. This year died Hardacnut, as he stood at his drink.... And all the people then received Eádweard for their king, as was his true natural right.”
One more quotation from a manuscript of the Saxon Chronicle shall conclude this head:—“1066. In this year was hallowed the minster at Westminster on Childermas-day (Dec. 28th). And king Eádweard died on the eve of Twelfth-day, and he was buried on Twelfth-day in the newly consecrated church at Westminster. And Harald the earlsucceeded to the kingdom of England, even as the king had granted it unto him, and men also had elected him thereto. And he was consecrated king on Twelfth-day.”
The witan of England had met to aid in the consecration of Westminster Abbey, and, as was their full right, proceeded to elect a king, on Eádweard’s decease.
5.The witan had the power to depose the king, if his government was not conducted for the benefit of the people.
It is obvious that the very existence of this power would render its exercise an event of very rare occurrence. Anglosaxon history does however furnish one clear example. In 755, the witan of Wessex, exasperated by the illegal conduct of king Sigeberht, deposed him from the royal dignity, and elected his relative Cynewulf in his stead. The fact is thus related by different authorities. The Chronicle[545]says very shortly:—“This year, Cynewulf and the witan of the Westsaxons deprived his kinsman Sigeberht of his kingdom, except Hampshire[546], for his unjust deeds.”
Florence tells the same story, but in other words[547]:—“Cynewulf, a scion of the royal race of Cerdic, with the counsel of the Westsaxonprimates, removed their king Sigeberht from his realm, on account of the multitude of his iniquities, andreigned in his place: however he granted to him one province, which is called Hampshire.”
Æðelweard[548], whose royal descent and usual pedantry conspire to make his account of the matter somewhat hazy, says:—“So, after the lapse of a year from the time when Sigeberht began to reign, Cynewulf invaded his realm and took it from him; and he drew thesapientesof all the western country after him, apparently, on account of the irregular acts of the said king,” etc.
The fullest account however of the whole transaction is given by Henry of Huntingdon[549], who very frequently shows a remarkable acquaintance with Saxon authorities which are now lost, but from which he translates and quotes at considerable length. These are his words:—“Sigeberht, the kinsman of the aforesaid king, succeeded him, but he held the kingdom for a short time only: for being swelled up and insolent through the successes of his predecessor, he became intolerable even unto his own people. But when he continued to ill-use them in every way, and either twisted the laws to his own advantage, or turned them aside for his advantage, Cumbra, the noblest of his ealdormen, at the petition of the whole people, brought their complaints before the savage king. Whom, for attempting to persuade him to rule his people more mercifully, and setting his inhumanity aside to show himself an object of love to God and man, he shortly after commanded to be put to an impiousdeath: and becoming still more fierce and intolerable to his people, he aggravated his tyranny. In the beginning of the second year of his reign, Sigeberht the king continuing incorrigible in his pride and iniquity, the princes and people of the whole realm collected together; and by provident deliberation and unanimous consent of all he was expelled from the throne. But Cynewulf, an excellent young prince, of the royal race, was elected to be king[550].”
I have little doubt that an equally formal, though hardly equally justifiable, proceeding severed Mercia from Eádwig’s kingdom, and reconstituted it as a separate state under Eádgar[551]; and lastly from Simeon of Durham we learn that the Northumbrian Alchred was deposed and exiled, with the counsel and consent of all his people[552].
6.The king and the witan had power to appoint prelates to vacant sees.
As many of the witan were the most eminent of the clergy, and the people might be fairly consideredto be represented by the secular members of the body, these elections were perhaps more canonical than the Frankish, and assuredly more so than those which take place under our system bycongé d’élire. The necessary examples will be found in the Saxon Chronicle, an. 971, 995, 1050. But one may be mentioned at length. In 959 Dúnstán was elected archbishop of Canterbury “consilio sapientum[553].”
7.They had also power to regulate ecclesiastical matters, appoint fasts and festivals, and decide upon the levy and expenditure of ecclesiastical revenue.
The great question of monachism which convulsed the church and kingdom in the tenth century, was several times brought before the consideration of the witan, who, both clerical and lay, were very much divided upon the subject. This perhaps is a sufficient reason why no formal act of thegemótwas ever passed on the subject, and the solution of the problem was left to the bishops in their several cathedrals: but no reader of Saxon history can be ignorant that it was frequently brought before the gemót, and that it was the cause of deep and frequent dissensions among the witan[554]. The festival days of St. Eádweard and St. Dúnstán were fixed by the authority of the witan on the 15th Kal. April and 14th Kal. June respectively[555]; and thelaws contain many provisions for the due keeping of the Sabbath, and the strict celebration of fasts and festivals[556]. The levying of church-shots, soul-shots, light-alms, plough-alms, tithes, and a variety of other church imposts, the payment of which could not be otherwise legally binding upon the laity, was made law by frequently repeated chapters in the acts of the witan: these are much too numerous to need specification. They direct the amount to be paid, the time of payment, and the penalties to be inflicted on defaulters: nay, they actually direct the mode in which such payments when received should be distributed and applied by the receivers[557]. They establish, as law of the land, the prohibitions to marry within certain degrees of relationship: and lastly they adopt and sanction many regulations of the fathers and bishops, respecting the life and conversation of priests and deacons, canons, monks and religious women. On all these points it is sufficient to give a general reference to the laws, which are full of regulations even to the minutest details.
8.The king and the witan had power to levy taxes for the public service.
I have observed in an earlier chapter of this work that the estates of the freeman were bound to make certain settled payments. These may at some time or other have been voluntary, but there can be no doubt that they did ultimately become compulsorypayments. They are the cyninges gafol, payable on the hide, and may possibly be the cyninges útware, and cyninges geban of the laws, thecontributions directesby which a man’s station in society was often measured. Now in the time of Ini, we find the witan regulating the amount of this tax or gafol, in barley, at six pounds weight upon the hide[558]. Again, under the extraordinary circumstances of the Danish war under Æðelred, when it became almost customary to buy off the invaders, we find them authorising the levy of large sums for that purpose[559], and also for the maintenance of fleets[560]: these payments, once known by the name of Danegeld, and which in 1018 amounted to the enormous sum of 82,500 pounds[561], were after thirty-nine years’ continuance finally abolished by Eádweard[562].
9.The king and his witan had power to raise land and sea forces when occasion demanded.
The king always possessed of himself the right to call out the ban or armed militia of the freemen: he also possessed the right of commanding at all times the service of his comites and their vassals: but the armed force of the freemen could only bekept on foot for a definite period, and probably within definite limits. It seems therefore that when the pressure of extraordinary circumstances called for more than common efforts, and the nation was to be urged to unusual exertions, the authority of the witan was added to that of the king; and that much more extensive levies were made than by merely calling out theherebanorlandsturm. And this particularly applies to naval armaments, which were hardly a part of the constitutional force, at all events not to any great extent[563]. Accordingly we find in the Chronicle that the king and the witan commanded armaments to be made against the Danes in 999, and at the same time directed a particular service to be sung in the churches. We learn distinctly from another event that the disposal of this force depended upon the popular will: for when Svein, king of the Danes, made application to Eádweard the Confessor for a naval force in aid of his war against Magnus of Norway, and Godwine recommended compliance, we find that it was refused because Earl Leófríc of Coventry, and all the people, with one voice opposed it[564].
10.The witan possessed the power of recommending, assenting to, and guaranteeing grants of lands, and of permitting the conversion offolclandintobócland, and vice versâ.
With regard to the first part of this assertion, it will be sufficient to refer to any page of theCodexDiplomaticus Ævi Saxonici: it is impossible almost to find a single grant in that collection which does not openly profess to have been made by the king, “cum consilio, consensu et licentia procerum,” or similar expressions. And the necessity for such consent will appear intelligible when we consider that these grants must be understood, either to be direct conversions offolcland(fiscal or public property) intobócland(private estates), beneficiary into hereditary tenure; or, that they contain licences to free particular lands from the ancient, customary dues to the state. In both cases the public revenue, of which king and witan were fiduciary administrators, was concerned: inasmuch as nearly every estate, transferred fromfolclandto bócland, became just so much withdrawn from the general stock of ways and means. Only in the case where lands were literally exchanged from one category into the other, did the state sustain no loss. Of this we have evidence in a charter of the year 858[565]. The king and Wulfláf his thane exchanged lands in Kent, Æðelberht receiving an estate of five plough-lands at Mersham and giving five plough-lands at Wassingwell. The king then freed the land at Wassingwell in as ample degree as that at Mersham had been freed; that is, from every description of service, or impost, except the three inevitable burthens, of military service, and repair of fortifications and bridges. And having done so, he made the land at Mersham, folcland, i. e., imposed the burthens upon it.
That this is a just view of the powers of the witan in respect to the folcland, further appears from instances where the king and the witan, on one part, as representatives of the nation for that purpose, make grants to the king in his individual capacity. In 847, a case of this kind occurred: Æðelwulf of Wessex obtained twenty hides of land at Ham, as an estate of inheritance, from his witan[566]. The words used are very explicit: “I Æðelwulf, by God’s aid king of the Westsaxons, with the consent and licence of my bishops and my princes, have caused a certain small portion of land, consisting of twenty hides, to be described by its boundaries, to me, as an estate of inheritance.” And again: “These are the boundaries of those twenty hides which Æðelwulf’s senators granted to him at Ham.” We learn that Offa, king of the Mercians, had in a similar manner caused one hundred and ten hides in Kent to be given to him and his heirs as an estate ofbócland[567], which he had afterwards left to the monastery at Bedford. And this is a peculiarly valuable record, because it was only by conquest that Offa and his witan could have obtained a right to dispose of lands beyond the limits of his own kingdom. Between 901 and 909 the witan of the Westsaxons booked a very small portion of land to Ælfred’s son Eádweard, for the site of his monastery at Winchester[568]. In 963 we have another instance: Eádgár caused five hides to be given him at Peatanige as an estate ofinheritance. The terms of the document are unusual: he says, “Ihavea portion of land,” etc., but he frees it from all burthens but the three, and renders it heritable. The rubric says: “This is the charter of five hides at Peatanige, which are Eádgár’s the king’s, during his day and after his day, to have, or to give to whom it pleaseth him best[569].” Again in 964, the same prince gave to his wife Ælfðrýð ten hides at Aston in Berkshire, as an estate of inheritance, “consilio satellitum, pontificum, comitum, militum[570].” It is obvious that in all these cases the grants were made out of public land, and were not the private estates of the king.
11.The witan possessed the power of adjudging the lands of offenders and intestates to be forfeit to the king.
This power applied tobócland, as well asfolcland, and was exercised in cases which are by no means confined to the few enumerated in the laws. Indeed the latter may very probably refer to nothing but the chattels or personal property of the offender; while the real estate might be transferred to the king, by the solemn act of the witan. A few examples will make this clear.
Ælfred, condemned for treason or rebellion against Æðelstán, lost his lands by the judgment of the witan, who bestowed them upon the king[571]. In 1002 a lady forfeited her lands for her incontinence;the king became seised of them, obviously by the act of thegemót, for he calls itvulgaris traditio[572]. Again, the lands of certain people which had been forfeited for theft, are described as having been granted to the king, “iusto valde iudicio totius populi, seniorum et primatum[573].”
The case of intestacy is proved by a charter of Ecgberht in 825. He gave fifteen hides at Aulton to Winchester, and made title in these words. “Now this land, a very faithful reeve of mine called Burghard formerly possessed by my grant: but he afterwards dying childless, left the land without a will, and he had no survivors: and so the land with all its boundaries was restored to me, its former possessor, by judicial decree of myoptimates[574].”
Other examples may be found in the quotations given in page 52 of this volume; to which I may add a case of forfeiture for suicide[575].
12.Lastly, the witan acted as a supreme court of justice, both in civil and criminal causes.
The fact of important trials being decided by thewitena gemótis obvious from a very numerous list of charters recording the result of such trials, and printed in theCodex Diplomaticus. It is perfectly unnecessary to give examples; they occur continually in the pages of that work. The documents are in great detail, giving the names of the parties, the heads of the case, sometimes the very steps in the trial, and always recording the place and dateof the gemót, and the names of those who presided therein.
The proceedings of the witan as a court of criminal jurisprudence, are well exemplified in the case of earl Godwine and his family daring their patriotic struggle for power with the foreign minions of Eádweard, and the northern earls, the hereditary enemies of their house. Eustace the count of Boulogne, then on a visit to Eádweard, having with a small armed retinue attempted violence against some of the inhabitants of Dover, was set upon by the townsmen, and after a severe loss hardly succeeded in making his escape. He hastened to Gloucester, where Eádweard then held his court, and laid his complaint before the king. Godwine, as earl of Kent, was commanded to set out with his forces, and inflict summary punishment upon the burghers who had dared to maltreat a relative of the king. But the stern old statesman saw matters in a very different light: he probably found no reason to punish the inhabitants of one of his best towns, for an act of self defence, especially one which had read a severe lesson to the foreign adventurers, who abused the weakness of an incapable prince, and domineered over the land. He therefore flatly refused, and withdrew from Gloucester to join his sons Harald and Swegen who lay at Beverston and Langtree with a considerable power. The king being reinforced by a well-appointed contingent from the northern earldoms, affairs threatened to be brought to a bloody termination. The conduct of Godwine and his family had been representedto Eádweard in the most unfavourable colours, and the demand they made that the obnoxious strangers should be given up to them, only aggravated his deep resentment. However for a time peace was maintained, hostages were given on either side, and awitena gemótwas proclaimed, to meet in London, at the end of a fortnight, September 21st, 1048. On the arrival of the earls in Southwark, they found that a greatly superior force from the commands of Leofríc, Sigeward and Raulf awaited them: desertion thinned their numbers, and when the king demanded back his hostages, they were compelled to comply. Godwine and Harald were now summoned to appear before thegemótand make answer to what should be brought against them. They demanded, though probably with little expectation of obtaining, a safe conduct to and from the gemót, which was refused; and as they very properly declined under such circumstances to appear, five days were allowed them to leave England altogether.
It is probable that the strictly legal forms were followed on this occasion, although the composition of thegemótwas such that justice could not have been done. The same observation will apply to anotherwitena gemótholden in London, after Godwine’s triumphant return to England, though with a very different result. Before this assembly the earl appeared, easily cleared himself of all offences laid to his charge, and obtained the outlawry and banishment from England of all the Frenchmen whose pernicious councils had put dissensionbetween the king and his people. Other examples might be given of outlawry, and even heavier sentences, as blinding, if not death, pronounced by the high court of the witan. But as these are all the result of internal dissensions, they resemble rather the violence of impeachments by an irresistible majority, than the calm, impassive judgments of a judicial assembly[576].
Such were the powers of thewitena gemót, and it must be confessed that they were extensive. Of the manner of the deliberations or the forms of business we know little, but it is not likely that they were very complicated. We may conclude that the general outline of the proceedings was something of the following order. On common occasions the king summoned his witan to attend him at some royal vill, at Christmas, or at Easter, for festive and ceremonial as well as business purposes. On extraordinary occasions he issued summonses according to the nature of the exigency, appointing the time and place of meeting. When assembled, the witan commenced their session by attending divine service[577], and formally professing their adherence to the catholic faith[578]. The king then brought his propositions before them, in the Frankish manner[579], and after due deliberation they were accepted, modified, or rejected. The reeves, and perhaps on occasion officers specially designatedfor that service[580], carried the chapters down into the several counties, and there took awedor pledge from the freemen that they would abide by what had been enacted. This last fact, important to us in more respects than one, is substantiated by the following evidence. Toward the close of theJudicia Civitatis Londoniae(cap. 10), passed in the reign of Æðelstán, and subsidiary to the acts of variousgemótsheld by him, we find:—“All the witan gave their pledges together to the archbishop at Thundersfield, when Ælfheáh Stybb and Brihtnóð, Odda’s son, came to meet the gemót by the king’s command, that each reeve should take the pledge in his own shire, that they would all hold the frið, as king Æðelstán and the witan had counselled it, first at Greátanleá, and again at Exeter, and afterwards at Feversham, and the fourth time at Thundersfield,” etc.
We have also a very remarkable document addressed to the same king, apparently upon receipt of the acts of the council at Feversham, by the men of Kent, denoting their acceptance of the same. They commence by saying:—“Dearest! Thy bishops of Kent, and all the thanes of Kentshire, earls and churls[581], return thanks to thee theirdearest lord, for what thou hast been pleased to ordain respecting our peace, and to enquire andconsult concerning our advantage, since great was the need thereof for us all, both rich and poor.And this we have taken in hand, with all the diligence we could, by the aid of those witan [sapientes] whom thou didst send unto us,” etc[582].
It is plain from the preceding passage that the witan gave theirwedto observe, and cause to be observed, the laws they had enacted[583]. Eádgár says, “I command mygeréfan, upon my friendship, and by all they possess, to punish every one that will not perform this, and who by any neglect shall break thewedof my witan.” This seems to imply that the people were generally bound by the acts of the witan, and their pledge orwed; and if it were so, it would naturally involve the theory of representation. But this deduction will not stand.
The whole principle of Teutonic legislation is, and always was, that the law is made by the constitution of the king, and the consent of the people[584]: and we have seen one way in which that consent was obtained, viz. by sending thecapituladown into the provinces or shires, and taking thewedin the shiremoot. The passage in the text seems to presuppose an interchange of oaths andpledges between the king and witan themselves; and even those who had no standing of their own in the folcmót or scírgemót, were required to be bound bypersonalconsent. The lord was just as much commanded to take oath and pledge of his several dependents (the hired men,familiares, or people of his household), as the sheriff was required to take them of the free shire-thanes[585]. Of course this excludes all idea of representation in our modern sense of the word, because with us, promulgation by the Parliament is sufficient, and the constituent is bound without any further ceremony by the act of him whom he has sent in his own place. But the Teutons certainly did not elect their representatives as we elect ours, with full power to judge, decide for, and bind us, and therefore it was right and necessary that the laws when made should be duly ratified and accepted by all the people.
Although the dignified clergy, the ealdormen andgeréfan, and the þegnas both in counties and boroughs, appear to have constituted the witenagemótproperly so called, there is still reason to suppose that the people themselves, or some of them, were very often present. In fact a system gradually framed as I suppose that of our forefathers to have been, and indebted very greatly to accident for its form, must have possessed a very considerable elasticity. The people who were in the neighbourhood, who happened to be collected in arms during a sitting of the witan, or who thought it worth while to attend their meeting,were very probably allowed to do so, and to exercise at least a right of conclamation[586],—a right which must daily become rarer, as the freemen gradually disappeared, and the number of landowners, dependent upon and represented by lords, as rapidly increased. In conclusion a few passages may be cited, which seem to render it probable that the people, when on the spot, did take some part in the business, as I have already mentioned with respect to the Frankish levies in the CampusMadiusMadiusof Charlemagne. But it must also be borne in mind that such a case ought to be looked upon as accidental, rather than necessary, and that a meeting of the witan did not require the formality of an acceptance by the people on the spot, to render its acts obligatory. It was enough that the thanes of thegemótshould pass, and the thanes of the scír accept the law. Indeed it could not be otherwise; for as the heads of all the more important social aggregations of the free, and the lords whose men were represented by them even in courts of justice, were the members of the gemót, their decisions must have been, strictly considered, the real decisions of thepopulus, or franchise-bearing people.
Beda, relating the discussion which took placerespecting the celebration of Easter, and which was held in the presence of Oswiu and Alhfrið of Northumberland, and Wilfrið’s successful defence of the Roman custom, adds: “When the king had said these words, all who sat or stood around assented: and abandoning the less perfect institution, they hastened to adopt what they recognized as a better one[587].” Again the deposition of Sigeberht is stated to have taken place in an assembly of theproceresandpopulus, the princes and people of the whole realm[588]. A doubtful charter of Ini,A.D.725, is said to be consented to “cum praesentia populationis[589],” by which words are meant either the witan or the people of Wessex. In 804 Æðelríc’s title-deeds were confirmed before agemótat Clofesho: the charter recites that archbishop Æðelheard gave judgment, with the witness of king Cóenwulf and hisoptimates, before all the synod or meeting: whence it is clear that others were present besides theoptimatesor witan strictly so called[590]. On the 28th of May 924 agemótwas held at Winchester, “tota populi generalitate,” as the charter witnesses[591], and in 931 another at Worðig, “tota plebis generalitate[592].” Æðelstán in 938 declares that certain lands had been forfeited for theft, by the just judgment of all the people,andthe Seniores and Primates; and that the original charters were cancelled by a decree of all the people[593].
But whether expressions of this kind were intended to denote the actual presence of the people on the spot; or whetherpopulusis used in a strict and technical sense—that sense which is confined to those who enjoy the full franchise, those who form part of the πολιτευμα,—or finally whether the assembly of the witan making laws is considered to represent in our modern form an assembly of the whole people,—it is clear that the power of self-government is recognized in the latter.
In order to facilitate reference to the important facts with which this chapter deals, I have added to it a list ofwitena gemóts, with here and there a few remarks upon the business transacted in them. They do not nearly exhaust the number that must have been held, but still they form a respectable body of evidence; and we may perhaps be justly surprised, not that so little, but that so much has survived. We need not lament that the present forms and powers of our parliament are not those which existed a thousand years ago, as long as we recognize in them only the matured development of an old and useful principle. We shall not appeal to Anglosaxon custom to justify the various points of the Charter; but we may still be proud to find in their practice the germ of institutions which we have, throughout all vicissitudes, been taught to cherish as the most valuable safeguards of our peace as well as our freedom. Truly there are few nations whose parliamentary history has so ample a foundation as our own.