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$Title{History Of Europe During The Middle Ages
Part I}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part I

     The Anglo-Saxon Constitution - Sketch of Anglo-Saxon History - Succession
to the Crown - Orders of Men - Thanes and Ceorls - Witenagemot - Judicial
System - Division into Hundreds - County Court - Trial by Jury - Its Antiquity
Investigated - Law of Frank-Pledge - Its Several Stages - Question of Feudal
Tenures before the Conquest.

     No unbiased observer, who derives pleasure from the welfare of his
species, can fail to consider the long and uninterruptedly increasing
prosperity of England as the most beautiful phenomenon in the history of
mankind.  Climates more propitious may impart more largely the mere enjoyments
of existence; but in no other region have the benefits that political
institutions can confer been diffused over so extended a population; nor have
any people so well reconciled the discordant elements of wealth, order, and
liberty.  These advantages are surely not owing to the soil of this island,
nor to the latitude in which it is placed, but to the spirit of its laws, from
which, through various means, the characteristic independence and
industriousness of our nation have been derived.  The constitution, therefore,
of England must be to inquisitive men of all countries, far more to ourselves,
an object of superior interest; distinguished especially, as it is, from all
free governments of powerful nations which history has recorded, by its
manifesting, after the lapse of several centuries, not merely no symptom of
irretrievable decay, but a more expansive energy.  Comparing long periods of
time, it may be justly asserted that the administration of government has
progressively become more equitable, and the privileges of the subject more
secure; and, though it would be both presumptuous and unwise to express an
unlimited confidence as to the durability of liberties which owe their
greatest security to the constant suspicion of the people, yet, if we calmly
reflect on the present aspect of this country, it will probably appear that
whatever perils may threaten our constitution are rather from circumstances
altogether unconnected with it than from any intrinsic defects of its own.  It
will be the object of the ensuing chapter to trace the gradual formation of
this system of government.  Such an investigation, impartially conducted, will
detect errors diametrically opposite; those intended to impose on the
populace, which, on account of their palpable absurdity and the ill faith with
which they are usually proposed, I have seldom thought it worth while directly
to repel; and those which better informed persons are apt to entertain, caught
from transient reading and the misrepresentations of late historians, but
easily refuted by the genuine testimony of ancient times.

     The seven very unequal kingdoms of the Saxon Heptarchy, formed
successively out of the countries wrested from the Britons, were originally
independent of each other.  Several times, however, a powerful sovereign
acquired a preponderating influence over his neighbors, marked perhaps by the
payment of tribute.  Seven are enumerated by Bede as having thus reigned over
the whole of Britain; an expression which must be very loosely interpreted. ^a
Three kingdoms became at length predominant - those of Wessex, Mercia, and
Northumberland.  The first rendered tributary the small estates of the
Southeast, and the second that of the Eastern Angles.  But Egbert King of
Wessex not only incorporated with his own monarchy the dependent kingdoms of
Kent and Essex, but obtained an acknowledgment of his superiority from Mercia
and Northumberland; the latter of which, though the most extensive of any
Anglo-Saxon state, was too much weakened by its internal divisions to offer
any resistance. ^b Still, however, the kingdoms of Mercia, East Anglia, and
Northumberland remained under their ancient line of sovereigns; nor did either
Egbert or his five immediate successors assume the title of any other crown
than Wessex. ^c

[Footnote a: [Note I.]]

[Footnote b: Chronicon Saxonicum, p. 70.]

[Footnote c: Alfred denominates himself in his will Occidentalium Saxorum rex;
and Asserius never gives him any other name.  But his son Edward the Elder
takes the title of Rex Anglorum on his coins.  Vid.  Numismata Anglo-Saxon. in
Hickes' Thesaurus, vol. ii.]

     The destruction of those minor states was reserved for a different enemy.
About the end of the eight century the northern pirates began to ravage the
coast of England.  Scandinavia exhibited in that age a very singular condition
of society.  Her population, continually redundant in those barren regions
which gave it birth, was cast out in search of plunder upon the ocean.  Those
who loved riot rather than famine embarked in large armaments under chiefs of
legitimate authority as well as approved valor.  Such were the sea-kings,
renowned in the stories of the North: the younger branches, commonly, of royal
families, who inherited, as it were, the sea for their patrimony.  Without any
territory but on the bosom of the waves, without any dwelling but their ships,
these princely pirates were obeyed by numerous subjects, and intimidated
mighty nations. ^d Their invasions of England became continually more
formidable; and, as their confidence increased, they began first to winter,
and ultimately to form permanent settlements in the country.  By their command
of the sea, it was easy for them to harass every part of an island presenting
such an extent of coast as Britain; the Saxons, after a brave resistance,
gradually gave way, and were on the brink of the same servitude or
extermination which their own arms had already brought upon the ancient
possessors.

[Footnote d: For these Vikings, or sea-kings, a new and interesting subject, I
would refer to Mr. Turner's History of the Anglo-Saxons, in which valuable
work almost every particular that can illustrate our early annals will be
found.]

     From this imminent peril, after the three dependent kingdoms, Mercia,
Northumberland, and East Anglia, had been overwhelmed, it was the glory of
Alfred to rescue the Anglo-Saxon monarchy.  Nothing less than the appearance
of a hero so undesponding, so enterprising, and so just, could have prevented
the entire conquest of England.  Yet he never subdued the Danes, nor became
master of the whole kingdom.  The Thames, the Lea, the Ouse, and the Roman
road called Watling Street, determined the limits of Alfred's dominion. ^e To
the northeast of this boundary were spread the invaders, still denominated the
armies of East Anglia and Northumberland; ^f a name terribly expressive of
foreign conquerors, who retained their warlike confederacy, without melting
into the mass of their subject population.  Three able and active sovereigns,
Edward, Athelstan, and Edmund, the successors of Alfred, pursued the course of
victory, and not only rendered the English monarchy coextensive with the
present limits of England, but asserted at least a supremacy over the
bordering nations. ^g Yet even Edgar, the most powerful of the Anglo-Saxon
kings, did not venture to interfere with the legal customs of his Danish
subjects. ^h

[Footnote e: Wilkins, Leges Anglo-Saxon, p. 47; Chron. Saxon., p. 99.]

[Footnote f: Chronicon Saxon. passim.]

[Footnote g: [Note II.]]

[Footnote h: Wilkins, Leges Anglo-Saxon, p. 83.  In 1064, after a revolt of
the Northumbrians, Edward the Confessor renewed the laws of Canute. Chronic.
Saxon.  It seems now to be ascertained, by the comparison of dialects, that
the inhabitants from the Humber, or at least the Tyne, to the Firth of Forth,
were chiefly Danes.]

     Under this prince, whose rare fortune as well as judicious conduct
procured him the surname of Peaceable, the kingdom appears to have reached its
zenith of prosperity.  But his premature death changed the scene.  The
minority and feeble character of Ethelred II. provoked fresh incursions of our
enemies beyond the German Sea.  A long series of disasters, and the
inexplicable treason of those to whom the public safety was intrusted,
overthrew the Saxon line, and established Canute of Denmark upon the throne.

     The character of the Scandinavian nations was in some measure changed
from what it had been during their first invasions.  They had embraced the
Christian faith; they were consolidated into great kingdoms; they had lost
some of that predatory and ferocious spirit which a religion invented, as it
seemed, for pirates had stimulated.  Those, too, who had long been settled in
England became gradually more assimilated to the natives, whose laws and
language were not radically different from their own.  Hence the accession of
a Danish line of kings produced neither any evil nor any sensible change of
polity.  But the English still outnumbered their conquerors, and eagerly
returned, when an opportunity arrived, to the ancient stock.  Edward the
Confessor, notwithstanding his Norman favorites, was endeared by the mildness
of his character to the English nation, and subsequent miseries gave a kind of
posthumous credit to a reign not eminent either for good fortune or wise
government.

     In a stage of civilization so little advanced as that of the
Anglo-Saxons, and under circumstances of such incessant peril, the fortunes of
a nation chiefly depend upon the wisdom and valor of its sovereigns.  No free
people, therefore, would intrust their safety to blind chance, and permit a
uniform observance of hereditary succession to prevail against strong public
expediency.  Accordingly, the Saxons, like most other European nations, while
they limited the inheritance of the crown exclusively to one royal family,
were not very scrupulous about its devolution upon the nearest heir.  It is an
unwarranted assertion of Carte, that the rule of the Anglo-Saxon monarchy was
"lineal agnatic succession, the blood of the second son having no right until
the extinction of that of the eldest." ^i Unquestionably the eldest son of the
last king, being of full age, and not manifestly incompetent, was his natural
and probable successor; nor is it perhaps certain that he always waited for an
election to take upon himself the rights of sovereignty, although the ceremony
of coronation, according to the ancient form, appears to imply its necessity.
But the public security in those times was thought incompatible with a minor
king; and the artificial substitution of a regency, which stricter notions of
hereditary right have introduced, had never occurred to so rude a people.
Thus, not to mention those instances which the obscure times of the Heptarchy
exhibit, Ethelred I., as some say, but certainly Alfred, excluded the progeny
of their elder brother from the throne. ^j Alfred, in his testament, dilates
upon his own title, which he builds upon a triple foundation, the will of his
father, the compact of his brother Ethelred, and the consent of the West Saxon
nobility. ^k A similar objection to the government of an infant seems to have
rendered Athelstan, notwithstanding his reputed illegitimacy, the public
choice upon the death of Edward the Elder.  Thus, too, the sons of Edmund I.
were postponed to their uncle Edred, and, again, preferred to his issue.  And
happy might it have been for England if this exclusion of infants had always
obtained.  But upon the death of Edgar the royal family wanted some prince of
mature years to prevent the crown from resting upon the head of a child; ^l
and hence the minorities of Edward II. and Ethelred II. led to misfortunes
which overwhelmed for a time both the house of Cerdic and the English nation.

[Footnote i: Vol. i. p. 365.  Blackstone has labored to prove the same
proposition; but his knowledge of English history was rather superficial.]

[Footnote j: Chronicon Saxon. p. 99 Hume says that Ethelwood, who attempted to
raise an insurrection against Edward the Elder, was son of Ethelbert.  The
Saxon Chronicle only calls him the king's cousin, which he would be as the son
of Ethelred.]

[Footnote k: Spelman, Vita Alfredi, Appendix.]

[Footnote l: According to the historian of Ramsey, a sort of interregnum took
place on Edgar's death; his son's birth not being thought sufficient to give
him a clear right during infancy.  3 Gale, XV. Script. p. 413.]

     The Anglo-Saxon monarchy, during its earlier period, seems to have
suffered but little from that insubordination among the superior nobility
which ended in dismembering the empire of Charlemagne.  Such kings as Alfred
and Athelstan were not likely to permit it.  And the English counties, each
under its own alderman, were not of a size to encourage the usurpations of
their governors.  But when the whole kingdom was subdued, there arose,
unfortunately, a fashion of intrusting great provinces to the administration
of a single earl.  Notwithstanding their union, Mercia, Northumberland, and
East Anglia were regarded in some degree as distinct parts of the monarchy.  A
difference of laws, though probably but slight, kept up this separation.
Alfred governed Mercia by the hands of a nobleman who had married his daughter
Ethelfleda; and that lady after her husband's death held the reigns with a
masculine energy till her own, when her brother Edward took the province into
his immediate command. ^m But from the era of Edward II.'s succession the
provincial governors began to overpower the royal authority, as they had done
upon the continent. England under this prince was not far removed from the
condition of France under Charles the Bald.  In the time of Edward the
Confessor the whole kingdom seems to have been divided among five earls, ^n
three of whom were Godwin and his sons Harold and Tostig.  It cannot be
wondered at that the royal line was soon supplanted by the most powerful and
popular of these leaders, a prince well worthy to have founded a new dynasty,
if his eminent qualities had not yielded to those of a still more
illustrations enemy.

[Footnote m: Chronicon Saxon.]

[Footnote n: The word earl (eorl) meant originally a man of noble birth, as
opposed to the ceorl.  It was not a title of office till the eleventh century,
when it was used as synonymous to alderman, for a governor of a country or
province.  After the conquest it superseded altogether the more ancient title.
Selden's Titles of Honor, vol. iii. p. 638 (edit. Wilkins), and Anglo-Saxon
writings passim.]

     There were but two denominations of persons above the class of servitude,
thanes, and ceorls; the owners and the cultivators of land, or rather perhaps,
as a more accurate distinction, the gentry and the inferior people.  Among all
the northern nations, as is well known, the weregild, or compensation for
murder, was the standard measure of the gradations of society.  In the
Anglo-Saxon laws we find two ranks of freeholders; the first, called king's
thanes, whose lives were valued at 1200 shillings; the second, of inferior
degree, whose composition was half that sum. ^o That of a ceorl was 200
shillings.  The nature of this distinction between royal and lesser thanes is
very obscure; and I shall have something more to say of it presently.
However, the thanes in general, or Anglo-Saxon gentry, must have been very
numerous.  A law of Ethelred directs the sheriff to take twelve of the chief
thanes in every hundred, as his assessors on the bench of justice. ^p And from
Domesday Book we may collect that they had formed a pretty large class, at
least in some counties, under Edward the Confessor. ^q

[Footnote o: Wilkins, pp. 40, 43, 64, 72, 101.]

[Footnote p: Wilkins, p. 117.]

[Footnote q: Domesday Book having been compiled by different sets of
commissioners, their language has sometimes varied in describing the same
class of persons.  The liberi homines, of whom we find continual mention in
some counties, were perhaps not different from the thaini, who occur in other
places.  But this subject is very obscure; and a clear apprehension of the
classes of society mentioned in Domesday seems at present unattainable.]

     The composition for the life of a ceorl was, as has been said, 200
shillings.  If this proportion to the value of a thane points out the
subordination of ranks, it certainly does not exhibit the lower freemen in
a state of complete abasement.  The ceorl was not bound, at least
universally, to the land which he cultivated; ^r he was occasionally
called upon to bear arms for the public safety; ^s he was protected
against personal injuries, or trespasses on his land; ^t he was capable of
property, and of the privileges which it conferred.  If he came to possess
five hides of land (or about 600 acres), with a church and mansion of his
own, he was entitled to the name and rights of a thane. ^u And if by
owning five hides of land he became a thane, it is plain that he might
possess a less quantity without reaching that rank. There were, therefore,
ceorls without land of their own; ceorls who might commend themselves to
what lord they pleased, and ceorls who could not quit the land on which
they lived, owing various services to the lord of the manor, but always
freemen, and capable of becoming gentlemen. ^v

[Footnote r: Leges Alfredi, c. 33, in Wilkins.  This text is not unequivocal;
and I confess that a law of Ina (c. 39) has rather a contrary appearance.  But
the condition of all ceorls need not be supposed to have been the same; and in
the latter period this can be shown to have been subject to much diversity.]

[Footnote s: Leges Inae, c. 51, ibid.]

[Footnote t: Leges Alfredi, c. 31, 35.]

[Footnote u: Leges Athelstani, ibid., pp. 70, 71.]

[Footnote v: It is said in the Introduction to the Supplementary Records of
Domesday, which I quote from Cooper's Account of Public Records (i. 223), that
the word commendatio is confined to the three counties in the second volume of
Domesday, except that it occurs twice in the Inquisitio Eliensis for
Cambridgeshire.  But, if this particular word does not occur, we have the
sense, in "ire cum terra ubi voluerit," or "quaerere dominum ubi voluerit,"
which meet our eyes perpetually in the first volume of Domesday.  The
difference of phrases in this record must, in great measure, be attributed to
that of the persons employed.]

     Some might be inclined to suspect that the ceorls were sliding more and
more towards a state of servitude before the conquest. ^w The natural tendency
of such times of rapine, with the analogy of a similar change in France, leads
to this conjecture.  But there seems to be no proof of it; and the passages
which recognize the capacity of a ceorl to become a thane are found in the
later period of Anglo-Saxon law.  Nor can it be shown, as I apprehend, by any
authority earlier than that of Glanvil, whose treatise was written about 1180,
that the peasantry of England were reduced to that extreme debasement which
our law-books call villenage; a condition which left them no civil rights with
respect to their lord.  For, by the laws of William the Conqueror, there was
still a composition fixed for the murder of a villein or ceorl, the strongest
proof of his being, as it was called, law-worthy, and possessing a rank,
however subordinate, in political society.  And this composition was due to
his kindred, not to the lord. ^x Indeed, it seems positively declared in
another passage that the cultivators, though bound to remain upon the land,
were only subject to certain services. ^y Again, the treatise denominated the
Laws of Henry I., which, though not deserving that appellation, must be
considered as a contemporary document, expressly mentions the twyhinder or
villein as a freeman. ^z Nobody can doubt that the villani and bordarii of
Domesday Book, who are always distinguished from the serfs of the demesne,
were the ceorls of Anglo-Saxon law.  And I presume that the socmen, who so
frequently occur in that record, though far more in some counties than in
others, were ceorls more fortunate than the rest, who by purchase had acquired
freeholds, or by prescription and the indulgence of their lords had obtained
such a property in the outlands allotted to them that they could not be
removed, and in many instances might dispose of them at pleasure.  They are
the root of a noble plant, the free socage tenants, or English yeomanry, whose
independence has stamped with peculiar features both our constitution and our
national character. ^a [Footnote w: If the laws that bear the name of William
are, as is generally supposed, those of his predecessor Edward, they were
already annexed to the soil. p. 225.]

[Footnote x: Wilkins, p. 221.]

[Footnote y: Id. p. 225.]

[Footnote z: Leges Henr. I., c. 70 and 76, in Wilkins.]

[Footnote a: [Note III.]]