Multimedia Mania/abacus-multimedia-mania.iso/dp/0092/00929.txt

Text File | 1993-07-27 | 35KB | 527 lines

$Unique_ID{bob00929}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Notes To Book VIII: Part III}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{anglo-saxon
laws
king
thanes
jurisdiction
witenagemot
edgar
every
law
commonwealth}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Notes To Book VIII: Part III
Note IV

     Those who treat this opinion as chimerical, and seem to suppose that a
very large portion of the people of England, during the Anglo-Saxon period,
must have been of British descent, do not, I think, sufficiently consider -
first, the exterminating character of barbarous warfare, not here confined, as
in Gaul, to a single and easy conquest, but protracted for two centuries with
the most obstinate resistance of the natives; secondly, the facilities which
the possessions of the Welsh and Cumbrian Britons gave to their countrymen for
retreat; and thirdly, the natural increase of population among the Saxons,
especially when settled in a country already reduced into a state of culture.
Nor can the successive migrations from Germany and Norway be shown to have
been insignificant.  Nothing can be scantier than our historical materials for
the fifth and sixth centuries.  We cannot also but observe that the silence of
the Anglo-Saxon records, at a later time, as to Welsh inhabitants, except in a
few passages, affords a presumption that they were not very considerable.  Yet
these passages, three or four in number (I do not include those which
obviously relate to the independent Welsh, whether Cambrian or Cumbrian),
repel the hypothesis that they may have been wholly overlooked and confounded
with the ceorls.  Their composition was less than that of the ceorl in Wessex
and Northumbria; would not this have been mentioned in Kent if they had been
found there?

     It is by no means unimportant in this question that we find no mention of
bishops or churches remaining in the parts of England occupied by the Saxons
before their conversion.  If a large part of the population was British,
though in subjection, what religion did they profess?  If it is said that the
worshippers of Thor persecuted the Christian priesthood, why have we no
records of it in hagiology?  Is it conceivable that all alike, priests and
people, of that ancient church, pusillanimously relinquished their faith?  Sir
F. Palgrave indeed meets this difficulty by supposing that the doctrines of
Christianity were never cordially embraced by the British tribes, nor had
become the national religion.  (Engl. Commonwealth, i. 154.) Perhaps this was
in some measure the case, though it must be received with much limitation; for
the retention of heathen superstitions was not incompatible in thatage with a
cordial faith; but it will not account for the disappearance of the original
clergy in the English kingdoms.  Their persecution, which I do not deny,
though we have no evidence of it, would be part of the exterminating system;
they fled before it into the safe quarters of Wales.  And to obtain the free
exercise of their religion was probably an additional motive with the nation
to seek liberty where it was to be found.

     It must have struck every one who has looked into Domesday Book that we
find for the most part the same manors, the same parishes, and known by the
same names, as in the present age.  England had been as completely
appropriated by Anglo-Saxon thanes as it was by the Normans who supplanted
them.  This, indeed, only carries us back to the eleventh century.  But in all
charters with which the excellent Codex Diplomaticus supplies us we find the
boundaries assigned; and these, if they do not establish the identity of
manors as well as Domesday Book, give us at least a great number of local
names, which subsist, of course with the usual changes of language, to this
day.  If British names of places occur, it is rarely, and in the border
counties, or in Cornwall.  No one travelling through England would discover
that any people had ever inhabited it before the Saxons, save so far as the
mighty Rome has left traces of her empire in some enduring walls, and a few
names that betray the colonial city, the Londinium, the Camalodunum, the
Lindum.  And these names show that the Saxons did not systematically innovate,
but often left the appellations of places where they found them given.  Their
own favorite terminations were ton and by; both words denoting a village or
township, like ville in French. ^a In each of these there gradually rose a
church, and the ecclesiastical division for the most part corresponds to the
civil; though to this, as is well known, there are frequent exceptions.  The
central point of every township or manor was its lord, the thane to whose
court the socagers and ceorls did service; we may believe this to have been so
from the days of the Heptarchy, as it was in those of the Confessor.

[Footnote a: The word tun denotes originally any enclosure.  "But its more
usual, though restricted sense, is that of a dwelling, a homestead, the house
and inland; all, in short, that is surrounded and bounded by a hedge or fence.
It is thus capable of being used to express what we mean by the word town,
viz., a large collection of dwellings; or, like the Scottish town, even a
solitary farmhouse.  It is very remarkable that the largest proportion of the
names of places among the Anglo-Saxons should have been formed with this word,
while upon the continent of Europe, it is never used for such a purpose.  In
the first two volumes of the Codex Diplomaticus, Dr. Lee computes the
proportion of local names compounded with tun at one-eighth of the whole
number; a ratio which unavoidably leads us to the conclusion, that enclosures
were as much favored by the Anglo-Saxons as they were avoided by their German
brethren beyond the sea." Preface to Kemble's Codex Diplom. vol. iii. p.
xxxix.]

     The servi enumerated in Domesday Book are above 25,000, or nearly
one-eleventh part of the whole.  There seem generally to have been domestic
slaves, and partly employed in tending the lord's cattle or swine, as Gurth,
whom we all remember,in Ivanhoe. They are never mentioned as occupiers of
land, and have nothing to do with the villeins of later times.  A genuine
Saxon, as I have said, could only become a slave by his own or his
forefather's default, in not paying a weregild, or some legal offence; and of
these there might have been many. The few slaves whose names Mr. Turner has
collected from Hickes and other authorities appear to be all Anglo-Saxon.
(Hist. of Anglo-Saxons, vol. iii. p. 92.) Several others are mentioned in
charters quoted by Mr. Wright in the 30th volume of the "Achaeologia," p. 220.
But the higher proportion which servi bore to villani and bordarii, that is,
free ceorls, in the western counties, those in Gloucestershire being almost
one-third, may naturally induce us to suspect that many were of British
origin; and these might be sometimes in praedial servitude.  All inference,
however, from the sentence in Domesday, as to the particular state of the
enumerated inhabitants, must be conjecturally proposed.

Note V

     The constituent parts of the witenagemot cannot be certainly determined,
though few parts of the Anglo-Saxon polity are more important. A modern writer
espouses the more popular theory.  "There is no reason extant for doubting
that every thane had the right of appearing and voting in the witenagemot, not
only of his shire, but of the whole kingdom, without however being bound to
personal attendance, the absent being considered as tacitly assenting to the
resolutions of those present." (Lappenberg, Hist. of England, vol. ii. p.
317.) Palgrave, on the other hand, adheres to the testimony of the Historia
Eliensis, that forty hydes of land were a necessary qualification; which of
course would have excluded all but very wealthy thanes.  He observes, and I
believe with much justice, that "proceres terrae" is a common designation of
those who composed a curia regis synonymous, as he conceives, with the
witenagemot.  Mr. Thorpe ingeniously conjectures that "inter proceres terrae
enumerari" was to have the rank of an earl; on the ground that five hydes of
land was a qualification for a common thane, whose heriot, by the laws of
Canute, was to that of an earl as one to eight.  (Ancient Laws of
Anglo-Saxons, p. 81.) Mr. Spence supposes the rank annexed to forty hydes to
have been that of king's thane.  (Inquiry into Laws of Europe, p. 311.) But
they were too numerous for so high a qualification.

     Mr. Thorpe explains the word witenagemot thus: - "The supreme council of
the nation, or meeting of the witan.  This assembly was summoned by the king;
and its members, besides the archbishop or archbishops, were the bishops,
aldermen, duces, eorls, thanes, abbots, priests, and even deacons. In this
assembly, laws, both secular and ecclesiastical, were promulgated and
repealed; and charters of grants made by the king confirmed and ratified.
Whether this assembly met by royal summons, or by usage at stated periods, is
a point of doubt." (Glossary to Ancient Laws.) This is not remarkably
explicit: aldermen are distinguished from earls, and duces, an equivocal word,
from both; ^a and the important difficulty is slurred over by a general
description, thanes.  But what thanes?  remains to be inquired.

[Footnote a: Dux appears to be sometimes used in the subscription of charters
for thane, more commonly for alderman.  Thane is generally, in Latin,
minister.  Codex Diplomat. passim.  Some have supposed dux to signify, at
least occasionally, a peculiar dignity, called, in Anglo-Saxon, Heretoch
(herzog, Germ.).  This word frequently occurs in the later period. Mr. Thorpe
says - "This title, among the Anglo-Saxons, was, as it implies, given
originally to the leader of an army; but in the latter days of the monarchy it
seems to have become hereditary in the family of those on whom the government
of the provinces formed out of the kingdoms of the Heptarchy were bestowed,
and was sometimes used synonymously with those of ealdorman and eorl."
Glossary, voc. Heretoga.]

     The charters of all Anglo-Saxon sovereigns are attested, not only by
bishops and abbots, but by laymen, described, if by any Saxon appellation, as
aldermen, or as thanes.  Their number is not very considerable; and some
appear hence to have inferred that only the superior or royal thanes were
present in the witenagemot.  But, as the signatures of the whole body could
not be required to attest a charter, this is far too precarious an inference.
Few, however, probably, are found to believe that the lower thanes flocked to
the national council, whatever their rights may have been; and if we have no
sufficient proof that any such privileges had been recognized in law or
exercised in fact, if we are rather led to consider the sithcundman or
sixhynder, as dependent merely on his lord, in something very analogous to a
feudal relation, we may reasonably doubt the strong position which Lappenberg,
though following so many of our own antiquaries, has laid down.  Probably the
traditions of the Teutonic democracy led to the insertion of the assent of the
people in some of the Anglo-Saxon laws. But it is done in such a manner as to
produce a suspicion that no substantial share in legislation had been reserved
to them.  Thus, in the preamble of the laws of Withroed, about 696, we read,
"The great men decreed, with the suffrages of all, these dooms." Ina's laws
are enacted "with all my ealdormen, and the most distinguished witan of my
people." Alfred has consulted his "witan." And this is the uniform word in all
later laws in Anglo-Saxon.  Canute's, in Latin, run - "Cum consilio
primariorum meorum." We have not a hint of any numerous or popular body in the
Anglo-Saxon code.

     Sir F. Palgrave (i. 637) supposes that the laws enacted in the
witenagemot were not valid till accepted by the legislature of the different
kingdoms.  This seems a paradox, though supported with his usual learning and
ingenuity.  He admits that Edgar "speaks in the tone of prerogative, and
directs his statutes to be observed and transmitted by writ to the aldermen of
the other subordinate states." (P. 638.) But I must say that this is not very
exact.  The words in Thorpe's translation are, - "And let many writings be
written concerning these things, and sent both to Aelfere, alderman, and to
Aethelwine, alderman, and let them [send] in every direction, that this
ordinance be known to the poor and rich." (P. 118.) "And yet," Sir F. P.
proceeds, "in defiance of this positive injunction, the laws of Edgar were not
accepted in Mercia till the reign of Canute the Dane." For this, however, he
cites no authority, and I do not find it in the Anglo-Saxon laws.  Edgar says,
- "And I will that secular rights stand among the Danes with as good laws as
they best may choose. But with the English, let that stand which I and my
witan have added to the dooms of my forefathers, for the behoof of all the
people.  Let this ordinance, nevertheless, be common to all the people,
whether English, Danes, or Britons, on every side of my dominion.  (Thorpe's
Ancient Laws, p. 116.) But what does this prove as to Mercia?  The inference
is, that Edgar, when he thought any particular statute necessary for the
public weal, enforced it on all his subjects, but did not generally meddle
with the Danish usages.

     "The laws of the glorious Athelstan had no effect in Kent, the dependent
appanage of his crown, until sanctioned by the witan of the shire." It is
certainly true that we find a letter addressed to the king in the name of
"episcopi tui de Kancia, et omnes Cantescyre thaini, comites et villani,"
thanking him "quod nobis de pace nostra praecipere voluisti et de commodo
nostro quaerere et consulere, quia magnum inde nobis et opus divitibus et
pauperibus." But the whole tenor of this letter, which relates to the laws
enacted at the witenagemot, or "grand synod" of Greatanlea (supposed near
Andover), though it expresses approbation of those laws, and repeats some of
them with slight variations, does not, in my judgment, amount to a distinct
enactment of them; and the final words are not very legislative.  "Precamur,
Domine, misericordiam tuam, si in hoc scripto alterutrum est vel nimis vel
minus, ut hoc emendari jubeas secundum velle tuum.  Et nos devote parati sumus
ad omnia quae nobis praecipere velis quae unquam aliquatenus implere
valeamus." (P. 91.)

     It is, moreover, an objection to considering this as a formal enactment
by the witan of the shire, that it runs in the names of "thaini, comites et
villani." Can it be maintained that the ceorls ever formed an integrant
element of the legislature in the kingdom of Kent?  It may be alleged that
their name was inserted, though they had not been formally consenting parties,
as we find in some parliamentary grants of money much later.  But this would
be an arbitrary conjecture, and the terms "omnes thaini," &c., are very large.
By comites we are to understand, not earls, who in that age would not have
been spoken of distinctly from thanes, at least in the plural number, nor
postponed to them, but thanes of the second order, sithcundmen, sixhynder.
Alfred translates "comes" by "gesith," and the meaning is nearly the same.

     In the next year we have a very peremptory declaration of the exclusive
rights of the king and his witan.  "Athelstan, king, makes known that I have
learned that our 'frith' (peace) is worse kept than is pleasing to me, or as
at Greatanlea was ordained, and my witan say that I have too long borne with
it.  Now, I have decreed, with the witan who were with me at Exeter at
midwinter, that they [the frithbreakers] shall all be ready, themselves and
with wives and property, and with all things, to go whither I will (unless
from thenceforth they shall desist), on this condition, that they never come
again to the country.  And if they shall ever again be found in the country,
that they be as guilty as he who may be taken with stolen goods
(hand-habbende)."

     Sir Francis Palgrave, a strenuous advocate for the antiquity of municipal
privileges, contends for aldermen, elected by the people in boroughs, sitting
and assenting among the king's witan.  (Edinb. Rev. xxvi. 26.) "Their seats in
the witenagemot were connected as inseparably with their office as their
duties in the folkmote.  Nor is there any reason for denying to the aldermen
of the boroughs the rights and rank possessed by the aldermen of the hundreds;
and they, in all cases, were equally elected by the commons." The passage is
worthy of consideration, like everything which comes from this ingenious and
deeply read author.  But we must be staggered by the absence of all proof, and
particularly by the fact that we do not find aldermen of towns, so described,
among the witnesses of any royal charter.  Yet it is possible that such a
privilege was confined to the superior thanes, which weakens the inference.
We cannot pretend, I think, to deny, in so obscure an inquiry, that some
eminent inhabitants (I would here avoid the ambiguous word citizens) of
London, or even other cities, might occasionally be present in the
witenagemot.  But were not these, as we may confidently assume, of the rank of
thane?  The position in my text is, that ceorls or inferior freemen had no
share in the deliberations of that assembly.  Nor would these aldermen, if
actually present, have been chosen by the court-leet for that special purpose,
but as regular magistrates.  "Of this great council," Sir F. P. says in
another place (Edinb. Rev. xxxiv. 336), "as constituted anterior to the
Conquest, we know little more than the name." The greater room, consequently,
for hypothesis.  In a later work, as has been seen above, Sir F. P. adopts the
notion that forty hydes of land were the necessary qualification for a seat in
the witenagemot.  This is almost inevitably inconsistent with the presence, as
by right, of aldermen elected by boroughs.  We must conclude, therefore, that
he has abandoned that hypothesis.  Neither of the two is satisfactory to my
judgment.

Note VI

     The hundred-court, and indeed the hundred itself, do not appear in our
Anglo-Saxon code before the reign of Edgar, whose regulations concerning the
former are rather full.  But we should be too hasty in concluding that it was
then first established.  Nothing in the language of those laws implies it.  A
theory has been developed in a very brilliant and learned article of the
Edinburgh Review for 1822 (xxxvi. 287), justly ascribed to Sir F. Palgrave,
which deduces the hundred from the harad of the Scandinavian kingdoms, the
integral unit of the Scandinavian commonwealths. "The Gothic commonwealth is
not a unit of which the smaller bodies politic are fractions.  They are the
units, and the commonwealth is the multiple. Every Gothic monarchy is in the
nature of a confederation.  It is composed of towns, townships, shires,
bailiwicks, burghs, earldoms, dukedoms, all in a certain degree strangers to
each other, and separated in jurisdiction. Their magistrates, therefore, in
theory at least, ought not to emanate from the sovereign. . . . . The strength
of the state ascends from region to region.  The representative form of
government, adopted by no nation but the Gothic tribes, and originally common
to them all, necessarily resulted from this federative system, in which the
sovereign was compelled to treat the component members as possessing a several
authority."

     The hundred was as much, according to Palgrave, the organic germ of the
Anglo-Saxon commonwealth, as the haerad was of the Scandinavian.  Thus, the
leet, held every month, and composed of the tythingmen or head-boroughs,
representing the inhabitants, were both the inquest and the jury, possessing
jurisdiction, as he conceives, in all cases civil, criminal, and
ecclesiastical, though this was restrained after the Conquest.  William
forbade the bishop or archdeacon to sit there; and by the 17th section of
Magna Charta no pleas of the crown could be held before the sheriff, the
constable, the coroner, or other bailiff (inferior officer) of the crown. This
was intended to secure for the prisoner, on charges of felony, a trial before
the king's justices on their circuits; and, from this time, if not earlier,
the hundred-court was reduced to insignificance.  That, indeed, of the county,
retaining its civil jurisdiction, as it still does in name, continued longer
in force.  In the reign of Henry I., or when the customal (as Sir F. Palgrave
denominates what are usually called his laws) was compiled (which in fact was
a very little later), all of late highest rank were bound to attend at it.
And though the extended jurisdiction of the curia regis soon cramped its
energy, we are justified in saying that the proceedings before the justices of
assize were nearly the same in effect as those before the shiremote.  The same
suitors were called to attend, and the same duties were performed by them,
though under different presidents. The grand jury, it may be remarked, still
corresponds, in a considerable degree, to the higher class of landholders
bound to attendance in the county-court of the Saxon and Norman periods.

     I must request the reader to turn, if he is not already acquainted with
it, to this original disquisition in the Edinburgh Review.  The analogies
between the Scandinavian and Anglo-Saxon institutions are too striking to be
disregarded, though some conclusions may have been drawn from them to which we
cannot thoroughly agree.  If it is alleged that we do not find in the ancient
customs of Germany that peculiar scale of society which ascends from the
hundred, as a monad of self-government, to the collective unity of a royal
commonwealth, it may be replied that we trace the essential principle in the
pagus, or gau, of Tacitus, though perhaps there might be nothing numerical in
that territorial direction; that we have, in fact, the centenary distribution
under peculiar magistrates in the old continental laws and other documents;
and that a large proportion of the inhabitants of England, ultimately
coalescing with the rest, so far at least as to acknowledge a common
sovereign, came from the very birthplace of Scandinavian institutions.  In the
Danelage we might expect more traces of a northern policy than in the south
and west; and perhaps they may be found. ^a Yet we are not to disregard the
effect of countervailing agencies, or the evidence of our own records, which
attest, as I must think, a far greater unity of power, and a more paramount
authority in the crown, throughout the period which we denominate Anglo-Saxon,
than, according to the scheme of a Scandinavian commonwealth sketched in the
Edinburgh Review, could be attributed to that very ancient and rude state of
society.  And there is a question that might naturally be asked, how it
happens that, if the division by hundreds and the court of the hundred were
parts so essential of the Anglo-Saxon commonwealth that all its unity is
derived from them, we do not find any mention of either in the numerous laws
and other documents which remain before the reign of Edgar in the middle of
the tenth century.  But I am far from supposing that hundreds did not exist in
a much earlier period.

[Footnote a: Vide Leges Ethelredi.]

Note VII

     The judicial functions of the Anglo-Saxon monarchs were of a two-fold
nature; the ordinary authority which the king exercised, like the inferior
territorial judges, differing, perhaps, in degree, though the same in kind;
and the prerogative supremacy, pervading all the tribunals of the people, and
which was to be called into action when they were unable or unwilling to
afford redress.  The jurisdiction which he exercised over his own thanes was
similar to the authority of any other hlaford; it resulted from the peculiar
and immediate relation of the vassal to the superior.  Offences committed in
the fyrd or army were punished by the king, in his capacity of military
commander of the people.  He could condemn the criminal, and decree the
forfeiture of his property, without the intervention of any other judge or
tribunal.  Furthermore, the rights which the king had over all men, though
slightly differing in "Danelage" from the prerogative which he possessed in
Wessex and Mercia, allowed him to take cognizance of almost every offence
accompanied by violence and rapine; and amongst these "pleas of the crown" we
find the terms, so familiar to the Scottish lawyer and antiquary, of
"hamsoken" and "flemen firth," or the crimes of invading the peaceful
dwelling, and harboring the outlawed fugitive.  (Rise and Progress of Engl.
Commonwealth, vol. i. p. 282.)

     Edgar was renowned for his strict execution of justice.  "Twice in every
year, in the winter and in the spring, he made the circuit of his dominions,
protecting the lowly, rigidly examining the judgments of the powerful in each
province, and avenging all violations of the law." (Id. p. 286.) He infers
from some expressions in the history of Ramsey (Gale, iii. 441) - "cum more
assueto rex Cnuto regni fines peragraret" - that these judicial eyres
continued to be held.  It is not at all improbable that such a king as Canute
would revive the practice of Edgar; but it was usual in all the Teutonic
nations for the king, once after his accession, to make the circuit of his
realm.  Proofs of this are given by Grimm, p. 237.

     In this royal court the sovereign was at least assisted by his "witan,"
both ecclesiastic and secular.  Their consent was probably indispensable; but
the monarchical element of Anglo-Saxon polity had become so vigorous in the
tenth and eleventh centuries, that we can hardly apply the old Teutonic
principle expressed by Grimm.  "All judicial power was exercised by the
assembly of freemen, under the presidence of an elective or hereditary
superior." (Deutsche Rechts-Alterth. p. 749.) This was the case in the
county-court, and perhaps had once been so in the court of the king.

     The analogies of the Anglo-Saxon monarchy to that of France during the
same period, though not uniformly to be traced, are very striking.  The
regular jurisdiction over the king's domainial tenants, that over the vassals
of the crown, that which was exercised on denial of justice by the lower
tribunals, meet us in the two first dynasties of France, and in the early
reigns of the third.  But they were checked in that country by the feudal
privileges, or assumptions of privilege, which rendered many kings of these
three races almost impotent to maintain any authority.  Edgar and Canute, or
even less active princes, had never to contend with the feudal aristocracy.
They legislated for the realm; they wielded its entire force; they maintained,
not always thoroughly, but in right and endeavor they failed not to maintain,
the public peace.  The scheme of the Anglo-Saxon commonwealth was better than
the feudal; it preserved more of the Teutonic character, it gave more to the
common freeman as well as to the king.  The love of Utopian romance, and the
bias in favor of a democratic origin for our constitution, have led many to
overstate the freedom of the Saxon commonwealth; or rather, perhaps, to look
less for that freedom where it is really best to be found, in the
administration of justice, than in representative councils, which authentic
records do not confirm.  But in comparison to France or Italy, perhaps to
Germany, with the exception of a few districts which had preserved their
original customs, we may reckon the Anglo-Saxon polity, at the time when we
know most of it, from Alfred to the Conquest, rude and defective as it must
certainly appear when tried by the standard of modern ages, not quite unworthy
of those affectionate recollections which long continued to attach themselves
to its name.

     The most important part, perhaps, of the jurisdiction exercised by the
Anglo-Saxon kings, as by those of France, was ob defectum justitia, where
redress could not be obtained from an inferior tribunal, a case of not unusual
occurrence in those ages.  It forms, as has been shown in the second chapter,
a conspicuous feature in that feudal jurisprudence which we trace in the
establishments of St. Louis, and in Beaumanoir.  Nothing could have a more
decided tendency to create and strengthen a spirit of loyalty towards the
crown, a trust in its power and paternal goodness.  "The sources of ordinary
jurisdiction," says Sir F. Palgrave, "however extensive, were less important
than the powers assigned to the king as the lord and leader of his people; and
by which he remedied the defects of the legislation of the state, speaking
when the law was silent, and adding new vigor to its administration.  It was
to the royal authority that the suitor had recourse when he could not obtain
'right at home,' though this appeal was not to be had until he had thrice
'demanded right' in the hundred.  If the letter of the law was grievous or
burdensome, the alleviation was to be sought only from the king. ^b All these
doctrines are to be discerned in the practice of the subsequent ages; in this
place it is only necessary to remark that the principle of law which denied
the king's help in civil suits, until an endeavor had first been made to
obtain redress in the inferior courts, became the leading allegation in the
'Writ of Right Close'; this prerogative process being founded upon the default
of the lord's court, and issued lest the king should hear any more complaints
of want of justice.  And the alleviation of 'the heavy law' is the primary
source of the authority delegated by the king to his council, and afterwards
assumed by his chancery and chancellor, and from whence our courts of equity
are derived." (Rise and Progress of English Commonwealth, vol. i. p. 203.) I
hesitate about this last position; the "heavy law" seems to have been the
legal fine or penalty for an offence.  (Leges Edgar, ubi supra.)

[Footnote b: Edgar II. 2; Canute II. 16; Ethelred, 17.]

     That there was a select council of the Anglo-Saxon kings, distinct from
the witenagemot, and in constant attendance upon them, notwithstanding the
opinion of Madox and of Allen (Edinb. Rev. xxxv. 8), appears to be
indubitable.  "From the numerous charters granted by the kings to the church,
and to their vassals, which are dated from the different royal vills or manors
wherein they resided in their progresses through their dominions, it would
appear that there were always a certain number of the optimates in attendance
on the king, or ready to obey his summons, to act as his council when
circumstances required it.  This may have been what afterwards appears as the
select council." (Spence's Equitable Jurisdict. p. 72.) The charters published
by Mr. Kemble in the Codex Ang.-Sax. Diplomaticus are attested by those whom
we may suppose to have been the members of this council, with the exception of
some, which, by the number of witnesses and the importance of the matter, were
probably granted in the witenagemot.

     The jurisdiction of the king is illustrated by the laws of Edgar. "Now
this is the secular ordinance which I will that it be held.  This then is just
what I will; that every man be worthy of folk-right, as well poor as rich; and
that righteous dooms be judged to him; and let there be that remission in the
'bot' as may be becoming before God and tolerable before the world.  And let
no man apply to the king in any suit, unless he at home may not be worthy of
law, or cannot obtain law.  If the law be too heavy, let him seek a mitigation
of it from the king; and for any botworthy crime let no man forfeit more than
his 'wer.'" (Thorpe's Ancient Laws, p. 112.) Bot is explained in the glossary,
"amends, atonement, compensation, indemnification."

     This law seems not to include appeals of false judgment, in the feudal
phrase.  But they naturally come within the spirit of the provision; and
"injustum judicium" is named in Leges Henr. Primi, c. 10, among the exclusive
pleas of the crown.  It does not seem clear to me, as Palgrave assumes, that
the disputes of royal thanes with each other came before the king's court.  Is
there any ground for supposing that they were exempt from the jurisdiction of
the county-court?  Doubtless, when powerful men were at enmity, no petty court
could effectively determine their quarrel, or prevent them from having
recourse to arms; such suits would fall naturally into the king's own hands.
But the jurisdiction might not be exclusively his; nor would it extend, as of
course, to every royal thane; some of whom might be amenable, without much
difficulty, to the local courts.  It is said in the seventh chapter of the
laws of Henry I., which are Anglo-Saxon in substance, concerning the business
to be transacted in the county-court, where bishops, earls, and others, as
well as "barons and vavassors," that is, king's thanes and inferior thanes, in
the older language of the law, were bound to be present, - "Agantur itaque
primo debita vere Christianitatis jure; secundo regis placita; postremo causae
singulorum dignis satisfactionibus expleantur." The notion that the king's
thanes resorted to his court, as to that of their lord or common superior, is
merely grounded on feudal principles; but the great constitutional theory of
jurisdiction in Anglo-Saxon times, as Sir F. Palgrave is well aware, was not
feudal, but primitive Teutonic.

     "The witenagemot," says Allen, "was not only the king's legislative
assembly, but his supreme court of judicature." (Edinb. Rev. xxxv. 9;
referring for proofs to Turner's History of the Anglo-Saxons.) Nothing can be
less questionable than that civil as well as criminal jurisdiction fell within
the province of this assembly.  But this does not prove that there was not
also a less numerous body, constantly accessible, following the king's person,
and though not, perhaps, always competent in practice to determine the
quarrels of the most powerful, ready to dispose of the complaints which might
come before it from the hundred or county courts for delay of justice or
manifest wrong.  Sir F. Palgrave's arguments for the existence of such a
tribunal before the Conquest, founded on the general spirit and analogy of the
monarchy, are of the greatest weight.  But Mr. Allen had acquired too much a
habit of looking at the popular side of the constitution, and, catching at
every passage which proved our early kings to have been limited in their
prerogative, did not quite attend enough to the opposite scale.