disheartened, weakened, without head, without direction, dismayed by a terrible defeat, submitted, because they saw no other course, to a conquerour whose valour they had experienced, and who had hitherto behaved with great appearances of equity and moderation. As for the grandees, they were contented rather to submit to this foreign prince, than to those whom they regarded as their equals and enemies.

With these causes other strong ones concurred. For near two centuries the continual and bloody wars with the Danes had exhausted the nation; the peace, which for a long time they were obliged to buy dearly, exhausted it yet more; and it had not sufficient leisure, nor sufficient means, of acquiring wealth, to yield at this time any extraordinary resources. The new people, which after so long a struggle had mixed with the English, had not yet so thoroughly incorporated with the antient inhabitants, that a perfect union might be expected between them; or that any strong uniform national effort might have resulted from it. Besides, the people of England were the most backward in Europe in all improvements, whether in military or in civil life. Their towns were meanly built, and more meanly fortified; there was scarcely any thing that deserved the name of a strong place in the kingdom; there was no fortress which, by retarding the progress of a conquerour, might give the people an opportunity of recalling their spirits and collecting their strength. To these we may add, that the pope's approbation of William's pretensions gave them great weight, especially among the clergy; and that this disposed, and reconciled to submission, a people whom the circumstances we have mentioned had before driven to it.

CHAPTER VII.

OF THE LAWS AND INSTITUTIONS OF THE

SAXONS.

BEFORE we begin to consider the laws and constitutions of the Saxons, let us take a view of the state of the country from whence they are derived, as it is pourtrayed in antient writers. This view will be the best comment on their institutions. Let us represent to ourselves a people without learning, without arts, without industry, solely pleased and occupied with war, neglecting agriculture, abhorring cities, and seeking their livelihood only from VOL. II.-34

pasturage and hunting through a boundless range of morasses and forests. Such a people must necessarily be united to each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen of course, that the intention of investing one person, or a few, with the whole powers of government, and the notion of deputed authority or representation, are ideas that never could have entered their imaginations. When, therefore, among such a people, any resolution of consequence was to be taken, there was no way of effecting it but by bringing together the whole body of the nation, that every individual might consent to the law, and each reciprocally bind the other to the observation of it. This polity, if so it may be called, subsists still in all its simplicity in Poland,

But as in such a society as we have mentioned, the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves, than in a close and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn a numerous train after the person distinguished by them, of those who sought his protection, or feared his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These the antient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans called them Comites. Over these their chief had a considerable power, and the more considerable, because it depended upon influence rather than institution; influence among so free a people being the principal source of power. But this authority, great as it was, never could, by its very nature, be stretched to despotism; because any despotic act would have shocked the only principle by which that authority was supported, the general good opinion. On the other hand, it could not have been bounded by any positive laws, because laws can hardly subsist among a people who have not the use of letters. It was a species of arbitrary power, softened by the popularity from whence it arose. It came from popular opinion, and by popular opinion it was corrected.

If people so barbarous as the Germans have no laws, they have yet customs that serve in their room; and these customs operate among them better than 'aws, because they become a

sort of nature both to the governours and the governed. This circumstance in some measure removed all fear of the abuse of authority, and induced the Germans to permit cir chiefs to decide upon matters of lesser moment, their private differences, for so Tacitus explains the minores res. These chiefs were a sort of judges, but not legislators; nor do they appear to have had a share in the superiour branches of the executive part of government; the business of peace and war, and every thing of a public nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans, that what concerned all, ought to be handled by all. Thus were delineated the faint and incorrect outlines of our constitution, which has since been so nobly fashioned and so highly finished. This fine system, says Montesquieu, was invented in the woods; but whilst it remained in the woods, and for a long time after, it was far from being a fine one; no more indeed than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.

The antient state of the Germans was military; so that the orders into which they were distributed, their subordination, their courts, and every part of their government, must be deduced from an attention to a military principle.

The antient German people, as all the other northern tribes, consisted of freemen and slaves; the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age separated the boys from men. For when a young man approached to virility, he was not yet admitted as a member of the state, which was quite military, until he had been invested with a spear in the public assembly of his tribe; and then he was adjudged proper to carry arms, and also to assist in the public deliberations, which were always held armed. This spear he generally received from the hand of some old and respected chief, under§ whom he commonly entered himself,

They had no other nobility; yet several families among them were considered as noble. † Arma sumere non ante cuiquam moris, quam civitas suffecturum probaverit.-Tacitus

de Mor. Germ. 13.

Nihil autem neque publicæ neque privata rei nisi armati agunt. Id. ibid.

$ Cæteri robustioribus ac jam pridem probatis aggregantur. Id. ibid.

and was admitted among his followers. No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in the strictest dependence, which was confirmed by an oath, and to his bre thren in a common vow for their mutual support in all dangers, and for the advancement and the honour of their common chief. This chief was styled seniour, lord, and the like terms, which marked out a superiority in age and merit; the followers were called ambacti, comites, leuds, vassals, and other terms; marking submission and dependence. This was the very first origin of civil, or rather military government, among the antient people of Europe; and it arose from the connection that necessarily was created betwen the person who gave the arms, or knighted the young man, and him that received them; which implied that they were to be occupied in his service, who originally gave them. These principles it is necessary strictly to attend to, because they will serve much to explain the whole course both of government and real property, wherever the German nations obtained a settlement; the whole of their government depending for the most part upon two principles in our nature,-ambition, that makes one man desirous, at any hazard or expense, of taking the lead among others; and admiration, which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, onc of the most universal passions among men these two principles, strong both of them in our nature, create a voluntary inequality and dependence. But among equals in condition there could be no such bond, and this was supplied by confederacy; and as the first of these principles created the seniour and the knight, the second produced the conjurati fratres, which, sometimes as a more extensive, sometimes as a stricter bond, is perpetually mentioned in the old laws and histories.

The relation between the lord and the vassal produced another effect, that the leader was obliged to find sustenance for his followers; and to maintain them at his table or give them some equivalent in order to their maintenance. It is plain, from these principles, that this service on one hand, and this obligation to support on the other, could not have

Illum defendere, tueri, sua quoque fortia facta ejus gloriae assignare præcipuum sacra mentum est. Id. 14

originally been hereditary, but must have been entirely in the free choice of the parties.

But it is impossible that such a polity could long have subsisted by election alone. For in the first place that natural love, which every man has to his own kindred, would make the chief willing to perpetuate the power and dignity he acquired in his own blood; and for that purpose, even during his own life, would raise his son, if grown up, or his collaterals, to such a rank, as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or fell by natural course, leaving his offspring destitute, the lord could not far forget the services of his vassal as not continue his allowance to his children; and these again growing up, from reason and gratitude, could only take their knighthood at his hands, from whom they had received their education; and thus, as it could seldom happen but that the bond either on the side of the lord, or dependant, was perpetuated, some families must have been distinguished by a long continuance of this relation, and have been therefore looked upon in an honourable light from that only circumstance, from whence honour was derived in the northern world. Thus nobility was seen in Germany; and in the earliest Anglo-Saxon times, some families were distinguished by the title of Ethelings, or of noble descent. But this nobility of birth was rather a qualification for the dignities of the state, than an actual designation to them. The Saxon ranks are chiefly designed to ascertain the quantity of the composition for personal injuries against them.

But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day; it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connection; and if a father left his son under a military age, so as that he could neither lead nor judge his people, nor qualify the young men who came up under him to take arms-in order to continue the cliental bond, and not to break up an old and strong confederacy, and thereby disperse the tribe; who should be pitched upon to head the whole, but the worthiest of blood of the deceased leader? he that ranked next to him in his life: and this is tanistry, which is a succes

Deputed authority, guardianship, &c. not known to the northern nations; they gained his idea by intercourse with the Romans.

sion made up of inheritance and election; a succession in which blood is inviolably regarded so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferiour chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, was entirely passed over, and his uncle, or some remoter relation, raised to the crown; but there is not a single instance where the election has carried it out of the blood. So that in truth the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined, in some degree, favourably for the litigants on either side; for it was certainly both hereditary and elective, within the bounds which we have mentioned. This order prevailed in Ireland, where the northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it; which if they had done, there is no doubt but many things of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries, had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded among the antient Germans, and even preferred to that of the immediate possessor, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed; and this is upon the principles of tanistry; and the rule seems to have taken such deep root, as to have much influenced a considerable article of our feudal law. For what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century.

Thus we have seen the foundation of the northern government, and the orders of their people, which consisted of dependence and confederacy-that the principal end of both was military; that protection and mainte

not the absolute dependants, but in some measure the peers of their lord, when they sued in his court, they claimed the privilege of all the German freemen, the right of judging one another; the lord's steward was only the register. This domestic court, which continued in full vigour for many ages, the Saxons called Hallmote, from the place, in which it was held; the Normans, who adopted it, named it 1 court-baron. This court had another department, in which the power of the lord was more absolute; from the most antient times the German nobility considered themselves as the natural judges of those who were employed in the cultivation of their lands; looking on husbandmen with contempt, and only as a parcel of the soil which they tilled; to these the Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these inferiour tenants were decided in the lord's court, in which his steward sat as a judge; and this manner of tenure probably gave an origin to copyholders.* Their estates were at will, but their persons were free; nor can we suppose that villains, if we consider villains as synonimous to slaves, could ever by any natural course have risen to copyholders; because the servile condition of the villain's person would always have prevented that stable tenure in the lands which the copyholders came to in very early times. The merely servile part of the nation seems never to have been known by the name of villains or ceorles; but by those of bordars, esnes and theowes.

As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the antient Britains not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to find some method of uniting and governing these detached parts of the nation which had not been brought into order by any private dependence. To answer this end, the whole kingdom was divided into shires; these into hundreds, and the hundreds into tythings. This division

Fuerunt etiam in conquestu liberi homines, qui libere tenuerunt tenementa sua per libera servitia vel per liberas consuetudines. For the original of copy holds, see Bracton, 1. 1. fo. 7.

Ibi debent populi omnes et universæ gentes singulis annis semel in anno (scilicet in capite cal. Maii) et se fide et sacramento non fracto ibi in unum et simul confederare, et consolidare sicut conjurati fratres ad defendendum regnum contra alienigenas et contra inimicos una cum domino suo rege, et terras et honores illius mni fidelitate cum eo servare et quod illi ut

was not made, as it is generally imagined, by King Alfred, though he might have introduced better regulations concerning it; it prevailed on the continent wherever the northern nations had obtained a settlement; and it is a species of order extremely obvious to all who use the decimal notation; when for the purposes of government they divide a county, tens and hundreds are the first modes of division which occur. The tything, which was the smallest of these divisions, consisted of ten heads of families, free, and of some consideration. These held a court every fortnight, which they called the Folkmote or Leet, and there became reciprocally bound to each other, and to the public, for their own peaceable behaviour, and that of their families and dependants. Every man in the kingdom, except those who belonged to the seigneurial courts we have mentioned, was obliged to enter himself into some tything; to this he was inseparably attached, nor could he by any means quit it without licence from the head of the tything; because, if he was guilty of any misdemeanour, his district was obliged to produce him or pay his fine. In this manner was the whole nation, as it were, held under sureties; a species of regulation undoubtedly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to their spot, were depressed with all the ideas of their original littleness, and by all that envy which is sure to arise in them who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Every thing was new to them, and therefore every thing was terrible; all activity, boldness, enterprize and invention, died away. There may be a danger in straining too strongly the bonds of government, as a life of absolute license tends to turn men into savages. The other extreme of constraint operates much in the same manner; it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires and hundreds and tythings was common

domino suo regi intra et extra regnum universum Britanniae fideles esse volunt. LL. Ed. Conf. c. 35. Of Heretoches and their election, vide Id. eodem.

Prohibitum erat etiam in eadem lege ne quis emeret vivum animal vel pannum usitatum sine plegiis et bonis testibus. Of other particulars of buying and selling, vide Leges Ed. Conf. 38