196

ANGLO-SAXON TAXATION.

to his posts; the money of the wiht-gilds went to the king; the estates of those who died intestate and without heirs, escheated to him; succession dues might be claimed from the estates of all followers; and a custom of voluntary presents from his gesith, was gradually reduced to a tax on certain stated occasions.3 Of these sources of revenue, much of course remained in the hands of the different reeves (gerefan) as their fees. Out of the surplus, the king maintained his court, entertained strangers, paid his judicial commissioners, and contributed to public works. The church, the army, the fleet, the police, the poor-rates, the walls, bridges, and highways of the country, were all local expenses, defrayed by tithes, by personal service, or by contributions among the guilds.

Enough has been said to show that Anglo-Saxon kingship differed essentially from modern royalty in any European state. Viewed as proprietorship, it possessed more absolute and vexatious rights, than could now be enforced anywhere; but it played a most insignificant part in what we consider the funetions of government. These, while the tribe was still composed of only a few warriors, had been exercised by all in common, under royal presidency. As the smaller kingdoms were absorbed, it became inconvenient for the freemen to attend a distant gemot; the lapse of years increasing their numbers, had in many ways diminished their importance; and a muster of all who were strictly privileged, would have been in Athelstane's times a multitudinous rabble, incapable of transacting business. The witan came therefore to consist of the ealdormen and prelates of the kingdom, with a few of the leading clergy and thanes, who mustered in greater or less numbers, as the questions to be debated were more or less critical; neither summoned nor elected, but with some undefined imprescriptible right to attend. Whatever privileges had been exercised by their an

1 For a striking example of Roman purveyance, see Pliny, Epist. ix., 33. Canute's Laws, s. 70; A. S. Laws, vol. i., p. 413.

2 Canute's Laws, 71; A. S. Laws, vol. i., p. 413. 3 Grimm's Rechts-Alterthümer, pp., 245, 246.

in Magna Charta.

These were finally settled

POWERS OF THE WITAN.

197

cestors, the first conquering army, were claimed by the Saxon witan the rights of making peace or war, and foreign alliances, would naturally belong to those most interested in these questions; it was theirs to sanction grants of foleland, for folc-land was their reserve of property, kept back from the first division; they guarded the old customs, and enacted laws for new necessities, which were then promulgated in their name and in the king's; in cases concerning its own members, the witan was the great court of appeal; it secured them from abuses of justice, by watching the inflic tion of fines, and administering the estates of those who died childless and intestate; in cases of great national emergency, the witan could impose a general tax. In theory, it was more powerful than our own parliament, for peace and war and questions of alliance are now in the hands of the crown, and the judicial functions of the witan have been divided between independent courts and the upper house. But further, the witan, to use our modern phraseology, might resolve itself into a committee on church matters, which were probably left pretty much to the bishops and abbots. By these synods, questions of church doctrine and discipline were decided, the mode of raising and distributing the church revenues was regulated, and matters involving church property were adjusted "before the saints." They even claimed the right of appointing to vacant sees; of the pope there was as yet no question, except to decide between two disputants, or to give the pallium as a matter of ceremony; but the king was a dangerous rival, whose chaplain was commonly a successful applicant for preferment. Still, when every allowance has been made for the influence of the king, as the richest and most powerful man in the kingdom, it is clear that the Anglo-Saxon government was not so much royal as aristocratic; and that aristocracy was elastic. The captain of men, the successful merchant, the scholar, might all rise out of any position but slavery, and in the natural order

1 Bridferth mentions that Dunstan was appointed bishop of London by the witan.-Acta Sanctorum, Mai. 19.

198

GROWTH OF FEUDALISM.

of things might become by their own worth rulers of the land.1

The tendency of the times everywhere was to feudalism, and England shared it with the continent. The main features of feudalism are service for reward, distinct at once from independence and from the loss of liberty; the interdependence of rank upon rank in a gradually-ascending scale; and, by a remote analogy, the extension of the ideas of service and obligation to estates. It is easy to see how feudalism began. The soldier who had received his hide of land at the first partition of territory, and settled down on it as an independent yeoman, found himself in a position of freedom which he had never enjoyed before, but also isolated from the support of his comrades. In a town or its neighbourhood he would naturally become member of a guild, but in the country it would be safer to attach himself to the service of the nearest lord. Even if the first settlers did not do this, their descendants, starving on shares of the divided property, would sooner or later be driven to it. Receiving from their lord the costly defensive armour which they could not purchase for themselves, they were bound in theory to restore the property at their death; and the exaction of these heriots had become a constant source of oppression by the time of Canute. It even seems that when the vassal died intestate, the lord sometimes claimed to succeed to his property, but this was only allowable when he left no widow or family. Moreover, the right which the Roman emperors asserted to interfere in the marriages of their subjects, was probably claimed, though not often exercised, by the Anglo-Saxon kings.3 Add to all this the territorial jurisdiction of the great lords, and the necessity for every man to find a guarantee for his good

1 Kemble's Saxons in England, vol ii., chap. 6.

2 Laws of Canute, 70, 73; A. S. Laws, vol. i., pp. 413, 414.

3 Grimm's Rechts-Alterthümer, pp. 436-438. He quotes a passage from Lactantius, (De Mortibus Persecutor, cap. 38,) of the Emperor Maximin : Hunc jam induxerat morem ut nemo uxorem sine permissu ejus duceret. See also Kemble's Saxons in England, vol. ii., pp. 96-98.

ROMAN AND ENGLISH FAMILY-SYSTEM.

199

conduct, and it will be seen that the essentials of feudalism existed in England long before the Norman conquest. The difference was that it had not as yet been made universal; there was still breathing-space outside it for a few freemen ;1 the subject had not yet confounded the idea of attachment to his chief with that of reverence for the laws; religion was not yet coloured with the conceptions of lordship and vassalage. Whether society could have developed itself without feudalism, is now a mere speculation; if anywhere, it ought to have done so in England. Unhappily, Alfred and all our kings preferred the convenience of dealing with heads of communities to enforcing obedience from their many subjects separately, and in their desire to organize, they destroyed the personal freedom of the individual.

It may seem the fondest of speculations to connect AngloSaxon feudalism with anything Roman. The relation of chief and vassal belongs to a certain stage of society; we know that gesith existed in the time of Tacitus; and all the incidents of the connection might perhaps be naturally evolved from the honour and discipline which these relations imply. Yet, remembering that the Germanic conquerors of Europe occupied provinces the customs of which were borrowed from Roman law, and where the clergy were canonists and notaries, it is difficult not to think that the conception of the Roman family was often applied in our legal practice to what seemed similar ties. Both in Rome and in England the state took as its unit, not the natural clan of blood relations, but an artificial compound, bound together by its head, the man responsible to the state. The English, like the Roman father, was entrusted with the police and justice of his household up to a certain point, and answerable for it to the law. He could not divest him

1 This twofold division existed even after Anglo-Saxon times. "Centuria vel hundreta in decanias vel decimas et dominorum plegios distinguuntur."Leges Henrici Imi, vi., 1; A. S. Laws, vol. i., p. 512. But the spirit of the local institutions was changed by the conquest.

2 For a fuller statement of this principle, see Maine's Ancient Law, pp. 183, 184.

200

SEMI-SERVILE CLASSES.

self of that responsibility; but he was repaid for his duties by a power, which only Christianity restrained, over the liberties of wife, children, and slaves; and by certain rights in cases of succession over the properties of his kin on the spear-side (cognati-agnati), and of his gesith (clientes). The English was the less elaborate of the two systems. I know of nothing answering to the right by which a Roman father, returned from captivity, might annul all contracts which his representative had made. Again, the position of women was slightly different: the Anglo-Saxon woman, not bringing a dowry, but receiving a dower and a "morgen-gabe," the husband, who had bought her, as it were, might recover against the kin if she incurred a fine at law. But, on the other hand, the Englishman gained in the devotion and discipline of his gesith: they fought for him in battle, and swore for him in the courts of law, with a hearty allegiance transcending all bonds of clientship, and ultimately even the obligations of the church sacraments.3

But besides the military tenants, thanes, or gesith, there were many semi-servile classes of men who owed duty to a lord, or who lived upon land that owed duty. From the circumstances of the Anglo-Saxon settlement, it is probable that the freemen upon bond-land were in the first instance Britons who retained their holdings on condition of paying tribute. In later times, this rent would gradually have been compounded for by some one large payment. In an early state of society, where the rent was due in kind or in labour, and where the disorders of the times did not encourage economy, a composition would be almost impossible. A notion of obli

1 Institutes, lib. i., tit. 12.

2 The "morgen-gabe" was a gift the morning after marriage.

3 The famous prælibatio, or droit de marchette, though it probably only existed in theory, as the excuse of a feudal tax, is one instance of this; another is, that a married woman could not take a full oath of homage, because it would bind her to obligations inconsistent with, and superior to, her marriagevow.-Coke upon Littleton, pp. 66 a, 140 a. These abuses, however, belong rather to Anglo-Norman times. The Anglo-Saxon lords only claimed the right to control marriage, and in this they were limited by law.-Canute's Laws, ii., 74, 75; A. S. Laws, vol. i., p. 417.