THE SESSION OF EMERGENCY.

193

obtained to afford clear and permanent right," the head of the family was entitled to demand justice for his clansmen, and by bringing into court the oaths of three hundred qualified men, could reverse the decision of the supreme courts. We only know that this abstract right existed, and cannot pronounce in what way it was practically applied. But two points in it are remarkable. The strong family feeling of the Kelts displays itself in the substitution of the "chief of kindred" for the hundred or tithing-man. "The session of emergency," as it is called, is characteristic of an impulsive rather than of an orderly race; it resembles the lynch law which has been derived from Galway, and recals the contrast of French progress by revolutionary movements with the slow, constitutional, onward march of English liberty. Clearly, differences of race can be dated back to the earliest historical institutions.

THE ANGLO-SAXON COMMONWEALTH.

GROWTH, RIGHTS, AND REVENUE OF ROYALTY.-FUNCTIONS OF THE WITAN.— GROWTH OF FEUDALISM.-THE ROMAN AND ANGLO-SAXON FAMILY.-GROWTH OF VILLEINAGE.-LOCAL TENURES.-NATURE of ANGLO-SAXON LIBERTY.SOCIETY, FOOD, AMUSEMENTS, AND DRESS IN THE ANGLO-SAXON TIMES.

THE importance of royalty was sensibly increased in England by the events of the seventh, eighth, and ninth centuries, and by the fusion of Roman with Saxon ideas. The change in the ceremony of coronation would alone indicate this: the old king had been lifted up on a shield, and carried three times round the ranks of his shouting warriors, while a sacrifice was offered up; the king of later times received a sword as head of the host, a crown as chief judge, a sceptre in token of royalty, and a rod for the chastisement of evil-doers.1 Once invested, the king's first duty was to ride round the limits of his dominions, confirm the local customs, and receive in return the homage of his new subjects. At twelve years old, every male was compelled to take the oath of allegiance, whose breach, by Alfred's laws, was punished by death. The theory of Anglo-Saxon justice was that every man should endeavour to right himself before he applied to the king for redress. But as provinces of different origin, with dissimilar local customs, were united under one sovereignty, applications to the supreme power became more and more frequent; the number of royal commissioners was multiplied; their functions were extended; and writs were introduced to transfer causes from the local courts to their cognizance.

1 Grimm's Rechts-Alterthümer, pp. 234-237; Silver's Anglo-Saxon Coronation Service, pp. 6-8. See, however, Flor. Wig., vol. i., p. 173, and else

where, "levavere in regem."

2 Kemble's Saxons in England, vol. ii., chap. ii.

The rights, limitations, and feudal relations of English royalty, were very complex. All public property was vested in the Anglo-Saxon king; grants of folc-land required his previous sanction; rivers and roads were under his jurisdiction, and offences there committed against the peace were offences against the king; treasure-trove, by a just analogy, belonged to the sovereign. These rights, to which Roman law has no parallel, are no doubt based on the facts of original conquest. To the chief, as representative of the tribe, accrued all that the individual could not claim. Whether the king was punishable for crimes against the law is doubtful; we never hear of bloodmoney being exacted from an English king, and Edgar's penance was of course canonical; Canute once, indeed, paid a were-gild, but it was for the special offence of having killed a guild-brother. If the sovereign was really irresponsible, the worst precedent of Roman law was paralleled, if not imitated, in his case; and, with even greater stringency, the rights of the English treasury could be barred by no prescription, while four years were sufficient against the imperial fiscus. The king's revenue was derived from several sources. He inherited crown-lands, distinct at once from the folc-land, and from his own private property; his officers received the customs; the Roman abuse of purveyance was retained in England, and gradually extended to the king's officers, to his retinue, and

1 Grimm's Rechts-Alterthümer, pp. 247-250; Leges Edw. Conf., s. 14; Leges Henrici Imi, cap. x.; A. S. Laws, vol. i., pp. 448, 518, 519. As the fee of the soil had in theory been derived from the sovereign, treasure-trove belonged to him.

2 The nullum tempus occurrit regi, is, I believe, immemorial in English law. As early as the time of Henry II., it was held that the crown could recover lands unjustly severed from its domain after any lapse of time.-Dial de Scac., lib. ii., cap. 10. On the other hand, bona vacantia, i.e., the goods of persons dying without succession, could be acquired by prescription under Roman law, until they were reported to the fiscus.-Sandars's Institutes of Justinian, lib. ii., tit. 6. "By four years' possession the exchequer is barred to seize forfeited goods; and if the exchequer sells or gives to a private person, his title upon the mere delivery is unquestionable; but the injured person has his remedy against the exchequer if he sues in time."-Code, lib. 7, tit. 37, 1 and 2; quoted in a New Institute of the Civil Law, p. 108.

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. 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 functions 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 folcland, 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 infliction 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;1 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.