Constitution of Ancient General Assemblies of the Germans. 70

It appears that the ancient form of deliberation was continued; the King or the Optimates proposed the subject for debate, and they alone joined in the discussion (c). There are also some indications of the sense of those of the community who did attend, having still been expressed in the ancient mode as described by Tacitus (d), and the *remembrances of the customs which prevailed at the ancient national councils appears to have influenced the language of [*71] public acts even when the people had altogether ceased directly to interfere (f).

In later times, as the predominant kingdoms extended their territories, and particularly as regards England, when the kingdoms of the octarchy were united into one empire, the assembling of the whole body of the thanes became impossible, and whatever were the functions which were originally exercised by the entire body, the whole naturally fell into the hands of a few.

But we must remember that, besides persons who came under the denomination of thanes, there was a distinct class of freemen in the country as well as in the towns, who were gradually rising into importance, though of a condition greatly inferior to the thanes-and to them our attention will have to be directed in considering this subject. To ascertain precisely the constitution of the supreme judicial and

Spelman, Concil. tom. 1. temp. Ethelbihrt, p. 126; temp. Inæ. p. 219; Pref. to Pety's Ancient Rights of the Commons.

(e) "Ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes pertractentur," Tac. ubi sup.

As regards the Franks and other Continental tribes, "Childebertus rex Francorum vir illustris. Cum in Dei nomine nos omnes Kal. Mart. de quibuscunque conditionibus una cum nostris optimatibus pertractavimus. 3°. In sequente hoc convenit una cum leudis nostris ut nullus de crinosis incestum," &c. Decret. Child. § 1. Baluze, to. i. p. 18.

"Confirmatio legis a regibus, quam Clodovæus, rex Francorum, statuit et postea una cum Francis pertractavit. Inde vero Childebertus post multum tempus tractavit ut quicquod invenire potuerit ibi cum suis Francis adderet. Clotharius similiter cum regni sai sapientibus invenit ut a tit. 83. adderet et ita perfectum perduxit." § ult. ejusdem Decret. The following is still more express in regard to the practice in the Dukedom of Bavaria: "Insuper gentis suæ institutiones legum per primates imperii, universa, consentiente multitudine, quæ reperit diuturnitate vitiata, et quæ videbantur abstrahenda, evelleret." et v. rel. Prolog. Decret. Tassilonis Duc Baiaorum, dat. A. D.

772.

Hincmar thus describes the form of proceeding in the time of Charlemagne, “In quo placito generalitas universorum majorum, tam clericorum quam laicorum, conveniebant,-seniores, propter consilium ordinandum, minores propter idem consilium suscipiendum, et interdum pariter

tractandum, et non ex potestate, sed ex proprio mentis intellectu vel sententiâ, confirmandum," Hincmar. Bouquet, ix. p. 769; Palgr. p. 530; and see Hallam, M. A. i. p. 239, and note.

As regards England, see the laws of Wihtred, Reg. Canc. A. D. circ. 697. "There the great men decreed with the suffrages of all," Anc. L. i. p. 37, and the authorities cited in the following notes. The expression pertractare, is also occasionally used in the Anglo-Saxon documents, to denote the office of the optimates at these assemblies; as in the description of the great Synod, A. D. 922, held under Bernwlf, king of Mercia, Palg. p. ccclxxxv. See the additional note to this chapter.

(d) "Hoc peracto consilio est ab universis uno ore confirmatum," Decret. Tassilonis Duc Baiaorum, in Præfat. Ingulph. in describing the council held by Ethelwlf, A. n. 855, on his return from Rome, at which the king, by the advice of his witan, endowed the church with the tithes of all the lands and goods in the kingdom, after mentioning the presence of bishops, kings, abbots, dukes, eorls, and proceres, adds, "aliorum que fidelium infinita multitudine, qui omnes regium chirographum laudaverunt, dignitates vero sua nomina subscripserunt," Ingulph. p. 862, 863. "Testibus unanimiter adclamationem præbentibus," A. D. 997, text. Roff 134; "vox populi vox Dei," was the language of the reign of Will. II, Eadm. quoted by Lord Lytt. iii. 425.

(f) This will appear from some of the subsequent references.

71

Constitution of Anglo-Saxon Councils-Members of Councils.

legislative assemblies of the Anglo-Saxons after the union of the different states into one kingdom, is a task not easily accomplished; perhaps our modern notions lead us to imagine that there was inore of system in the institutions of these early times, than was expected, or thought of by the people themselves. It has already been noticed as regards legislation, that from the time of the conversion of the Anglo-Saxons to Christianity, the prerogatives of the crown were exercised by the advice of a council. Two councils are plainly discernible, though not always to be distinguished; they formed the basis of the great councils and select councils, which were held under the Conqueror and his successors, the remains of which are to be discovered in the House of Lords and Privy Council of the present day. The king's councils of either kind, were constituted of the superior orders of the king's vassals, together with archbishops and bishops, and abbots of the principal monasteries; in some instances, such as the king specially summoned for the occasion (g); even members of the clerical body of inferior rank, eminent for their attainments, might be selected as members of the king's council (h). The persons who acted as the council of the king (i), are usually designated in Anglo-Saxon documents as witan, aldoras, or by [*72] some such expression (k), sometimes as eldestan witan (1). In the Latin charters they are described by the names of Principes, Senatores, Conciliarii, Archontes, Pretors, but most commonly Proceres, or Optimates, a phrase that had been applied by the Romans to those of Senatorial rank as distinguished from the Plebs. It would seem that no lay man could be selected as one of the optimates or council, unless he were in the enjoyment of forty hydes of land (m). It is seldom that any public act of the Anglo-Saxon kings is recorded without its being stated to have been done with the consent or by the advice of the optimates, or proceres, or of some of them.

As many, sometimes all, of the optimates would be present at the courts of state which have been described in a former page, it was natural that these assemblies should be made use of for the transaction of such business as the proceres or witan usually advised upon; and such, accordingly, appears to have been the fact (n). Many persons in attendance at the courts of state, in virtue of their offices, who were not qualified

(g) V. int. al. Heming, 518; Cart. Edg. as to Oswald's law. This may account for some Bishops signing as attesting whilst others sign as confirming or consenting, text. Roff. 134, and elsewhere; and see the authorities subsequently cited, and v. sup. p. 12.

(h) See Dug. Monast. i. 597, temp. Ethel red.Egelsei Decanus." In the next page there is an account of one Egilwy Abbas, who was selected by Will. I. as judex provinciæ.

(i) The Roman emperors also, as will be more fully noticed hereafter, had their Consistory or Council, by whose advice, laws were framed, though they were issued by the authority of the Emperor.-“ Id ab onnibus antea tam Proceribus nostri palati, quam gloriosissimo cœtu vestro (viz. senatu) Patres conscripti tractari-et cum

omnes consenserint tunc demum in sacro nostri numinis consistorio recitari: ut universorum consensus, nostræ serenitatis auctoritate firmetur-non aliter in posterum legem a nostra clementia promulgandam, nisi supradicta forma fuerit observata,” Rescript of Theod. and Valent. inserted in Cod. Just. i. 14. 8. v. inf. p. 80 (ni).

(k) Inæ. procem. Anc. L. p. 103; ib. 26.

(1) Ethelst. Anc. L. 215; Just. Civ. Lond. 11 and 12; ib. 241; Edmund, p. 247; Edg. p. 263; Ethelr. p. 281; Cnut. 359. 377. Witan, it is to be observed, is sometimes used in the sense of judges, Alf. § 77; Anc. L. 101.

(m) Hist. Eliens. p. 513.

(n) “In natali confirmavimus," Ecgberth. A. D. 835, Kemble, i. p. 312; and see the authorities cited in the succeeding notes.

Select Councils-Great Councils-Gewilena-gemotes.

72

as members of the council, may have signed the acts done at these assemblies, but they would sign as witnesses only; in fact, there are numerous charters signed by persons who attest as witnesses only (o). As to the nature and constitution of the assemblies of the council which were convened for the dispatch of public business on other occasions we are left in much uncertainty; so much must have depended on the urgency of the business, the state of the times, the character and influence of the sovereign, and many other circumstances, that, in all probability, no uniform or settled rule prevailed.

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 in which 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 [*73] been what afterwards appears as the select council. Many acts of state emanated from this council (p). But more solemn assemblies of the optimates or Gewilena-gemotes, were frequently called, embracing sometimes all, sometimes the most distinguished of the optimates; on some occasions the "best men" in the land is the expression used (q). These more solemn assemblies appear to have been held in the open air (r) by public notice or by particular summons, in or near to some city or populous town (s). These are the assemblies which are called parliaments by the writers after the Conquest (t). It appears to have been part of the business of the select council which usually attended the king, or the select council as it may be called, to determine when these more solemn councils should be held (u). On some occasions, when the throne was vacant, these assemblies met of their own authority, for the purpose of choosing a sovereign (x).

The business which was transacted at these councils was of various descriptions, which I shall endeavor to describe, without undertaking

(0) Some of Edgar's charters are signed by numerous milites, amongst others. These were probably, on these occasions, king's thanes, no lay dignitaries but duces being mentioned. Many charters are signed by persons who add no description to their names, int. al. Kemble, i. 150; Eliens. 517. 520, 21. There are numerous other instances in the charters. The persons who sign as ministri or king's thanes, were commonly, perhaps always, of the rank of optimates, and members of the council; see Heming, 373; Text. Roff. 134, 135, A D. 998. (p) The Saxon Chronicle leaves it in doubt whether it was by the advice of the members of the council usually in attendance, or that of a general council, that the Danes were bought off, a. n. 1006 and 1011. (7) See Sax. Chron. Ed. Ing. p. 238. A. D. 1052. In the Sax. Chronicle, a. n. 1123, it is said, the king sent his writs over all Eugland summoning all his bishops, his abbots, and his thanes, to come to his gewitenemot on Candlemas-day, at Glocester. No notice VOL. I.-9

is taken in that document of any variation as to the nature of the summons-or the persons summoned, subsequently to the Conquest; and see Palgr. p. 653.

(r) "Sub divo," Hist. Eliens. 518, 26. temp. Edg.

(s) See the references in the following

notes.

(1) Int. al. Bromton, p. 937. (u) Sax. Chron. A. D. 1051; Ed. Ing. p. 230; Ed. Gibson, p. 164. a. d. 1048.

(x) V. int. al. Cart. Eadred, A. D. 946; Kemble, ii. 268; Sax. Chron. A. D. 1035, 1037. 1041; Bromt. p. 934. 936; Malmsbury, Scrip. Post. Bed. p. 99. The naval men of London assisted at the election of Harold, A. D. 1037; and it is said, "all people" chose Edward for king in London, a. D. 1042. et v. Lord Lytt. Hen. II. i. 353. In connection with this subject it is to be observed, that one-half of the king's were, "cyne dom," went to the people, “leod," Anc. L. i. p. 187.

73

Business transacted at the Councils.

to point out, with any precision what was peculiarly the province of the select, and what of the great council; indeed, it may be doubted whether the constitution was sufficiently settled to render any such attempt capable of any satisfactory result. I shall only incidentally notice criminal proceedings.

Laws were framed and enacted at the councils assembled, whether as courts of state (y), or by special summons; but, as already mentioned, *the enactments were almost universally in the name of the

[*74] king (z), which, as might be expected, was continued by Will. I., and his successors. The Conqueror, indeed, on these occasions asserted the kingly authority in very positive terms, "mando et regia authoritate præcipio" (a), for which, however, as for most of his other acts, he had ample Anglo-Saxon precedents (b). After the laws had ceased to be enacted in the presence of the assembled people, writs were sent to the different eorls or lieutenants of counties, in which the laws were embodied, so that the ordinances made at the councils might be known both to rich and to poor (c). Charlemagne also sent his capitularies into the several counties, and it was only after the people. had expressed their assent to them that they became the law (d). But in England, it seems to have been the practice in the latter times of the Anglo-Saxons, as it was in the time of the Anglo-Normans, to assume the common consent of all ranks to that which was actually agreed upon by the higher (e).

The grants of portions of the public domain to the church (ƒ), and to the king's vassals, which have before been adverted to (g), were made at these councils (h). The grants are sometimes expressed to have been made with the license or consent as well as the advice (i) of the

(y) At courts of state, "I have decreed with the witan who were with me at Exeter at Midwinter," ibid. Anc. L. 221; ib. p. 241, § 11 and 12; Eadmund, ib. p. 252; Edgar, ib. p. 263," with the council of his witan for the behoof of all his people," Canute, "venerando sapientum ejus consilio," whom he assembled in Winchester at Christmas, Bromt. 914. l. 23. 25. It had previously been agreed by the English and Danes at a parliament, (Bromt. 908. 35), that the Laws of Edgar should be observed by all. Et v. procem. Capit. Sax. Car. Mag. "convenientibus in ejus obsequio Episc. Abb. Comitibus," &c. At other councils, Wihtred, A. D. circ. 696; Anc. L. i. 37; Æthelst. Anc. L. i. 215; Bromt. 908. 35; temp. Cnut. Edg. Supp. "I and my witan”—“I and my thanes will," ibid."I then showed them to all my witan," &c. Alfred, Anc. L. i. 59; et v. Inæ. ib. 103. Bishops only attended, Ethelst. Anc. L. i. 195; the laws there made were principally as to tithes.

(z) "I will," Edg. Anc. L. i. p. 267. 273. This is quite at variance with the original German notions of the kingly office, Tac. de Mor c. 11. p. 619.

(a) See his Edict, Burn's Eccles. L. by Phillimore, i. p. 33.

(b) "Imperialis nostra potestas," Eadwig. A. D. 957; Kemble, ii. 344, et v. sup. p. 11.

(c) Edg. 15. Anc. L. i. 279.

(d) Baluze, Præfat. i. § viii. the scabini were the persons who signed for the people. (e) Hallam, Mid. A. iii. p. 18.

(f) Int. al. foundation of the Sax.monastery of Peterboro' a. D. 656; Sax. Chron. p. 41; before all the witan, lay and ecclesiastical.

(g) Sup. p. 43, 44. I would add to the former references in regard to Folcland, that the learned Dr. Lappenberg renders it Ager Publicus, vol. ii. 323, and see Thierry, i. p. 59.

(h) Majorum meorum imitans exemplum," Offa. Heming, p. 114; simil. Æthelwlf. A. D. 842; Kemble, ii. p. 16; at a feast given by a bishop to the king and his optimates, Heming, p. 96. "In villa quæ Lowtun nuncupatur, Episc. Abbat. Duc. patriæ procuratoribus, regia dapsilitate ovantibus;" hereditary grant by Ethelst. to a king's thane, A. n. 931. amongst others 60 milites m sign "Consensi," Kemble, ii. p. 133-4.

(i)" Concilium simul et auctoritas," Tac. de Mor. c. 12.

Voluntary Jurisdiction of the Councils.

74

bishops, optimates or council (k); still, according to the general language of the grants, as of the codes, it was from the king alone that they derived their authority (). Sometimes the optimates or council are stated to be witnessing parties only (m); in others, they are not noticed in the body of the grant (n). The grants to the [*75] church are uniformly recited to have been made pro salute animæ of the king, or of him, his predecessors and successors (o). When a price was paid, the king received it (p): the monkish writers of the chronicles never attribute to any one but the king any of the honor of these endowments, or of any of the acts performed at these assemblies (q).

The attestations to these grants tend to show the great extent of authority which was claimed by the Church. The bishops almost universally signed "consensi" or "confirmavi" (r), none others but the Duces, with very few exceptions, signed in that manner; some of the grants are signed by bishops only, or by them and the members of the household (s).

The queen very frequently appears to have attended these courts; she often signs as a consenting party to the grants, a practice which was continued down to Matilda (t) queen of Will. I. (u); sometimes it was in order that she might participate in the spiritual or other benefits to be derived from the grant: Wlfher, king of the Mercians, a. D. 655, expressly desired his sisters to sign a grant to a monastery that it might inure to the redemption of their souls as well as of his own. But the presence of the queen and of the king's sisters as consenting or attesting parties to the charters, on some occasions, cannot be accounted for in any other way, than that they were granted at one of the ordinary state

(k) Int. al. Text. Roff. 101; Heming, 377. 335; Offa, 449; Coenwl. R. Merc. Kemble, i. 159. Offa. “cum consensu vel Episcoporum vel optimatum meorum, larga mentis benevolentia, donans concedo," Ethelbald. R. Merc. Kemble, i. 100. A. D. 723. Some of the grants omit all notice of advice or consent, Ethelst. ib. ii. p. 214, though they are signed in the usual manner.

(i) V. int. alia. Heming, 285, "regali auctoritate, senatorum consensu, et principum patriæ testimonio," temp. Edg. Though sometimes the language is "condonantium et consentientum," Offa. Heming, p. 378. or "consensu totius nostræ gentis, et unanimitate omnium optimatum," Ecgberth. A. D. 835. Kemble, i. 312. et v. Bromt. 913. 62. temp. Cnut.

(m) As in Ethelbald. A. D. 723. 734; Kemble, i. 95; though there, as in many similar instances, the witnesses sign confirmavi; in others, they merely sign, ib. i. 150. Offa; sometimes we find a bishop signing jubente Rege, ib. i. 96.

(n) Ib. ii. 263. A. D. 946. Edmund.

sent, v. int. al. Kemble, ii. p. 10. Berhtwlf; which ultimately was claimed as a right under the name of Queen's gold. Dialog. on the Ex. lib. ii. c. 12.

(p) "Consilio meorum conciliatorum." Grant of Uhtred Subregulus, with the assent of Offa. Heming, 325-7; et v. int. al. Dug. Monast. i. 586.

(9) Int. al. "monasteria quæ construxit," Ina. Hist. Rames. p. 345; so Canute, "cœpit justas leges condere," ib. 437. There is generally a denunciation at the day of judgment against any of the king's successors, or others, who should impugn the grant even where the grant is to a layman; v. int. alia. Kemble, i. 102. A. n. 738; ib. ii. p. 263; the records of what passed at these assemblies were evidently drawn up by monks or members of the clerical body, and this gave a tone to the whole.

(r) V. int. al. Heming, 319. 412; Kemble, i. 248. a. d. 811; “subscripsi" is the usual addition to the other signatures; though in some instances all sign "consensi," Kemble, i. p. 41 and 106; et. v. sup. p. 27.

(8) Kemble, i. 104. 109.

(1) Int. al. Heming, p. 44. 321; Ego Kynethryth, Dei Gratia Regina, Kemble, i. 244; and Sax. Chron. p. 41; the king's sisters are amongst the advisers. (u) Heming, 414.