Chapter VI: The Witena Gemót (2)

In like manner, Æðelred informs us that his law was ordained, “for the better maintenance of the public peace, by himself and his witan at Woodstock, in the land of the Mercians, according to the laws of the Angles[525].” In precisely similar terms he speaks of new laws made by himself and his witan at Wantage[526]. In a collection of laws passed in 1008, under the same prince, we find the following preamble[527]: “This is the ordinance which the king of the English, with his witan, both clerical and lay, have chosen[528] and advised;” and every one of the first five paragraphs commences with the same solemn words, viz. “This is the ordinance of our lord, and of his witan,” etc.

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Footnote 525:

Ibid. i. 280.

Footnote 526:

Ibid. i. 292.

Footnote 527:

Ibid. i. 304.

Footnote 528:

The word _ceósan_, to elect or choose, is the technical expression in
Teutonic legislation for ordinances which have been deliberated upon.

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But far more strongly is this marked in the provisions of the council of Enham, under the same miserable prince. These are not only entitled, “ordinances of the witan[529],” but throughout, the king is never mentioned at all, and many of the chapters commence, “It is the ordinance of the witan,” etc. If it were not for one or two enactments referring to the safety of the royal person, and the dignity of the crown, we might be almost tempted to imagine that the great councillors of state had met, during Æðelred’s flight from England, and passed these laws upon their own authority, without the king. The laws of 1014 commence again with the words so often repeated in this chapter[530], and such also usher in the very elaborate collection which Cnut and his witan compiled at Winchester[531].

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Footnote 529:

Thorpe, i. 314, 316, 318.

Footnote 530:

Ibid. i. 340, 342, 350.

Footnote 531:

Ibid. i. 358, 376.

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Now I think that any impartial person will be satisfied with these examples, and admit that whoever the witan may have been, they possessed a legislative authority, at least conjointly with the king. Indeed of two hypothetical cases, I should be far more inclined to assert that they possessed it without him, than that he possessed it without them: at least, I can find no instance of the latter; while I have shown that there was at least a probability of the former: and even Æðelred himself says, twice: “Wise in former days were those secular witan[532] who first added secular laws to the just divine laws, for bishops and consecrated bodies; and reverenced for love of God holiness and holy orders, and God’s houses and his servants firmly protected.” Again[533]: “Wise were those secular witan who to the divine laws of justice added secular laws for the government of the people; and decreed bót to Christ and the king, that many should thus, of necessity, be compelled to right.”

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Footnote 532:

Woroldwitan. Æðelr. vii. § 24. Thorpe, i. 334.

Footnote 533:

Æðelr. ix. § 36. Thorpe, i. 348.

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Is it not manifest that he, like Ælfred, really felt the legislative power to reside in the witan, rather than in the king?

3. _The witan had the power of making alliances and treaties of peace, and of settling their terms._

The defeat of the Danes by Ælfred, in 878, was followed, as is well known, by the baptism of Guðorm Æðelstán, and the peaceful establishment of his forces in portions of the ancient kingdoms of Mercia, Essex, Eastanglia and Northumberland. The terms of this treaty, and the boundaries of the new states thus constituted were solemnly ratified, perhaps at Wedmore[534]; the first article of this important public act, by which Ælfred obtained a considerable accession of territory, runs thus[535]: “This is the peace that Ælfred the king, and Gyðrum the king, and the witan of all the English nation, and all the people that are in Eastanglia, have all ordained and confirmed with oaths, for themselves and for their descendants, born and unborn, who desire God’s favour or ours. First, concerning our land-boundaries,” etc. In like manner the treaty which Eádweard entered into with the same Danes, is said to have been frequently (“oft and unseldan”) renewed and ratified by the witan[536].

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Footnote 534:

Chron. Sax. an. 878. Asser, _in anno_.

Footnote 535:

Thorpe, i. 152.

Footnote 536:

Thorpe, i. 166.

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We still have the terms of the shameful peace which Æðelred bought of Olafr Tryggvason and his comrades in 994. The document, which was probably signed at Andover[537], commences with the following words: “These are the articles of peace and the agreement which Æðelred the king and all his witan have made with the army which accompanied Anlaf, and Justin and Guðmund, the son of Stegita[538].”

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Footnote 537:

Chron. Sax. an. 994.

Footnote 538:

Thorpe, i. 284.

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Many other instances might be cited, as for example the entry in the Chronicle, anno 947, where it is stated that Eádred made a treaty of peace with the witan of Northumberland at Taddenes scylf, which was broken and renewed in the following year: but further evidence upon this point seems unnecessary[539].

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Footnote 539:

See Chron. Sax. an. 1002, 1004, 1006, 1011, 1012. The solemn partition
of the kingdom between Eádmund írensída and Cnut was effected by the
witan, at Olney in Gloucestershire. Chron. Sax. an. 1016.

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4. _The witan had the power of electing the king._

The kingly dignity among the Anglosaxons was partly hereditary, partly elective: that is to say, the kings were usually taken from certain qualified families, but the witan claimed the right of choosing the person whom they would have to reign. Their history is filled with instances of occasions when the sons or direct descendants of the last king have been set aside in favour of his brother or some other prince whom the nation believed more capable of ruling: and the very rare occurrence of discontent on such occasions both proves the authority which the decision of the witan carried with it, and the great discretion with which their power was exercised. Only here and there, when the witan were themselves not unanimous, do we find any traces of dissensions arising out of a disputed succession[540]. On every fresh accession, the great compact between the king and the people was literally, as well as symbolically, renewed, and the technical expression for ascending the throne is being “gecoren and áhafen tó cyninge,” elected and raised to be king: where the _áhafen_ refers to the old Teutonic custom of what we still at election times call chairing the successful candidate; and the _gecoren_ denotes the positive and foregone conclusion of a real election. Alfred’s own accession is a familiar instance of this fact: he was chosen, to the prejudice of his elder brother’s children; but the nation required a prince capable of coping with dangers and difficulty, and Asser tells us that he was not only received as king by the unanimous assent of the people, but that, had he so pleased, he might have dethroned his brother Æðelred and reigned in his place[541]. His words are: “In the same year (871) the aforesaid Ælfred, who hitherto, during the life of his brother, had held a secondary place, immediately upon Æðelred’s death, by the grace of God, assumed the government of the whole realm, with the greatest goodwill of all the inhabitants of the kingdom; which indeed, even during his aforesaid brother’s life, he might, had he chosen, have done with the greatest ease, and by the universal consent; truly, because both in wisdom and in all good qualities he much excelled all his brothers; and moreover because he was particularly warlike, and successful in nearly all his battles[542].”

Footnote 540:

I speak now of periods subsequent to the consolidation of the
monarchy: while England was full of kinglets, disputes were not
infrequent. Northumberland and Wessex (previous to Beorhtríc’s
alliance with Offa) furnish examples. But here the competitors were
numerous, and the witan themselves split into parties, generally
maintaining the interests of _different_ royal families.

Footnote 541:

Asser, an. 871.

Footnote 542:

Simeon of Durham uses equally strong terms on the occasion. “Ælfredus
a ducibus et a praesulibus totius gentis eligitur, et non solum ab
ipsis, verumetiam ab omni populo adoratur, ut eis praeesset, ad
faciendam vindictam in nationibus, increpationes in populis.” An. 871.

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Not one word have we here about his nephews, or any rights they might possess: and Asser seems to think royalty itself a matter entirely dependent upon the popular will, and the good opinion entertained by the nation of its king. I shall conclude this head by citing a few instances from Saxon documents of the intervention of the witan in a king’s election and inauguration.

In 924, the Chronicle says: “This year died Eádweard the king at Fearndún, among the Mercians ... and Æðelstán was chosen king by the Mercians, and consecrated at Kingston.”

Florence of Worcester, an. 959, distinctly asserts that Eádgar was elected by all the people of England,—“ab omni Anglorum populo electus ... regnum suscepit.”

In 979, the Chronicle again says: “This year Æðelred took to the kingdom; and he was soon after consecrated king at Kingston, with great rejoicing of the English witan.”

In 1016, the election of Eádmund írensída is thus related: “Then befel it that king Æðelred died ... and then after his death, all the witan who were in London, and the townsmen, chose Eádmund to be king.” Again in 1017: “This year was Cnut elected king.”

In 1036 again we have these words: “This year died Cnut the king at Salisbury ... and soon after his decease there was a gemót of all the witan (‘ealra witena gemót’) at Oxford: and Leófríc the eorl, and almost all the thanes north of the Thames, and the _lithsmen_ in London chose Harald to be chief of all England; to him and his brother Hardacnut who was in Denmark.” This election was opposed unsuccessfully by Godwine and the men of Wessex.

The Chronicle contains a very important entry under the date 1014. Upon the death of Swegen, we are told that his army elected Cnut king: “But all the witan who were in England, both clerical and lay, decided to send after king Æðelred[543]; and they declared that no lord could be dearer to them than their natural lord, if he would rule them more justly than he had done before. Then the king sent his son Eádweard hither, with his messengers, and commanded them to greet all his people[544]; and he said that he would be a loving lord to them, and amend all those things which they all abhorred; and that everything which had been said or done against him should be forgiven, on condition that they all, with one consent and without deceit, would be obedient to him. Then they established full friendship, by word and pledge on either side, and declared every Danish king an outlaw from England for ever.”

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Footnote 543:

He had fled to Normandy.

Footnote 544:

Leóde and leódscipe, the words used in the Chronicle, _may_ possibly
mean only the great officers or ministerials, the Frankish _Leudes_.
But the balance of probability is in favour of its representing _the
whole people_: leódscipe, which is the reading of the most
manuscripts, having a more general sense than leóde.

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Cnut nevertheless succeeded; but after the extinction of his short-lived dynasty, we are told that all the people elected Eádweard the Confessor king. “1041. This year died Hardacnut.... And before he was buried, all the people elected Eádweard king, at London.” Another manuscript reads:—“1042. This year died Hardacnut, as he stood at his drink.... And all the people then received Eádweard for their king, as was his true natural right.”

One more quotation from a manuscript of the Saxon Chronicle shall conclude this head:—“1066. In this year was hallowed the minster at Westminster on Childermas-day (Dec. 28th). And king Eádweard died on the eve of Twelfth-day, and he was buried on Twelfth-day in the newly consecrated church at Westminster. And Harald the earl succeeded to the kingdom of England, even as the king had granted it unto him, and men also had elected him thereto. And he was consecrated king on Twelfth-day.”

The witan of England had met to aid in the consecration of Westminster Abbey, and, as was their full right, proceeded to elect a king, on Eádweard’s decease.

5. _The witan had the power to depose the king, if his government was not conducted for the benefit of the people._

It is obvious that the very existence of this power would render its exercise an event of very rare occurrence. Anglosaxon history does however furnish one clear example. In 755, the witan of Wessex, exasperated by the illegal conduct of king Sigeberht, deposed him from the royal dignity, and elected his relative Cynewulf in his stead. The fact is thus related by different authorities. The Chronicle[545] says very shortly:—“This year, Cynewulf and the witan of the Westsaxons deprived his kinsman Sigeberht of his kingdom, except Hampshire[546], for his unjust deeds.”

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Footnote 545:

Chron. Sax. an. 755.

Footnote 546:

Perhaps his own, ancestral kingdom. Does not all this look very much
as if Wessex was still only a confederation of petty principalities,
with one elective and paramount head?

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Florence tells the same story, but in other words[547]:—“Cynewulf, a scion of the royal race of Cerdic, with the counsel of the Westsaxon _primates_, removed their king Sigeberht from his realm, on account of the multitude of his iniquities, and reigned in his place: however he granted to him one province, which is called Hampshire.”

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Footnote 547:

Flor. Wig. an. 755.

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Æðelweard[548], whose royal descent and usual pedantry conspire to make his account of the matter somewhat hazy, says:—“So, after the lapse of a year from the time when Sigeberht began to reign, Cynewulf invaded his realm and took it from him; and he drew the _sapientes_ of all the western country after him, apparently, on account of the irregular acts of the said king,” etc.

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Footnote 548:

Æðelw. an. 755, lib. ii. c. 17.

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The fullest account however of the whole transaction is given by Henry of Huntingdon[549], who very frequently shows a remarkable acquaintance with Saxon authorities which are now lost, but from which he translates and quotes at considerable length. These are his words:—“Sigeberht, the kinsman of the aforesaid king, succeeded him, but he held the kingdom for a short time only: for being swelled up and insolent through the successes of his predecessor, he became intolerable even unto his own people. But when he continued to ill-use them in every way, and either twisted the laws to his own advantage, or turned them aside for his advantage, Cumbra, the noblest of his ealdormen, at the petition of the whole people, brought their complaints before the savage king. Whom, for attempting to persuade him to rule his people more mercifully, and setting his inhumanity aside to show himself an object of love to God and man, he shortly after commanded to be put to an impious death: and becoming still more fierce and intolerable to his people, he aggravated his tyranny. In the beginning of the second year of his reign, Sigeberht the king continuing incorrigible in his pride and iniquity, the princes and people of the whole realm collected together; and by provident deliberation and unanimous consent of all he was expelled from the throne. But Cynewulf, an excellent young prince, of the royal race, was elected to be king[550].”

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Footnote 549:

Hen. Hunt. Hist. Ang. lib. iv.

Footnote 550:

“Sigebertus rex, in principio secundi anni regni sui, cum
incorrigibilis superbiae et nequitiae esset, congregati sunt proceres
et populus totius regni, et provida deliberatione, et unanimi consensu
omnium expulsus est a regno. Kinewulf vero, iuvenis egregius de regia
stirpe oriundus, electus est in regem.”

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I have little doubt that an equally formal, though hardly equally justifiable, proceeding severed Mercia from Eádwig’s kingdom, and reconstituted it as a separate state under Eádgar[551]; and lastly from Simeon of Durham we learn that the Northumbrian Alchred was deposed and exiled, with the counsel and consent of all his people[552].

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Footnote 551:

Flor. Wig. an. 957.

Footnote 552:

“Eodem tempore, Alcredus rex, consilio et consensu omnium suorum,
regiae familiae principum destitutus societate, exilio imperii mutavit
maiestatem.” Sim. Dun. an. 774. Other Germanic tribes did the same
thing. “Sed cum Aldoaldus eversa mente insaniret, de regno eiectus
est.” Paul. Diae. Langob. iv. 43. Among the Burgundians, “generali
nomine rex appellatur Hendinos, et _ritu veteri_, potestate deposita
removetur, si sub eo fortuna titubaverit belli, vel segetum copiam
negaverit terra.” Amm. Marc. xxxiii. 5.

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6. _The king and the witan had power to appoint prelates to vacant sees._

As many of the witan were the most eminent of the clergy, and the people might be fairly considered to be represented by the secular members of the body, these elections were perhaps more canonical than the Frankish, and assuredly more so than those which take place under our system by _congé d’élire_. The necessary examples will be found in the Saxon Chronicle, an. 971, 995, 1050. But one may be mentioned at length. In 959 Dúnstán was elected archbishop of Canterbury “consilio sapientum[553].”

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Footnote 553:

“Dehinc beatus Dunstanus, Æthelmi archiepiscopi ex fratre nepos,
Glæstaniæ abbas, post Huicciorum et Londoniensium episcopus, ex
respectu divino et sapientum consilio, primae metropolis Anglorum
primas et patriarcha.” Flor. Wig. an. 959.

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7. _They had also power to regulate ecclesiastical matters, appoint fasts and festivals, and decide upon the levy and expenditure of ecclesiastical revenue._

The great question of monachism which convulsed the church and kingdom in the tenth century, was several times brought before the consideration of the witan, who, both clerical and lay, were very much divided upon the subject. This perhaps is a sufficient reason why no formal act of the gemót was ever passed on the subject, and the solution of the problem was left to the bishops in their several cathedrals: but no reader of Saxon history can be ignorant that it was frequently brought before the gemót, and that it was the cause of deep and frequent dissensions among the witan[554]. The festival days of St. Eádweard and St. Dúnstán were fixed by the authority of the witan on the 15th Kal. April and 14th Kal. June respectively[555]; and the laws contain many provisions for the due keeping of the Sabbath, and the strict celebration of fasts and festivals[556]. The levying of church-shots, soul-shots, light-alms, plough-alms, tithes, and a variety of other church imposts, the payment of which could not be otherwise legally binding upon the laity, was made law by frequently repeated chapters in the acts of the witan: these are much too numerous to need specification. They direct the amount to be paid, the time of payment, and the penalties to be inflicted on defaulters: nay, they actually direct the mode in which such payments when received should be distributed and applied by the receivers[557]. They establish, as law of the land, the prohibitions to marry within certain degrees of relationship: and lastly they adopt and sanction many regulations of the fathers and bishops, respecting the life and conversation of priests and deacons, canons, monks and religious women. On all these points it is sufficient to give a general reference to the laws, which are full of regulations even to the minutest details.

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Footnote 554:

Flor. Wig. an. 975, says, “Et in synodo constituti, se nequaquam ferre
posse dixerunt, ut monachi eiicerentur de regno.”

Footnote 555:

Æðelr. v. § 16. Cnut, i. § 17. Thorpe, i. 310, 370.

Footnote 556:

For example, Cnut, i. § 14, 15, 16. Thorpe, i. 368, etc.

Footnote 557:

For example, Æðelr. ix. § 6. Thorpe, i. 342. Æðelr. vi. § 51. Thorpe,
i. 328, etc.

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8. _The king and the witan had power to levy taxes for the public service._

I have observed in an earlier chapter of this work that the estates of the freeman were bound to make certain settled payments. These may at some time or other have been voluntary, but there can be no doubt that they did ultimately become compulsory payments. They are the cyninges gafol, payable on the hide, and may possibly be the cyninges útware, and cyninges geban of the laws, the _contributions directes_ by which a man’s station in society was often measured. Now in the time of Ini, we find the witan regulating the amount of this tax or gafol, in barley, at six pounds weight upon the hide[558]. Again, under the extraordinary circumstances of the Danish war under Æðelred, when it became almost customary to buy off the invaders, we find them authorising the levy of large sums for that purpose[559], and also for the maintenance of fleets[560]: these payments, once known by the name of Danegeld, and which in 1018 amounted to the enormous sum of 82,500 pounds[561], were after thirty-nine years’ continuance finally abolished by Eádweard[562].

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Footnote 558:

Ini, § 59. Thorpe, i. 140. Wyrhta like the factus (= Mansus) of the
Franks appears to be the Mansio or Hide. But the amounts do not
concern us at present.

Footnote 559:

Chron. Sax. an. 1006. The sum raised was thirty-six thousand pounds.
Chron. an. 1012. In this year forty-eight thousand pounds were paid.

Footnote 560:

Chron. Sax. an. 1008. A ship from every three hundred hides; and a
helmet and coat-of-mail from every eight hides,—a very heavy amount of
shipmoney.

Footnote 561:

Chron. Sax. an. 1018.

Footnote 562:

Ibid. an. 1052.

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9. _The king and his witan had power to raise land and sea forces when occasion demanded._

The king always possessed of himself the right to call out the ban or armed militia of the freemen: he also possessed the right of commanding at all times the service of his comites and their vassals: but the armed force of the freemen could only be kept on foot for a definite period, and probably within definite limits. It seems therefore that when the pressure of extraordinary circumstances called for more than common efforts, and the nation was to be urged to unusual exertions, the authority of the witan was added to that of the king; and that much more extensive levies were made than by merely calling out the _hereban_ or _landsturm_. And this particularly applies to naval armaments, which were hardly a part of the constitutional force, at all events not to any great extent[563]. Accordingly we find in the Chronicle that the king and the witan commanded armaments to be made against the Danes in 999, and at the same time directed a particular service to be sung in the churches. We learn distinctly from another event that the disposal of this force depended upon the popular will: for when Svein, king of the Danes, made application to Eádweard the Confessor for a naval force in aid of his war against Magnus of Norway, and Godwine recommended compliance, we find that it was refused because Earl Leófríc of Coventry, and all the people, with one voice opposed it[564].

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Footnote 563:

The Butsecarls or shipmen of the seaports may possibly have been
obliged to find shipping and serve on board.

Footnote 564:

Flor. 1047, 1048. Compare Chron. Sax. _in an. cit._

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10. _The witan possessed the power of recommending, assenting to, and guaranteeing grants of lands, and of permitting the conversion of folcland into bócland, and vice versâ._

With regard to the first part of this assertion, it will be sufficient to refer to any page of the Codex Diplomaticus Ævi Saxonici: it is impossible almost to find a single grant in that collection which does not openly profess to have been made by the king, “cum consilio, consensu et licentia procerum,” or similar expressions. And the necessity for such consent will appear intelligible when we consider that these grants must be understood, either to be direct conversions of folcland (fiscal or public property) into bócland (private estates), beneficiary into hereditary tenure; or, that they contain licences to free particular lands from the ancient, customary dues to the state. In both cases the public revenue, of which king and witan were fiduciary administrators, was concerned: inasmuch as nearly every estate, transferred from folcland to bócland, became just so much withdrawn from the general stock of ways and means. Only in the case where lands were literally exchanged from one category into the other, did the state sustain no loss. Of this we have evidence in a charter of the year 858[565]. The king and Wulfláf his thane exchanged lands in Kent, Æðelberht receiving an estate of five plough-lands at Mersham and giving five plough-lands at Wassingwell. The king then freed the land at Wassingwell in as ample degree as that at Mersham had been freed; that is, from every description of service, or impost, except the three inevitable burthens, of military service, and repair of fortifications and bridges. And having done so, he made the land at Mersham, folcland, i. e., imposed the burthens upon it.

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Footnote 565:

Cod. Dipl. No. 281.

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That this is a just view of the powers of the witan in respect to the folcland, further appears from instances where the king and the witan, on one part, as representatives of the nation for that purpose, make grants to the king in his individual capacity. In 847, a case of this kind occurred: Æðelwulf of Wessex obtained twenty hides of land at Ham, as an estate of inheritance, from his witan[566]. The words used are very explicit: “I Æðelwulf, by God’s aid king of the Westsaxons, with the consent and licence of my bishops and my princes, have caused a certain small portion of land, consisting of twenty hides, to be described by its boundaries, to me, as an estate of inheritance.” And again: “These are the boundaries of those twenty hides which Æðelwulf’s senators granted to him at Ham.” We learn that Offa, king of the Mercians, had in a similar manner caused one hundred and ten hides in Kent to be given to him and his heirs as an estate of bócland[567], which he had afterwards left to the monastery at Bedford. And this is a peculiarly valuable record, because it was only by conquest that Offa and his witan could have obtained a right to dispose of lands beyond the limits of his own kingdom. Between 901 and 909 the witan of the Westsaxons booked a very small portion of land to Ælfred’s son Eádweard, for the site of his monastery at Winchester[568]. In 963 we have another instance: Eádgár caused five hides to be given him at Peatanige as an estate of inheritance. The terms of the document are unusual: he says, “I _have_ a portion of land,” etc., but he frees it from all burthens but the three, and renders it heritable. The rubric says: “This is the charter of five hides at Peatanige, which are Eádgár’s the king’s, during his day and after his day, to have, or to give to whom it pleaseth him best[569].” Again in 964, the same prince gave to his wife Ælfðrýð ten hides at Aston in Berkshire, as an estate of inheritance, “consilio satellitum, pontificum, comitum, militum[570].” It is obvious that in all these cases the grants were made out of public land, and were not the private estates of the king.

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Footnote 566:

Cod. Dipl. No. 260.

Footnote 567:

Ibid. No. 1019.

Footnote 568:

Ibid. No. 1087.

Footnote 569:

Cod. Dipl. No. 1246. “Aliquam terrae particulam [h]abeo, id est
quinque mansas ... æt Peatanige, quatinus bene perfruar, ac
perpetualiter possideam, vita comite, et post me cuicunque voluero
perhenniter haeredi derelinquam in aeternam haereditatem,” etc.

Footnote 570:

Cod. Dipl. No. 1253.

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11. _The witan possessed the power of adjudging the lands of offenders and intestates to be forfeit to the king._

This power applied to bócland, as well as folcland, and was exercised in cases which are by no means confined to the few enumerated in the laws. Indeed the latter may very probably refer to nothing but the chattels or personal property of the offender; while the real estate might be transferred to the king, by the solemn act of the witan. A few examples will make this clear.

Ælfred, condemned for treason or rebellion against Æðelstán, lost his lands by the judgment of the witan, who bestowed them upon the king[571]. In 1002 a lady forfeited her lands for her incontinence; the king became seised of them, obviously by the act of the gemót, for he calls it _vulgaris traditio_[572]. Again, the lands of certain people which had been forfeited for theft, are described as having been granted to the king, “iusto valde iudicio totius populi, seniorum et primatum[573].”

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Footnote 571:

Ibid. No. 1112.

Footnote 572:

Cod. Dipl. No. 1295.

Footnote 573:

Ibid. No. 374.

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The case of intestacy is proved by a charter of Ecgberht in 825. He gave fifteen hides at Aulton to Winchester, and made title in these words. “Now this land, a very faithful reeve of mine called Burghard formerly possessed by my grant: but he afterwards dying childless, left the land without a will, and he had no survivors: and so the land with all its boundaries was restored to me, its former possessor, by judicial decree of my _optimates_[574].”

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Footnote 574:

Ibid. No. 1035.

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Other examples may be found in the quotations given in page 52 of this volume; to which I may add a case of forfeiture for suicide[575].

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Footnote 575:

The charter which furnishes the evidence of this fact will appear in
the seventh volume of the Codex Diplomaticus. It is in the archives of
Westminster Abbey, and its date is the time of Eádgár. [The death of
Mr. Kemble in 1857 prevented the publication of this seventh volume.]

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12. _Lastly, the witan acted as a supreme court of justice, both in civil and criminal causes._

The fact of important trials being decided by the witena gemót is obvious from a very numerous list of charters recording the result of such trials, and printed in the Codex Diplomaticus. It is perfectly unnecessary to give examples; they occur continually in the pages of that work. The documents are in great detail, giving the names of the parties, the heads of the case, sometimes the very steps in the trial, and always recording the place and date of the gemót, and the names of those who presided therein.

The proceedings of the witan as a court of criminal jurisprudence, are well exemplified in the case of earl Godwine and his family daring their patriotic struggle for power with the foreign minions of Eádweard, and the northern earls, the hereditary enemies of their house. Eustace the count of Boulogne, then on a visit to Eádweard, having with a small armed retinue attempted violence against some of the inhabitants of Dover, was set upon by the townsmen, and after a severe loss hardly succeeded in making his escape. He hastened to Gloucester, where Eádweard then held his court, and laid his complaint before the king. Godwine, as earl of Kent, was commanded to set out with his forces, and inflict summary punishment upon the burghers who had dared to maltreat a relative of the king. But the stern old statesman saw matters in a very different light: he probably found no reason to punish the inhabitants of one of his best towns, for an act of self defence, especially one which had read a severe lesson to the foreign adventurers, who abused the weakness of an incapable prince, and domineered over the land. He therefore flatly refused, and withdrew from Gloucester to join his sons Harald and Swegen who lay at Beverston and Langtree with a considerable power. The king being reinforced by a well-appointed contingent from the northern earldoms, affairs threatened to be brought to a bloody termination. The conduct of Godwine and his family had been represented to Eádweard in the most unfavourable colours, and the demand they made that the obnoxious strangers should be given up to them, only aggravated his deep resentment. However for a time peace was maintained, hostages were given on either side, and a witena gemót was proclaimed, to meet in London, at the end of a fortnight, September 21st, 1048. On the arrival of the earls in Southwark, they found that a greatly superior force from the commands of Leofríc, Sigeward and Raulf awaited them: desertion thinned their numbers, and when the king demanded back his hostages, they were compelled to comply. Godwine and Harald were now summoned to appear before the gemót and make answer to what should be brought against them. They demanded, though probably with little expectation of obtaining, a safe conduct to and from the gemót, which was refused; and as they very properly declined under such circumstances to appear, five days were allowed them to leave England altogether.

It is probable that the strictly legal forms were followed on this occasion, although the composition of the gemót was such that justice could not have been done. The same observation will apply to another witena gemót holden in London, after Godwine’s triumphant return to England, though with a very different result. Before this assembly the earl appeared, easily cleared himself of all offences laid to his charge, and obtained the outlawry and banishment from England of all the Frenchmen whose pernicious councils had put dissension between the king and his people. Other examples might be given of outlawry, and even heavier sentences, as blinding, if not death, pronounced by the high court of the witan. But as these are all the result of internal dissensions, they resemble rather the violence of impeachments by an irresistible majority, than the calm, impassive judgments of a judicial assembly[576].

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Footnote 576:

At a gemót in 1055, earl Ælfgár was outlawed. At a gemót in 1066 at
Oxford, earl Tostig was outlawed, etc.

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Such were the powers of the witena gemót, and it must be confessed that they were extensive. Of the manner of the deliberations or the forms of business we know little, but it is not likely that they were very complicated. We may conclude that the general outline of the proceedings was something of the following order. On common occasions the king summoned his witan to attend him at some royal vill, at Christmas, or at Easter, for festive and ceremonial as well as business purposes. On extraordinary occasions he issued summonses according to the nature of the exigency, appointing the time and place of meeting. When assembled, the witan commenced their session by attending divine service[577], and formally professing their adherence to the catholic faith[578]. The king then brought his propositions before them, in the Frankish manner[579], and after due deliberation they were accepted, modified, or rejected. The reeves, and perhaps on occasion officers specially designated for that service[580], carried the chapters down into the several counties, and there took a _wed_ or pledge from the freemen that they would abide by what had been enacted. This last fact, important to us in more respects than one, is substantiated by the following evidence. Toward the close of the Judicia Civitatis Londoniae (cap. 10), passed in the reign of Æðelstán, and subsidiary to the acts of various gemóts held by him, we find:—“All the witan gave their pledges together to the archbishop at Thundersfield, when Ælfheáh Stybb and Brihtnóð, Odda’s son, came to meet the gemót by the king’s command, that each reeve should take the pledge in his own shire, that they would all hold the frið, as king Æðelstán and the witan had counselled it, first at Greátanleá, and again at Exeter, and afterwards at Feversham, and the fourth time at Thundersfield,” etc.

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Footnote 577:

See vol. i. p. 145 note.

Footnote 578:

Cod. Dipl. No. 1019.

Footnote 579:

I conclude this from the Prologue to Ælfred’s Laws.

Footnote 580:

The Franks and the church were familiar with such officers, who under
the name of _Missi_ were dispatched into the provinces for special
purposes. Perhaps the Ælfheáh and Brihtnóð mentioned in the Judicia
Civitatis were the Missi who were to be employed on this commission.

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We have also a very remarkable document addressed to the same king, apparently upon receipt of the acts of the council at Feversham, by the men of Kent, denoting their acceptance of the same. They commence by saying:—“Dearest! Thy bishops of Kent, and all the thanes of Kentshire, earls and churls[581], return thanks to thee their dearest lord, for what thou hast been pleased to ordain respecting our peace, and to enquire and consult concerning our advantage, since great was the need thereof for us all, both rich and poor. And this we have taken in hand, with all the diligence we could, by the aid of those witan [_sapientes_] whom thou didst send unto us,” etc[582].

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Footnote 581:

Mr. Hallam, in his Supplemental Notes, p. 229, remarks upon this
important document: “It is moreover an objection to considering this 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,’ etc. are very large.”

If the ceorls ever did form an integral part of the legislature in the
kingdom of Kent, the whole question is settled. But I do not
contemplate the thanes in Kent acting here as a legislative body: that
is, I do not believe Æðelstán’s witan in Wessex to have passed a law,
and then his witan in Kent to have accepted or continued it. I believe
his witan from all England to have made certain enactments, which the
proper officers brought down to the various shires, and in the
shiremoots there took pledge of the shire-thanes that they accepted
and would abide by the premises; just as in the case quoted on the
preceding page. And this is the more striking because there is every
reason to suppose that the witena gemót whose acts the shire-thanes of
Kent thus accepted was actually holden at Feversham in that county.
But it is further to be observed that the document we possess is a
late Latin translation of the original sent to Æðelstán: I will
venture to assert that in that original the words used were, “ealle
scírþegnas on Cent, ge eorl ge ceorl,” or perhaps “ge twelfhynde ge
twihynde.” Again, there is no reason to suppose that the ceorls did
_not_ form an integrant part of the shiremoot, the representative of
the ancient, independent legislature. A full century later than the
date of the council of Feversham, they continued to do so in the same
kingdom or, at that period, earldom: and it will be readily admitted
that during those hundred years the tendency of society was not to
increase the power or improve the condition of the ceorl. Between 1013
and 1020 we thus find Cnut addressing the authorities in Kent (Cod.
Dipl. No. 731):—“Cnut the king sends friendly greeting to archbishop
Lýfing, bishop Godwine, abbot Ælfmǽr, Æðelwine the sheriff, Æðelríc,
and all my thanes, both twelve-hundred and two-hundred men,—ealle míne
þegnas twelfhynde and twihynde:”—in other words, both eorl and ceorl,
nobilis and ignobilis, or as the witan of Æðelstán have it, in the
Norman translation, comites et villani. The nature of Cnut’s writ,
which is addressed to the authorities of the county, the archbishop
and sheriff, shows clearly that the thanes in question are not those
royal officers called cyninges þegnas—who could never be two-hundred
men—but the scírþegnas. These are of frequent occurrence in Anglosaxon
documents. The scírgemót at Ægelnóðes stán (about 1038) was attended
by Æðelstán the bishop, Ranig the ealdorman, Bryning the sheriff and
all the thanes in Herefordshire. Cod. Dipl. No. 755. A sale by Stigand
was witnessed by all the scírþegnas in Hampshire; that is, it was a
public instrument completed in the shiremoot. Cod. Dipl. No. 949.
Again a grant of Stigand was witnessed about 1053 by various
authorities in Hampshire, including Eádsige the sheriff and all the
scírþegnas. Cod. Dipl. No. 1337: and similarly a third of the same
prelate, Cod. Dipl. No. 820. About the same period Wulfwold abbot of
Bath makes title to lands, which he addresses to bishop Gisa, Tofig
the sheriff and all the thanes of Somersetshire. Cod. Dipl. No. 821.
In the year 1049, Ðurstán granted lands at Wimbush by witness of a
great number of persons, among whom are Leófcild the sheriff and all
the thanes of Essex. Cod. Dipl. No. 788: and about the same time
Gódríc bought lands at Offham, in a shiremoot at Wii, before all the
shire. Cod. Dipl. No. 789. Lastly, Leófwine bought land, by witness of
Ulfcytel the sheriff and all the thanes in Herefordshire. Cod. Dipl.
No. 802. The relation of these thanes to the gódan men or dohtigan men
(good men, doughty men, boni et legales homines, Scabini,
Rachinburgii, etc.) will be examined in a subsequent Book, when I come
to treat of the courts of justice: but I will here add one example,
which is illustrative of the subject of this note. The
marriage-covenants of Godwine, arranged before Cnut, by witness of
archbishop Lyfing and others, including Æðelwine the sheriff, and
various Kentish landowners, are stated to be in the knowledge
(geenǽwe) of every _doughty man_ in Kent and Sussex (where the lands
lay) both thane and churl. Cod. Dipl. No. 732. There was nothing
whatever to prevent a man from being a scírþegn, whether eorlcund or
ceorlcund, as long as he had land in the scír itself: without land,
even a cyninges þegn could certainly not be a scírþegn. It is true
that a man might be of síðcund rank, that is noble, without owning
land (see Leg. Ini, § 51), and there were king’s thanes who had no
land (Æðelst. v. § 11); but such a one could assuredly not represent
himself in the scírgemót. There is a common error which runs through
much of what has been admitted on this subject: the ceorl is
universally represented in a low condition. This is not however
necessarily the case: some ceorls, though well to do in the world, may
have preferred their independence to the conventional dignity of
thaneship. We may admit, as a general rule, that the thanes were a
wealthier class than the ceorls; indeed, without becoming a thane, a
ceorl had little chance of getting a grant of folcland or bócland, but
some of them may have, through various circumstances, inherited or
purchased considerable estates: as late as the year 984, I find an
estate of eight hides (that is 264 acres according to my reckoning) in
the possession of a _rusticus_, obviously a ceorl:—“Illud videlicet
rus quod Æðeríc quidam rusticus prius habuisse agnoscitur.” Cod. Dipl.
No. 1282.

Footnote 582:

Thorpe, i. 216. Æðelstán complains on another occasion that the oaths
and _weds_ which had been given _to the king and his witan_ were all
broken: “quia iuramenta et vadia, quae regi et sapientibus data
fuerunt, semper infracta sunt et minus observata quam Deo et saeculo
conveniant.” Æðelst. iii. § 3. Thorpe, i. 218. Again: Æðelstán the
king makes known, that I have learned that our peace is worse kept
than is pleasing to me, or as was ordained at Greatley; and my witan
say that I have borne with it too long.... Because the oaths, and
weds, and _borhs_ are all disregarded and broken which on that
occasion were given, etc. Æðelst. iv. § 1. Thorpe, i. 220.

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It is plain from the preceding passage that the witan gave their _wed_ to observe, and cause to be observed, the laws they had enacted[583]. Eádgár says, “I command my geréfan, upon my friendship, and by all they possess, to punish every one that will not perform this, and who by any neglect shall break the _wed_ of my witan.” This seems to imply that the people were generally bound by the acts of the witan, and their pledge or _wed_; and if it were so, it would naturally involve the theory of representation. But this deduction will not stand.

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Footnote 583:

Conc. Wihtbordes stán. Eádg. Supp. § 1. Thorpe, i. 272.

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The whole principle of Teutonic legislation is, and always was, that the law is made by the constitution of the king, and the consent of the people[584]: and we have seen one way in which that consent was obtained, viz. by sending the _capitula_ down into the provinces or shires, and taking the _wed_ in the shiremoot. The passage in the text seems to presuppose an interchange of oaths and pledges between the king and witan themselves; and even those who had no standing of their own in the folcmót or scírgemót, were required to be bound by _personal_ consent. The lord was just as much commanded to take oath and pledge of his several dependents (the hired men, _familiares_, or people of his household), as the sheriff was required to take them of the free shire-thanes[585]. Of course this excludes all idea of representation in our modern sense of the word, because with us, promulgation by the Parliament is sufficient, and the constituent is bound without any further ceremony by the act of him whom he has sent in his own place. But the Teutons certainly did not elect their representatives as we elect ours, with full power to judge, decide for, and bind us, and therefore it was right and necessary that the laws when made should be duly ratified and accepted by all the people.

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Footnote 584:

“Lex consensu populi fit, et constitutione regis.” Edict. Pistense.
an. 864. Pertz, iii. 490, § 6.

Footnote 585:

Æðelst. v. § 11. Thorpe, i. 240.

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Although the dignified clergy, the ealdormen and geréfan, and the þegnas both in counties and boroughs, appear to have constituted the witena gemót properly so called, there is still reason to suppose that the people themselves, or some of them, were very often present. In fact a system gradually framed as I suppose that of our forefathers to have been, and indebted very greatly to accident for its form, must have possessed a very considerable elasticity. The people who were in the neighbourhood, who happened to be collected in arms during a sitting of the witan, or who thought it worth while to attend their meeting, were very probably allowed to do so, and to exercise at least a right of conclamation[586],—a right which must daily become rarer, as the freemen gradually disappeared, and the number of landowners, dependent upon and represented by lords, as rapidly increased. In conclusion a few passages may be cited, which seem to render it probable that the people, when on the spot, did take some part in the business, as I have already mentioned with respect to the Frankish levies in the Campus Madius of Charlemagne. But it must also be borne in mind that such a case ought to be looked upon as accidental, rather than necessary, and that a meeting of the witan did not require the formality of an acceptance by the people on the spot, to render its acts obligatory. It was enough that the thanes of the gemót should pass, and the thanes of the scír accept the law. Indeed it could not be otherwise; for as the heads of all the more important social aggregations of the free, and the lords whose men were represented by them even in courts of justice, were the members of the gemót, their decisions must have been, strictly considered, the real decisions of the _populus_, or franchise-bearing people.

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Footnote 586:

There is evidence of their doing this on a somewhat less solemn
occasion, though perhaps it was a shiremoot. Æðelstán, a duke, booked
land to Abingdon, by witness of bishop Cynsige, archbishop Wulfhelm,
Hroðweard, and other prelates. The boundaries were solemnly led, and
then the assembled bishops and abbots excommunicated any one who
should dispossess the monastery: and all the people that stood round
about cried “So be it! So be it!” “And cwæð ealle ðæt folc ðe ðǽr
embstód, Sý hit swá. Amen. Amen.” “Et dixit onmis populus qui ibi
aderat, Fiat, Fiat. Amen.” Cod. Dipl. No. 1129.

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Beda, relating the discussion which took place respecting the celebration of Easter, and which was held in the presence of Oswiu and Alhfrið of Northumberland, and Wilfrið’s successful defence of the Roman custom, adds: “When the king had said these words, all who sat or stood around assented: and abandoning the less perfect institution, they hastened to adopt what they recognized as a better one[587].” Again the deposition of Sigeberht is stated to have taken place in an assembly of the _proceres_ and _populus_, the princes and people of the whole realm[588]. A doubtful charter of Ini, A.D. 725, is said to be consented to “cum praesentia populationis[589],” by which words are meant either the witan or the people of Wessex. In 804 Æðelríc’s title-deeds were confirmed before a gemót at Clofesho: the charter recites that archbishop Æðelheard gave judgment, with the witness of king Cóenwulf and his _optimates_, before all the synod or meeting: whence it is clear that others were present besides the _optimates_ or witan strictly so called[590]. On the 28th of May 924 a gemót was held at Winchester, “tota populi generalitate,” as the charter witnesses[591], and in 931 another at Worðig, “tota plebis generalitate[592].” Æðelstán in 938 declares that certain lands had been forfeited for theft, by the just judgment of all the people, _and_ the Seniores and Primates; and that the original charters were cancelled by a decree of all the people[593].

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Footnote 587:

Hist. Eccl. iii. c. 25.

Footnote 588:

Hen. Hunt. lib. iv.

Footnote 589:

Cod. Dipl. No. 73.

Footnote 590:

Cod. Dipl. No. 186.

Footnote 591:

Ibid. No. 364.

Footnote 592:

Ibid. No. 1103.

Footnote 593:

“Iusto valde iudicio totius populi, et seniorum et primatum,” etc.
“Ideoque decretum est ab omni populo,” etc. Cod. Dipl. No. 374.

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But whether expressions of this kind were intended to denote the actual presence of the people on the spot; or whether _populus_ is used in a strict and technical sense—that sense which is confined to those who enjoy the full franchise, those who form part of the πολιτευμα,—or finally whether the assembly of the witan making laws is considered to represent in our modern form an assembly of the whole people,—it is clear that the power of self-government is recognized in the latter.

In order to facilitate reference to the important facts with which this chapter deals, I have added to it a list of witena gemóts, with here and there a few remarks upon the business transacted in them. They do not nearly exhaust the number that must have been held, but still they form a respectable body of evidence; and we may perhaps be justly surprised, not that so little, but that so much has survived. We need not lament that the present forms and powers of our parliament are not those which existed a thousand years ago, as long as we recognize in them only the matured development of an old and useful principle. We shall not appeal to Anglosaxon custom to justify the various points of the Charter; but we may still be proud to find in their practice the germ of institutions which we have, throughout all vicissitudes, been taught to cherish as the most valuable safeguards of our peace as well as our freedom. Truly there are few nations whose parliamentary history has so ample a foundation as our own.

THE WITENA GEMÓTS OF THE SAXONS.

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ÆÐELBERT OF KENT, A.D. 596-605.—The promulgation of the laws of Æðelberht took place during the life of Augustine. This fixes their date between 596, when he arrived in England, and 605, when he died. Beda tells us that these laws were enacted by the advice of the witan, “cum consilio sapientium[594].” We may therefore conclude that a gemót was held in Kent for the purpose: and from the contents of the laws themselves, it is obvious that the Roman clergy filled an important place therein. They had probably stepped into the position of the Pagan priesthood, and improved it.

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Footnote 594:

Hist. Eccl. ii. 5.

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