Chapter VI: The Witena Gemót (1)

The conquest of the Roman provinces in Europe was accomplished by successive bands of adventurers, ranged under the banners of various leaders, whom ambition, restlessness or want of means had driven from their homes. But the conquest once achieved, the strangers settled down upon the territory they had won, and became the nucleus of nations: in their new settlements they adopted the rules and forms of institutions to which they had been accustomed in their ancient home, subject indeed to such modifications as necessarily resulted from the mode of the conquest, and their new position among vanquished populations, generally superior to themselves in the arts of civilized life. If we carefully examine the nature of these ventures, we shall I think come to the conclusion that they were carried on upon what may be familiarly termed the joint-stock principle. The owner of a ship, the supplier of the weapons or food necessary to set the business on foot, is the great capitalist of the company: the man of skill and judgment and experience is listened to with respect and cheerfully obeyed: the strong arms and unflinching courage of the multitude complete the work: and when the prize is won, the profits are justly divided among the winners, according to the value of each man’s contribution to the general utility[472]. But in such voluntary associations as these, it is clear that every man retains a certain amount of free will, that he has a right to consult, discuss and advise, to assent to or dissent from the measures proposed to be adopted: even the council of war of such a band must differ very much from what in our day goes by that name; where a few officers of high rank decide, and the mass of the army blindly execute their plans. It cannot then surprise us that in such cases everything should be done with the counsel, consent and leave of the associated adventurers. The bands were then not too numerous for general consultation: there was no fear lest treachery or weakness should betray the plans to an enemy: the necessities of self-preservation guaranteed the faith of every individual; for, camped among hostile and exasperated populations, ignorant of their tongue, and remote from them in manners, the German straggler, captive or deserter could look forward to nothing save a violent death or a life of weary slavery. Mutual participation in danger must have given rise to mutual trust.

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Footnote 472:

This is not hypothetical or imaginary. The settlements in Iceland were
positively made upon this principle, and by it the subsequent
divisions of the land were regulated.

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Again the principle upon which the settlement of the land was effected, was that of associations for common benefits, and a mutual guarantee of peaceful possession[473]. Each man stood engaged to his neighbour, both as to what he would himself avoid, and as to what he would maintain. The public weal was the immediate interest of every individual member of the state; it came home to him at every instant of his life, directly, pressing him either in his property, his freedom or his peace, not through a long and accidental chain of distant causes and results. Moreover in an association based upon the individual freedom of the associates, each man had a right to guard the integrity of the compact to which he was himself a party; and not only a right, but a strong interest in exercising it, for in proportion to the smallness of the state, is the effect which the conduct of any single member may produce upon its welfare. But wherever free men meet on equal terms of alliance, the will of the majority is the law of the state. If the minority be small it must submit, or suffer for rebellion: if large, and capable of independent action and subsistence, it may peaceably separate from the majority, renounce its intimate alliance, and emigrate to new settlements, where it may at its own leisure, and in its own way, develop its peculiar views of polity, leaving to fortune or to the gods to decide the abstract question of right between itself and its opponents. How then is the will of the majority to be ascertained? Where the number of citizens is small, the question is readily answered: by the decision of a public meeting at which all may be present.

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Footnote 473:

The Acts, if we may so call them, of an Anglosaxon parliament, are a
series of _treaties of peace_, between all the associations which make
up the state; a continual revision and renewal of the alliances
offensive and defensive, of all the free men. They are universally
mutual contracts for the maintenance of the frið or peace. Those who
chose to do so, might withdraw from this contract, but they must take
the consequence. The witan had no money to vote, except in very rare
and extreme cases; consequently their business was confined to
regulating the terms on which the frið could be maintained.

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Now such public meetings or councils we find in existence among the Germans from their very first appearance in history. The graphic pen of Tacitus has left us a lively description of their nature and powers, and in some degree their forms of business. He says[474],—“In matters of minor import, the chiefs take counsel together; in weightier affairs, the whole body of the state: but in such wise, that the chiefs have the power of discussing and recommending even those measures, which the will of the people ultimately decides. They meet, except some sudden and fortuitous event occur, on fixed days, either at new or full moon.... This inconvenience arises from their liberty, that they do not assemble at once, or at the time for which they are summoned, but a second or even a third day is wasted by the delay of those who are to meet. They sit down, in arms, just as it suits the convenience of the crowd. Silence is enjoined by the priests, who, on these occasions, have even the power of coercion. Then the king, or the prince, or any one, whom his age, nobility, his honours won in war or his eloquence may authorise to speak, is listened to, more through the influence of persuasion than the power of command. If his opinion do not please them, they reject it with murmurs: if it do, they dash their lances together. The most honourable form of assent is adoption by clashing of arms. It is lawful also to bring accusations, and prosecute capitally before the council. The punishment varies with the crime. Traitors and deserters they hang on trees; cowards, the unwarlike, and infamous of body they bury alive in mud and marsh, with a hurdle cast over them: the difference of the penalty has this intention as it were, that crimes should be made public, but infamous vices hidden, while being punished.... In the same councils also, princes are elected, to give law in the shires and villages. Each has a hundred comrades from among the people, both to advise him and add to his authority. They transact no business either of a public or private nature, without their weapons. But it is not the custom for any one to begin wearing them, before the state has approved of him as likely to be an efficient citizen. Then, in the public meeting itself, either one of the chiefs, or his father or a kinsman, decorates the youth with a shield and javelin. This is their _Toga_; this is the first dignity of their youth: before this they appear part of a household,—after it, of a state.”

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Footnote 474:

Germ. xi. xii. xiii.

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Such then was the nature of a Teutonic parliament as Tacitus had learnt that it existed in his time; nor is there the least doubt that he has described it most truly. And such were all the popular meetings of later periods, whether shiremoots, markmoots, or the great _placita_ of kingdoms, folkmoots in the most extended sense of the term. Such, at least in theory, and to a great extent in practice, were the meetings of the Franks under the Merwingian kings, and even under the Carolings. It will not be uninteresting or without advantage to compare with this account the description which Hincmar, archbishop of Rheims, gives of the institution as recognised and organized by Charlemagne, a prince by nature not over well disposed to popular freedom, and by circumstances placed in a situation to be very dangerous to it[475].

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Footnote 475:

What follows is abstracted from Hincmar, Epistola de ordine Palatii,
as cited and commented upon by Dönniges, p. 74, etc.

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Charlemagne held Reichstage or Parliaments twice a year, in May and again in the autumn, for the general arrangement of the public business. The earlier of these was attended by the principal officers of state, the ministers as we should call them, both lay and clerical, the administrators of the public affairs in the provinces, and other persons engaged in the business of government. These, who are comprehended under the titles of Maiores, Seniores, Optimates, may possibly have had the real conduct of the deliberations; but there is no doubt that the freemen were also present, first because the general armed muster or Hereban took place at the same time,—the well-known Campus Madius or Champ de Mai,—and partly because we know that all new capitularies added to the existing law were subjected to their approval[476]. We may therefore conclude that they were still possessed of a share in the business of legislation, although it may have only amounted to a right of accepting or rejecting the propositions of others. The king had his particular curia, court or council, the members of which were chosen (“eligebantur”), though how or by whom we know not, from the laity and the clergy: probably both the king and the people had their share in the election. The Seniores, according to Hincmar, were called “propter consilium ordinandum,” to lead the business; the Minores, “propter idem consilium suscipiendum,” to accept the same; but also “interdum pariter tractandum,” sometimes to take a part also in the discussions, “and to confirm them, not indeed by any inherent power of their own, but by the moral influence of their judgment and opinion.”

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Footnote 476:

“Ut populus interrogetur de capitulis quae in lege noviter addita
sunt. Et postquam omnes consenserint, subscriptiones suas in ipsis
capitulis faciant.” Pertz, iii. 115, § 19.

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The second great meeting comprised only the seniores and the king’s immediate councillors[477]. It appears to have been concerned with questions of revenue as well as general policy. But its main object was to prepare the business and anticipate the necessities of the coming year. It was a deliberative assembly[478] in which questions afterwards to be submitted to the general meeting were discussed and agreed upon. The members of this council were bound to secrecy. When the public business had been concluded, they formed a court of justice and of appeal, for the settlement of litigation in cases which transcended the powers or skill of the ordinary tribunals[479].

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Footnote 477:

Hincmar, c. 30.

Footnote 478:

These persons were in the strictest sense of the word προβούλοι, and
their acts προβουλεύματα. No doubt their body comprised the principal
officers engaged in the administration of the State.

Footnote 479:

Hincmar, c. 33.

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The general councils were held, in fine weather, in the open air, or, if occasion required, in houses devoted to the purpose. The ecclesiastics and the magnates, for so we may call them, sat apart from the multitude; but even they had separate chambers, in which the clergy could deliberate upon matters purely ecclesiastical, the magnates upon matters purely civil: but when the object of their enquiry was of a mixed character, they were called together[480]. Before these chambers the questions were brought which had been prepared at the preceding meeting, or arose from altered circumstances: the opinion of the members was taken upon them, and when agreed to they were presented to the king, who agreed or disagreed in turn, as the case might be. While the new laws or administrative regulations were under discussion, the king, unless especially invited to be present at the deliberations, occupied himself in mixing with the remaining multitude, receiving their presents, welcoming their leaders, conversing with the new comers, sympathizing with the old, congratulating the young, and in similar employments, both in spirituals and temporals, says Hincmar[481]. When the prepared business had been disposed of, the king propounded detailed interrogatories to the chambers, respecting the state of the country in the different districts, or what was known of the intentions and actions of neighbouring countries; and these having been answered or reserved for consideration, the assembly broke up. When any new chapters, hence called Capitula, had been added to the ancient law or folkright, special messengers (_missi_) were dispatched into the provinces to obtain the assent and signatures of the free men, and the chapters thus ratified became thenceforth the law of the land. Is it unreasonable to suppose that the proposals of the princes were also presented to the assembled freemen, the _reliqua multitudo_, in arms upon the spot, and that in the old German fashion they carried them by acclamation?

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Footnote 480:

“Sed nec illud praetermittendum, quomodo, si tempus serenum erat,
extra, sin autem intra, diversa loca distincta erant; ubi et hi
abundanter segregati semotim, et caetera multitudo separatim residere
potuissent, prius tamen caeterae inferiores personae interesse minime
potuissent. Quae utraque seniorum susceptacula sic in duobus divisa
erant, ut primo omnes episcopi, abbates, vel huiusmodi
honorificentiores clerici, absque ulla laicorum commixtione
congregarentur; similiter comites vel huiusmodi principes sibimet
honorificabiliter a caetera multitudine primo mane segregarentur,
quousque tempus, sive praesente sive absente rege, occurrerent. Et
tunc praedicti Seniores more solito, clerici ad suam, laici vero ad
suam constitutam curiam, subselliis similiter honorificabiliter
praeparatis, convocarentur. Qui cum separati a caeteris essent, in
eorum manebat potestate, quando simul, vel quando separati residerent,
prout eos tractandae causae qualitas docebat, sive de spiritalibus,
sive de saecularibus, seu etiam commixtis. Similiter, si propter
aliquam vescendi [? noscendi] vel investigandi causam quemcunque
vocare voluissent, et [? an] re comperta discederet, in eorum
voluntate manebat.” Hincmar, c. 35.

Footnote 481:

“Interim vero, quo haec in regis absentia agebantur, ipse princeps
reliquae multitudini in suscipiendis muneribus, salutandis proceribus,
confabulando rarius visis, compatiendo senioribus, congaudendo
iunioribus, et caetera his similia tam in spiritalibus, quamque et in
saecularibus occupatus erat. Ita tamen, quotienscunque segregatorum
voluntas esset, ad eos veniret,” etc. Hincmar, c. 35.

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While the district whose members attend the folkmoot is still small, there is no great inconvenience in this method of proceeding. In the empire of Charlemagne attendance upon the Campus Madius, whether as soldier or councillor must have been a heavy burthen. Nor can we conceive it to have been otherwise here, as soon as counties became consolidated into kingdoms, and kingdoms into an empire. In a country overrun with forests, intersected with deep streams or extensive marshes, and but ill provided with the means of internal communication, suit and service even at the county-court must have been a hardship to the cultivator; a duty performed not without danger, and often vexatiously interfering with agricultural processes on which the hopes of the year might depend. Much more keenly would this have been felt had every freeman been called upon to attend beyond the limits of his own shire, in places distant from, and totally unknown to him: how for example would a cultivator from Essex have been likely to look upon a journey into Gloucestershire[482] at the severe season of Christmas[483], or the, to him, important farming period of Easter? What moreover could he care for general laws affecting many districts beside the one in which he lived, or for regulations applying to fractions of society in which he had no interest? for the Saxon cultivator was not then a politician; nor were general rules which embraced a whole kingdom of the same moment to him, as those which might concern the little locality in which his alod lay. Or what benefit could be expected from his attendance at deliberations which concerned parts of the country with whose mode of life and necessities he was totally unacquainted? Lastly, what evil must not have resulted to the republic by the withdrawal of whole populations from their usual places of employment, and the congregating them in a distant and unknown locality? If we consider these facts, we shall find little difficulty in imagining that any scheme which relieved him from this burthen and threw it upon stronger shoulders, would be a welcome one, and the foundation of a representative system seems laid _à priori_, and in the nature of things itself. To the rich and powerful neighbour whose absence from his farms was immaterial, while his bailiffs remained on the spot to superintend their cultivation; to the scírgeréfa, the ealdorman, the royal reeve, or royal thane, familiar with the public business, and having influence and interest with the king; to the bishop or abbot, distinguished for his wisdom as well as his station; to any or all of these he would be ready to commit the defence of his small, private interests, satisfied to be virtually represented if he were not compelled to leave the business and the enjoyments of his daily life[484].

Footnote 482:

Easter and Christmas were usual times for the meetings of the Witan,
and during the Mercian period, Cloveshoo was frequently the place
where they assembled. Doubts have been lavished, upon the situation of
this place, which I do not share. In 804 Æðelríc the son of Æðelmund
was impleaded respecting lands in Gloucestershire, and stood to right
at Cloveshoo. Now it is clear that trial to those lands could properly
be made only in the hundred or shire where they lay; and as the
brotherhood of Berkeley were claimants, and the whole business
appertained to _Westminster_, I am disposed to seek Cloveshoo
somewhere in the hundred of that name in the county of Gloucester, and
therefore not far from Deerhurst, Tewksbury and Bishop’s Cleeve; not
at all improbably in Tewksbury itself, which may have been called
Clofeshoas, before the erection of a noble abbey at a later period
gave it the name it now bears. Cod. Dipl. No. 186.

Footnote 483:

These were usual periods for holding the gemót. “Actum Wintoniae in
publica curia Natalis Christi, in die festivitatis sancti Sylvestri,”
etc. Cod. Dipl. No. 815. The old folcmót probably met three times in
the year at the unbidden Ðing or _placitum_: so did the followers of
the first Norman kings at least, and it is remarkable enough that the
barons at Oxford should have returned to this arrangement, 42 Hen.
III. anno 1258. “Fait a remembrer qe lez xxiiii ount ordeignez qe
trois parlementz seront par an, le primere az octaues de seint Michel,
le seconde lendimayn de le chaundelour, le tierce le primer iour de
Juyn ceste asauoir trois semayns deuant le seint Johan; et a ces troiz
parlementz vendront lez conseillours le roi eluz tut ne seyent il pas
mandez pur vere lestat du roialme, et pur treter les communes
busoignes du reaume et del roi ensement et autrefoitz ensembleront
quant mester sera par maundement le roi.” Prov. Oxon., Brit. Mus.,
Cotton MS., Tiberius B. iv. folio 213. According to the later custom
Parliaments were to be, at least, annual, and were frequently admitted
so to be by law, until the Tudor times. See 5 Ed. II. an. 1311. “Nous
ordenoms qe le Roy tiegne Parlement vne foiz par an ou deux fois se
mestre soit, et ceo en lieu convenable,” etc.: which ordinance of the
Lords was passed into an act of Parliament 4 Ed. III. cap. 14. Some
years later the Commons petitioned the same king, that for redress of
grievances and other important causes, “soit Parlement tenuz au meinz
chescun an en la seson que plerra au Roy.” Rot. Parl. 36 Ed. III. n.
25. To which the king answered that the ancient statute thereupon
should be held. This petition the Commons found it necessary to repeat
fourteen years later, “qe chescun an soit tenuz un Parlement,” etc.:
to which the answer was, “Endroit du Parlement chescun an, il y aent
estatuz et ordenances faitz les queux soient duement gardez et tenuz.”
Rot. Parl. 50 Ed. III. n. 186: and the same thing took place at the
accession of Richard the Second. Rot. Parl. 1 Ric. II. n. 95. 2 Ric.
II. n. 2. Triennial parliaments were, I believe, first agreed to by
Charles the First.

Footnote 484:

The establishment of the Scabini or Schöffen in the Frankish empire
was intended to relieve the freemen from the inconvenience of
attending gemóts, which the counts converted into an engine of
extortion and oppression.

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On the other hand, to whom could the king look with greater security, than to the men whose sympathies were all those of the ruling caste; many of whom were his own kinsmen by blood or marriage, more of whom were his own officers; men, too, accustomed to business, and practically acquainted with the wants of their several localities? Or how, when the customs and condition of widely different social aggregations were to be considered and reconciled, could he do better than advise with those who were most able to point out and meet the difficulties of the task? Thus, it appears to me, by a natural process did the folkmót or meeting of the nation become converted into a witena gemót or meeting of councillors. Nor let it be imagined by this that I mean the king’s councillors only: by no means; they were the witan or councillors of the nation, members of the great council or inquest, who sought what was for the general good, certainly not men who accidentally formed part of what we in later days call the king’s council, and who might have been more or less the creatures of his will: they were leódwitan, þeódwitan, general, popular, universal councillors: only when they chanced to be met for the purpose of advising him could they bear the title of the cyninges þeahteras or cyninges witan. Then no doubt the Leódwitan became ðæs cyninges witan (_the_ king’s, not king’s, councillors) because without their assistance he could not have enacted, nor without their assistance executed, his laws. Let it be borne in mind throughout that the king was only the head of an aristocracy which acted with him, and by whose support he reigned; that this aristocracy again was only a higher order of the freemen, to whose class it belonged, and with many of whose interests it was identified; that the clergy, learned, active and powerful, were there to mediate between the rulers and the ruled; and I think we shall conclude that the system which I have faintly sketched was not incapable of securing to a great degree the well-being of a state in such an early stage of development as the Saxon Commonwealth. At what exact period the change I have attempted to describe was effected, is neither very easy to determine nor very material. It was probably very gradual, and very partial; indeed it may never have been formally recognised, for here and there we find evident traces of the people’s being present at, and ratifying the decisions of the witan. Much more important is it to consider certain details respecting the composition, powers and functions of the witena gemót as we find it in periods of ascertained history. The documents contained in the Codex Diplomaticus Ævi Saxonici enable us to do this in some degree. In that collection there are several grants which are distinctly stated to have been made in such meetings of the witan, by and with their consent, and the signatures to which may be assumed to be those of members present on the occasion. Among these we find the king, frequently the æðelings or princes of the blood, generally the archbishops and all or some of the bishops and abbots; all or some of the dukes or ealdormen; sometimes priests and deacons; and generally a large attendance of milites, ministri or thanes, many of whom must unhesitatingly be asserted to be royal officers, geréfan and the like, in the shires[485]. From one document it is evident that the sheriffs of all the counties were present[486]: and in a few cases we meet with names accompanied by no special designation. Now it appears that a body so constituted would have been very competent to advise for the general good; and I do not scruple to express my opinion that under such a system the interests of the country were very fairly represented; especially as there were then no parliamentary struggles to make the duration of ministries dependent upon the counting up of single votes; and contests for the representation of counties or boroughs would have been as much without an object in those days, as they are important in our own; above all, since there was then no systematic voting of money for the public service.

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Footnote 485:

It has always been a question of deep interest in this country, what
persons were entitled to attend the Gemót: and in truth very important
constitutional doctrines depend upon the answer we give to it. The
very first and most essential condition of truth appears to me, that
we firmly close our eyes to everything derived from the custom of
Parliaments, under the Norman, the Angevine or the English kings: the
practice of a nation governed by the principles of Feudal law, is
totally irreconcileable with the old system of personal relations
which existed under the earlier Teutonic law. The next most important
thing is, that we use no words but such as the Saxons themselves used:
the moment we begin to talk of Tenants in capite, Vavassors, Vassals,
and so forth, we introduce terms which may involve a _petitio
principii_, and must lead to associations of ideas tending to an
erroneous conclusion. One of these fallacies appears to me to lie in
the assertion that a landed qualification was required for a member of
the Witena gemót. One of the most brilliant, if not the most accurate,
commentators on our constitutional history, Sir F. Palgrave, has
raised this question. According to his view no one could be a member
of that singular body which he supposes the Anglosaxon Parliament to
have been, unless he had forty híds of land, four thousand acres at
least according to the popular doctrine. But this whole supposition
rests upon a series of fine-drawn conclusions, in my opinion, without
sound foundation, and totally inconsistent with every feeling and
habit of Saxon society. The monkish writer of the history of Ely—a
very late and generally ill-informed authority—says that a lady would
not marry some suitor of hers, because not having forty híds he could
not be counted among the Proceres; and this is the whole basis of this
parliamentary theory,—_proceres_ being assumed, without the slightest
reason, to mean members of the witena gemót,—and the witena gemót to
be some royal council, some Curia Regis, and not at all the kind of
body described in this chapter. I confess I cannot realize to myself
the notion of an Anglosaxon woman nourishing the ambition of seeing
her husband a member of Parliament. The passage no doubt implies that
a certain amount of land was necessary to entitle a man to be classed
in a certain high rank in society: and this becomes probable enough as
we find a landed qualification partially insisted on with regard to
the ceorl who aspired to be ranked as a thane. But this is a negative
condition altogether: it is intended to repress the pretensions of
those who, in spite of their ceorlish birth, assumed the weapons and
would, if possible, have assumed the rights of thanes. In the Saxon
custumal, called “Ranks,” it is said:—“And if a thane throve so that
he became an eorl, he was thenceforth worthy of eorl-right.” Thorpe,
i. 192. On this the learned editor of the Ancient Laws and Institutes
observes:—“It is to this law that the historian of Ely seems to allude
in the following passage, and not to any qualification for a seat in
the witena gemót, as has been so frequently asserted. ‘Habuit (sc.
Wulfricus abbas) enim fratrem Gudmundum vocabulo, cui filiam
praepotentis viri in matrimonium coniungi paraverat, sed quoniam ille
quadraginta hidarum terrae dominium minime obtineret, licet nobilis
esset [that is, a thane] inter proceres tunc nominari non potuit, eum
puella repudiavit.’ Gale, ii. c. 40. If we refer to the Dooms of Cnut,
c. 69, we shall see that the heriots of an eorl and of a lesser thane
were in the proportion of from one to eight,—a rule which may have
been supposed to have arisen from a somewhat similar relation between
the quantities of their respective estates; and as the possession of
five hides conferred upon a ceorl the rights of a thane, the
possession of forty (5 × 8) in all probability raised a thane to the
dignity of an eorl.” This opinion is only a confirmation of that which
I had myself formed on similar grounds long before Mr. Thorpe’s work
was published: and it was apparently so understood by Phillips before
either of us wrote. See Angels. Recht. p. 114, note 317, Göttingen,
1825.

Footnote 486:

Leg. Æðelst. v. § 10.

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Among the charters from which we derive our information as to the constituent members of the gemót, one or two appear to be signed by the queen and other ladies, always I believe, ecclesiastics of rank and wealth. I do not however, on this account, argue that such women formed parts of the regular body. In many cases it is clear that when a grant had been made by the king and his witan, the document was drawn up, and offered for attestation to the principal persons present or easily accessible. When the queen had accompanied her consort to the place where the gemót was held, or when, as was usual, the gemót attended the king at one of his own residences to assist in the hospitalities of Christmas and Easter, it was natural that the first lady of the land should be asked to witness grants of land, and other favours conferred upon individuals: it was a compliment to herself, not less than to him whom she honoured with her signature. But I know no instance where the record of any solemn public business is so corroborated; nor does it follow that the document which was drawn up in accordance with the resolution of a gemót should necessarily be signed in the gemót itself. It may have been executed subsequently at the king’s festal board, and in presence of the members of his court and household. The case of abbesses, if not disposed of by the arguments just advanced, must be understood of gemóts in which the interests of the monastic bodies were concerned. Here it is possible that ladies of high rank at the head of nunneries may have attended to watch the proceedings of the synod and attest its acts. Again, where the gemót acted as a high court of justice, which often was the case, a lady who had been party to a cause might naturally be called upon to sign the record of the judgment. The instances however in which the signatures of women occur are very rare.

Although the members of the gemót are called in Saxon generally by the name of _witan_[487], they are decorated with very various titles in the Latin documents. Among these the most common are Maiores natu, Sapientes, Principes, Senatores, Primates, Optimates, Magnates, and in three or four charters they are designated Procuratores patriae[488], which last title however seems confined to the thanes, geréfan or other members below the rank of an ealdorman. In the prologue to the laws of Wihtrǽd they are called ða eádigan, for which I know no better translation than the Spanish _Ricos hombres_, where the wealth of the parties is certainly not the leading idea. But whatever be their titles they are unquestionably looked upon as representing the whole body of the people, and consequently the national will: and indeed in one charter of Æðelstán, an. 931, the act is said to have been confirmed “tota plebis generalitate ovante,” with the approbation of all the people[489]; and the act of a similar meeting at Winchester in 934, which was attended by the king, four Welsh princes, two archbishops, seventeen bishops, four abbots, twelve dukes, and fifty-two thanes, making a total of ninety-two persons, is described to have been executed “tota populi generalitate[490].” On one occasion a gemót is mentioned of which the members are called the king’s heáhwitan, or high councillors[491]: it is impossible to say whether this is intended to mark a difference in their rank. If it were, it might be referred to the analogy of the autumnal meetings in Charlemagne’s constitution, but nothing has yet been met with to confirm this hypothesis, which, in itself, is not very probable.

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Footnote 487:

I write _wita_ not _wíta_. The vowel is short, and the noun is formed
either upon the plural participle of _wítan_ to know, or upon a noun
_wit_, _intellectus_, previously so formed. The quantity of the vowel
is ascertained by the not uncommon spelling weota, where eo = ĭ (see
Cod. Dipl. No. 1073), and the occurrence in composition of the form
_uta_, which is consonant to the analogy of wudu, wuduwe, wuce for
wĭdu, wĭduwe, wĭce, but excludes the possibility of a long í.

Footnote 488:

Cod. Dipl. Nos. 361, 1102, 1105, 1107, 1108.

Footnote 489:

Cod. Dipl. No. 1103.

Footnote 490:

Cod. Dipl. No. 364.

Footnote 491:

Chron. Sax. an. 1009.

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The largest amount of signatures which I have yet observed is 106, but numbers varying from 90 to 100 are not uncommon, especially after the consolidation of the monarchy[492]. In earlier times, and smaller kingdoms, the numbers must have been much less: the gemót which decided upon the reception of Christianity in Northumberland was held in a room[493], and Dunstan met the witan of England in the upper floor of a house at Calne[494]. Other meetings, which were rather in the nature of conventions, and were held in the presence of armies, may have been much more numerous and tumultuary,—much more like the ancient armed folkmoot or the famous day which put an end to the Merwingian dynasty among the Franks[495].

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Footnote 492:

See Cod. Dipl. Nos. 353, 364, 1107. There is one document signed by
121 persons (Cod. Dipl. Nos. 219, 220), but I have some doubt whether
all the signitaries were members of the gemót.

Footnote 493:

Beda, H. E. ii. 13.

Footnote 494:

Chron. Sax. an. 978.

Footnote 495:

Such perhaps was the gemót which after Eádmund írensída’s death
elected Cnut sole king of England, or that in which Earl Godwine and
his family were outlawed.

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That the members of the witena gemót were not elected, in any sense which we now attach to the word, I hold to be indisputable: elective witan ceased together with elective scírgeréfan or ealdormen[496]. But in a system so elastic as the Saxon, it is conceivable that an ealdorman, bishop or other great wita may have occasionally carried with him to the gemót some friend or dependent whose wisdom he thought might aid in the discussions, or whom the opinion of the neighbourhood designated as a person well calculated to advise for the general good,—a slight trace, but still a trace, of the ancient popular right to be present at the settlement of public business. To this I attribute the frequent appearance of priests and deacons, who probably attended in the suite of prelates, and would be useful assessors when clerical business was brought before the council. Generally, I imagine, the witan after having once been called by writ or summons, met like our own peers, as a matter of course, whenever a parliament was proclaimed; and that they were summoned by the king, either _pro hac vice_, or generally, can be clearly shown. Æðelstán, speaking of the gemóts at Greatanleá, Exeter, Feversham and Thundersfield, says that the consultations were made, before the archbishop, the bishops, and the witan present, _whom the king himself had named_: “Swá Æðelstán cyng hit gerǽed hæfð, ⁊ his witan, ǽrest æt Greátanleá, ⁊ eft æt Exanceastre, ⁊ syððám æt Fæfreshám, ⁊ feorðan síðe æt Ðunresfelda, beforan ðám arcebiscope, ⁊ eallum ðám bisceopan, ⁊ his witum, ðe se cyng silf namode, ðe ðǽron wǽron[497].” How these appointments took place is not very material, but as the witan were collected from various parts of England, it is not unreasonable to suppose that it was by the easy means of a writ and token, _gewrit and insigel_. The meeting was proclaimed some time in advance, at some one of the royal residences[498].

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Footnote 496:

This is not altogether devoid of strangeness, because we know that
among the Oldsaxons of the continent there was a regulated system of
elective representatives, including even those of the servile class.
Hucbald, in his life of Lebuuini, tells us: “In Saxonum gente priscis
temporibus neque summi coelestisque regis inerat notitia, ut digna
cultui eius exhiberetur reverentia, neque terreni alicuius regis
dignitas et honorificentia, cuius regeretur providentia, corrigeretur
censura, defenderetur industria: sed erat gens ipsa, sicuti nunc usque
consistit, ordine tripartito divisa. Sunt denique ibi, qui illorum
lingua _edilingi_, sunt qui _frilingi_, sunt qui _lassi_ dicuntur,
quod in latina sonat lingua, nobiles, ingenuiles atque serviles. Pro
suo vero libitu, consilio quoque, ut videbatur, prudenti, singulis
pagis principes praeerant singuli. Statuto quoque tempore anni semel
ex singulis pagis, atque ab eisdem ordinibus tripartitis, singillatim
viri duodecim electi, et in unum collecti, in media Saxonia secus
flumen Wiseram et locum Marklo nuncupatum, exercebant generale
concilium, tractantes, sancientes et propalantes communis commoda
utilitatis, iuxta placitum a se statutae legis. Sed etsi forte belli
terreret exitium, si pacis arrideret gaudium, consulebant ad haec quid
sibi foret agendum.” Pertz, Monum. ii. 361, 362.

Footnote 497:

Æðelst. v. § 10. Thorpe, i. 240.

Footnote 498:

“Ðonne beád mon ealle witan tó cynge, and man sceólde ðonne rǽdan, hú
man ðisne eard werian sceólde.” Chron. an. 1010. _Beódan_ is to
_proclaim_.

See also Chron. Sax. 1048. Hist. Eliens. 1, 10, etc.

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The proper Saxon name for these assemblies was witena gemót[499], literally the meeting of the witan; but we also find, micel gemót, the great meeting; sinoðlíc gemót, the synodal meeting; seonoð, the synod. The Latin names are concilium, conventus, synodus, synodale conciliabulum, and the like. Although synodus and seonoð might more properly be confined to ecclesiastical conventions, the Saxons do not appear to have made any distinction; probably because ecclesiastical and secular regulations were made by the same body, and at the same time. But it is very probable that the Frankish system of separate houses for the clergy and laity prevailed here also, and that merely ecclesiastical affairs were decided by the king and clergy alone. There are some acts in which the signatures are those of clergymen only, others in which the clerical signatures are followed and, as it were, confirmed by those of the laity; and in one remarkable case of this kind, the king signs at the head of each list, as if he had in fact affixed his mark successively in the two houses, as president of each[500].

Footnote 499:

“And se cyng hæfde ðǽr on morgen witena gemót, ⁊ cwæð hine útlage.”
Chron. Sax. an. 1052. “And wæs ðá witena gemót.” Ib. an. 1052. “Ða
hæfde Eádwerd cyning witena gemót on Lundene.” Ib. an. 1050.

Footnote 500:

Cod. Dipl. No. 116. It is probable that even in strictly
ecclesiastical synods, the king had a presidency at least, as head of
the church in his dominions. In Willibald’s life of Boniface we are
told:—“Regnante Ini, Westsaxonum rege, subitanea quaedam incubuerat,
nova quadam seditione exorta, necessitas, et statim synodale a
primatibus aecclesiarum cum consilio praedicti regis servorum Dei
factum est concilium; moxque omnibus in unum convenientibus,
saluberrima de hac recenti dissentione consilii quaestio inter
sacerdotales aecclesiastici ordinis gradus sapienter exoritur, et
prudentiori inito consultu, fideles in Domino legatos ad
archiepiscopum Cantuariae civitatis, nomine Berchtwaldum, destinandos
deputarunt, ne eorum praesumptione aut temeritati adscriberetur, si
quid sine tanti pontificis agerent consilio. Cumque omnis senatus et
universus clericorum ordo, tam providenti peracta conlatione,
consentirent, confestim rex cunctos Christi famulos adlocutus est, ut
cui huius praefatae legationis nuntium inponerent, sciscitarent,” etc.
Pertz, ii. 338.

A more important question for us is, what were the powers of the witena gemót? It must be answered by examples in detail.

1. _First, and in general, they possessed a consultative voice, and right to consider every public act, which could be authorised by the king._ This has been attempted to be denied, but without sufficient reason. Runde, who is one of the upholders of the erroneous doctrine on this subject, appeals to the introduction of Christianity into Kent, which he perhaps justly declares to have been made without the assent of the witan[501]. But it does not at all follow that the first reception of Augustine by Æðelberht is to be considered a public act, or that it had any immediate consequences for the public law. Nor is it certain that at a later period, a meeting of the witan may not have ratified the private proceeding of the king. Æðelberht, who had some experience of Christianity from the doctrine and practice of his Frankish consort Beorhte, may have chosen to trust to the silent, gradual working of the missionaries, without courting the opposition of a heathen witena gemót, till assured of success: his court were already accustomed to the sight of a Christian bishop and clergy in Beorhte’s suite, and Augustine with his company might easily pass for a mere addition to that department of the royal household. Indeed Augustine himself does not appear to have been at all ambitious of martyrdom, and probably preferred trying the chances of a gradual progress to a stormy and perhaps fatal collision with a body of barbarians, led by a pagan and rival priesthood. The words of Beda therefore can prove nothing in the matter, except indeed what is most important for us, viz. that Æðelberht at first refused to interfere as king, that is, would not make a public question of Augustine’s mission[502]. But Runde seems to have forgotten that Æðelberht’s laws, which must be dated between 596 and 605, do most emphatically recognise Christianity and the Christian priesthood; and as Beda declares him to have enacted these laws “cum consilio sapientum[503],” we shall hardly be saying too much if we affirm that the introduction of Christianity was at least ratified by a solemn act of the witan. Runde’s further remarks upon the conversion of Northumberland seem to prove that he really never read through the passages he himself cites, so completely do they refute his own arguments[504].

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Footnote 501:

Runde, Abhandlung vom Ursprung der Reichsstandschaft der Bischöfe und
Aebte. Gött. 1775, p. 35, etc.

Footnote 502:

Hist. Eccl. i. 26.

Footnote 503:

Ibid. ii. 5.

Footnote 504:

See Phillips, Geschichte des Angelsächsischen Rechts. Gött. 1825, p.
71.

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2. _The witan deliberated upon the making of new laws which were to be added to the existing folcriht[505], and which were then promulgated by their own and the king’s authority[506]._ Beda, in a passage just cited, says of Æðelberht:—“Amongst other benefits which consulting, he bestowed upon his nation, he gave her also, with the advice of his witan, decrees of judgments, after the example of the Romans: which, written in the English tongue, are yet possessed and observed by her[507].” And these laws were enacted by their authority, jointly with the king’s. The Prologue to the law of Wihtrǽd declares:—“These are the dooms of Wihtrǽd, king of the men of Kent. In the reign of the most clement king of the men of Kent, Wihtrǽd, in the fifth year of his reign, the ninth indiction[508]. the sixth day of the month Rugern, in the place which is called Berghamstead[509], where was assembled a deliberative convention of the great men[510]; there was Brihtwald the high-bishop[511] of Britain, and the aforenamed king; also the bishop of Rochester; the same was called Gybmund, he was present; and every degree of the church in that tribe, spake in unison with the obedient people[512]. There the great men decreed, with the suffrages of all, these dooms, and added them to the lawful customs of the men of Kent, as hereafter is said and declared[513].”

Footnote 505:

Hloðhære and Eádríc, kings of the men of Kent, _augmented_ the laws
which their forefathers had made before them, by these dooms. Prol. to
Leg. Hloð. et Ead. Thorpe, i. 26. See also the Prologue to Wihtrǽd’s
laws in the text.

Footnote 506:

This is the case throughout the Teutonic legislation, where there is a
king at all. “Theodoricus rex Francorum, cum esset Cathalaunis, elegit
viros sapientes, qui in regno suo legibus antiquis eruditi erant: ipso
autem dictante, iussit conscribere legem Francorum, Alemannorum et
Baiuvariorum,” etc. Eichhorn, i. 273. “Incipit Lex Alamannorum, quae
temporibus Hlodharii regis (an. 613-628) una cum principibus suis, id
sunt xxxiii episcopis, et xxxiv ducibus, et lxii comitibus, vel
caetero populo constituta est.” Eichhorn, i. 274, note a. “In Christi
nomine, incipit Lex Alamannorum, qui temporibus Lanfrido filio
Godofrido renovata est. Convenit enim maioribus natu populo
allamannorum una cum duci eorum lanfrido vel citerorum populo adunato
ut si quilibet,” etc. About beginning of eighth century. Eichhorn. i.
274, note c. The Breviarium of Alaric the Visigoth (an. 506) was
compiled by Roman jurists, but submitted to an assembly of prelates
and noble laymen. In the authoritative rescript which accompanies this
work, it is said the object was, “Ut omnis legum Romanarum, et antiqui
iuris obscuritas, adhibitis sacerdotibus ac nobilibus viris, in lucem
intelligentiae melioris deducta resplendeat.... Quibus omnibus
enucleatis atque in unum librum prudentium electione collectis, haec
quae excerpta sunt, vel clariori interpretatione composita,
venerabilium Episcoporum, vel electorum provincialium nostrorum
roboravit adsensus.” Eichhorn, i. 280, note bb. Gundobald the
Burgundian, whose laws must have been promulgated before 515, says
that he was aided by the advice of his optimates. Again he says,
“Primum habito consilio comitum, procerumque nostrorum,” etc.
Eichhorn, i. 265, note c.

Footnote 507:

Hist. Eccl. ii. 5. He cites a passage which identifies these dooms
with those which yet go under Æðelberht’s name.

Footnote 508:

A.D. 696. The month is unknown, but probably in autumn.

Footnote 509:

Now Berstead, near Maidstone, in Kent, certainly not Berkhampstead in
Hertfordshire, as Clutterbuck affirms in his history of that county.

Footnote 510:

“Eádigra geþeahtendlíc ymcyme.” See Thorpe, i. 36, note c.

Footnote 511:

Archbishop of Canterbury.

Footnote 512:

The people subject to their charge. Were the people, that is, the
freemen, present at this gemót in their divisions as parishes or
ecclesiastical districts?

Footnote 513:

Thorpe, i. 36.

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The prologue to the laws of Ini establishes the same fact for Wessex; he says,—“Ini, by the grace of God, king of the Westsaxons, with the advice and by the teaching of Cénred, my father, and of Hedde my bishop, and Ercenwold my bishop, with all my ealdormen, and the most eminent witan of my people, and also with a great assemblage of God’s servants[514], have been considering respecting our soul’s heal, and the stability of our realm; so that right law, and right royal judgments might be settled and confirmed among our people; so that none of our ealdormen, nor of those who are subject unto us, should ever hereafter turn aside these our dooms[515].”

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Footnote 514:

The clergy especially.

Footnote 515:

Thorpe, i. 102.

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And this is confirmed in more detail by Ælfred. This prince, after giving some extracts from the Levitical legislation, and deducing their authority through the Apostolical teaching, proceeds to engraft upon the latter the peculiar principle of bót or compensation which is the characteristic of Teutonic legislation[516]. He says,—“After this it happened that many nations received the faith of Christ; and then were many synods assembled throughout all the earth, and among the English race also, after they had received the faith of Christ, of holy bishops, and also of their exalted witan. They then ordained, out of that mercy which Christ had taught, that secular lords, _with their leave_, might without sin take for almost every misdeed—for the first offence—the bót in money which they then ordained; except in cases of treason against a lord, to which they dared not to assign any mercy; because Almighty God adjudged none to them that despised him, nor did Christ, the son of God, adjudge any to him that sold him unto death: and he commanded that a lord should be loved like oneself[517]. They then, in many synods, decreed a bót for many human misdeeds; and in many synod-books they wrote, here one doom, there another.

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Footnote 516:

Ælfred makes a marked exception in the case of treason, and repeats it
in strong terms in § 4 of his laws, “be hláford syrwe.” These despotic
tendencies of a great prince, nurtured probably by his exaggerated
love for foreign literature, may account to us for the state of utter
destitution in which his people at one time left him. His strong
personality, and active character, coupled with the almost miraculous,
at any rate most improbable, event, of his ascending the throne of
Wessex, may have betrayed him in his youth into steps which his
countrymen looked upon as dangerous to their liberties. Nothing can
show Ælfred’s antinational and un-Teutonic feeling more than his
attributing the system of bóts or compensations to the influence of
Christianity.

Footnote 517:

This is Mr. Thorpe’s version, i. 59. But the words may be as strictly
construed, “should be loved like _himself_,” viz. God.

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“Then I, Ælfred the king, gathered these together, and commanded many of those which our forefathers held, and which seemed good to me, to be written down; and many which did not seem good to me, I rejected by the counsel of my witan, and commanded them in other wise to be holden; but much of my own I did not venture to set down in writing, for I knew not how much of it might please our successors. But what I met with, either of the time of Ini my kinsman, or of Offa, king of the Mercians, or Æðelberht who first of the English race received baptism, the best I have here collected, and the rest rejected. I then, Ælfred king of the Westsaxons, showed these to all my witan, and they then said, that it liked them well so to hold them.”

The laws of Eádweard like those of Hloðhere and Eádríc have no proem: next in order of time are those of Æðelstán. The council of Greatley opens with an ordinance which the king says was framed by the advice of Wulfhelm, archbishop of Canterbury and his other bishops: no other witan are mentioned. Now it is remarkable enough that this ordinance refers exclusively to tithes, and other ecclesiastical dues, and works of charity. But the secular ordinances which follow conclude with these words: “All this was established in the great synod at Greátanleá; in which was archbishop Wulfhelm, with all the noblemen and witan whom Æðelstán the king [commanded to] gather together[518].”

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Footnote 518:

Thorpe, i. 214.

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The witan at Exeter, under the same king, are much more explicit as to their powers: in the preamble to their laws, they say: “These are the dooms which the witan at Exeter decreed, with the counsel of Æðelstán the king, and again at Feversham, and a third time at Thundersfield, where the whole was settled and confirmed together[519].”

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Footnote 519:

Ibid. i. 207.

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The concurrence of these witan is continually appealed to in the Saxon laws which follow[520], and which are supplementary to the three gemóts mentioned. But in a chapter (§ 7) concerning ordeals, the regulation is said to be by command of God, the archbishop and all the bishops, and the other witan are not mentioned; probably because the administration of the ordeal was a special, ecclesiastical function. Again in the Judicia Civitatis Londoniae the joint legislative authority of the king and the witan is repeatedly alluded to[521].

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Footnote 520:

Æðelst. iv. Thorpe, i. 220, 224.

Footnote 521:

Æðelst. v. § 10, 11, 12. Thorpe, i. 238, 240.

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Eádmund commences his laws by stating that he had assembled a great _synod_ in London at Easter, at which the two archbishops, Oda and Wulfstan, were present, together with many bishops and persons of ecclesiastical as well as secular condition[522]. And having thus given the authority by which he acted, he proceeds to the details of his law, which he again declares to have been promulgated, after deliberation with the council of his witan, ecclesiastical and lay[523]. The council of Culinton, held under the same prince, commences thus: “This is the decree which Eádmund the king and his bishops, with his witan, established at Culinton, concerning the maintenance of peace, and taking the oaths of fidelity.”

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Footnote 522:

Thorpe, i. 244.

Footnote 523:

Ibid. i. 246.

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Next comes Eádgár, whose law commences in these words: “This is the ordinance which Eádgár the king, with the counsel of his witan, ordained, to the praise of God, his own honour, and the benefit of all his people[524].”

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Footnote 524:

Ibid. i. 262; see also pp. 270, 272, 276.

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