wealth. As the king's revenue from the public or demesne lands, from his private estates, and from other sources, was sufficient to maintain the royal state, it was not necessary to provide a royal revenue by taxation. Not until the period of the last Danish invasion did circumstances arise which required the imposition of a general tax for the public service, - with the imposition of the Danegeld the history of English Danegeld. taxation really begins. This extraordinary tax, which was levied by the king and the witan,1 was imposed not only for the purpose of buying off the invaders, but for the raising of fleets.2 The legislative powers of the king and the witan were not confined, however, to secular matters only; they embraced such subjects of ecclesiastical legislation as the ap- Ecclesiastical legislapointment of fasts and festivals, and the levy and expenditure in of ecclesiastical revenue. The laws abound in articles regulating the keeping of Sunday and festival holidays, the payment of tithes and other church imposts, the marrying of persons within the prohibited degrees, and the life and conversation of the clergy. The great influence of the spiritual witan seems to have prevented any jealousy as to that kind of legislative interference with the government of the church. The king and the witan even possessed the power to elect bishops to vacant sees. The witan, by virtue of their general Treaties power to consider every act which the king could authorize, ances. had the right, conjointly with the king, of making alliances and treaties of peace, and of settling their terms; and 1 "The king and the witan had power to levy taxes for the public service."-Saxons in England, vol. ii. p. 223. For the imposition of Danegeld see E. Chron., a. 991, 1002, 1007, and IOII. 2 The assessment of 1008, in which we find the origin of ship-money, is thus recorded in the Abingdon and Peterborough Chronicles for 1808: "Hér bebead se Cyng þæt mán sceolde ofer eall Angelcyn scypu fæstlice wyrcan; pæt is donne; of Prim hund hidum and of tynum ænne scego, and of viii hidum helm and byrnan." "The government did not levy ship-money, but required each county to find its quota of ships. This would apply as well to the inland districts as to those on the seaboard." Mr. Earle's note, quoted in Freeman's Norm. Cong., vol. i. p. 439, Appendix LL. “It may be in- 3 Saxons in England, vol. ii. p. 222. The witan had the power of making alliances and treaties of peace, and of settling their terms."-Saxons in England, vol. ii. p. 213. See Alfred and Guthrum's Peace, Thorpe's Laws and Institutes, vol. i. p. 152. and alli also of raising land and sea forces, whenever extraordinary circumstances required that the authority of the great counAlienation cil should be added to that of the king. The folkland, the of folkland. national fund, was administered and conveyed conjointly by the king and the witan. Nearly every grant professes to have been made by the king cum consilio, consensu et licentia procerum, or in some like formula expressing the same idea.2 With the consent of the witan the king could carve an estate out of the folkland and vest it in a private individual or corporation, and thus convert the portion severed from the public domain into an alodial estate, heritable forever. When such a grant was made, it was usual for the land to be freed by the terms of the book or charter from all burdens except the trinoda necessitas, to which all lands were subject. In the same way an estate could be carved out of the folkland and vested in the king as an individual, to be held by him as a Bookland private estate of inheritance.5 The king and the witan could also convert bookland into folkland, and impose upon it all the burdens to which that kind of land was subject. And before the influence of the principle, which rendered family land inalienable without family consent, had fallen into decay, the king and the witan were sometimes called upon to confirm and guarantee grants of large private estates, so as to effectually bar the right of any heirs that might be cut off by the alienation.7 As the royal power grew, and as the monarchy became more and more consolidated, the folkland passed under the control of the king alone; the witan finally became mere witnesses of the royal grants. In William's time the terra regis. folkland had become terra regis. converted into folkland. The folkland becomes That the inherent power of the witan was, in the last re 1 "The king and his witan had power to raise land and sea forces when occasion demanded."- Saxons in England, vol. ii. p. 224; E. Chron., a. 999, 1047, 1048. Saxons in England, vol. ii. p. 226. "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 versa." — Saxons in England, vol. ii. p. 225. The three duties which arose out of the trinoda necessitas, although distinct from the feudal services of later times, tended "more and more to be. come duties attaching to the posses sion of the land owed to, and capable of being enforced by, the king or the great man of the district." - Digby, Law of Real Property, p. 14; Cod. Dipl., No. 52. Cod. Dipl., No. 260. 6 Cod. Dipl., No. 281; Saxons in England, vol. ii. pp. 226-227. 7 See grant made by Abbot Ceol frith, Cod. Dipl., No. 127; Essays in A. S. Law, pp. 75-77. 8 Essays in A. S. Law, pp. 99–100; Stubbs, Const. Hist., vol. p. 193. could elect sort, higher than that of the king is demonstrated by the fact The witan that the witan had the power not only to elect1 but to de- the king. pose the king. Teutonic kingship was elective from the earliest period in its history, but the right of election was attended and modified from the very beginning by the hereditary principle. In the home-land, the king was chosen by the state assembly, but the choice was limited to those who possessed the indispensable prerequisite of noble blood.2 In the character of the new kingship which grew out of the Teutonic conquest of Britain, there was no departure from the primitive tradition. In every kingdom there was some one royal house whose members were considered, under all ordinary circumstances, entitled to the succession; but within the limits of that house the witan possessed the power to elect the person most competent to govern.3 It was usual Oldest son to give the preference to the oldest son of the last king, if of the last he were not too young or otherwise incompetent to rule; in ally chosen that event, the witan generally elected the brother of the king, or some other kindred prince more capable of ruling. But no matter who succeeded to the throne, the theory was that he succeeded by virtue of an election; he was "gecoren and áhafen tó cyninge,” — elected and raised to be king.5 Express mention is made of the act of election in the chronicles and memorials touching the accessions of the following kings: Ælfred, Eadward the Elder, Æthelstan, Eadred, Eadgar, Eadward, Æthelred, Eadmund, Cnut, Harol I., Eadward the Confessor, and Harold. king usu if fit. could de The witan, who possessed the power to elect the king, pos- The witan sessed also the correlative right to depose him whenever his pose the government was not conducted for the good of his people.7 king. 1 "The witan had the power of electing the king Saxons in England, vol. ii. p. 214. 2 "Reges ex nobilitate, duces ex virtute sumunt.' - Tac., Germ., c. 7. 8 "The kingly dignity among the Anglo-Saxons 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."-Saxons in England, vol. ii. p. 214; Stubbs, Const. Hist., vol. i. p. 135. 4 Norm. Cong., vol. i. pp. 72, 73, and Appendix S. 5 Saxons in Eng., vol. ii. p. 215. 6 These instances in which express 7 "The witan had the power to de- Depositions of Alchred; The greater number of cases in which this power was exercised by the witan belong to the period which precedes the union of the heptarchic kingdoms under the house of Cerdic. In the eighth century, out of fifteen kings duly elected in Northumbria, at least thirteen are said to have ended their reigns by extraordinary means. In this confused history, at least one case, that of Alchred, stands out as a regular and formal act of deposition.2 In 755 the witan of Wessex deposed Sigeberht from the royal dignity and elected his relative Cynewulf in his stead. The Chronicle says: "This year, Cynewulf and the West Saxon witan deprived his kinsman Sigeberht of his kingdom, except Hampshire, for his unjust doings." Among the descendants of Ecgberht, at least two cases of deposition appear to have occurred. The of Eadwig; Mercians reject Eadwig, sever their kingdom from his, and then elect Eadgar as their king. Æthelred the Second was deposed in favor of his conqueror, and afterwards restored by the action of the witan.5 In many of the cases it is difficult to determine whether the throne was made vacant by a legal act of deposition, or through the results of conspiracy and civil war. of Sigeberht; of Æthel red. The judi the witan and the local courts. tive Teu 5. The German scholars have firmly established the fundamental historical principle, that the Teutonic race, in the earliest known period of its development, vested not only the All primi- political administration, but the administration of law, in an tonic courts expanding series of popular assemblies, composed of the freemen whose interests were directly involved. In the continental Teutonic state, the narrowest form of organization was represented by the mark, in whose assembly or markmoot the markmen met together to regulate all matters arising out of their peculiar system of village and agricultural life. If the markmen ever administered justice among them popular assemblies. 1 Stubbs, Const. Hist., vol. i. p. 137. 2 "Eodem tempore, Alcredus rex, consilio et consensu omnium suorum, regiæ familiæ principum destitutus societate, exilio imperii mutavit majestatem." Sim. Dun., a. 774. 8 E. Chron., a. 755; Flor. Wig., a. 755. The fullest account of this transaction is given by Henry of Huntingdon, Hist. Ang., lib. iv. 4 Flor. Wig., a. 957; Saxons in Eng., vol. ii. p. 221. 6 Freeman, Norm. Cong., vol. i. pp. 242-247. The action of the witan relates more clearly to Æthelred's restoration than to his expulsion. — V. S. Dunstani, p. 35; Flor. Wig., a. 1014; Stubbs, Const. Hist., vol. i. p. 139. 6 Cf. Essay on "The Anglo-Saxon Courts of Law," in Essays in A. S Law, p. I. selves it was in some period preceding the union of the village-communities in larger aggregates. In historical times the marks appear as members of the pagi or gás, the districts known in later times as hundreds.2 The hundred court of the Continent consisted of the regular and frequent meeting of all the freemen resident in the district; it was the court of law in which justice was ordinarily administered.3 The state assembly possessed the judicial power to hear and determine grave public offences. In the home-land, the or- In the home land, jusdinary administration of law was vested in the court of the tice adminpagus, gá, or hundred, the extraordinary, in the state assembly. The numberless petty states, in which the Teutonic dred court settlers originally grouped themselves in Britain, were exact assembly. reproductions, in every material particular, of the civitas of Cæsar and Tacitus.5 istered in the hun and state moot The mark appears in English history as the tun or town- The tunship, a corporate unity in whose members were vested the power of ordering their own local and domestic concerns. This power was exercised by the village assembly or tunmoot, which, in an independent township, consisted of all the alodial owners residing within it,-in a dependent one, of the body of tenants who had united in the formation of a villagecommunity upon the land of a lord. In the village assembly, possessed which could not have possessed more than quasi judicial judicial only quasi functions, resided the power to regulate all the internal affairs functions. of the township by the making of by-laws, a term which is said to mean laws enacted by a "by," as the township was called in the northern shires. The tun-moot elected its own officers, and also provided for the representation of its interests in the courts of the hundred and the shire, where the gerefa and four selectmen appeared for the township. In the "process of feudalization" the township finally becomes the manor of the lord; and the ancient jurisdiction of the tun-moot survives to this day in the parish vestry and in the manorial courts.7 1 See above, p. 104. 2 Essays in A. S. Law, p. 5. 8 Sohm, Altd. R.- u. G. Verf., i. 541. 4"Licet apud concilium accusare quoque et discrimen capitis intendere." -Tac., Germ., c. 12. See above, p. 124. 6 See above, p. 143. 7 Maine, Village - Communities, lecture v.; Digby, Law of Real Property, p. 43. |