This sketch of the growth of the Thegnhood and its effects at once suggests the question, Did the Feudal System exist in England before the Norman Conquest? One might perhaps be allowed to answer this question by another, Did the Feudal System ever exist anywhere? In England, before the Norman Conquest, the Feudal System most certainly did not exist. There was no systematic feudalism, but the elements of feudalism were there. |Two elements of Feudalism;| Feudalism consists of two main elements; the feudal relation implies the union of two other relations. There is |the relation of the Comitatus and the holding of land by military service.| the personal relation of lord and vassal, lord and man,[121] bound together by mutual will and mutual fidelity, the one owing service, the other owing protection; there is in short the old Teutonic relation of the Comitatus, the relation of the Hlaford and his Thegn. But alongside of this, the feudal relation commonly implies the holding of land by military service. To grant land on such a tenure is in truth one form, one among several, of that bounty of the lord to his followers to which his very title of Hlaford is |Military tenures suggested by the relation of the Comitatus,| owing. The lord makes his follower a grant of land as the reward of past services, and he makes the continuation of those services the condition of his follower’s keeping the land so granted. But there can be no doubt that the tendency to this particular form of bounty was greatly strengthened by the example of the Roman practice of |and also by the Roman tenures on the frontier.| granting out frontier lands to be held by military service.[122] The holders of such lands held them of the Roman Republic, and to the Roman Republic their service was due. They stood in no personal relation to the Emperor; they were not his men, his vassals, his Gesiðas, his Thegns; their service was due to him only so far as he was the head and |The two elements united produce Feudalism.| representative of the commonwealth. But the union in the same person of the Teutonic tie of the Comitatus and the Roman tie of land held by military service would produce a relation coming very near to the strictly feudal relation. The Roman custom would easily suggest to the Teutonic conquerors the practice of rewarding their followers with grants of lands—in short with benefices or fiefs—as the most convenient and honourable form which the bounty of the lord could take. In Britain indeed, |Growth of Feudalism slower in England than on the Continent.| where Roman institutions were so utterly swept away, this influence would hardly exist; at any rate it would be far weaker than it was on the continent. Hence we find feudalism growing up far more slowly in England than in Gaul or even in Germany; in our old constitution we find the elements of feudalism; but they were not as yet worked into a systematic shape; they had not as yet become the materials of an elaborate jurisprudence. Homage was there; for the relation of every man to his lord was a relation of homage. Heriots too and other incidents of a feudal character already existed. But these feudal elements had not yet been wrought together into any harmonious feudal system. The Comitatus, the germ of feudalism, had thriven and developed and was now dominant; but the old Teutonic constitution had not been |Feudal elements strengthened by the Norman Conquest.| utterly wiped out. The Norman Conquest no doubt strongly tended to promote the further developement of the feudal element; but, as in every other case, it only opened and prepared the way for further changes.
The military service due from land held by a feudal tenure is strictly due to the lord as the lord. That lord may be the King; but if so, the service is still in strictness owing to him, not as head of the state, but as lord of the fief. But there is another obligation to military service which is older than this. All land in England was, by the earliest Common Law, subject to three burthens, to contributions to the three works most necessary for the defence of the country. These were the famous Trinoda Necessitas, the obligation to service in the field (fyrd) and to a share in the repairs of fortresses and of bridges.[123] But these are duties owed by the citizen to the commonwealth, or by the subject to the sovereign, not duties owed by a personal vassal to a personal lord. Land, in an age when there was little property except in land, is simply taken as the measure of the contribution due from each man to the common defence. From these burthens, as a rule, no land could be free; even church lands were regularly subject to them, though in some cases their owners contrived to obtain exemptions.[124] These ancient obligations pressed alike on the ancient allodial possession and on the land held by any more modern tenure. They were not feudal services, but a tax paid to the state. They were in fact the price paid to the commonwealth for the protection which it gave; or rather they were the share which each member of the commonwealth was bound to take in the protection of himself and his neighbours.
I have already mentioned the folkland, the common land of the community or of the nation, out of which the ancient allodial possessions were carved. This process of turning public property into private went on largely in later times. The alienation was now commonly made by a document in writing, under the signatures of the King and his Witan; land so granted was therefore said to be booked to the grantee, and was known as bookland. Portions of the folkland were thus cut off from the public ownership, and were booked to private individuals or corporations. The greater number of the existing ancient charters consists of grants of this kind. |Conversion of Folkland into Bookland in favour of the Church and of the King’s Thegns.| A vast number are of course in favour of the Church, but those which are made to the King’s faithful Thegns are hardly less common. In either case portions of the folkland are alienated, booked, to private use with the consent of the Witan. The booking might of course be made on any terms; any sort of tenure might be created; but the great object of the grantee was to get the land on the same terms as an ancient eðel, subject only to the three burthens, which not even the most favoured Thegn, hardly the most favoured churchman, could hope to escape.[125]
The folkland, the common property of the state, was of course at the disposal of the state, and of the state only. It was granted by the King, but only by the consent and authority of his Witan. That is to say, in modern language, the change of folkland into bookland required an Act of Parliament, but acts to that effect were passed constantly and without difficulty. The folkland belonged to the nation and not to the King. The King was only its chief administrator, enjoying its use, so far as he enjoyed it, only as the head and representative of the nation. |The King’s private estate.| But the King, like any other man, had his private estate. Like any other man, he might have his ancient allodial property, or he might, like any other man, have land booked to him, land which followed the ordinary course of legal succession or testamentary disposal.[126] It was indeed needful that the King should have such private possessions; for, in our ancient elective monarchy, the reigning King had no certainty that the crown, and the possessions attached to the crown, would ever pass to |Folkland passes into Terra Regis,| his descendants. But after the Norman Conquest, as the royal power increased, and as the modern notion of hereditary right was gradually developed, these two kinds of possession got confounded. On the one hand, the nation was forgotten or merged in the person of its chief; the folkland was held to be the King’s land, Terra Regis; the King was led to look on the possessions of the nation as his own, and to grant them away at his own pleasure without the consent of Parliament. On the other hand, lawyers brought in the strange doctrine that the King could hold no private property, but that, on his accession to the crown, his private estate was merged in what was now held to be the royal domain. By one of those curious cycles which so often come round in human affairs, both these wrongs have been redressed, one formally, the other practically. Our modern Kings have recovered the ancient right, common to them with other men, of inheriting, purchasing, and bequeathing |and becomes Folkland again.| private estates. On the other hand, now that the royal domain is given up to the nation to be controlled by Parliament, it is practically brought back to its ancient condition of folkland. That is to say, after so many centuries of usurpation, the land of which the Kings had defrauded the nation has come back to its lawful owners.[127]
By these various means the old system of free Teutonic communities gradually died out in England, as it died out in all parts of the continent save one. It lingered in Friesland till the fifteenth century;[128] in the primitive Switzerland it lingers still. Everywhere else it has utterly |It yields in England to a real national monarchy, in Germany to the dominion of petty princes.| vanished, or has left only such faint traces as it has left among ourselves. But England did not suffer from the change as Germany did. Our free marks and shires gradually gave way, but they gave way before the developement of a real national life, before the establishment of a really national sovereignty. But in Germany local freedom was rooted out, not in favour either of the nation or of its sovereign, but for the advantage of that crowd of princes, great and small, which were for ages the curse of the land. The free communities of Germany vanished; but the German nation gained nothing, the German King gained nothing; the liberties and rights alike of the King, of the nation, and of the local communities, were confiscated to the profit of a brood of petty despots. The constitution which Tacitus saw and wondered at, the constitution for which Arminius fought and conquered, the constitution whose working may still be seen year by year in the free air of Uri and Appenzell, gave way in the great Teutonic realm to the dominion of princes who represented nothing but themselves, who embodied no national or provincial being, who were the mere creation of modern dynastic and diplomatic arrangements,—arrangements which did their best to wipe out every historic name and every national memory, and to assign to each of their princely creatures an arbitrary extent of dominion traced out at haphazard upon the map.[129] Such was the fate of the Teutonic mainland; such was not the fate of the Teutonic island. The uprooting of the old free communities, the growth of the power of the King and of his Thegns, no doubt tended in England, as elsewhere, to the degradation, at least for a while, of the lowest class of |Ceorldom sinks into Villainage, but the Villains are gradually emancipated.| freemen. The ceorl was fast sinking into the villain. Still, even in the worst times, enough of the old spirit remained in our laws to give the villain those means of obtaining enfranchisement which gradually did enfranchise the whole class, without the institution of villainage ever being formally done away with. And the uprooting of the old |Change of the old constitution necessary.| communities was needful, if England was ever to become a great and united nation. We must remember that the kingdom, like all our ancient divisions, from the shire, perhaps from the hundred, upwards, was formed by the aggregation of smaller divisions.[130] The unit is the mark, roughly represented by the modern parish or manor. The shire must not be looked on as a division of the kingdom,[131] nor the hundred or the mark as a division of the shire. |Shires formed out of Marks, and Kingdoms out of Shires.| The hundred is in truth formed by an aggregation of marks, the shire by an aggregation of hundreds, the kingdom by an aggregation of shires. The aggregation of marks into shires is indeed mainly to be inferred from local nomenclature and from the analogy of other Teutonic countries; but the aggregation of shires into kingdoms is |The Mark-system probably less perfect in England than elsewhere.| matter of recorded history. It is even possible that the circumstances of the English Conquest of Britain may have hindered the mark from ever possessing the same amount of independence in England which it possessed in the older Teutonic lands. When every English settlement had to defend itself, and if possible to extend itself, in the teeth of a hostile Welsh population, the different settlements must have kept up a very close union; there must have been from the beginning, if not centralization, yet at any rate something like federation. The first followers of Cerdic no doubt settled themselves in marks, forming self-governing communities; but all must have held themselves ready to march at Cerdic’s bidding, whenever it was needful to repel an inroad of the Welsh, whenever things promised well for a fresh inroad upon them. Still such communities, the mark and the shire, however dependent externally on some central authority, were doubtless internally self-governed from the beginning. We have already seen[132] how shires, ruled each one by its own Ealdorman, came together into kingdoms under a single |Formation of the greater Kingdoms.| King. We have seen also that the nature of the process differed in different parts of the country, that in Mercia, for instance, wholly independent states were thus brought into union, while in Wessex, though there were many Ealdormen and even many Kings, there was still a certain unity from the first. There was always a head King of the West-Saxons, and all the Under-kings were most likely Æthelings of the blood of Cerdic. Gradually the connexion became closer, the process no doubt being quicker in Wessex than in Mercia or Northumberland. The head King became the only King, the only independent executive; and the assembly of his Witan became the only independent legislature. In place of Kings, independent or dependent, the shires received Ealdormen, named by the King and his Witan, and liable to be removed by |Process of amalgamation; royal officers in the Shires.| them. The folkland of the shire became the folkland of the whole kingdom. A crowd of royal officers[133] of various ranks, whose main duty was to look after the royal interests, were scattered over all parts of the country. The Ealdorman still remained, the shadow of ancient kingship, and so far the representative of local independence. But beside him arose a new officer, the Scírgerefa, Shirereeve, or Sheriff, the immediate officer of the King, the agent of the central authority, the representative of the dependence of each local division on the common King and Assembly of the nation. Once the shires were the units, out of the union of which the kingdom was formed; now the kingdom forms a new whole, of which the shires have sunk to be mere administrative divisions. In Mercia we have seen[134] that, after the Danish conquest, the country was artificially mapped out again into fresh shires, which must have been felt to be still more completely mere administrative divisions than those West-Saxon shires which had once been separate principalities.
By these means those great kingdoms were formed which produced Bretwaldas and which strove for the supremacy of Britain. Each stage of union increased the kingly power; each stage lessened the independence of local communities and lessened the importance of their |Democratic constitution of the old Assemblies.| individual members. The democratic character of the old Teutonic system contained the seeds of its own destruction, whenever it should be applied to districts of any great extent. We may be sure that every Teutonic freeman had |The Assembly of the Mark,| a voice in the assembly—the Gemót, the Gemeinde, the Ekklêsia—of his own mark. In fact he in some sort keeps it still, as holding his place in the parish vestry. He had a voice; it might be too much to say that he had a vote; for in an early state of things formal divisions are not likely to be often taken; the temper of the assembly is found out by easier means. But the man who clashed his arms to express approval, or who joined in the unmistakeable sound which expressed dissent,[135] practically gave as efficient a vote as if he had solemnly walked out into a lobby. The Homeric Agorê is the type of every such assembly, and the likeness of the Homeric Agorê may |of the Shire.| be seen in an English county-meeting to this day.[136] The voice which the simple freeman, the ceorl, had in the assembly of his mark, he would not lose in the assembly of his shire, the Scirgemót. The county court is to this |The right becomes less valuable with each extension of area.| day an assembly of all the freeholders of the shire.[137] But the right of attending the assembly of the shire would become really less valuable than the right of attending the assembly of the mark. The larger the assembly, the more distant the place of meeting, the more difficult, and therefore the more rare, does the attendance of individual members become, and the smaller is the importance of each individual member when he gets there. We cannot doubt that the assemblies of the mark, of the shire, and of the kingdom all went on side by side: but at each stage of union the competence of the inferior assembly |Every freeman had a theoretical right to attend the National Assembly.| would be narrowed. We cannot doubt that every freeman kept in theory the right of appearing in the assembly of the kingdom, no less than in the assemblies of the mark and of the shire. Expressions are found which are quite enough to show that the mass of the people were theoretically looked on as present in the national assembly and as consenting to its decrees.[138] But such a right of |The right goes practically out of use.| attendance necessarily became a mere name. The mass of the people could not attend; they would not care to attend, they would find themselves of no account if they did attend. They would therefore, without any formal abrogation of their right, gradually cease from attending. The idea of representation had not yet arisen; those who did not appear in person had no means of appearing by deputy; of election or delegation there is not the slightest trace, though it might often happen that those who stayed away might feel that their rich or official neighbour who went would attend to their wishes and would fairly act in their interests. By this process an originally democratic assembly, without any formal exclusion of any class of its members, gradually shrank up into an aristocratic assembly. I trust that I have shown in another work[139] how, under closely analogous circumstances, the Federal Assembly of Achaia, legally open to every Achaian citizen, was commonly attended only by those who were both rich and zealous, and how it often happened that the members of the inner body, the Senate, themselves alone formed the |The Assembly practically an Assembly of the King’s Thegns.| assembly. In the same way, an assembly of all the freemen of Wessex, when those freemen could not attend personally and when they had no means of attending by representatives, gradually changed into an assembly attended by few or none but the King’s Thegns. The great officers of Church and State, Ealdormen, Bishops, Abbots, would attend; the ordinary Thegns would attend more laxly, but still in considerable numbers; the King would preside; a few leading men would discuss; the general mass of the Thegns, whether they formally voted or not, would make their approval or disapproval practically felt; |Vestiges of the old popular rights.| no doubt the form still remained of at least announcing the resolutions taken to any of the ordinary freemen whom curiosity had drawn to the spot; most likely the form still remained of demanding their ceremonial assent, though without any fear that the habitual “Yea, yea,” would ever be exchanged for “Nay, nay.”[140] It is thus that, in the absence of representation, a democratic franchise, as applied to a large country, gradually becomes unreal or delusive. |Primary Assemblies suited only to small commonwealths.| A primary assembly, an Ekklêsia, a Landesgemeinde, is an excellent institution in a commonwealth so small as to allow of its being really worked with effect. But in any large community it either becomes a tumultuous mob, like the later Roman Comitia or the Florentine Parliament, or else it gradually shrinks up into an aristocratic body, as the old Teutonic assemblies did both in England and on the continent. When the great statesmen of the thirteenth century, Earl Simon and King Edward, fully established the principle of representation, they did but |The Ancient right restored in another shape in the thirteenth century.| bring back the old state of things in another shape. The ordinary freeman had gradually lost his right of personal attendance in the national assembly; it was inexpedient and impossible to restore that right to him in its original shape; he may be looked on as having in the thirteenth century legally surrendered it, and as having received in its stead the far more practical right of attending by his representatives.
Thus was formed that famous assembly of our forefathers, called by various names, the Mycel Gemót or Great Meeting, the Witenagemót[141] or Meeting of the Wise, sometimes the Mycel Getheaht or Great Thought.[142] |The Witenagemót.| But the common title of those who compose it is simply the Witan, the Sapientes or Wise Men. In every English kingdom we find the royal power narrowly limited by the necessity under which the King lay of acting in all matters of importance by the consent and authority of his Witan, in other words, of his Parliament. |The Gemót of Wessex becomes the general Legislature, those, of the other kingdoms surviving as local bodies.| As the other kingdoms merged in Wessex, the Witan of the other kingdoms became entitled to seats in the Gemót of Wessex, now become the common Gemót of the Empire. But just as in the case of the assemblies of the mark and the shire, so the Gemóts of the other Kingdoms seem to have gone on as local bodies, dealing with local affairs, and perhaps giving a formal assent to the resolutions of the central body.[143] |Lack of information as to the constitution of the Assembly.| As to the constitution of these great councils in any English kingdom our information is of the vaguest kind. The members are always spoken of in the loosest way. We find the Witan constantly assembling, constantly passing laws, but we find no law prescribing or defining the constitution of the assembly itself. We find no trace of representation or election; we find no trace of any property qualification;[144] we find no trace of nomination by the crown, except in so far as all the great officers of the court and the kingdom were constantly present. On the other hand we have seen that all the leading men, Ealdormen, Bishops, Abbots, and a considerable body of other Thegns, did attend; we have seen that the people as a body had in some way a share in the legislative acts of their chiefs, that those acts were in some sort the acts of the people themselves, to which they had themselves assented, and were not merely the edicts of superiors which they had to obey. There is no doubt that, on some particular occasions, some classes at least of the people did actually take a part in the proceedings of the national council; thus the citizens of London are more than once recorded to have taken a share in the election of Kings.[145] No theory that I know of will explain all these phænomena except that which I have just tried to draw out. This is, that every freeman had an abstract right to be present, but that any actual share in the proceedings of the assembly had, gradually and imperceptibly, come to be confined to the leading men, to the King’s Thegns, strengthened, under peculiarly favourable circumstances, by the presence of exceptional classes of freemen, like the London citizens.[146] It is therefore utterly vain for any political party to try to press the supposed constitution of our ancient national councils into the service |The Witenagemót proves nothing in modern political controversies.| of modern political warfare. The Meeting of the Wise has not a word to utter for or against any possible Reform Bill. In one sense it was more democratic than anything that the most advanced Liberal would dare to dream of; in another sense it was more oligarchic than anything that the most unbending Conservative would dare to defend. Yet it may in practice have fairly represented the wishes of the nation; and if so, no people ever enjoyed more complete political freedom, than the English did in these early times. |Extent of the powers of the Assembly; greater than those of a modern Parliament.| For the powers of the ancient Witenagemót[147] surpassed beyond all measure the powers which our written law vests in a modern Parliament. In some respects they surpassed the powers which our conventional constitution vests in a modern House of Commons. The King could do absolutely nothing without the consent of his Wise Men. First of all, it was from them that he derived his political being, and it was on them that he depended for its continuance. The Witan chose the King and the |Power of deposing the King.| Witan could depose him. The power of deposition is a power which, from its very nature, can be exercised but rarely; we therefore do not find many Kings deposed by Act of Parliament either before or since the Norman Conquest. But we do find instances, both before and since the Norman Conquest, which show that, by the ancient constitution of England, the Witan of the land did possess the right of deposing the sovereign, and that on great and emergent occasions they did not shrink from exercising that right. I will not attempt to grapple with the confused history of Northumberland, where at one time Kings were set up |Instances in Northumberland;| and put down almost daily. Such revolutions were doubtless as much the result of force as of any legal process; still we can hardly doubt that the legal forms were commonly observed, and sometimes we find it distinctly recorded that they were. Let us keep ourselves to the more certain history of the line of Cerdic. Five times—we |in Wessex.| might more truly say six times—thrice before and twice since the Norman Conquest, has the King of the West-Saxons or of the English been deprived of his |Sigeberht. 755.| kingly office by the voice of his Parliament.[148] Sigeberht of Wessex, in the eighth century, was deposed by the vote of the general assembly of his kingdom, and another King |Æthelred deposed, 1013; restored, 1014.| was elected in his stead. Æthelred the Second was deposed by one act of the Legislature and restored by another. Harthacnut, in the like sort, was deposed, while still uncrowned, from his West-Saxon kingdom, though he |Harthacnut deposed, 1037; re-elected, 1040.| was afterwards re-elected to the whole kingdom of England. |Edward the Second deposed, 1327; Richard the Second, 1377.| Edward the Second was deposed by Parliament; so was Richard the Second. At a later time the Parliament |Case of James the Second.| of England shrank from the formal deposition of James the Second, and took refuge in a theory of abdication which, though logically absurd, practically did all that was wanted. But the Parliament of Scotland had no such scruples, and that body, in full conformity with ancient examples, declared the crown of Scotland to be forfeited. In a land where everything goes by precedent, a right resting on a tradition like this, though its actual exercise may have taken place only five or six times in nine hundred years, is surely as well established as any other. Under our modern constitution the right is likely to remain dormant. The objects which in past times required the deposition of the King, if not from his office, at least from his authority, can now be gained by a parliamentary censure of the Prime Minister, or in the extremest case by bringing an impeachment against him.
If the Witan could depose the King, still more undoubtedly did the Witan elect the King.[149] It is strange how people’s eyes are blinded on this subject. It is not uncommon to hear people talk about the times before and shortly after the Norman Conquest as if the Act for the Settlement of the Royal Succession had already been in force in those days. It is strange to hear a number of princes, both before and since the Conquest, popularly spoken of as “usurpers,” merely because they came to the crown in a different way from that which modern law and |Popular misconceptions on this subject.| custom prescribe. It is strange that people who talk in this way commonly forget that their own principle, so far as it proves anything, proves a great deal more than they intend. If Harold, Stephen, John, were usurpers, Ælfred and Eadward the Confessor were usurpers just as much. Ælfred and Eadward, no less than John, succeeded by election, to the exclusion of nephews whom the modern law of England would look upon as the undoubted heirs of the crown. It is stranger still to hear others talk as if hereditary succession, according to some particular theory of it, was a divine and eternal law which could not be departed from without sin. Those who talk in this way should at least tell us what the divine and unchangeable law of succession is; for in a purely historical view of things, nearly every kingdom seems to have a law of succession of its own. Our forefathers at any rate knew nothing of any such superstitions. The ancient English kingship was elective. It was elective in the same sense in which all the old Teutonic kingdoms were elective. Among a people in whose eyes birth was highly valued, it was deemed fitting that the King should be the descendant of illustrious and royal forefathers. In the days of heathendom it was held that the King should come of the supposed |Kings commonly chosen out of a particular family.| stock of the Gods. Thus in every kingdom there was a kingly house, out of which alone, under all ordinary circumstances, Kings were chosen; but within that kingly house the Witan of the land had a free choice. The |The eldest son of the last King has a preference, but no more.| eldest son of the last King would doubtless always have a preference; if he was himself at all worthy of the place, if his father’s memory was at all cherished, he would commonly be preferred without hesitation, probably chosen without the appearance of any other candidate. But a preference was all to which he was entitled, and he seems not to have been entitled even to a preference unless he |Minors constantly passed by.| was actually the son of a crowned King.[150] If he were too young, or otherwise disqualified, the electors passed him by and chose some worthier member of the royal family. Ælfred and Eadred were chosen in preference to the minor sons of elder brothers. Eadward the Confessor was chosen in preference to the absent son of an elder brother. At the death of Eadgar, when the royal family contained only minors to choose from, the electors were divided between the elder and the younger brother. Minors who had been once passed by might or might not be elected at a later vacancy. Æthelwold, the son of Æthelred the First, who had been passed by in favour of his uncle Ælfred, was again passed by on Ælfred’s death, because no claim could compare with that of Eadward, the worthy son of the most glorious of fathers. The children of Eadmund were passed by in favour of their uncle Eadred, but on Eadred’s death the |A certain preference acquired by the recommendation of the last King.| choice fell on the formerly excluded Eadwig. And as a certain preference was acquired by birth, a certain preference was acquired by the recommendation of the late King. So Eadgar recommended his elder son Eadward to the electors; so Eadward the Confessor recommended Harold. Æthelwulf had long before attempted, by the help of a will confirmed by the Witan, to establish a peculiar law of succession, which soon broke down.[151] But it is clear that a certain importance was attached to the wishes of a deceased and respected King, as conveying a distinct preference. But it conveyed nothing more than a preference; the person who enjoyed such preference, whether by birth or by nomination, could still be passed by without breach of constitutional right. From these principles it follows that, as any disqualified person in the kingly house might be passed by, so, if the whole house were disqualified, the whole house might be passed by. |Harold the son of Godwine lawfully chosen.| That is to say, the election of Harold the son of Godwine, the central point of this history, was perfectly good in every point of view. The earlier election of Cnut was |Cnut’s election good in form, but made under duresse.| equally good in point of form; only it was an election under duresse—duresse a little, but not much, stronger than that under which an English Chapter elects its Bishop.
An ancient English King then was, not the father of his people, but their child, their creation. And the assembly which had elected him, and which could depose him, claimed to direct him by its advice and authority |Direct share of the Witan in every branch of government.| in almost every exercise of the kingly power. Every act of government of any importance was done, not by the King alone, but by the King and his Witan. The Great Council of the nation took an active share even in those branches of government which modern constitutional theories mark out as the special domain of the Executive. That laws were ordained, and taxes imposed,[152] by the authority of the Witan, that they sat as the highest court for the trial of exalted and dangerous offenders, is only what we should look for from the analogy of modern times. It is more important to find that the King and his Witan, and not the King alone, concluded treaties, made grants of folkland, ordained the assemblage of fleets and armies, appointed and deposed the great officers of Church and State. Of the exercise of all these powers by the assembled Witan we shall find abundant examples in the course of this history. Now these are the very powers which a modern House of Commons shrinks from |Difference between the direct and indirect action of Parliament.| directly exercising. These are the powers which, under our present system, Parliament prefers to entrust to ministers in whom it has confidence, ministers whom it virtually appoints, and whom it can virtually dismiss without any formal ceremony of deposition. And, in our present state of things, little or no harm, and some direct good, comes from Parliament preferring an indirect course of action |Direct action necessary in early times.| on these subjects. But in an earlier state of things, a more direct agency of the Parliament or other national assembly is absolutely necessary. The assembly has to deal, not with a ministry whom it can create and destroy without any formal action, but with a personal King, whom it has indeed elected and whom it can depose, but whose election and deposition are solemn national acts, his deposition indeed being the rarest and most extreme of all national acts. In such a state of things the power of the King may be strictly limited by law; but, within the limits which the law prescribes to him, he acts according to his own will and pleasure, or according to the advice of counsellors who are purely of his own choosing. In such a state of things the King and the nation are brought face to face, and it is needful that the national assembly should have a much more direct control over affairs than is at all needful when the ingenious device of a responsible ministry is interposed between King and Parliament. Long after the days of our ancient Witenagemóts, in the days of Edward the Third for instance, Parliament was consulted about wars and negotiations in a much more direct way than it is now. The control of Parliament over the Executive is certainly not less effective now than it was then; but the nature of our present system makes it desirable that the control of Parliament should be exercised in a less direct way than it was then. Our present system avoids, above all things, all possibility of direct personal collision between Parliament and the sovereign. But such direct personal collisions form the staple of English history from the thirteenth century onwards. In earlier times we seldom come across any record of the debates of our national councils, though we often know their determinations. How far such collisions commonly took place in early times[153] we have but small means of knowing. They were perhaps less to be looked for in the tenth or eleventh century than in the thirteenth or fourteenth. In the later times the King had to deal with his Parliament as with something external to himself, something which laid petitions before him which he could accept or reject at pleasure. A struggle in those days was a struggle between the King and an united Parliament. Nowadays, as we all know, the struggle takes place within the walls of Parliament itself. But we can well believe that, in this respect as in so many others, the earliest times were really more like our own |Joint action of the King and the Witan.| than the intermediate centuries were. An ancient Witenagemót did not petition; it decreed; it confirmed the acts of the King which, without the assent of the Witan, had no validity; it was not a body external to the King, but a body of which the King was the head in a much more direct sense than he could be said to be the head of a later mediæval Parliament. The King and his Witan acted together; the King could do nothing without the Witan, and the Witan could do nothing without the King; they were no external, half-hostile, body; they were his own council, surrounding and advising him. Direct collisions between the King on the one hand and an united Gemót on the other were not likely to be common. And as to the great powers of the Witenagemót, as to its direct participation in all important acts of government, there can be no doubt. They are legibly |Diminution of parliamentary action after the Conquest.| written in every page of our early history. The vast increase of the power of the crown after the Norman Conquest, the gradual growth of a systematic feudal jurisprudence, did much to lessen the authority and dignity of the national councils. The idea of a nation and its chief, of a King and his counsellors, almost died away; the King became half despot, half mere feudal lord. England was never without national assemblies of some kind or other; but from the Conquest in the eleventh century till the second birth of freedom in the thirteenth, our national assemblies do not stand out in the same distinct and living shape in which they stand out both in earlier |The old freedom won back in the thirteenth century.| and in later times. Here again we owe our thanks to those illustrious worthies, from the authors of the Great Charter onwards, who, in so many ways, won back for us our ancient constitution in another shape. I have said that no political party can draw any support for its own peculiar theories from that obscurest of subjects, the constitution of the Witenagemót. But no lover of our old historic freedom can see without delight how venerable a thing that freedom is, how vast and how ancient are the rights and powers of an English Parliament. Our ancient Gemóts enjoyed every power of a modern Parliament, together with some powers which modern Parliaments shrink from claiming. Even such a matter of detail as the special security granted to the persons of members of the two Houses has been traced, and not without a show of probability, to an enactment which stands at the very front of English secular jurisprudence, the second among the laws ordained by our first Christian King and the Witan of his kingdom of Kent.[154]