The Witan participated in every act of govern. ment. eldest son of the last king, if of full age and not manifestly incompetent, was usually chosen to succeed his father. But at a period when the personal character and military prowess of the King were of the utmost importance, minorities were too dangerous to be endured. Thus Ethelred I., in 866, was chosen in preference to the issue of his elder brother; and at his own death in 871, leaving only young children, was himself succeeded by his younger brother Alfred. King Athelstan, again, though reputed illegitimate, was preferred in 925 to the younger but legitimate sons of Edward the Elder. In 946, Edwy, son of Edmund, was passed by in favour of his uncle Edred; but on Edred's death in 955 was elected to the exclusion of that king's issue. In 1042, Edward the Confessor was chosen in preference to the absent son of his elder brother Edmund Ironside. Finally, in 1066, the whole Royal house was passed by, and Earl Harold, the most able general and statesman of his time, was elected King. The race of Cerdic had once before been passed by, when, in 1017, Cnut was chosen King ; but this election, though good in form, was made under duress. A certain preference seems to have been given to the issue born after the accession of the father to the throne-the porphyrogeniti, sons born in the purple; and a certain preference was also acquired by the recommendation of the last king: thus Edgar recommended his son Edward to the Witan, and Edward the Confessor recommended Earl Harold. But on every fresh accession 'the great compact between the king and the people was literally, as well as symbolically, renewed, and the technical expression for ascending the throne is, being "gecoren and áhafen tó cyninge," elected and raised to be king; where the áhafen refers to the old Teutonic custom of what we still at election times call chairing the successful candidate; and the gecoren denotes the positive and foregone conclusion of a real election.'3 (3) The Witenagemot had a direct share in every act of government. In conjunction with the King, the Witan enacted laws and levied taxes for the public service; made alliances and treaties of peace ; raised land and sea forces when occasion demanded; made grants of folkland; appointed and deposed the bishops, ealdormen of shires, and other great officers of Church and State; adjudged the lands of offenders and intestates dying without heirs to be forfeit to the king; and authorised the enforcement of Ecclesiastical decrees. Lastly, the ་ 1 Illegitimacy, however, says Kemble, was not considered a valid ground of objection among the Anglo-Saxons, if the personal qualities of the prince were such as to recommend him.'-Saxons in England, ii. 37, n. 2 See Freeman, Norm. Conq. i. 118. Kemble, Saxons in England, ii. 215. Witan acted from time to time as a Supreme Court of Justice, both in civil and criminal causes.1 sive powers But although the powers of the Witan were so extensive, the active These extenexercise of them varied greatly with the personal character and not invariainfluence of each occupant of the throne. Strong kings, like Alfred bly exerted : and Athelstan, were able, by the legitimate exercise of personal influence, to lead the Witan in whatever direction they pleased, and thus to attain the practical enjoyment of supreme power. Towards the close of the pre-Norman period, many of the powers which had been originally shared by the King and the Witan, were in fact exercised by the King alone; but in the two cardinal matters of legis- except in legislat ion lation and the imposition of extraordinary taxation, the right of the and taxation. Witan to give counsel and consent was at all times recognised. system. The great original principle of the English Judicial system was Judicial that of trial in local courts popularly constituted, or as it was termed in later times, trial per pais, in the presence of the country, as opposed to a distant and unknown tribunal. This was at once an evidence of freedom and the surest guarantee for its permanence. But before describing the different local courts it is necessary to notice, shortly, the principle of pledges, by which provision was made that every man should be either personally forthcoming, or have some representative bound to answer for him, in every case of litigation. 1 See Kemble, Saxons in England, ii. 204-240, where numerous examples will Kemble's be found of the exercise by the Witan of all the powers enumerated in the text. Canons on These powers were grouped by him into the following twelve canons : the powers the Witan. i. First, and in general, they possessed a consultative voice, and right to consider every public act, which could be authorised by the King. ii. The Witan deliberated upon the making of new laws which were to be added to the existing folcriht, and which were then promulgated by their own and the King's authority. iii. The Witan had the power of making alliances and treaties of peace, and of settling their terms. iv. The Witan had the power of electing the King. v. The Witan had the power to depose the King, if his government was not conducted for the benefit of his people. vi. The King and the Witan had power to appoint to vacant sees. vii. They had also power to regulate ecclesiastical matters, appoint feasts and festivals, and decide upon the levy and expenditure of ecclesiastical revenue. viii. The King and the Witan had power to levy taxes for the public service. x. The Witan possessed the power of recommending, assenting to, and xi. The Witan possessed the power of adjudging the lands of offenders and intestates to be forfeit to the King. xii. Lastly, the Witan acted as a Supreme Court of Justice, both in civil and criminal causes.' The Frithbork, or Frank pledge. Responsibility of the Hlaford for his dependents. Courts of the The Hundred-u.oot. A collective responsibility for producing an offender appears originally to have lain upon the magth or community of the kindred ; ' it then devolved upon the voluntary associations called guilds: and later on the guild was superseded by the local responsibility of the tithing, the exact nature of which is doubtful, but which seems to have been a personal and territorial subdivision of the hundred practically identical with the township. Eventually, though probably not much earlier than the Norman Conquest, for the local tithing was substituted the personal collective Frithborh, or Frankpledge. Every freeman, not being a hlaford, was bound to be enrolled in a frith-borh, or tenmannetale as it was called in the North; that is, an association of ten men who formed a perpetual collective bail for the appearance of any one of their number when required to answer in a court of law. Each association had its head-man, the borhs-ealdor, or frith-borgehead, who was also called the tithing-man, as the body of ten was also called the tithing. If an accused member appeared and was condemned, he had to make reparation by his own property or by personal punishment; but if he fled from justice, the other members of the tithing, in default of exculpating themselves from all share in his crime or escape, were pecuniarily liable for the penalty. Side by side with the collective responsibility of the local community or of the personal association, was the individual responsibility of the hlaford for his men. By a law of Athelstan, every landless man was to have a lord to answer for his appearance; and by an ordinance of King Edgar it was enacted: 'Let every man so order that he have a "borh" [surety]; and let the "borh" then bring and hold him to every justice; and if any one then do wrong and run away, let the "borh" bear that which he ought to bear. But if it be a thief, and if he can get hold of him within twelve months, let him deliver him up to justice, and let be rendered unto him what he before had paid.'' The two principal local courts were those of the hundred and the shire. The Hundred court was held once a month, under the presidency of the hundred-man, or hundreds-ealdor.3 The judges of the court were originally the whole body of freeholders within the hundred; but, probably from motives of convenience, it soon became the custom to delegate the judicial powers of the whole body of suitors 1 Schmid notes, however (Ges. d. A.-Sachs.), that the wife did not enter her husband's mægth on marriage, but remained in her own, and her kindred alone made compensation. 2 Edgar's Ordinance of the Hundred, cap. 6. On the origin and nature of the Tithing and the Frithborh or Frank pledge-the subject of a great literature-see Stubbs, Sel. Chart. 68, and Const. Hist. i. 86-88. 3 Supra, p. 14. to a representative committee, generally twelve or some multiple of twelve in number, and either chosen for the occasion or permanently appointed. The Court of the Hundred exercised jurisdiction both civil and criminal, voluntary and contentious; and litigants were bound to seek justice in this court before applying to a higher tribunal. As the King was entitled to a wite, or fine, for every offence, his reeve was accustomed to attend the court twice in each year. On the institution of the frithborh or frankpledge, the hundred court, on the two yearly occasions when it was attended by the reeve, undertook the duty of seeing that every man was regularly enrolled in his tithing, a practice which continued long after the Norman Conquest as the Sheriff's Tourn, or Leet, and View of Frankpledge. From an early period certain districts within the hundred were Private detached from its jurisdiction and subjected to the socn of the Church jurisdictions. or of the secular hlafords to whom they belonged. Such districts formed private franchises or liberties, and the name 'sithesocna,' by which they were sometimes denoted, points to their origin in grants made by the King to his sith or gesith, and at a period before the title of gesith had been supplanted by that of thegn. The hlaford possessing a private soken over his lordship, or manor as it was subsequently termed, was wont to dispense justice in the hall of his mansion, whence his court was called a hall-mote, the progenitor of the feudal court-baron, which is not even now extinct. Sometimes the jurisdiction of a whole hundred, or of several hundreds, was granted to churches or private individuals. In this way the organisation of the hundred was considerably weakened, and the administration of justice became to a large extent not national or royal, but territorial and feudal. moot. The Scir-gemot, or, as it was called after the Norman Conquest, The Shirethe County Court, was not only the court of the shire, but also the Folc-gemot, the general assembly of the folk of the shire, a name which points to the original independence of the population of each shire. The shiremoot was convened by the sheriff twice in the year. 1 If the shire be the ancient under-kingdom, or the district whose administrative system is created in imitation of that of the under-kingdom, the shiremoot is the folkmoot in a double sense, not merely the popular court of the district, but the chief council of the ancient nation who possessed that district in independence, the witenagemot of the pre-heptarchic kingdom. Such a theory would imply the much greater preponderance of popular liberties in the earlier system, for the shiremoot is a representative assembly, which the historical witenagemot is not; and this is indeed natural, for the smaller the size of the districts and the more nearly equal the condition of the landowners or sharers in the common land, the more easy it would be to assemble the nation, and so much the less danger of the supreme authority falling into the hands of the king and the magistrates without reference to Procedure. Facts, how decided. Compurga. tion. It was attended by the Ealdorman, the Bishop, and all other public officers, by ail lords of lands, and by the representative reeve and four men and the parish priest from each township. These, collectively, formed the judges of the court; but as in the hundred, so in the shire, the twelve senior thegns acted as a body of councillors or assessors, and declared the report of the shire. The jurisdiction of the shiremoot extended to every kind of suit, except such as concerned a high officer of state, or a king's thegn, which were reserved for the King's immediate cognisance. But the shiremoot could not be resorted to until justice had first been sought and denied in the court of the hundred ; and on the same principle no appeals could be carried to the King, unless the shiremoot had previously failed to do justice. The court of the shire, though it gradually lost much of its importance after the Norman Conquest, especially after the institution of the justices itinerant, long continued to exercise an extensive civil jurisdiction in small causes, and remained the general assembly of all the freeholders of the shire for county purposes. As an instrument in limiting the power of the feudal aristocracy, it 'contributed in no small degree to fix the liberties of England upon a broad and popular basis.'' Nearly all the work of judicature consisted in the declaration of the law applicable to each case, as distinguished from the finding of the facts. The law was declared by the presiding magistrates-the ealdorman, or sheriff, and the bishop,-and the select body of assessors. The facts (except in a certain class of civil causes to be presently noticed) were decided either by compurgation or by ordeal. 1. The accused might clear himself by his own oath strengthened by the oaths of certain compurgators, usually twelve in number, and either his relatives or immediate neighbours, who testified to the trustworthiness of the person on whose behalf they came forward. The compurgators were in reality 'witnesses to character.' But the oaths of different men varied in legal value and credit according to the rank and property of the swearer. The oath of one ealdorman counterbalanced that of six thegns; the oath of one thegn that of twelve ceorls. If the accused were subject to a hlaford, the lord or his gerefa might offer to swear on behalf of the vassal. But if the testimony of the national voice. But this can only be matter of conjecture.'-Stubbs, Const. Hist. i. 116. 1 [This general participation of the Freeholders in the County Court of postNorman times down to t. Hen. III. has of late been denied by Mr. F. W. Maitland and Mr. J. H. Round, in Eng. Hist. Rev. 1889.-C.] 2 Hallam, Midd. Ages, ii. [277]. The system of Compurgation was common to all the Teutonic nations, but the number of compurgators required varied in the different nations. |