The Growth of the English Constitution

47

At this time of day I suppose it is hardly necessary to prove the elective character of Old-English kingship. I have said what I have to say about it in Norman Conquest, i. 106, 596. But I may quote one most remarkable passage from the report made in 787 to Pope Hadrian the First by George and Theophylact, his Legates in England (Haddan and Stubbs, Councils and Ecclesiastical Documents, iii. 453). “Sanximus ut in ordinatione Regum nullus permittat pravorum prævalere assensum: sed legitime Reges a sacerdotibus et senioribus populi eligantur.” One would like to know who the “pravi” here denounced were. The passage sounds very like a narrowing of the franchise or some other interference with freedom of election, but in any case it bears witness to the elective character of our ancient kingship, and to the general popular character of the constitution.

48

I have described the powers of the Witan, as I understand them and as they were understood by Mr. Kemble, at vol. i. p. 108 of the History of the Norman Conquest and in some of the Appendices to that volume. With regard to the powers of the Witan, I find no difference between my own views and those of Professor Stubbs in the Introductory Sketch to his Select Charters (p. 11), where the relations between the King and the Witan, and the general character of our ancient constitution, are set forth with wonderful power and clearness. But I find Mr. Stubbs and myself differing altogether as to the constitution of the Witenagemót. I look upon it as an Assembly of the whole kingdom, after the type of the smaller assemblies of the shire and other lesser divisions. Mr. Stubbs fully admits the popular character of the smaller assemblies, but denies any such character to the national gathering. It is dangerous to set oneself up against the greatest master of English constitutional history, but I must ask the reader to weigh what I say in note Q in the Appendix to my first volume.

49

I have collected some of the instances of deposition in Northumberland in the note following that on the constitution of the Witenagemót. (Norman Conquest, i. 593.) It is not at all unlikely that the report of George and Theophylact quoted above may have a special reference to the frequent changes among the Northumbrian Kings.

50

I have mentioned all the instances at vol. i. p. 105 of the Norman Conquest: Sigeberht, Æthelred, Harthacnut, Edward the Second, Richard the Second, James the Second. It is remarkable that nearly all are the second of their respective names; for, besides Æthelred, Edward, Richard, and James, Harthacnut might fairly be called Cnut the Second.

51

Tacitus, De Moribus Germaniæ, 13, 14: – “Nec rubor inter comites adspici. Gradus quinetiam et ipse comitatus habet, judicio ejus quem sectantur; magnaque et comitum æmulatio quibus primus apud Principem suum locus; et Principum cui plurimi et acerrimi comites… Quum ventum in aciem, turpe Principi virtute vinci, turpe comitatui virtutem Principis non adæquare. Jam vero infame in omnem vitam ac probrosum, superstitem Principi suo ex acie recessisse. Illum defendere, tueri, sua quoque fortia facta gloriæ ejus adsignare, præcipuum sacramentum est. Principes pro victoria pugnant; comites pro Principe.” See Allen, Royal Prerogative, 142.

52

The original text of the Song of Maldon will be found in Thorpe’s Analecta Anglo-Saxonica. My extracts are made from the modern English version which I attempted in my Old-English History, p. 192. I went on the principle of altering the Old-English text no more than was actually necessary to make it intelligible. When a word has altogether dropped out of our modern language, I have of course changed it; when a word is still in use, in however different a sense, I have kept it. Many words which were anciently used in a physical sense are now used only metaphorically; thus “cringe” is used in one of the extracts in its primary meaning of bowing or falling down, and therefore of dying.

53

The history of the Roman clientship is another of those points on which legend and history and ingenious modern speculation all come to much the same, as far as our present purpose is concerned. Whether the clients were the same as the plebs or not, at any rate no patricians entered into the client relation, and this at once supplies the contrast with Teutonic institutions.

54

The title of dominus, implying a master of slaves, was always refused by the early Emperors. This is recorded of Augustus by Suetonius (Aug. 53) and Dion (lv. 12), and still more distinctly of Tiberius (Suetonius, Tib. 27; Dion, lvii. 8). Tiberius also refused the title of Imperator, except in its strictly military sense: οὔτε γὰρ δεσπότην ἑαυτὸν τοῖς ἐλευθέροις οὔτε αὐτοκράτορα πλὴν τοῖς στρατιώταις καλεῖν ἐφίει. Caius is said (Aurelius Victor, Cæs. xxxix. 4) to have been called dominus, and there is no doubt about Domitian (Suetonius, Dom. 13; Dion, lxvii. 13, where see Reimar’s Note). Pliny in his letters constantly addresses Trajan as dominus; yet in his Panegyric(45) he draws the marked distinction: “Scis, ut sunt diversa natura dominatio et principatus, ita non aliis esse principem gratiorem quam qui maxime dominum graventur.” This marks the return to older feelings and customs under Trajan. The final and formal establishment of the title seems to have come in with the introduction of Eastern ceremonies under Diocletian (see the passage already referred to in Aurelius Victor). It is freely used by the later Panegyrists, as for instance Eumenius, iv. 21, v. 13: “Domine Constanti,” “Domine Maximiane, Imperator æterne,” and so forth.

55

Vitellius (Tac. Hist. i. 58) was the first to employ Roman knights in offices hitherto always filled by freedmen; but the system was not fully established till the time of Hadrian (Spartianus, Hadrian, 22).

56

See Norman Conquest, i. 89, 587, and the passages here quoted.

57

Both hlàford and hlæfdige (Lord and Lady) are very puzzling words as to the origin of their later syllables. It is enough for my purpose if the connexion of the first syllable with hlàf be allowed. Different as is the origin of the two words, hlàford always translates dominus. The French seigneur, and the corresponding forms in Italian and Spanish, come from the Latin senior, used as equivalent to dominus. This is one of the large class of words which are analogous to our Ealdorman.

58

This is fully treated by Palgrave, English Commonwealth, i. 350, 495, 505.

59

On the change from the alod, odal, or eðel, a man’s very own property, to the land held of a lord, see Hallam, Middle Ages, i. 113.

60

See Norman Conquest, i. 85-88. I have there chiefly followed Mr. Kemble in his chapter on the Noble by Service, Saxons in England, i. 162.

61

See the whole history and meaning of the word in the article þegen in Schmid’s Glossary.

62

See Norman Conquest, i. 89.

63

Barbour, Bruce, i. 224:

“A! fredome is A noble thing.”

So said Herodotus (v. 78) long before:

ἡ ἰσηγορίη ὡς ἔστι χρῆμα σπουδαῖον.

64

In the great poetical manifesto of the patriotic party in Henry the Third’s reign, printed in Wright’s Political Songs of England (Camden Society, 1839), there seems to be no demand whatever for new laws, but only for the declaration and observance of the old. Thus, the passage which I have chosen for one of my mottoes runs on thus: —

“Igitur communitas regni consulatur;

Et quid universitas sentiat sciatur,

Cui leges propriæ maxime sunt notæ.

Nec cuncti provinciæ sic sunt idiotæ,

Quin sciant plus cæteris regni sui mores,

Quos relinquant posteris hii qui sunt priores.

Qui reguntur legibus magis ipsas sciunt;

Quorum sunt in usibus plus periti fiunt;

Et quia res agitur sua, plus curabunt,

Et quo pax adquiritur sibi procurabunt.”

65

On the renewal of the Laws of Eadward by William, see Norman Conquest, iv. 324. Stubbs, Documents, 25. It should be marked that the Laws of Eadward were again confirmed by Henry the First (see Stubbs, 90-99), and, as the Great Charter grew out of the Charter of Henry the First produced by Archbishop Stephen Langton in 1213, the descent of the Charter from the Laws of Eadward is very simple. See Roger of Wendover, iii. 263 (ed. Coxe). The Primate there distinctly says that he had made John swear to renew the Laws of Eadward. “Audistis quomodo, tempore quo apud Wintoniam Regem absolvi, ipsum jurare compulerim, quod leges iniquas destrueret et leges bonas, videlicet leges Eadwardi, revocaret et in regno faceret ab omnibus observari.” It must be remembered that the phrase of the Laws of Eadward or of any other King does not really mean a code of laws of that King’s drawing up, but simply the way of administering the Law, and the general political condition, which existed in that King’s reign. This is all that would be meant by the renewal of the Laws of Eadward in William’s time. It simply meant that William was to rule as his English predecessors had ruled before him. But, by the time of John, men had no doubt begun to look on the now canonized Eadward as a lawgiver, and to fancy that there was an actual code of laws of his to be put in force.

On the various confirmations of the Great Charter, see Hallam, Middle Ages, ii. 111.

66

Macaulay, ii. 660. “When they were told that there was no precedent for declaring the throne vacant, they produced from among the records of the Tower a roll of parchment, near three hundred years old, on which, in quaint characters and barbarous Latin, it was recorded that the Estates of the Realm had declared vacant the throne of a perfidious and tyrannical Plantagenet.” See more at large in the debate of the Conference between the Houses, ii. 645.