6

Christianity-Traditional Remains-Re-established.

content to leave the provincials in possession of their lands, they paying one third of the produce to their guests (4). Montesquieu (5), (who says, en lisant les codes on trouve partout Cesar et Tacite," but whose knowledge of Roman laws is not set very high by M. Savigny (6),) Gibbon (7), and Mr. Allen (8), have been willing to find some other origin for the practice above described, when, as it appears to me, the book De Metatis, in the Theodosian Code, which details the jus hospitalitatis of the Roman legions (9), (but which even the very learned Savigny has passed over (10),) would have furnished the true and natural origin. The right of hospitality enjoyed *by the Roman legions in the provinces may also be traced in Livy (11), Cicero [*7] (12), Tacitus (13), Vopiscus (14), and other writers.

NOTE 2, p. 5.-Mission of Augustin—Re-establishment of Christianity.

A considerable portion of the population, before the Saxon conquest, were Christians. There were three British bishops at the Council of Arles, a. D. 314. The fact that a heresy supported by great learning and ability, and which spread over a considerable portion of the Christian world (15), was engendered in Britain, (A. D. 405— 412,) is some evidence that Christianity had been embraced with considerable energy and zeal, however wrongly directed (16). The accounts we have of the persecution under Diocletian in England, when St. Alban, a Roman, suffered martyrdom there (17), tends to confirm this supposition.

There is but one instance, and that not till A. D. 633, of the Saxons having pursued a system of extermination from a spirit of religious persecution (18). It was sometime between A. D. 597 and 601, about 150 years after Hengist and Horsa had been invited to England, that Augustin, the second of that name who attained to ecclesiastical celebrity, and his fellow-missionaries arrived in England (19). In less than two years, Ethelbirht, King of Kent, one of the successors of Hengist, and 10,000 of his subjects were baptized (20). This great and unexpected success may, without resorting to the notion of miraculous interference, which seems to have been inculcated at the time (21), be accounted for on the supposition that some of the converts were the descendants of the original inhabitants, and that a traditionary recollection of the religions of their ancestors was preserved amongst them (22). London, where these traditions were most likely to have been preserved, though not included in the kingdom of Kent, was immediately on the border, and a portion of its inhabitants may have contributed to swell the number of Augustin's converts.

(4) Savigny, Mid. A. tom. 1, 260, 262. (5) Esprit des Lois, xxx. c. 2, c. 9. (6) On the vocation of our age for legislation, by Hayward, p. 146.

(7) Vol. v. 361, vi. 354.

(8) On the Prerog. p. 9; and see Hallam, Midd. Ages, i. 143, 144.

(9) Lib. viii. tit. 8; et v. Cod. Just. xii. 41, 2; ib. x. 41, 3; Dig. i. 16, 4 pr. (10) Tom. i. 199-201.

(11) xlii. c. 14.

(12) Ad. Attic. v. c. 21.

(13) Hist. iii. c. 2; Agric. c. 31.

(14) Vit. Aurelian. Hist. Aug. Script. p.

847.

(15) Bede, i. c. 17, ii. c. 9; Smith's Bede, p. 54; in England particularly, Milton, p.

(17) Bede, i. c. 6, 7; Milton, p. 105.

(18) That of Penda and his Christian ally, Cadwalla, Lingard, i. 127; Palgr. Rise, &c. 430.

(19) Sax. Chron. ed. Gibs., p. 23, 24. (20) Gibbon, vi. p. 167; Camden, Britannia, p. 104, 5; Lingard, i. 108, 9.

(21) See Camden's Britann. p. 104, 105, ed. 1600.

(22) See Lingard, i. p. 108.

Allotments of Land-Folcland, its Nature.

*8

*CHAPTER II.

DISTRIBUTION OF THE CONQUERED LANDS.

Allotments of Lands by the Anglo-Saxons-Nature of Title-A Portion called Folcland reserved to the State-Distinct from Private Property of the Sovereign, but under his Administration-Three Burthens to which all Lands were subject-Military Service irrespective of Feudal Obligation.

We have no direct information as to how the lands and towns, with such of the inhabitants as were spared, were divided or parceled out by the conquerors, but there can be little doubt that a portion corresponding to his rank and consequence was assigned to each (a). When the light of authentic Anglo-Saxon history breaks in, we find generally throughout the different states, that the king possessed ample domains, and that each person of that class of freemen who were ranked as thanes, enjoyed a portion of the conquered territory (b). The Saxon as well as the Francic warriors appear to have taken their original allotments absolutely and as matter of right (c).

A large portion of territory under the name of "Folcland"(d) appears to have been left without specific appropriation (e), to be allotted by the conquerors to fresh importations of their countrymen, if necessary, or for other purposes of the state: so far as we can judge from the documents of later times, the Anglo-Saxon like the Francic kings(ƒ), claimed the right of appropriating and disposing of this portion of the public property as incident to the crown, "jure regio"(g). The distinction between the king's private property and that of the state was

(a) "Secundum dignationem;" the periodical divisions in their native country were made on this principle, Tac. de Mor. c. 26. See Allen on the Prerog. p. 140.

(b) V. Int. al. Anc. Laws, vol. i. p. 433; Kemble's Charters. ii. p. 93, "partem meæ propriæ potestatis," ib. 214, "ruris proprii mei," "meæ propriæ hereditariæ terræ," ib. i 290; “de patrimonio meo," ib. 297.

(e) That this was the case-contrary to the assumption adopted by Sir Wm. Blackstone, Comm. ii. p. 45, 46; see Coleridge's edit. On the conquest of the Francs under Clovis, ad. A. D. circ. 486, is pretty clear from the passage in Greg. Turon. lib. ii. c. 27; Robertson's Chas. V. vol. 1, p. 14, 254; Gibbon, vi. p. 355. The British princes, when settled in Wales, claimed to be the owners of all the land in the kingdom, An. Welsh L.i. 479. "The law says that the king can give the land in his kingdom to whoever shall do service for it," ib. ii. 413; but this was of modern introduction; v. infra.

(d) "Terra fiscalis," Kemble's Charters, Introduct. vol. ii. p. ix. and vol. i. civ., "pub. lica" Cart. Inæ. No. 46, p. 53, of the Charters; "partem agri regni mei." Cart. Burgred, A. D. 866, ib. ii. p. 81; and see Allen on the

[ *9 ]

Prerogative, p. 140, et seq. The opinions of Mr. Somner Gavelk, p. 37; Lord Coke, and Sir Wm. Blackstone, as to the nature of Bocland and Folcland, (see 2 Bla. Comm. 9092, and Lord Co., Copyholder, there cited,) have not been overlooked: they are unsupported by any ancient documents. Dalrymple, on Feuds, p. 14, in support of his theory as to the distinction between Bocland and Folcland, has taken Lambard's translation of Bocland, "terra hereditaria" in Canute's Code, as if it had been cotemporaneous, and built his theory upon it.

(e) It will be remembered that this was also in conformity with one of their ancient habits, " et superest ager," Tac. de Mor.

(f) Dip. Car. Calvi. A. D. 843; Hist. Fr. viii. p. 435; Palg. Rise, &c. p. ccxix. et seq.

(g) Coenwlf, A. n. 811, et seq., Egbert, A. n. 833, et seq.; and Edmund, A. D. 940, et seq., and other kings in their grants, Kemble, i. 238, 242, 294, 308; ii. 215, 219, &c. sometimes use the expression" partem terræ juris mei"-sometimes "sui propriæ publicæ juris," ib. i. p. 243-sometimes "hæreditatis meæ," Edmund, A. D. 942, ib. 239, or words of similar import. The bishops used the same form of expression, as to the lands un

9 General Burthens-Trinoda Necessitas—Anglo-Saxon Legislation.

kept up at least down to the time of Alfred (h); nor was it entirely abrogated till the time of Edward the Confessor (i). The private estates of the king, as well as the fiscal domains, appear to have been for the most part, like the fiscal domains of the Carlovingian kings and the patrimonial domains of the emperors, parceled out into vills or farms; and the king, in his progresses, there entertained his officers of state and the members of his council (k).

All the land in the hands of subjects was liable to three burthens, called the Trinoda necessitas, namely, the building and repair of fortresses, the repairs of bridges and public ways, and military service for the defence of the state, including a contribution for the providing of ships. These liabilities are referred to in some of the earliest charters (l); they are mentioned in the codes of Ethelred (m) and Canute (n): in all probability they were coeval with the original division of the conquered lands. They were wholly irrespective of any feudal obligation.

ANGLO-SAXON LEGISLATION-INFLUENCE OF THE CLERGY. Commencement of Anglo-Saxon Legislation-Code of Ethelbirht-Embraces little but ancient customs for compensating Personal Injuries-Laws as to Property had to be formed―This Code indicates a remarkable departure from the Ancient Political System-Imperial Styles and Prerogatives are assumed, which are claimed by succeeding Sovereigns-The_notice of these Changes is coeval with the Establishment of Christianity-The Witan or Council in part composed of the Dignified Clergy. Examination of the condition, Habits, &c. of the Ecclesiastical Body as regards their Civil State in connection with the Origin and Sources of the Anglo-Saxon Laws and Institutions. Rank-Literary and Scientific Acquirements, particularly as regards Jurisprudence -Monks and Clergy employed to draw up all Wills, and other written Instruments—

der their administration, ib. ii. 397. Some land granted by Ethelbirht, King of Kent, A. D. 858, Kemble, ii. p. 65, is described as bounded in part by "Cyninges Folcland." The kings sometimes appropriated, with the license and consent of their bishops and principes, a portion of Folcland to themselves for their private inheritance, Æthelwolf, a. D. 847; Kemble, ii. p. 28. The grant No. 11, Lye's Appendix, so far as relates to the Folcland, is quite intelligible, taking Folcland to mean the fiscal domains; but see Lingard's note, vol. i. p. 459.

(h) See Allen on the Prerog, and Alfred's will, Pickering's edition; that which is print ed as his will at the end of the Oxford edition of Asser's life, which is the only one Mr. Somner appears to have known, is a paraphrase only, and has occasioned much er

ror.

(i) No such distinction is to be found in Domesday.

(k) Gibbon, vi. p. 350; the royal vills are perpetually mentioned in the charters and

chronicles, Kemble, i. 204. 231. 320, &c.;
Cart. Athelst. A. D. 931; Kemble, ii. p. 172;
Hist. Rames, p. 441, temp. Cnut. v. infra,
King's Council.

() A. D. 691, Kemble, vol. i. p. 35, &c.
(m)" Fyrd Ships," Leg. Ethelr. v. § 27;
Anc. L. vol. i. p. 311, vi. § 33; ib. p. 325.

(n) Leg. Cnut. § 10 & 66; Brompt. 923; Anc. L. vol. i. p. 381, 411. We learn from later authorities, that the amount of the contribution for ship-money was regulated by the king and his council,-A. D. 1008, one ship was ordered to be provided by every 310 hydes, Brompt. 887, 20-et v. ib. 932, 18; temp. Hardicnute. The precise number of warriors to be brought into the field, in respect of particular lands, was also sometimes fixed by the king, Cart. a. D. 821; Kemble, i. p. 271, or by him and his council. In later times, the custom of finding a substitute, also of commutations in money, grew into use in some places, Domesday, Berkshire, Gale, p. 763.

Anglo-Saxon Legislation-The Code of Ethelbirht.

10

Duties imposed on them by Law-Advocates and Pleaders-Influence with the AngloSaxon Sovereigns-Liberal Donations to the Clergy-Devotion of the Sovereigns to the Roman See—Direct Evidence of Influence of the Clergy in Legislation—The Inclination of the Clergy generally towards the Roman Law-Use of it amongst the Continental Clergy-The Clergy of Europe, one Body-Connection between English Clergy and See of Rome kept up-In the time of Edgar, Clergy of England exempted from Secular Jurisdiction-Influence of the Clergy, as regards Ancient Anglo-Saxon Customs, not at first observable;—their Influence to be looked for chiefly in Laws which had to be introducedA short Account of the several Codes down to that of William the Conqueror.

SUCH was the general condition of the Anglo-Saxon states at the time Christianity was introduced. Shortly after the conversion of Ethelbirht, king of Kent (a), who was the Bretwalda, or superior chief of the several Anglo-Saxon kingdoms south of the Humber, the process of legislation (b) commenced. A code, of which possibly we have only an imperfect transcript or abstract, was then compiled. In this code, such of the ancient German customs described by Tacitus 500 years before, as had continued in use, were reduced to system, and promulgated in the form of laws; a scale of composition for every conceivable injury was introduced, and special provisions were made to secure the peaceable enjoyment of the property which had been conferred on the church. The above, with some regulations in regard to marriage, constitute nearly the whole of the code (c). As regards most of the questions which must have arisen from the new modifications of property which had taken place, the code is silent; on this head the conquerors *were almost compelled to adopt, to some extent at least, the institu- [*11] tions of the conquered, or they would have had to construct a system of jurisprudence from the very foundations, for here they had no customs purely their own to embody or enforce.

Bede's description of this first act of legislation, which, he says, was done in imitation of the Romans, indicates so extensive and important a departure from what has been handed down by Tacitus and other writers as the ancient political system of the German tribes, as to call for particular attention. The king, in the style of a Roman emperor, decreed or enacted; his council or witan advised (d). Previously to their migration into Britain, and the adjoining continent, no chief of the Saxon tribes had, so far as has been discovered, ever claimed or exercised any such authority; indeed, the very reverse (e) is to be inferred from the accounts of the historians of those periods.

(a) ▲. D. 596-623. Bede, ii. c. 5; a. d. 597-616, according to others, see Anc. Laws. He had married Bertha, a Christian, daughter of the King of the Francs, Bede, i. c. 25.

(b) It is not known what was the nature of this superiority. Edgar was the first who enjoyed what may be called feudal superiority, Palgr. Rise, &c. 587, and p. cccxcviii. (e) The code incidentally mentions the custom of the king calling together his "leod," § 2, which was conjectured to mean "people," Anc. L. p. 3.

(d) Ethelberthus intera cætera bona quæ genti suæ consulendo conferebat, etiam Decreta illa judiciorum, juxta exempla Romanorum, cum concilio sapientum constituit," Bed. Hist. E. ii. c. 5. "Witan," or some

such expression, is ever afterwards used in the Anglo-Saxon laws, chronicles, and charters, to designate the members of the King's Council, Chron. Sax. ed. Gibson, 79, 100, 140, 163, 164; Ancient Laws, Inæ. vol. i. p. 103, Athelst. i. p. 241; “ with the consent of my Witan' both ecclesiastical and secular," Edmund, 247; Ethel. 341, &c. The same expression was used after the Norman conquest, Chron. Sax. p. 190. The Constitution of The King's Council will be described hereafter.

11 Assumption of Imperial Prerogatives by Anglo-Saxon Sovereigns.

This was not a temporary assumption of authority on the part of Ethelbirht; it was followed throughout the whole of the Anglo-Saxon and Danish (ƒ) into and through the Norman periods of our history (g), and the remains of it are discoverable in the form of the enactments of the present day (h).

Nor was this the only assumption savoring of imperial original on the part of the Anglo-Saxon, Danish, and Norman sovereigns. Earconbert, A. D. 640,"Principali auctoritate," caused all the idols throughout his kingdom to be destroyed. Edwyn, another of the Anglo-Saxon kings of no very considerable note, in his progresses through his kingdom, had the imperial tufa or ensign carried before him (i). Almost every one of the more powerful sovereigns assumed the style of Imperator, Basileus, (adding Dei dono or sub ipso Domino,) or some equivalent title (k), in which they were imitated by William the Conqueror (1). *The [*12] nobles, too, were designated by names adopted from the imperial court (m), such as Optimates (n), Comites, Prætores, Archontes, Principes, and the like. The kings of the Francs, with whom the Anglo-Saxon kings were often connected by marriage, and with whom, especially Charlemagne, they kept up an almost continual intercourse (o), equaled, if they did not go beyond the Anglo-Saxon sovereigns in the assumption of imperial titles and prerogatives: the Francs indeed from the first, adopted to a considerable extent the Roman laws and institutions (p).

These changes, so far as the light of history enables us to form any judgment on the subject, was coeval with the establishment of the Christian hierarchy and priesthood in Britain and on the continent; or at least they appear after that event to have assumed the character of constitutional principles. Important alterations in the laws and institutions of the conquerors also present themselves from time to time, subsequently to this great event. How far the clergy may have contributed to these results, offers itself on many accounts as one of the first subjects of inquiry.

That the Sapientes or Witan, by whose advice the code of Ethelbirht

(f) Vid. int. al. "King Edward commands," Laws of Edward the Eld. Anc. Laws, vol. i. p. 159. "Athelstan king, with the council of the archbishop and his other bishops, commands, &c." ib. 195; ibid. p. 267, Laws of Edgar; ib. 359, 377, Laws of Cnut. All these passages plainly indicate that the imperial principle "Quod principi placet legis habet vigorem," was not unknown to the kings and their advisers; and that Bracton's construction of it (which will be fully considered hereafter) was adopted at the foundation of the AngloSaxon constitution.

(g) Inquiry into the Laws, &c. of modern Europe, p. 546, temp. Edw. I.

(h) This subject will be noticed hereafter.

(i) Bede, ii. c. 16, iii. c. 8.

(k) Int. al. Heming, 97, 333, 371, 441-9, 517, 521; Kemble, ii. 376, 407, temp. Edg. (1) "Basileus," Dugd. Monastic. vi. p.

(m) Heming, ubi sup. and p. 27, 285, 327, &c.; Kemble's Charters, i. p. 265, “pantorum procerum prætorum que." Edgar claimed to wield the sceptre of Constan tine, Palgr. Rise, &c. p. 647. The charters abound with Hellenisms; latterly the Indiction is almost always noted.

(n) The Roman designation for Senators, see Dict. of Greek and R. Antiq. p. 668.

(0) Palgr. Rise, &c. 484-5. Egbert for three years before he was king, was in the court of Charlemagne, Wallingford, p. 539; et v. Sax. Chron, Ing. p. 90; Baluze, i. 193, 273; Lingard, i. 205.

(p) Agathias, lib. i. c. 4; " ut in conventibus faciendis," &c. et v. Palg. Rise, &c. p. 361. Clovis soon after his conversion accepted the title of Consul from the emperor Anastatius; Dubos, Hist. Crit. ii. p. 86. Charlemagne styled himself Patricius Romanorum, Baluze, tom. i. 202.