Complete Works of Edmund Burke

by Edmund Burke

  But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connection; and if a father loft his son under a military age, so as that he could neither lead nor judge his people, nor qualify the young men who came up under him to take arms, — in order to continue the cliental bond, and not to break up an old and strong confederacy, and thereby disperse the tribe, who should be pitched upon to head the whole, but the worthiest of blood of the deceased leader, he that ranked next to him in his life? And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon, empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferior chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, was entirely passed over, and his uncle, or some remoter relation, raised to the crown; but there is not a single instance where the election has carried it out of the blood. So that, in truth, the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined in some degree favorably for the litigants on either side; for it was certainly both hereditary and elective within the bounds, which we have mentioned. This order prevailed in Ireland, where the Northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it, — which if they had done, there is no doubt but many things of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded amongst the ancient Germans, and even preferred to that of the immediate possessor, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed: and this is upon the principles of Tanistry. And the rule seems to have taken such deep root as to have much influenced a considerable article of our feudal law: for, what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century.

  Thus we have seen the foundation of the Northern government and the orders of their people, which consisted of dependence and confederacy: that the principal end of both was military; that protection and maintenance were due on the part of the chief, obedience on that of the follower; that the followers should be bound to each other as well as to the chief; that this headship was not at first hereditary, but that it continued in the blood by an order of its own, called Tanistry.

  All these unconnected and independent parts were only linked together by a common council: and here religion interposed. Their priests, the Druids, having a connection throughout each state, united it. They called the assembly of the people: and here their general resolutions were taken; and the whole might rather be called a general confederacy than a government. In no other bonds, I conceive, were they united before they quitted Germany. In this ancient state we know them from Tacitus. Then follows an immense gap, in which undoubtedly some changes were made by time; and we hear little more of them until we find them Christians, and makers of written laws. In this interval of time the origin of kings may be traced out. When the Saxons left their own country in search of new habitations, it must be supposed that they followed their leaders, whom they so much venerated at home; but as the wars which made way for their establishment continued for a long time, military obedience made them familiar with a stricter authority. A subordination, too, became necessary among the leaders of each band of adventurers: and being habituated to yield an obedience to a single person in the field, the lustre of his command and the utility of the institution easily prevailed upon them to suffer him to form the band of their union in time of peace, under the name of King. But the leader neither knew the extent of the power he received, nor the people of that which they bestowed. Equally unresolved were they about the method of perpetuating it, — sometimes filling the vacant throne by election, without regard to, but more frequently regarding, the blood of the deceased prince; but it was late before they fell into any regular plan of succession, if ever the Anglo-Saxons attained it. Thus their polity was formed slowly; the prospect clears up by little and little; and this species of an irregular republic we see turned into a monarchy as irregular. It is no wonder that the advocates for the several parties among us find something to favor their several notions in the Saxon government, which was never supported by any fixed or uniform principle. To comprehend the other parts of the government of our ancestors, we must take notice of the orders into winch they were classed. As well as we can judge in so obscure a matter, they were divided into nobles or gentlemen, freeholders, freemen that were not freeholders, and slaves. Of these last we have little to say, as they were nothing in the state. The nobles were called Thanes, or servants. It must be remembered that the German chiefs were raised to that honorable rank by those qualifications which drew after them a numerous train of followers and dependants. If it was honorable to be followed by a numerous train, so it was honorable in a secondary degree to be a follower of a man of consideration; and this honor was the greater in proportion to the quality of the chief, and to the nearness of the attendance on his person. When a monarchy was formed, the splendor of the crown naturally drowned all the inferior honors; and the attendants on the person of the king were considered as the first in rank, and derived their dignity from their service. Yet as the Saxon government had still a large mixture of the popular, it was likewise requisite, in order to raise a man to the first rank of thanes, that he should have a suitable attendance and sway amongst the people. To support him in both of these, it was necessary that he should have a competent estate. Therefore in this service of the king, this attendance on himself, and this estate to support both, the dignity of a thane consisted. I understand here a thane of the first order.

  Hallmote, or Court-Baron.Every thane, in the distribution of his lands, had two objects in view: the support of his family, and the maintenance of his dignity. He therefore retained in his own hands a parcel of land near his house, which in the Saxon times was called inland, and afterwards his demesne, which served to keep up his hospitality: and this land was cultivated either by slaves, or by the poorer sort of people, who held lands of him by the performance of this service. The other portion of his estate he either gave for life or lives to his followers, men of a liberal condition, who served the greater thane, as he himself served the king. They were called Under Thanes, or, according to the language of that time, Theoden. They served their lord in all public business; they followed him in war; and they sought justice in his court in all their private differences. These may be considered as freeholders of the better sort, or indeed a sort of lesser gentry therefore, as they were not the absolute dependants, but in some measure the peers of their lord, when they sued in his court, they claimed the privilege of all the German freemen, the right of judging one another: the lord’s steward was only the register. This domestic court, which continued in full vigor for many ages, the Saxons called Hall mote, from the place in which it was held; the Normans, who adopted it, named it a Court-Baron. This court had another department, in which the power of the lord was more absolute. From the most ancient times the German nobility considered themselves as the natural judges of those who were employed
in the cultivation of their lands, looking on husbandmen with contempt, and only as a parcel of the soil which they tilled: to these the Saxons commonly allotted some part of their outlands to hold as tenants at will, and to perform very low services for them. The differences of these inferior tenants were decided in the lord’s court, in which his steward sat as judge; and this manner of tenure probably gave an origin to copyholders. Their estates were at will, but their persons were free: nor can we suppose that villains, if we consider villains as synonymous to slaves, could ever by any natural course have risen to copyholders; because the servile condition of the villain’s person would always have prevented that stable tenure in the lands which the copyholders came to in very early times. The merely servile part of the nation seems never to have been known by the name of Villains or Ceorles, but by those of Bordars, Esnes, and Theowes.

  Tithing Court.As there were large tracts throughout the country not subject to the jurisdiction of any thane, the inhabitants of which were probably some remains of the ancient Britons not reduced to absolute slavery, and such Saxons as had not attached themselves to the fortunes of any leading man, it was proper to find some method of uniting and governing these detached parts of the nation, which had not been brought into order by any private dependence. To answer this end, the whole kingdom was divided into Shires, these into Hundreds, and the Hundreds into Tithings. This division was not made, as it is generally imagined, by King Alfred, though he might have introduced better regulations concerning it; it prevailed on the continent, wherever the Northern nations had obtained a settlement; and it is a species of order extremely obvious to all who use the decimal notation: when for the purposes of government they divide a county, tens and hundreds are the first modes of division which occur. The Tithing, which was the smallest of these divisions, consisted of ten heads of families, free, and of some consideration. These held a court every fortnight, which they called the Folkmote, or Leet, and there became reciprocally bound to each other and to the public for their own peaceable behavior and that of their families and dependants. Every man in the kingdom, except those who belonged to the seigneurial courts we have mentioned, was obliged to enter himself into some tithing: to this he was inseparably attached; nor could he by any means quit it without license from the head of the tithing; because, if he was guilty of any misdemeanor, his district was obliged to produce him or pay his fine. In this manner was the whole nation, as it were, held under sureties: a species of regulation undoubtedly very wise with regard to the preservation of peace and order, but equally prejudicial to all improvement in the minds or the fortunes of the people, who, fixed invariably to the spot, were depressed with all the ideas of their original littleness, and by all that envy which is sure to arise in those who see their equals attempting to mount over them. This rigid order deadened by degrees the spirit of the English, and narrowed their conceptions. Everything was new to them, and therefore everything was terrible; all activity, boldness, enterprise, and invention died away. There may be a danger in straining too strongly the bonds of government. As a life of absolute license tends to turn men into savages, the other extreme of constraint operates much in the same manner: it reduces them to the same ignorance, but leaves them nothing of the savage spirit. These regulations helped to keep the people of England the most backward in Europe; for though the division into shires and hundreds and tithings was common to them with the neighboring nations, yet the frankpledge seems to be a peculiarity in the English Constitution; and for good reasons they have fallen into disuse, though still some traces of them are to be found in our laws.

  Hundred Court.Ten of these tithings made an Hundred. Here in ordinary course they held a monthly court for the centenary, when all the suitors of the subordinate tithings attended. Here were determined causes concerning breaches of the peace, small debts, and such matters as rather required a speedy than a refined justice.

  County Court.

  Ealdorman and Bishop.There was in the Saxon Constitution a great simplicity. The higher order of courts were but the transcript of the lower, somewhat more extended in their objects and in their power; and their power over the inferior courts proceeded only from their being a collection of them all. The County or Shire Court was the great resort for justice (for the four great courts of record did not then exist). It served to unite all the inferior districts with one another, and those with the private jurisdiction of the thanes. This court had no fixed place. The alderman of the shire appointed it. Hither came to account for their own conduct, and that of those beneath them, the bailiffs of hundreds and tithings and boroughs, with their people, — the thanes of either rank, with their dependants, — a vast concourse of the clergy of all orders: in a word, of all who sought or distributed justice. In this mixed assembly the obligations contracted in the inferior courts were renewed, a general oath of allegiance to the king was taken, and all debates between the several inferior coördinate jurisdictions, as well as the causes of too much weight for them, finally determined. In this court presided (for in strict signification he does not seem to have been a judge) an officer of great consideration in those times, called the Ealdorman of the Shire. With him sat the bishop, to decide in whatever related to the Church, and to mitigate the rigor of the law by the interposition of equity, according to the species of mild justice that suited the ecclesiastical character. It appears by the ancient Saxon laws, that the bishop was the chief acting person in this court. The reverence in which the clergy were then held, the superior learning of the bishop, his succeeding to the power and jurisdiction of the Druid, all contributed to raise him far above the ealdorman, and to render it in reality his court. And this was probably the reason of the extreme lenity of the Saxon laws. The canons forbade the bishops to meddle in cases of blood. Amongst the ancient Gauls and Germans the Druid could alone condemn to death; so that on the introduction of Christianity there was none who could, in ordinary course, sentence a man to capital punishment: necessity alone forced it in a few cases.

  Concerning the right of appointing the Alderman of the Shire there is some uncertainty. That he was anciently elected by his county is indisputable; that an alderman of the shire was appointed by the crown seems equally clear from the writings of King Alfred. A conjecture of Spelman throws some light upon this affair. He conceives that there were two aldermen with concurrent jurisdiction, one of whom was elected by the people, the other appointed by the king. This is very probable, and very correspondent to the nature of the Saxon Constitution, which was a species of democracy poised and held together by a degree of monarchical power. If the king had no officer to represent him in the county court, wherein all the ordinary business of the nation was then transacted, the state would have hardly differed from a pure democracy. Besides, as the king had in every county large landed possessions, either in his demesne, or to reward and pay his officers, he would have been in a much worse condition than any of his subjects, if he had been destitute of a magistrate to take care of his rights and to do justice to his numerous vassals. It appears, as well as we can judge in so obscure a matter, that the popular alderman was elected for a year only, and that the royal alderman held his place at the king’s pleasure. This latter office, however, in process of time, was granted for life; and it grew afterwards to be hereditary in many shires.

  The Sheriff.

  Sheriff’s Tourn.We cannot pretend to say when the Sheriff came to be substituted in the place of the Ealdorman: some authors think King Alfred the contriver of this regulation. It might have arisen from the nature of the thing itself. As several persons of consequence enough to obtain by their interest or power the place of alderman were not sufficiently qualified to perform the duty of the office, they contented themselves with the honorary part, and left the judicial province to their substitute. The business of the robe to a rude martial people was contemptible and disgusting. The thanes, in their private jurisdictions, had delegated their power of judging to their reeves, or stewards; and the earl, or a
lderman, who was in the shire what the thane was in his manor, for the same reasons officiated by his deputy, the shire-reeve. This is the origin of the Sheriff’s Tourn, which decided in all affairs, civil and criminal, of whatever importance, and from which there lay no appeal but to the Witenagemote. Now there scarce remains the shadow of a body formerly so great: the judge being reduced almost wholly to a ministerial officer; and to the court there being left nothing more than the cognizance of pleas under forty shillings, unless by a particular writ or special commission. But by what steps such a revolution came on it will be our business hereafter to inquire.

  Witenagemote.The Witenagemote or Saxon Parliament, the supreme court, had authority over all the rest, not upon any principle of subordination, but because it was formed of all the rest. In this assembly, which was held annually, and sometimes twice a year, sat the earls and bishops and greater thanes, with the other officers of the crown. So far as we can judge by the style of the Saxon laws, none but the thanes, or nobility, were considered as necessary constituent parts of this assembly, at least whilst it acted deliberatively. It is true that great numbers of all ranks of people attended its session, and gave by their attendance, and their approbation of what was done, a sanction to the laws; but when they consented to anything, it was rather in the way of acclamation than by the exercise of a deliberate voice, or a regular assent or negative. This may be explained by considering the analogy of the inferior assemblies. All persons, of whatever rank, attended at the county courts; but they did not go there as judges, they went to sue for justice, — to be informed of their duty, and to be bound to the performance of it. Thus all sorts of people attended at the Witenagemotes, not to make laws, but to attend at the promulgation of the laws; as among so free a people every institution must have wanted much of its necessary authority, if not confirmed by the general approbation. Lambard is of opinion that in these early times the commons sat, as they do at this day, by representation from shires and boroughs; and he supports his opinion by very plausible reasons. A notion of this kind, so contrary to the simplicity of the Saxon ideas of government, and to the genius of that people, who held the arts and commerce in so much contempt, must be founded on such appearances as no other explanation can account for.