Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

These conventions, then, unless they were summoned on extraordinary occasions, were regularly held once a month, on certain stated days; but such was the impatience of this people of controul, or any regularity of proceeding, that Tacitus observes, that frequently two or three days were spent before they were all assembled. For in these meetings, every freeman, that is, every soldier, had an equal voice. They appeared all in arms, and silence was proclaimed by the priests, to whom also it belonged to keep the assembly in order, and to punish all disturbers of its regularity. The king in the first place was heard, next such of the chiefs as had any thing to propose, and lastly others, according to their precedence in age, nobility, military virtue, or eloquence. If the proposition displeased, they rejected it by an inarticulate murmur. If it was pleasing, they brandished their javelins; the most honourable manner of signifying their consent being by the sound of their arms. But this approbation of the general assemblies was not of itself sufficient to establish a resolution. As the sudden determinations of large multitudes are frequently rash, and injudicious, it was found necessary to have what they had so determined re-considered by a select body, who should have a power of rejecting or confirming them. For this purpose the chieftains were formed into a separate assembly, who, in conjunction with the king, either disannulled, or ratified what had been agreed to by the people at large[61].

Such then was the constitution of a German kingdom, a constitution so nearly resembling our own at present, as at first view would tempt any one to think the latter derived immediately from thence. Yet this was not the case. With respect to the Saxon times, as far as we can judge from the few lights remaining, the form of government seems very nearly to resemble this account which Tacitus gives us; but, for two centuries, at least, after the conquest, the English constitution wore a face purely feudal. The sub-vassals had long lost the privilege of being members of the general assembly, from causes that shall be hereafter attempted to be explained; and the whole legislative power was lodged in the king and his immediate vassals, whose interests frequently clashing, and creating continual broils, it was found necessary, for the advantage both of the sovereign and nobles, that a proper balance should be formed. Accordingly, much at the same time in France, Spain, and England, namely, in or about the thirteenth century, the happy method of readmitting the third estate, by way of representation, was found out, with an addition very favourable to the natural rights of mankind, that traders and artizans, who before had been treated with the most sovereign contempt, were now permitted to make part of the general assembly, and put on an equal footing with other subjects[62].

But to return to the assembly of German chieftains, or their house of lords, as I may call it; besides a share in the legislative power, they were likewise a council, to assist the king in the execution of the resolutions of the general assembly, and determined solely by their own authority all matters of lesser moment, that did not immediately affect the whole community. De minoribus rebus principes consultant, de majoribus omnes.

Many other things were likewise transacted in these general assemblies, as particularly the admission of a new member into the political society. When a youth was judged capable of bearing arms, he was introduced by his relations into the assembly; and if they testified his capacity of wielding them, he was dignified with a lance and javelin by one of the chieftains, or by his father, or some other near relation. This was his toga virilis. Then, and not before, was he emancipated from the family he belonged to, was permitted to become a soldier, and in consequence admitted to all the privileges of a free subject. A practice that, in after ages, gave rise to the solemn and public manner of creating knights[63].

This, likewise, was the proper place of accusing criminals of public crimes, namely such as were looked upon by those people particularly to affect the whole society; neither was it unusual, likewise, to bring hither accusations of private wrongs, if the party injured was apprehensive of partiality in his own canton.

But the business of greatest moment, next to legislation, was, that, once in a year, in these assemblies, each village, with the approbation of the king, chose their chiefs, and their hundred assistants[64]. Here it was they either received a testimony of their good behaviour, by being continued in office another year, or saw themselves reduced to the rank of private subjects, if their conduct had not been acceptable. At the same time were the lands distributed to the several chieftains, which leads me to say something on the next head, their regulations with respect to property; as to which their institutions were very singular, and totally different from those of all ancient, as well as modern nations.

All property being then naturally divisible into two kinds, moveable and immoveable, of the first these people had but a scanty share, their whole wealth consisting in their arms, a few mean utensils, and perhaps some cattle. The use of gold and silver, in the way of commerce, was utterly unknown to them, except to a few of their nations, namely such as lived near the Rhine, and had acquired some by dealing with the neighbouring Gauls. Consequently, there was no such thing as an accumulation of wealth among them, or any great disparity in the distribution of this kind of property, over which each had uncontrouled dominion during his life. But as testaments, or last wills, were unknown amongst them, upon death, the right went according to the plain dictates of nature. Tacitus saith, “To every man his own children were heirs and successors. For want of them, his nearest of kin, his own brothers, next his father’s brothers, or his mother’s.” Whatever there was, was divided among the males next in degree; save that to each of the females, a few arms were assigned, the only dowry in use among those people; a dowry which, as Tacitus saith, signified that they were to share with their husbands in all fortunes of life and death. Accordingly, they constantly attended them to the field, were witnesses of their valour, took care of the wounded[65]; and often, if their party had the worst, they ran into the ranks, and by their presence and danger, animated the men to renew the charge.

But with respect to real or landed property, the case was very different. Here a man had only the use, or enjoyment of the profits; and that, too, but a temporary one. The real property, or dominium verum, was lodged in the community at large; and was, at the end of every year, cantoned out, and distributed to the several tribes of the people; and the portion assigned to each was after that subdivided to the respective individuals; who by these means were perpetually removed from one part of the territory to another; nor could any man tell in what place his lot was to fall the next year[66]. And this custom, absurd as it seems to us, they were so fond of, as to continue for some time after they settled in the Roman territories; until, growing by degrees acquainted with the conveniencies of life, a change of manners was introduced, and they wished for more settled habitations. Then came into use grants for terms of years, after for life, and lastly, estates descendible to heirs, which are those we, properly speaking, called fiefs. This continual removal of habitation, so intolerable to a people any way accustomed to comfortable dwellings, was no manner of inconvenience to them. Their little substance was easily removed, and two or three days were sufficient to erect a sorry hovel, which contented the wishes of the greatest among them[67]. But their passion for this constant change of place seems derived from that condition which I have already observed they were in, namely, a middle state between hunters and shepherds; and that they still retained that practice, was an evidence that they had not been long reclaimed from a savage life. Tacitus indeed says, that, in the intervals of war, they were not much employed in hunting, but lived a lazy and inactive life. This, however, I apprehend, must be understood only of a few nations, nearest to the Romans, where game was not so plentiful, and not of all the Germans in general: for it is certain the Franks had a strong passion that way, after they were settled in Gaul; and from them the plan of the forest laws, so justly complained of in England, after the conquest, was derived. And true it is, that whole nations, as well as individuals, were possessed with this rambling inclination; and that, not always with a view of settling in a better country. If the Germans changed their barren wilds for the warm sun and fertile climate of Gaul, we are assured by the same authority, that many tribes of the Gauls, on the other hand, removed to the forests of Germany. If Jornandes tells us, that the Goths quitted the bleak and barren mountains of Scandinavia for the pleasant banks of the Danube, he likewise informs us, that, afterwards, they returned back into their native country.

As to their methods of administering justice, I have already observed, that their chieftains, in the several districts, assisted by their assessors, were their judges. Before them all causes were brought, which were not discussed in their general assemblies; but as to the manner of investigating the truth, all the German nations did not agree. Nay the Salian Franks differed considerably from their brethren, the Ripuarian Franks. If the judge, or his assessors, or any of them, had knowledge of the fact in dispute, which often happened, as these people lived much in public, and in the open air, they gave sentence on such their knowledge. This was common to them all; but if there was no such knowledge in any of the pares curiæ, as I may call them, and the fact in question was denied, the Salians proceeded thus: The accuser or plaintiff produced his witnesses, the accused did the like; and on comparing the evidence on both sides, the judges gave sentence. If the plaintiff had no witnesses, the defendant, on his denial, was dismissed of course. If the witnesses for the plaintiff failed in fully proving the point, and yet their testimony was such, as induced a presumption which the other party was not able to remove, the trial was referred to the ordeal[68]. That of boiling water was the most usual among them. The manner was thus: The person suspected plunged his hand into the boiling water, which was afterwards carefully closed up, and inspected at the end of three days: If no sign of the scalding then appeared, he was acquitted; if otherwise, he was esteemed guilty[69].