[467]. Æðelr. i. § 1. Cnut, ii. § 30.
[468]. Wihtr. § 22. Thorpe, i. 43.
[469]. Ini. §63.
[470]. Cod. Dipl. No. 931.
[471]. “Swá ðæt nán scírgeréfa oððe mótgeréfa hæbbe ǽnige sócne oððe mót, búton ðæs abbudes ágen hǽse ⁊ unne.” Cod. Dipl. No. 841. The law of Eadweard which commands the reeve to hold his court once a month, and which can only apply to the hundred, makes it probable that as the scírgeréfa was in some places called scírman, so the hundred-man may in some places have been called hundred-geréfa: I have already alluded to the geréfa in the Wapentake; and the law of Eadweard the Confessor (§ 31) shows that in the counties where there were Triðingas or Ridings, there existed also a Triðing-geréfa.
CHAPTER VI.
THE WITENA GEMÓT.
The conquest of the Roman provinces in Europe was accomplished by successive bands of adventurers, ranged under the banners of various leaders, whom ambition, restlessness or want of means had driven from their homes. But the conquest once achieved, the strangers settled down upon the territory they had won, and became the nucleus of nations: in their new settlements they adopted the rules and forms of institutions to which they had been accustomed in their ancient home, subject indeed to such modifications as necessarily resulted from the mode of the conquest, and their new position among vanquished populations, generally superior to themselves in the arts of civilized life. If we carefully examine the nature of these ventures, we shall I think come to the conclusion that they were carried on upon what may be familiarly termed the joint-stock principle. The owner of a ship, the supplier of the weapons or food necessary to set the business on foot, is the great capitalist of the company: the man of skill and judgment and experience is listened to with respect and cheerfully obeyed: the strong arms and unflinching courage of the multitude complete the work: and when the prize is won, the profits are justly divided among the winners, according to the value of each man’s contribution to the general utility[[472]]. But in such voluntary associations as these, it is clear that every man retains a certain amount of free will, that he has a right to consult, discuss and advise, to assent to or dissent from the measures proposed to be adopted: even the council of war of such a band must differ very much from what in our day goes by that name; where a few officers of high rank decide, and the mass of the army blindly execute their plans. It cannot then surprise us that in such cases everything should be done with the counsel, consent and leave of the associated adventurers. The bands were then not too numerous for general consultation: there was no fear lest treachery or weakness should betray the plans to an enemy: the necessities of self-preservation guaranteed the faith of every individual; for, camped among hostile and exasperated populations, ignorant of their tongue, and remote from them in manners, the German straggler, captive or deserter could look forward to nothing save a violent death or a life of weary slavery. Mutual participation in danger must have given rise to mutual trust.
Again the principle upon which the settlement of the land was effected, was that of associations for common benefits, and a mutual guarantee of peaceful possession[[473]]. Each man stood engaged to his neighbour, both as to what he would himself avoid, and as to what he would maintain. The public weal was the immediate interest of every individual member of the state; it came home to him at every instant of his life, directly, pressing him either in his property, his freedom or his peace, not through a long and accidental chain of distant causes and results. Moreover in an association based upon the individual freedom of the associates, each man had a right to guard the integrity of the compact to which he was himself a party; and not only a right, but a strong interest in exercising it, for in proportion to the smallness of the state, is the effect which the conduct of any single member may produce upon its welfare. But wherever free men meet on equal terms of alliance, the will of the majority is the law of the state. If the minority be small it must submit, or suffer for rebellion: if large, and capable of independent action and subsistence, it may peaceably separate from the majority, renounce its intimate alliance, and emigrate to new settlements, where it may at its own leisure, and in its own way, develop its peculiar views of polity, leaving to fortune or to the gods to decide the abstract question of right between itself and its opponents. How then is the will of the majority to be ascertained? Where the number of citizens is small, the question is readily answered: by the decision of a public meeting at which all may be present.
Now such public meetings or councils we find in existence among the Germans from their very first appearance in history. The graphic pen of Tacitus has left us a lively description of their nature and powers, and in some degree their forms of business. He says[[474]],—“In matters of minor import, the chiefs take counsel together; in weightier affairs, the whole body of the state: but in such wise, that the chiefs have the power of discussing and recommending even those measures, which the will of the people ultimately decides. They meet, except some sudden and fortuitous event occur, on fixed days, either at new or full moon.... This inconvenience arises from their liberty, that they do not assemble at once, or at the time for which they are summoned, but a second or even a third day is wasted by the delay of those who are to meet. They sit down, in arms, just as it suits the convenience of the crowd. Silence is enjoined by the priests, who, on these occasions, have even the power of coercion. Then the king, or the prince, or any one, whom his age, nobility, his honours won in war or his eloquence may authorise to speak, is listened to, more through the influence of persuasion than the power of command. If his opinion do not please them, they reject it with murmurs: if it do, they dash their lances together. The most honourable form of assent is adoption by clashing of arms. It is lawful also to bring accusations, and prosecute capitally before the council. The punishment varies with the crime. Traitors and deserters they hang on trees; cowards, the unwarlike, and infamous of body they bury alive in mud and marsh, with a hurdle cast over them: the difference of the penalty has this intention as it were, that crimes should be made public, but infamous vices hidden, while being punished.... In the same councils also, princes are elected, to give law in the shires and villages. Each has a hundred comrades from among the people, both to advise him and add to his authority. They transact no business either of a public or private nature, without their weapons. But it is not the custom for any one to begin wearing them, before the state has approved of him as likely to be an efficient citizen. Then, in the public meeting itself, either one of the chiefs, or his father or a kinsman, decorates the youth with a shield and javelin. This is their Toga; this is the first dignity of their youth: before this they appear part of a household,—after it, of a state.”
Such then was the nature of a Teutonic parliament as Tacitus had learnt that it existed in his time; nor is there the least doubt that he has described it most truly. And such were all the popular meetings of later periods, whether shiremoots, markmoots, or the great placita of kingdoms, folkmoots in the most extended sense of the term. Such, at least in theory, and to a great extent in practice, were the meetings of the Franks under the Merwingian kings, and even under the Carolings. It will not be uninteresting or without advantage to compare with this account the description which Hincmar, archbishop of Rheims, gives of the institution as recognised and organized by Charlemagne, a prince by nature not over well disposed to popular freedom, and by circumstances placed in a situation to be very dangerous to it[[475]].