A more important question for us is, what were the powers of the witena gemót? It must be answered by examples in detail.
1. First, and in general, they possessed a consultative voice, and right to consider every public act, which could be authorised by the king. This has been attempted to be denied, but without sufficient reason. Runde, who is one of the upholders of the erroneous doctrine on this subject, appeals to the introduction of Christianity into Kent, which he perhaps justly declares to have been made without the assent of the witan[[501]]. But it does not at all follow that the first reception of Augustine by Æðelberht is to be considered a public act, or that it had any immediate consequences for the public law. Nor is it certain that at a later period, a meeting of the witan may not have ratified the private proceeding of the king. Æðelberht, who had some experience of Christianity from the doctrine and practice of his Frankish consort Beorhte, may have chosen to trust to the silent, gradual working of the missionaries, without courting the opposition of a heathen witena gemót, till assured of success: his court were already accustomed to the sight of a Christian bishop and clergy in Beorhte’s suite, and Augustine with his company might easily pass for a mere addition to that department of the royal household. Indeed Augustine himself does not appear to have been at all ambitious of martyrdom, and probably preferred trying the chances of a gradual progress to a stormy and perhaps fatal collision with a body of barbarians, led by a pagan and rival priesthood. The words of Beda therefore can prove nothing in the matter, except indeed what is most important for us, viz. that Æðelberht at first refused to interfere as king, that is, would not make a public question of Augustine’s mission[[502]]. But Runde seems to have forgotten that Æðelberht’s laws, which must be dated between 596 and 605, do most emphatically recognise Christianity and the Christian priesthood; and as Beda declares him to have enacted these laws “cum consilio sapientum[[503]],” we shall hardly be saying too much if we affirm that the introduction of Christianity was at least ratified by a solemn act of the witan. Runde’s further remarks upon the conversion of Northumberland seem to prove that he really never read through the passages he himself cites, so completely do they refute his own arguments[[504]].
2. The witan deliberated upon the making of new laws which were to be added to the existing folcriht[[505]], and which were then promulgated by their own and the king’s authority[[506]]. Beda, in a passage just cited, says of Æðelberht:—“Amongst other benefits which consulting, he bestowed upon his nation, he gave her also, with the advice of his witan, decrees of judgments, after the example of the Romans: which, written in the English tongue, are yet possessed and observed by her[[507]].” And these laws were enacted by their authority, jointly with the king’s. The Prologue to the law of Wihtrǽd declares:—“These are the dooms of Wihtrǽd, king of the men of Kent. In the reign of the most clement king of the men of Kent, Wihtrǽd, in the fifth year of his reign, the ninth indiction[[508]]. the sixth day of the month Rugern, in the place which is called Berghamstead[[509]], where was assembled a deliberative convention of the great men[[510]]; there was Brihtwald the high-bishop[[511]] of Britain, and the aforenamed king; also the bishop of Rochester; the same was called Gybmund, he was present; and every degree of the church in that tribe, spake in unison with the obedient people[[512]]. There the great men decreed, with the suffrages of all, these dooms, and added them to the lawful customs of the men of Kent, as hereafter is said and declared[[513]].”
The prologue to the laws of Ini establishes the same fact for Wessex; he says,—“Ini, by the grace of God, king of the Westsaxons, with the advice and by the teaching of Cénred, my father, and of Hedde my bishop, and Ercenwold my bishop, with all my ealdormen, and the most eminent witan of my people, and also with a great assemblage of God’s servants[[514]], have been considering respecting our soul’s heal, and the stability of our realm; so that right law, and right royal judgments might be settled and confirmed among our people; so that none of our ealdormen, nor of those who are subject unto us, should ever hereafter turn aside these our dooms[[515]].”
And this is confirmed in more detail by Ælfred. This prince, after giving some extracts from the Levitical legislation, and deducing their authority through the Apostolical teaching, proceeds to engraft upon the latter the peculiar principle of bót or compensation which is the characteristic of Teutonic legislation[[516]]. He says,—“After this it happened that many nations received the faith of Christ; and then were many synods assembled throughout all the earth, and among the English race also, after they had received the faith of Christ, of holy bishops, and also of their exalted witan. They then ordained, out of that mercy which Christ had taught, that secular lords, with their leave, might without sin take for almost every misdeed—for the first offence—the bót in money which they then ordained; except in cases of treason against a lord, to which they dared not to assign any mercy; because Almighty God adjudged none to them that despised him, nor did Christ, the son of God, adjudge any to him that sold him unto death: and he commanded that a lord should be loved like oneself[[517]]. They then, in many synods, decreed a bót for many human misdeeds; and in many synod-books they wrote, here one doom, there another.
“Then I, Ælfred the king, gathered these together, and commanded many of those which our forefathers held, and which seemed good to me, to be written down; and many which did not seem good to me, I rejected by the counsel of my witan, and commanded them in other wise to be holden; but much of my own I did not venture to set down in writing, for I knew not how much of it might please our successors. But what I met with, either of the time of Ini my kinsman, or of Offa, king of the Mercians, or Æðelberht who first of the English race received baptism, the best I have here collected, and the rest rejected. I then, Ælfred king of the Westsaxons, showed these to all my witan, and they then said, that it liked them well so to hold them.”
The laws of Eádweard like those of Hloðhere and Eádríc have no proem: next in order of time are those of Æðelstán. The council of Greatley opens with an ordinance which the king says was framed by the advice of Wulfhelm, archbishop of Canterbury and his other bishops: no other witan are mentioned. Now it is remarkable enough that this ordinance refers exclusively to tithes, and other ecclesiastical dues, and works of charity. But the secular ordinances which follow conclude with these words: “All this was established in the great synod at Greátanleá; in which was archbishop Wulfhelm, with all the noblemen and witan whom Æðelstán the king [commanded to] gather together[[518]].”
The witan at Exeter, under the same king, are much more explicit as to their powers: in the preamble to their laws, they say: “These are the dooms which the witan at Exeter decreed, with the counsel of Æðelstán the king, and again at Feversham, and a third time at Thundersfield, where the whole was settled and confirmed together[[519]].”
The concurrence of these witan is continually appealed to in the Saxon laws which follow[[520]], and which are supplementary to the three gemóts mentioned. But in a chapter (§ 7) concerning ordeals, the regulation is said to be by command of God, the archbishop and all the bishops, and the other witan are not mentioned; probably because the administration of the ordeal was a special, ecclesiastical function. Again in the Judicia Civitatis Londoniae the joint legislative authority of the king and the witan is repeatedly alluded to[[521]].
Eádmund commences his laws by stating that he had assembled a great synod in London at Easter, at which the two archbishops, Oda and Wulfstan, were present, together with many bishops and persons of ecclesiastical as well as secular condition[[522]]. And having thus given the authority by which he acted, he proceeds to the details of his law, which he again declares to have been promulgated, after deliberation with the council of his witan, ecclesiastical and lay[[523]]. The council of Culinton, held under the same prince, commences thus: “This is the decree which Eádmund the king and his bishops, with his witan, established at Culinton, concerning the maintenance of peace, and taking the oaths of fidelity.”