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Princes, being divided in the Civil War betwixt Stephen, Maud and Henry II, each Party treated thofe of the other Side as Rebels, which brought the Polfef
lion of much Land to the contending Princes. And as each Side had experienced the Power of the Barons over their VafTals, and having befides many Friend!
to remunerate, they fplit the Baronies into fmaller Tenancies in Chief, who all held immediately of the Crown. Hence arofe the Diftinftion of Fees of the
eld FcofVm-nt and Fees of the New, and alfo of the greater and lelfer Barons. By granting thus fmall Fees in the Reigns of Stephen, Henry 11, and King
^fohn. Tenants in Capite or Barons, were fo multiplied, that a very unequal Reprefentation of the Kingdom arofe, thefe leffer Barons having an equal Share in
the Legiflature with the moft Potent. This Grievance being grown to the greateft Height, when King John was reduced to Reafon, there was a Claufe in-
ferted in his Magna Charta, whereby all the greater Barons were to be feveraliy fummoned to Parliament, and the leffer in general, by which means thefe
laft were excluded from fitting in Parliament fingly and in Peifon j but however the being fummoned in General, gave them a Right ti do this as a Ccmmu-
11 ty, and by Reprefenutiou ; and as thefe lefler Barons were co-ordinate in Rank, the Right of reprefenting them naturally devolved on fuch of their Bcdy as
tlie r -it conferred it on. The Perion r fo chofen, were called from the Tenure of their Lands, and from their reprefenting the refpective Counties for which they
ferved Knights of the Shire. Th-fe were 1 1 be chofen at the County Courts, where none but the immediate Tenants of the Crown (the lelTer Barons) came,
and none other had Votes till b) the eighth of Henry VI, all Free-holders of forty Shillings per Annum had a Right to Vote at the Election of Knights of tie
I ire. Thus we find both before and after the Conqueft all Proprietor's of Lmd had a Share in the Legiflature



lo ge in St. Amand '■, EJJ'ay or. the Legijlative Pmatr, ic.



The Readst may fee thefe Things mere at



III. The



M<?



The H I S T R T of E N G L A N D.



Vol. I.



3. //; Tif"?
■ttwj lodged
:■ Lq Tfla-
tiitt Pnver*



III. The Authority of the Wittena-
Gemot, and the Affairs there de-
hated.



THERE is no treating this Subject with any clear-
nefs, without examining three Queftions, which are
as warmly controverted as the former.

I. In whom was lodged the Legiflative Power ? Whe-
ther in the King, in the great Council, or in both toge-
ther ?

II. Whether the King had a Power to tax the Peo-
ple without the Confent of the Wittena-Gemot ?

III. Whether the General AlTembly had a Right to
elect and depofe the Kings ?

Thev who moft ftretch the Prerogative Royal, pre-
tend, the Legiflative Power was wholly lodg'd in the King.
In proof whereof, they urge the Terms made ufe of by
the Saxon Kings in their Laws, by which they feem to
declare them felves the fole Enactors, without giving room
to believe the General AlTembly had any hand in the mat-
ter. To this it is anfwered, Though there is no mention
in thefe Laws of the Confent of the great Council, it does
not follow, that their Concurrence v/as not necefTary ; no
more than it can be inferred at this day from our faying
the Statutes of King Charles I, or of King Charles II,
that thefe Statutes were enacted without the Confent and
Authority of Parliament. If we were literally to under-
ftand all the Expreflions ufed in fpeaking of, and to the
King, we fhould doubtlefs afcribe greater Power to him
than he is actually inverted with. But to give more di-
reil Proofs, that the Authority of the JVittena-Gemot was
necefTary in making new Laws, feveral Teftimonies are
produced, fhewing that the Kings ailed nothing in this
refpect without the Confent of the Eftates. Among the
many that are alledgcd, I fhall only chufe a few, and
infert the fubftance of them.

In the title of the Weft-Saxon Laws publilhed by King
fiur, it is fiid, They were made with the Advice and
Confent of the Bifhops, Great Men, Earls, Wife-men,
Seniors, and People of the whole Kingdom.

Egbert fays in one of his Charter: ; /Egbert, King of the
Weft-Saxons, with thePermiJJion and Confent ( I ) of our whole
Nation, and unanimous Advice of all the Great .'■/. n, Sec.

But feeing it may be objected, that this is a Charter and
not a Law, the teftimony of King Alfred is alledged,
who, in the Title of his Laws, fpeaking as if he acted
by his fole Authority, concludes with thefe Words ; /
Alfred, King of the Weft-Saxons, Jheived thefe Laws to
my Wife-men, and The\ faid, they all lik'd, or, were
pleas'd, they fhould be obferved.

At the end of Athenian's Laws we have thefe Words :
All thefe things were confirmed and ordained by a General-
Affembly, or Synod, held at Grattly, at which was prcfint
Orchbijhop Elfin, with all the great Men King Athelftan
could affemble.

The Title of fomc other Laws made by this King runs
in this manner : Thefe are the Laws that were injlituted
by the Wife-men at Exeter.

Much the fame Expreflion is prefixed before the Laws
of Edgar, and E the /red II.

In a Charter of Canute the Great, we have thefe Words :
/ Canute, King of the whole If and of Albion, and many
other Nations, by the Advice and Decree of the Archbijhops,
Bijlnps, Abbots, Earls, and all my other faithful Subjecls,
have ordain' d, &c. This Authority is of the greater force,
as Canute, afcending the Throne by right of Conqueft,
would not probably have fought the Concurrence of the
Eftates, had he not found it cuftomary fo to do.

In a word, it is pretended, if fome of the Kings exprefs
themfelves in fuch a manner, as would induce one to believe
they acted by their fole Authority in the Promulgation of
the Laws, their Words arc not to be taken in the literal
Senfe. The reafon is, thefe Expreflions are explained
and limited by thofe of fome other Kings, who own'd,
they acted in concert with the Wittena-Gemot. Now
there is no likelihood, Sovereign Princes would ever ac-
knowledge their Power to be limited, if it was not fo in
reality. If any one will inlift upon this fort of Exprefli-
ons, which feem to imply that the Kings make Laws
without the Confent and Approbation of Parliament, it
may by the fame method be proved, that the King at this
very day is invefted with an abfolute Power in this re-
JpecL And indeed, in fome certain Acts, which are pre-



fented to him by the Parliament, he fays, that he wills and
requires, though it is well known, his Will would be of
no force, unlefs preceded by the Confent of the two
Houfes.

The fame Reafonings and Reflections occur with regard IT. fl-»>2
to the fecond Queftion, or the Impofition of Taxes. If r " x "'
the Saxon Kings feem in fome Pailagcs to levy Taxes by
their own Authority, we are to underftand it was not till
after the previous Confent of the Eftates, as we find upon
other Occafions.

I fhall not infift here on the third Qiieftion, concern-
ing the electing and depofing of the Kings, becaufe I in-
tend to treat of thefe Points under the Article of the Suc*-
ceflion.

IV. The Authority of the Wittena-
Gemot in Ecclejiaflical Matters.

BEFORE the Anglo-Saxons embraced the Chriftian
Religion, one of their fundamental Maxims (afcribed
alfo by Tacitus to the antient Germans) was, that all im-
portant Affairs relating to the whole Nation, were brought
to the General-Aflembly, where they were debated in
common, that they might be fettled with the unanimous
confent of all that had a Right to vote. 'Tis no wonder
therefore that Religious Affairs were regulated in the U it-
tena-Gemots, as I have elfewhere obferved, fince they are
of the greateft importance to Mankind. Accordingly,
Edwin King of Northumberland, being defirous, after his
Converfton, to eftablifh the Chriftian Religion in his Do-
minions, did not undertake it till he had confulted his
Wife-men, that is, his Wittena-Gemot, as Bede relates it.
The Maxim, that no Laws are binding but what the
whole Nation has confented to, has all along been looked
upon in England as the Foundation of Liberty, and the
Bads of Government.

Ecclefiaftical Affairs may be ranked in two Gaffes.
Firft, fuch as relate to the Clergy alone, as making a di-
ftinct Body from the Laitv. Thefe were left, as they
now are, to the fole management of theEcclefi.ifticks, who
held their Councils or Synods, where the Laity had no-
thing to do. Secondly, fuch as concerned the Body of the
People, as Chriftians. Thefe were regulated in the mixt
Councils, confiding of the chief Men of the Clergy and
the Nobility. Herein, the Rules of Equity were perfectly
followed. It was not thought juft to enact civil Laws,
that were obligatory to the Clergy as Members of the
State, without their concurrence. On the other hand, it
was deemed unreafonable, that the Clergy fhould have a
power of makingEcclcfiaftic.il Laws that were binding to
the Laity, as Chriftians, without the Confent of the Wit-
tena-Gemot, or Representative of the Nation. Thus, in
both thefe refpects, the fame Principles were followed,
namely, that no Man was bound by any Laws, to which
he had not given his Confent, either by himfelt or his Re-
prefentative. Hence it is, that the Wittena-Gemots were witton-
for the moft part mixt Affemblies, where all important Gemot tow
Affairs, as wcii Ecclefiaftical as Civil, were treated, and ? ™y' ' *
that thefe Affemblies had no lefs Authority in Spirituals'
than in Temporals.

To be convine'd of this, we need only caft an eve on Proofs cfiu
the Laws of the Anglo-Saxons, where we find a perpetual
mixture of Ecclefiaftical and Civil Matters. I fhall pro-
duce a few inftances, which feem to be inconteftable. In
the Year 673, a Council was convened, where Theodore
Archbifhop of Canterbury prefided, and ten Canons of the
ancient general Councils were aflented to, as hath been re-
lated in the Hiftory of the Church of that time. But this
AiTembly was not purely an Ecclefiaftical Synod ; for be-
fidesthe Bifhops, all the Kings and great Men of England
were prefent, as an Hiftorian relates it. And therefore M- w e(t»
'twas a mixt Council, a my eel Synod, a real JP'ittcr.a-Gemot.
We muft take care not to be led into error by the Words
Council or Synod, which at prefent denote an AfTembly
of Ecclefiafticks ; whereas in the time of the Anglo-Saxons,
thefe Terms were not undcrftood in fo limited a Senfe, but
ferved to exprefs all forts of great Affemblies, Whoever
carefully examines the nature of thefe antient AfTcmblies,
which by Hiftorians are called Councils, he will find,
they were mixt Conventions ; fincc they were fubferibed,
approved, and aflented to, by the Kings, Princes, and great
Men there prefent. In the reign of Edward the Elder, an
AfTembly was held, where the Articles of a Treaty were
fettled between that Prince and Guthurm, to whom Alfred
had given Eafl-Angha, a State Affair, if ever there was
any. And yet, in this very AfTembly were enacted fe-
veral Ecclefiaftical Laws, which in the Preamble are called
Senatus Confulta, becaufe made by the Witan, that is, by



(t) Cum Ltcentii & Cenjeiifit. Crcat Regitler of Abingdon, before-mentioned.

(', To the Abbey of St,' £Jmiind/iu-y, now in the Office of the Kin£*s Raricmh enter o( the Exchequer.



the



A DiiTertation on the Government of the Anglo-Saxons.



5?



na-Gemot
t ten ch ' d



Eddiul vit.
Wilt', c. I ]
p. 46.



the great Men of JVcffex and Ea/l-Anglia. Among thefe
Law;,, befides feveral that were purely political, there arc
fome with thefe titles, Of ApnjlatcSi, Of the Punijhment of
Juch as are in Orders, Of but /Is, Of Fajh, &c. From
whence it is manifeft, thefe Political AiTemblies made Laws
concerning Religion. An Hiftorian fays, King Athcljlan
convened a Council, in which many Laws both Ecelch-
aftical and Civil were enacted : Confcquently this was not
an Afiembly of Churchmen, fince it was never pretended,
the Clergy had a power to make Secular Laws.

But this is not all. It i* fhewn by feveral inftanccs,
that the Wittena-Gemot elected and deprived the Bifhops.
Wilfrid Bifliop of Tori, whom I have had frequent occafion
to mention, was elected by the two Kings of Northum-
berland, and the General Council of that Kingdom, as
the Author of his Life relates. Erhenwald Biihop of Lon-
domxas elected with the Confent of King Sebba and the



they became mafters of, but very few Britons, who were
looked upon but as lb many Slaves. As therefore the An-
glo-Saxons can't be (aid to lafe their Rights by making
Cctnquefte, they are to be confidered upon the fame foot as
in (ill-many, that is, as a lice People under the conduct of
a Head or Chief, whufe power w.is limited by Law.

There is no doubt, that in England, as in all other
Kingdoms, the Royal Authority by decree, exceeded the
Bounds at firft prescribed. But, the Hiflory of the Anglo-
Saxons being very imperfect, there is no givin
Account of this matter. I inuft therefore content - \ If
with mowing in general fome of the chief Prerogatives
enjoyed by the. Anglo-Saxon Kings during their Dominion,
which lafted above 600 Years, withoue being able f<> much
as to obferve the alterations that may have been in thisre-
ipedl in fo long an Interval,

One of the molt confidcrablc of the King's Prerogatives Th Km£*



Advice of all the People. Wuljlan was made Bifhop of was the Power of appointing the Earls, Vifcounts, Judges, '"'



JttJ itrfr
W tbm
alfo.



ford,



IVorcijhr in Cur'ni, that is, in the great Afiembly, which
was called the Court, or the King's Court, lngulplms,
Abbot of Croyhmd fpeakfi in this manner of the Elections
of the Bifliops and Abbots : For many Years, there was no
Eleflion abflutely free and canonical : But all Eccleftajlii.al
Dignities lucre conferred by the King's Court, according to
their good pleafure (1).

As the Hiitcna-Gemot was concerned in the Election, fo
was it alfo in the Deprivation of Bifliops. Of which I
fhall give the following inftances. Brithelm, Biihop of
Dorchcjlcr, being promoted to t lie See of Canterbury, Ed-
gar, who had a mind Dunjlan fhould be Archbifhop,
caufed Brithelm to lie fent back to his former Biflioprick.
How this was done we are informed by Osbern the Monk,
who wrote the Life of Dunjlan : Within a few days after
Brithelm was made Archbifhop, not thinking himfelf fit for fo
gi eat a charge, he departed to the Church he had lately left,
LWalling- by the Command of the King and People. Another Hiftorian
relates this matter in the manner following: Edgar made
Brithelm defend the fame way he was raijed: For a Council
being convened for this very purpofe, he objeclcd feveral Articles
again Brithelm, and by the Order and Confent of his Ba-
rons, fent him back to the Cure of Ms former Church of Dor-
chefter. Brithelm therefore was both elected and deprived
by the Authority of the Wittena-Gemot. In the Reign of
Edward the Confejfor, Robert Archbifhop of Canterbury
was removed from his See bv a Decree of the Wittena-Ge-
mot, and Siigand, being elected in his place, the papal pow-
er could neither procure this Election to be annulled, as
long as the Dominion of the Saxons biffed, nor prevent
the Englijh from acknowledging Stigand as lawful Arch-
bifhop, tho' fufpended by the Pope.

Thefe Infhinces fhow, the IVitfena-Gemct, or Mycel-Sy-
nod was an Eccleliaftical and Political Affembly at the
fame time, and that all Affairs relating to the Church and
State were indifferently treated there. 'Twasnottill long
after, when the Papal Authority was grown to a great
height, under the Norman and Angevin Kings, that the
Clergy claimed the Privilege of debating apart all matters
any ways relating to Religion, in Ecclefiaftical Aflembiies
©r Synods.

It is time now to fpeak of the King in particular, his
Prerogatives, Revenues, and Succeffion to the Crown.



Of the KIN G.

I Have already obferved in another place, that the Saxon
Government in Germany was Arijtocratical, and that
they had only a General who commanded their Armies in
time of War. The Saxon Leaders themfelves erected
their feveral Conquefts in Great-Britain into Kingdoms,
and affumed the title of King. But with this new title,
thev were however confidered at firft by their Subjects upon
the fame foot only with their Governors in Germain;
■whole power was far from being Defpotical. Neverthelefs,
fome pretend, the right of Conqueii gave thefe firft Kings
an unlimited power, from whence it would follow, that
the Privileges of the EngliJhSub]e£is were either Conceffi-
ons of the Kings, or Ufurpations of the People. This
Argument, drawn from the right of Conqueft, might have
fome weight if the Privileges of the Britons, who were
fubdued, was the point in queftion. But the Bufinefs in
hand is the Privileges of the Saxons or Englijh, who were
themfelves the Conquerors, and over whom Conqueft gave
no power to their Kings. I fay, we are to conlider here
the Saxons only, fince there remained in the Country



The Ptvier

*f the King
VlathunJcJ.



and other Officers as well Civil as Military. Some how-
ever affert, that the military Poll of the Dukes or Holds
of each County was conferred by the Shire-Gemot. Very
probably, it was in the King's power to change thele
Officers according to his pleafure, ot which we most with
feveral inftances in Hiftory. But after all, it can't be po-
fitivcly affirmed ; becaufe when fuch an Officer is found
to be turned out by the King, it does not neceflarily fol-
low, it was done without the Confent or previous Sentence
of the Wittena-Gemot [2).

Another great Prerogative of the Crown, was that the *•
Laws made in the Wittena-Gemot were of no force without
the Allent of the King, to whom was committed the Ex-
ecutive Power.

The King had alfo power to pardon Malefactors. But
as Offences may be confidered in a double view, namely,
as they concern tiie publick, or as being prejudicial to fome
private Perfon, the King could only pardon them in the
firft refpeci. The King's pardon prevented not the offend
ed Party from demanding fatisfaction tor the wr< :.". he
had received. This fatisfaction was called in Saxon, li i
geld, that is, a Raparation, made to the injured psrty or
his friends and relations. Hence doubtiefs came the Cuf-
torn in England at this day, of the Wife's or Son's appeal-:
ing in cafes of Murders. For the fame reafon alfo this
Claufe is ufually inferted in Pardons : ha tauten utjiet redo
in curia nojlrd, ft quis verfus enm loqui voluerit.

The power of coining Money was another of the **
King's Prerogatives, which he could grant bv Charter to
whom he pleated, as we find feveral cf the Saxon Kings
granted the fame to the two Archbifhops and pt! e .
But the King had not the power of enhancing or de-
bafing the Coin. The AJirrcr offiyiia recites it as
an old Law, that the King could not change the Money,
or make other Coin than oi Silver, without the Confent
of all die Counties.

It is uncertain, whether it was abfolutelv in the Power
of the Saxon Kings, to make War or Peace, without the
Confent of the Mittena-Gcmc!. It is true, indeed, the
Power of making War was, ns it is now, of little conj
quence ; fince the King not being able to caife M
without the Confent cf the Eftates, could not bear the
expence, if his Subjects refufed to affift him. But
making Peace, the cafe is quite different, fince on a od
or bad feace, depends the welfare of a whole Kil
as- hath been too often ex per iene'd. And therefore, thefe
two Prerogatives, which are commonly joined
widely differ in their Conlequences. It Des in the Pe -
pie's Breaft to contribute to the Wars the King is ;>'
to undertake ol his own accord, and, bv refufn
Concurrence, have it in their power to prevenl tie mif-
chiefs that an unjuft or unneceffary War may occ i •
But how fhall they hinder theeftcctsof a pernicious Peace,
concluded without their Knowledge?

The King's Revenue were of three forts. The firfi TbcKTrg's
confiftedin certain things, furnifhed him by the State, for R''-'-"'- Jf '-
the maintenance of his Houthold, as Corn, Hav, l
and the like, which were ufually paid in kind. The fe-
cond Branch was the produce of certain Demefnes or
Lands annexed to the Crown, and defigned to ferve for
publick Ufes, it not being in the power of the Kins 10
grant any part of tiiem, not even to the Church, u Kn-
out the Confent of the Eftates. Hence it is that we rind
the antient Charters of the Saxon Kings to the Churches
or Monafteries, confirmed by the principal Members of
the General Afiembly, who ligned them in this man-
ner. /. A have fubferib' d, confirm' . 1 rro-

borated, or other the like Expreffions. It cannot be doubted"



(1) After which the Pcrfon fo elected being fiifl confecratcd, the King inverted him with the Temporalities, by the Delivery Bacilli miA-.r.uli, as you
may fee in the fame Author.

(2) As the Earls in thofe Days held their Earldoms of the Community and not of the King, there is no doubt but they were both made and turned out
with the Confent of the Great Council. But as a Body Politick rannot act it felf, when any particular Act is to b done, the Execution thereof naturally
devolves on the King as Lord ..r Head of the ereat Seignory of the Kingdom. And therefore when he is Cud to nu»t or put out an Earl, the AlTent of the
tVitiena-Gtmit is always to be fuppofed. For Fiwl.il Earl; (and all were lo in thofe Days) could not be made without the Cenlitit ol" ths P^eri-



N<\ VIII. Vol. I.



Rr



but



tj8



The H 1 S T R Y of E N G L A N D.



Vol. I.



W this Branch of the King's Revenue was applied to pub-
lick Ufes, when it is confidered, that fo late as the end
of the XlVth Century, in the Reign of Richard II, the
Parliament order'd, that for the future the Revenues of the
King's Demefnes ihould go towards defraying the charge
of the Wars he fhould be engaged in. The third Branch
confifted, as at this day, of certain Taxes or Imports,
which were laid from time to time on the People up-
on urgent occafions, by the Authority of the Wittena-
Gemot.

We don't find, during the Heptarchy, the Kings af-
fected any fwelling Titles, as fome did afterwards. They
were all contented with the Title of King of their refpec-
tive Kingdoms ; and the Prince who was elected Monarch



the three, is more difficult than to combat the other two.
This difficulty arifes from our imperfect Knowledge of the
Hiftory of the Anglo-Saxons, and perhaps from their not
proceeding regularly themfelves in this matter. The Ar-
guments ufed by each Party in defence of his own, and
againft the Opinions of his Adverfaries, are as follows.

The firft fay, we need only run over the Hiftory of Proof of the
the Heptarchy, to be convinced that in each of the feven Cr ™" r '
Kingdoms, the Crown remained in the Family of the firft f^ r ~.
Kings, as long as there were any Male Heirs in being.
And that after the Union of the feven Kingdoms, there
was no alteration in this refpect, the Race of Egbert fit-
ting on the Throne down to Edward the Confeffor. 'Tis
true indeed the Danijli Kings are to be excepted : but as



Inr Corona-
l's n : the



did not^magine he had a Right to diftinguifh himfelf they intruded themfelves by force of Arms, nothing can
upon that account. Egbert himfelf, after acquiring the be inferred from thence againft the Crown's being Here-
Sovereignty of the Seven Kingdoms, made no Alteration in tiitary.

his ufual Title of King of the Weft-Saxons. Atheljlan They who believe the Crown was Elective, ground pmftbat
was the firft that ftikd himfelf, Imperator. Edmund wai their Opinion upon the fame Hiftory, by fhowing that » ™^_
fatisfied with, Reilor U Gubernator Angliec. Edgar called the Lineal Succeffion from Father to Son was not always
liimfelf, King of the inhale IJknd of Albion. Canute the preferved. And indeed, they demonftrate, by undeniable
Great affirmed the Title of King of Albion and many other Proofs, that the King's Brother often fucceeded before
Nations Some aft'efted a Greek Title, as Edgar, who the King's Sons, and diftant Branches of the Royal Fa-
ftiled himfelf, Tonus Anglia Bafileus. mily were preferred before the neareft ; whence they con-
As for the' Coronation of the Anglo-Saxon Kings, there elude, this was occailoned by the right of Election re-
was no time fixed for this Ceremony, cither during the fiding in the People. They further add, that although the
Heptarchy, or after the Union of the Seven Kingdoms. Son fucceeded the Father, fometimes even for feveral Ge-
Each was'crowned when he thought it moft convenient, nerations, it does not neceffarily follow, that the Crown



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