The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 4

In my preceding lecture I pointed out the causes of the special importance of local institutions, at that epoch in the development of civilization which now occupies our attention. I now proceed to examine into those institutions.

They were of two kinds. One class bound man to a superior, established a certain right of man over man, a personal pre-eminence and subordination, which were the source of mutual duties. On the Continent, this hierarchy of persons became the first principle of feudalism, which would perhaps have received only a very imperfect development in England, had not William the Conqueror transplanted it to that country in its complete state. The other class of local institutions bound men of equal rank to each other, regulated their mutual relations, and defined their reciprocal rights and duties. The first class marked a relationship of protection and dependence; the second summoned all the inhabitants of the same territory, possessing the same rights and the same obligations, to deliberate in common upon affairs of common interest. These were the predominant institutions of the Anglo-Saxons. Norman feudalism could not entirely abolish them.

At this period, England was divided into tithings, hundreds, and counties. This division has been attributed to King Alfred: he seems to be the founder of all the legislation of this epoch, because it all issues in a fixed and precise form from his reign; but he found it already in existence, and did nothing more than arrange it in a written code. He did not, then, originate this division of territory, which appears to be based upon the ecclesiastical partition of the country. After their settlement in Great Britain, the Saxons did not divide it into systematically determined portions, but adopted what they found already established. The portions of territory which were under the direction of the decanus,1 the decanus ruralis,2 and the bishop, formed respectively the tithing, the hundred, and the county. We must not, however, suppose that these names correspond precisely to realities. The tithings and hundreds were not all equal in extent of soil and number of inhabitants. There were sixty-five hundreds in Sussex, twenty-six in Yorkshire, and six in Lancashire. In the north of England, the hundreds bore another name; they were called Wapentakes.* Here the ecclesiastical division ceases, and a military circumscription prevailed, which still subsists in some counties. An analogous circumscription has continued to the present day in the Grisons, in Switzerland.

These divisions of the soil had a double object. On the one hand, they formed the most certain means of insuring order and discipline; and on the other hand, they supplied the inhabitants with the most convenient method for transacting their public business in common.

By a police regulation which I have already mentioned, every free individual, above twelve years of age, was obliged to enrol himself in a certain association, which he could not abandon without the permission of the chief. A stranger might not remain for more than two days with a friend, unless his host gave surety for him, and at the end of forty days he was compelled to place himself under the surveillance of some association. It is remarkable that the details of these laws of classification and subordination were almost the same in all those parts of the Roman Empire occupied by the barbarians—in Gaul and Spain, as well as in England. When one of the members of a special association had committed a crime, the association was obliged to bring him to trial. This point has given rise to much discussion among learned men. Some have maintained that the association was bail for its members, not only for their appearance before the court of justice, but also for the crime which they might have committed. I think that every Anglo-Saxon association was bound only to bring the culprit to trial. If he had made his escape, the association had to prove, sometimes by twelve and sometimes by thirty witnesses, that it knew nothing of his whereabouts; and it was fined only when it could not produce witnesses to prove that it had not abetted his escape. This obligation of every local corporation to pay for its guilty and absent members, existed also in Gaul at this time. The Gallic corporation was moreover answerable for the execution of the sentence: I do not think this was the case in England, where it was bound only to bring the culprit to trial.

The second object of this division of the land was to appoint centres of union, where the inhabitants might discuss matters of common interest. In every county, and in every subdivision of a county, the landowners held meetings, at which they deliberated upon the affairs of the local association to which they belonged. Originally, therefore, there existed not only county-courts, but also courts of hundred and courts of tithing, which frequently met. By degrees, as the circle of the interests of these little associations continually tended to become larger, the courts of tithing fell into desuetude. The courts of hundred survived for a longer period, and even now retain some shadow of existence. The Saxons, however, dispersed over the country, and busied with their warlike and agricultural labours, gradually lost the habit of attending these meetings. Having scarcely any written rights to defend, and being seldom disturbed in their dwellings, they lived without anxiety for a liberty which was never called in question. The principal guarantee of the liberty of individuals at that time was their isolation: the active surveillance which it requires, when government exercises a direct and frequent influence upon the governed, would have been to them a useless and fatiguing burden. It devolved upon the kings to compel them, as it were, to keep up their old institutions. Athelstane ordained that the county-courts should meet once in every three months. Few persons attended them, and it became necessary to grant further indulgence. The county-courts were allowed to assemble only twice a year. All holders of land were entitled to attend their meetings. The matters discussed were the internal administration of the county, the maintenance of roads and bridges, the keeping in repair of the forts which the Romans had constructed to defend the country against the invasions of the Picts and Scots, and which were still used for the same purpose. All public business was transacted in the county-court, under the presidency of the alderman. At its meetings, military forces were levied, justice was administered, and ecclesiastical affairs were treated of. All public acts, sales, manumissions, wills, were conducted before it, and the publicity of the assembly gave an authentic character to these deeds. Every act, however, was authenticated by a certain number of witnesses, and the deeds were afterwards transcribed and intercalated in the parish Bible.

In these meetings, also, we discern the origin of the Jury. When there was a trial to be decided, the alderman sent a number of freemen belonging to the same class as the contending parties, to the place where the dispute had occurred, in order to learn the facts of the case. These men were called assessors, and when they returned to the county-court, furnished with the necessary information, they naturally became the judges in the case which they had investigated. The contending parties publicly pleaded their own cause, and were obliged to prove their right by witnesses, compurgatores. It has been a question much debated whether the institution of the jury arose from these witnesses, or from the assessors. In my opinion, it was the product of neither exclusively, but of both combined. The establishment of a great institution has nearly always something complex about it. The jury came into existence in some measure spontaneously, from the amalgamation of the different classes of persons who combined to investigate and decide the case. Under the Anglo-Saxon monarchy, it was not a very clearly defined institution. It was not universally in practice, its rules were frequently infringed upon: and Alfred, who was the restorer of the ancient institutions of the country, hanged an alderman who had given judgment without the co-operation of his assessors.

The presidents of these different territorial subdivisions, of the county-courts, the hundred-courts, and the tithing-courts, were at first elected by the landowners. I do not suppose the choice was made by individual votes, but rather by a tacit consent given to the personal influence of certain men. Sometimes, however, to repair long disorders, and destroy the injurious consequences of this influence, the central authority interfered in the appointment of these magistrates. When Alfred had vanquished the Danes, he was desirous to reform the abuses which the troubles of war had introduced into the administration of justice; he assumed the right of choosing the centenarri3 and tithing-men, and this novelty was so far from being considered an usurpation of the rights of the nation, that contemporary historians praise the monarch for having given the people such good magistrates. The systematic conflict of the rulers with the ruled had not yet commenced; the limits of their respective rights and duties were neither fixed nor recognised, and as power was not yet extravagant in its exactions, the people did not feel their rights attacked; necessity, or temporary utility, were the tests which decided the value of a measure. We do not find that the kings who succeeded Alfred retained this right of appointment. Under Edward the Confessor, the county-magistrates were chosen by the landowners. The conquest of William the Norman destroyed, in great measure, these free customs. The alderman, the centenarius, and the tithing-man, disappeared before the feudal lords, or became feudal lords themselves. The assemblies of freemen, however, still retained the right of appointing their respective officers. The sheriff was substituted for the alderman, the centenarius merged in the high-constable, and the petty-constable took the place of the tithing-man. These were the officers of the people,—the municipal officers.

Such is a summary of the local institutions which, under the Anglo-Saxon monarchy, maintained the internal order of the state, and constituted the safeguards of public liberty. Vigorous institutions were they, which feudalism could not overthrow, and which produced, at a later period, representative government in England, although they did not contain, as you will presently see, the true principle of representative government.

Let us now pass to central institutions. Of these, there were two among the Anglo-Saxons: the national assembly, and the royal office.

Tacitus has described to you the general assemblies of the ancient Germans. At those meetings, nothing was decided without the consent of every freeman. Each individual possessed and exercised his own personal rights and influence. The influence of the chiefs was great. The leaders of their men in war, they became, when their conquest was completed, the principal, indeed almost the sole, landed proprietors, and thus they retained among themselves, although the others were not legally excluded, the practice of forming national assemblies. Each kingdom of the Saxon Heptarchy had its own, and it is probable that the thanes, or landowners, enforced the adoption and execution of the resolutions of this assembly, among the ceorls who dwelt on their estates. When the Heptarchy was combined into a single kingdom, one general assembly alone was established; and as its meetings were held in a central locality, at a great distance from many parts of the realm, the large proprietors were the only persons who were able to attend regularly. This assembly was called the Wittenagemot, or the assembly of the wise men. From historical documents, we learn that it was composed of bishops, abbots, abbesses, dukes, and earls; but we also find these words, the vagueness of which has given rise to very different explanations: “such a decision was taken coram proceribus aliorumque fidelium infinita multitudine.”4 Some learned men, who are partisans of absolute power, have inferred from this that it existed at the very origin of society; and they assert that the name of the assembly, Wittenagemot, was in itself sufficient to prove that it was composed only of the judges and delegates of the sovereign. Other writers, who are zealous advocates of the rights of the people, have held the opinion that this multitude of persons present were the representatives of the various counties and boroughs. I think that both these systems are false. As regards the first, it is evident that there was no distinct class of judges at this period; public functionaries were not then classified as they are now, and the expression wise men would apply equally to all those whose condition raised them above the ‘vulgar herd.’ With reference to the second system, I must say that no idea of representation was entertained at that period. Whoever was entitled to attend the assembly went thither, and went in person. No proxies were allowed. No one was permitted to enter the assembly in any name but his own. When we come to treat of the principles of representative government, we shall see that the formation of the ancient Germanic assemblies was based upon the principles of individual right, and of the sovereignty of the multitude—principles from which representative government did not take its origin. Besides, the towns at this period were in so miserable a condition, that it was impossible for them to appoint representatives. York, the second city in England, contained fourteen hundred and eighteen families, and Bath sixty-four. A law of King Athelstane declares that no one entered, or could enter, the assembly, except upon his own account; every proprietor possessing five hides of land, it says, and every merchant who has made three voyages to foreign countries, shall be numbered among the thanes, and be admitted as such into the Wittenagemot. The inequality of conditions, however, continued to increase. Those national assemblies, in which, originally, all freemen were entitled to sit, soon became, as you have seen, restricted to landed proprietors. By-and-bye, as power became centralized, and predominant influences gained greater strength, the small proprietors ceased to use a right which had lost all value to them, and the large landowners remained the undisputed masters of the field. The disproportion between the two classes was so great, that a contest was impossible. As each man sat in his own name, each man brought his own personal influence and private interests with him. The general assembly became an arena for individual disputes. This was the necessary consequence of a principle, which, by summoning all persons to exercise the same right, placed inequalities in that position which was most favourable to the development of their power and egotism. It is the work of a widely different principle to seek out among the masses the persons best fitted to represent them, to send these individuals to the central assembly to provide for the safety of all rights in the name of justice, and thus to prevent the evil consequences which must result from the natural or social inequality of mankind, by creating a factitious, but just, equality among their representatives, which leaves them only the legitimate influence of their talents and character. But the foundation of such a government is the work of ages. Nations, in their infancy, cannot possess it. The Anglo-Saxon monarchy was a continual conflict of individual interests, which was carried on in the Wittenagemot, as well as elsewhere, and its general tendency was to the continually increasing preponderance of large landed property.5

[1. ]Chief.

[2. ]Chief of centuriated land.

[* ] From wapen, weapons, and tac, a touch, i.e. a shaking or striking of the arms; or from the same wapen, and tac, a taking or receiving of the vassal’s arms by a new lord in token of subjection; or because the people, in confirmation of union, touch the weapon of their lord. See Blackstone, In-trod., sec. 4. and Holinshed, vol. v. p. 37.

[3. ]Men in charge of a hundred.

[4. ]Before the leading men and the vast multitude of other confidants.

[5. ]This is the first reference to the “true” principles of representative government, a theme to which Guizot frequently returns in this book. For him, representation was not a mechanism to collect individual wills, but a process by which the fragments of reason disseminated in society are collected and brought (through elections and publicity) to form the government of society. This passage also highlights the centrality of political capacity to Guizot’s definition of representative government (power must be granted to the “most capable” citizens). For more details on this issue, see HORG, pp. 52–54, 226–27, 295–97, 345–47.