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II.

CHAP. II.

The Government and Laws of the more ancient Saxons.

CHAP. IT is said by Aristotle, that whoever lives voluntarily out of civil society must have a vicious disposition, or be an existence superior to man.' But nature has endeavoured to preserve her noblest offspring from this dismal and flagitious independence. She has given us faculties which can be only used, and wants which can be only provided for in society. She has made the social union inseparable from our safety, our virtue, our pride, and our felicity.

GOVERNMENT and laws must have been coeval with society, for they are essentially necessary to its continuance. A spacious edifice might as well be expected to last without cement or foundation, as a society to subsist without some regulations of individual will, and some acknowledged authority to enforce their observance.

THE Athenian philosopher has correctly traced the progress of our species towards political institutions. The connubial union is one of the most imperious and most acceptable laws of our frame. From this arose families and relationships. Families enlarged into villages and towns, and an aggregation of these gave being to a state.2

A FAMILY is naturally governed by its parents, and its ramifications by the aged. The father, says Homer, is the legislator to his wife and children.3 Among most barbarous tribes, the aged ancestors have prescribed to the community the rules of mutual behaviour, and have adjudged disputes. As population has multiplied, civilisation

Aristotle's Politic. lib. i. c. 2. p. 380. ed. 1606.

2 Aristot. lib. i. c. 3. p. 381.

This is one of Aristotle's most valuable works, and will repay with great profit a careful attention. 3 Cited by Aristot. ibid. p. 379.

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advanced, and the sphere of human activity has been CHAP. enlarged, more precise regulations, more decided subordination, and more complicated governments became necessary, and have been established.

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THAT the Saxon societies, in their early stages, were governed by the aged, is very strikingly shown in the fact, that the words of their language which denote authority, also express age. When it states that Joseph was appointed ruler over Egypt, the words are, sette into ealdɲe over Egypta land."4 For Cæsar, the emperor, we have "Carenar tha beoth cýninga ylbert." Here eldest is used as synonymous to greatest. A British general is called an "ealdorman."6 The Latin term satrapa, by which Bede expressed the ruling Saxon chief of a district on the Continent, is rendered by his royal translator, "ealdojman." 7 The phrase of "a certain ruler," in St. Luke, is, in the Saxon Gospel, "rum ealdop." The contest between the disciples of Christ which should be the greatest, is expressed in the Saxon, which should be the ylbert. The aged were the primitive chiefs and governors, among the Saxons, and therefore the terms expressing age were used to denote dignity so habitually that they were retained in common phrase, even after the custom of connecting power with seniority had become obsolete.

THE most ancient account of the Saxon government on the Continent exists in this short but expressive passage of Bede: "The ancient Saxons have no king, but many chiefs set over their people, who, when war presses, draw lots equally; and whomsoever the chance points out, they all

4 Genesis, xlv. v. 8., in Thwaite's Saxon Heptateuch.

5 So the pontifex is called ÿlderta birceop, Orosius, lib. v. c. 4. 7 Smith's edition of Bede, p. 624.

6 Sax. Chron.

8 Luke, xviii. v. 18. So the highest seats in the synagogue are called tha ylderran serl, Luke, xx. 46. The Saxons had ÿldest pýɲhta for the chief workman, yldest picing for the chief of pirates, on scype ÿldost for a pilot, ÿledest on tham yfelan flocce for prince of that evil flock. So Bede's "he who by the priority of seat seemed to be their chief," lib. v. c. 13., is rendered by Alfred re per serles ÿldest et me thuhte tha he heopa ealdor beon rceolde, p. 633.

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CHAP. follow as leader, and obey during the war.

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The war concluded, all the chiefs become again of equal power." 10

11

THAT the continental Saxons in the eighth and preceding centuries were under an aristocracy of chieftains, and had no kings but in war; and that the war-kings who were then chosen laid aside their power when peace was re-established, is attested by other ancient authorities. More recent historians have repeated the assertion.12 Cæsar gives an account nearly similar of the German magistracy in his time.1 13 We may, therefore, safely infer, that when the Anglo-Saxons visited England, they came under war-kings. The reigns of Hengist, and of the founders of the dynasties of the Octarchy, were so many periods of continued warfare, and their immediate posterity were assailed with hostility from the natives almost perpetual. The Anglo-Saxons were under a necessity of continuing their war-kings, until at length a permanent, though a limited, monarchy was established. Their chiefs, or witena, continued in their

10 Bede Hist. Eccles. lib. v. c. 10. p. 192.

11 The ancient Saxon poet says,

Quæ nec rege fuit saltem sociata sub uno

Ut se militiæ pariter defenderet usu;

Sed variis divisa modis plebs omnis habebat,
Quot pagos, tot pene duces.

Du Chesne.

Si autem universale bellum ingrueret, sorte eligitur cui omnes obedire oporteat ad administrandum imminens bellum. Quo peracto, æquo jure ac lege propria contentus potestate unusquisque vivebat.—Wittichind, lib. i. p. 7. So the Vetus Theotisce Chronicon on the year 810. Twelff Edelinge der Sassen dereden over dat lant tho Sassen. Und Wannere dat se krich in dat lant, tho Sassen hadden so koren se von den twelffen einen, de was ore Koning de wile de krich warde. Und wan de krich bericht wart, so weren de twelffe gelick, so was des einen koniges state uth, und was den anderon gelick. - Lindenb. Gloss. 1347. This is " Twelve Ethelings governed over the land of the Saxons; and whenever war arose in that land, the Saxons chose one of the twelve to be king while the war lasted: when the war was finished the twelve became alike."

12 Krantz Metropol. lib. i. c. 1., and Belli Dithmar. p. 431. Fabricius Hist. Sax. i. p. 69. Sagittarius Hist. Bard. 60.

13 Quum bellum civitas aut illatum defendit aut infert, magistratus qui eo bello præsint, ut vitæ necisque habeant, potestatem deliguntur. In pace nullus est communis magistratus, sed principes regionum atque pagorum inter suos jus dicunt controversiasque minuunt. - De Bell. Gall. lib. vi.

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influence and power. They elected the king, though they CHAP. chose him from the family of the deceased sovereign; and their consent in their gemot continued to be necessary to the more important acts of his authority.

THERE were four orders of men among the ancient Saxons: the Etheling or noble, the free man, the freed man, and the servile. The nobles were jealous of their race and rank. Nobles married nobles only, and the severest penalties prohibited intrusions of one rank into the others. 14

Of their laws in their Pagan state, very little can be detailed from authority sufficiently ancient. From the uniformity of their principles of legislation in continental Saxony and in England, and in a subsequent age, we may infer that pecuniary compensation was their general mode of redressing personal injuries, and of punishing criminal offences. This feature certainly announces that the spirit of legislation began to be understood, and that the sword of punishment had been wrested, by the government, out of the hand of the vindictive individual. It also displays a state of society in which property was accumulating. It is, however, a form of punishment which is adapted to the first epochas of civilisation only; because as wealth is more generally possessed, pecuniary mulcts become legal impunity.

THEIR severity against adultery was personal and sanguinary. If a woman became unchaste, she was compelled to hang herself, her body was burnt, and over her ashes the adulterer was executed. Or else a company of females whipped her from district to district, and, dividing her garments to the girdle, they pierced her body with their knives. They drove her, thus bleeding, from their habitations; and wheresoever she went, new collections of women renewed the cruel punishment, till she expired.15 This dreadful custom shows that the savage character of the

14 Meginhard, 2 Lang. p. 40. Nithardus, lib. iv. Hucbald Vita B. Lebuini, Act. Sanct. vol. vi. p. 282. and Wittichind.

15 Boniface describes this custom in his letter to Ethelbald, the king of Mercia, in Mag. Bibl. Patrum, tom. xvi. p. 55.

CHAP.

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nation was not confined to the males. Female chastity is indeed a virtue as indispensable as it is attractive; but its proper guardians are the maternal example and tuition, the constitutional delicacy of the female mind, its native love of honour, and the uncorrupted voice and feeling of society. If it can be only maintained by the horrors of a Saxon punishment, the nation is too barbarous, or too contaminated, to be benefited by the penalty.

In their marriages they allowed a son to wed his father's widow, and a brother his sister-in-law.16

FROM one of the laws of their confederates, the Frisians, who were among the tribes that settled in England, we learn that their religious establishment was protected by penalties as terrible as those which guarded their chastity. "Whoever breaks into a temple, and takes away any of the sacred things, let him be led to the sea, and in the sand which the tide usually covers, let his ears be cut off, let him be castrated, and immolated to the gods whose temples he has violated." 17

16 Sax. Chron. Bede, i. c. 27. p. 64.
17 Lex Fris. ap. 1. Lindenb. p. 508.

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