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§ 14. The Anglo Saxon legislation commenced under Ethelbert, king of Kent; who was the Bretwalda or superior chief of the several Anglo Saxon kings, south of the Humber. A code of laws was then compiled, of which but an imperfect transcript has come down to our days. The ancient German customs which had until then been continued in use, were then reduced to a system and promulgated in the form of laws. Bede considers the first act of legislation as having been done in imitation of the Romans. The king in the style of a Roman Emperor, decreed or enacted; and his council or Witans advised. Previous to their migration into Britain and the adjoining continent, no chief, so far as has been discovered, ever claimed or exercised any such authority. This assumption of authority, was followed throughout the whole of the Anglo Saxon and the Danish period of the history of Britain. Its remains are plainly discoverable in the forms of enactment at a much later day. The functions of the councils which were held under the Anglo Saxon sovereigns were partly judicial, and partly legislative. Tacitus informs us that the chiefs or leaders of the ancient German tribes decided on affairs of smaller moment, but that the whole body of the people deliberated in matters of weightier concern. In the earlier history of each of the states which were formed by their descendants, traces of this ancient custom may be discovered. It appears that the ancient form of deliberations continued. The king or the optimates proposed the subject for debate and they alone joined in the discussion. There are also some indications of the sense of those of the community who did attend, having been still expressed in the ancient mode, and the remembrance of those customs doubtless influenced the language of public acts even when the people had altogether ceased directly to interfere. In later times as the predominant kingdoms extended their territories, and particularly as regards England, when the kingdoms of the octarchy were united into one empire, the assembly of the whole body of the thanes became impossible; and whatever were the functions which were originally exercised by the entire body, the whole naturally fell into the hands of a few. As the functions of this tribunal
partook both of judicial and legislative authority, to ascertain precisely the boundaries of each, in the assemblies of the Anglo-Saxons, after the union of the different states into one kingdom, is a most difficult task. As it regards legislation from the time of the conversion of the Anglo Saxons to Christianity, the prerogative of the crown seems to have been exercised with the advice of his council. Two of these councils are plainly discernible though not always to be distinguished. They formed the basis of the great councils and select councils which were held under the conqueror and his successors, and the remains of which are to be discovered in the house of Lords, and the privy council at the present day under the English Constitution. The king's council of either kind were constituted of the superior order of the king's vassals, together with Archbishops and Bishops, and Abbots of the principal monasteries. In some instances such as the king especially summoned for the occasion, even members of the clerical body of inferior rank, eminent for their attainments, might be selected as members of the king's council. The persons who acted as the council of the king are usually designated in the Anglo Saxon documents as Witan aldones; or by some such expressions ; sometimes as Edistan Witan. In the Latin charters they are described by the names of Principes, Senators, Conciliarii, Archontes, Pretors, but most commonly Proceres, or Optimates, a phrase which had been applied to those Romans of senatorial rank as distinguished from the Plebs. It seems that no lay man could be selected as one of the Optimates or council unless he were in the enjoyment of forty hydes of land. It is seldom that any public act of the Anglo Saxon kings is recorded without its being stated to have been done with the consent or the advice of the optimates, or proceres, or some of them. As many, sometimes all of the optimates would be, present at the courts of the state, it was natural that those assemblies should be made use of for the transaction of such business, as the proceres or witan usually advised upon, and such accordingly appears to have been the fact. Doubtless many persons who were in attenddance at the courts of the state in virtue of their offices not qualified as members of the councils attested the acts as witnesses : indeed there are numerous instances of that kind. As to the nature and constitution of the assemblies of the council which were convened for the dispatch of public business on other occasions, we are left in much doubt: so much must have depended on the urgency of the business, the state of times, the character and influence of the sovereign, and many other circumstances that in all probability, no uniform rule prevailed. From the numerous charters granted by the kings to the church and to their vassals, which are dated from the different royal villas or manors in which they resided in their progress through their dominions, it would appear that there was always a certain number of the optimates in attendance on the king to obey his summons, to act as his council when circumstances required it. This may have been what afterwards appears as the select council. Many acts of state emanated from this council ; but more solemn assemblies of the optimates or Ge Witena gemotes were frequently called em. bracing sometimes all, sometimes the most distinguished of the optimates; on some occasions the “best men” in the land is the expression used. These more solemn assemblies appear to have been held in the open air by public notice, or by particular summons in or near some city or populous town. These are the assemblies which are called parliaments by the writers after the conquest. It appears to have been the business of the select council which usually attended the king, or the select council as it may be called, to determine when those more solemn councils should be held. On some occasions when the throne was vacant these assemblies met on their own authority for the purpose of choosing a sovereign. Laws were framed and enacted at the councils assembled whether as courts of the state, or by special summons: but as before stated the enactments were almost universally in the name of the king, and this was continued by Wilļiam the Conqueror and his successors. The Conqueror indeed on these occasions asserted the kingly authority in the most positive terms, "mando et regia authoritate præcipio.” After the laws had ceased to be enacted in the presence of the assembled people, writs were sent to the different earles or lieutenants of counties, in which the laws were embodied, so that the ordinances made at the councils might be known both to rich and to poor, and this constituted the mode of publication in those early days.
In the early period of the juridical history of England their laws were ordinarily known by the name of assise or constitutiones : the king usually provided and ordained them.(a)
The laws or assisce so called are in the laws of England distinguished into those made before the time of
(a) Dwarris, 625.
memory, and those made since. The time of memory was fixed in conformity to a provision made in the time of Edward 1st for setting the limitation in the writ of right, which was by statute 1st West. c. 39, fixed at the beginning of the reign of Richard.
Although the limitation in a writ of right has been long since altered, this period has been chosen as a distance of very high antiquity, at which has been fixed the time of memory, as it is called, so that in England even at this time every thing before that period is said to have happened before the time of memory.
Those statutes which were made before this time, and which have not been since repealed nor altered by contrary usage or by subsequent acts of parliament, are considered as part of the leges non scriptæ; being considered now as in fact incorporated into and as having become a part of the common law of England ; notwithstanding copies of them may be found at the present time, their provisions are usually considered that of the sovereign.
Several laws even as late as Henry the 2d and in the reigns of Richard and John, vouch no other sanction but "rex constituit” or “rex præcepit" for everything they command or direct. Much of the early history of English statutes is no doubt involved in obscurity from the great difficulty of interpreting ancient records in which reference was not unfrequently made to antecedent documents written in language different from that of the originals and in many instances even in different parts of the same document a change of language occurs where the same circumstances in fact were intended to be stated. These defects in ancient statutes originate to a certain extent from the habits of the age where much was done without the formalities of any written record preserved, to which access is at this late age to be had, and partly from the disturbed state of the country for some time after the advent of William the first, and from the