II. A. D. BOOK of the great men, who had adorned themselves with the fpoils of royalty. The throne was now the prize of faction; and Harold, the fon of Goodwin, having the ftrongest faction, carried it. By this fuccefs the oppofite parties were inflamed with a new occafion of rancour and animofity; and an incurable difcontent was raifed in the minds of Edwin and Morcar, the fons of Duke Leofric, who inherited their father's power and popularity; but this animofity operated nothing in favour of the legitimate heir, though it weakened the hands of the governing prince. The death of Harold was far from putting an end to these evils; it rather unfolded more at large the fatal confequences of the ill measures, which had been purfued. Edwin and Morca fet on foot once more their practices to obtain the Crown; and when they found themselves baffled, they retired in difcontent from the Councils of the nation; withdrawing thereby a very large part of its ftrength and authority. The Council of the nation, which was formed of the clafhing factions of a few great men (for the reft were nothing) divided, difheartened, weakened, without head, without direction, difmayed by a terrible defeat, fubmitted, because they faw no other course, to a conqueror, whofe valour they had experienced, and who had hitherto behaved with great appearances of equity and moderation. As for the Grandces, they were contented rather to fubmit to this foreign prince, than to thofe, whom they regarded as their equals and enemies. With these causes other ftrong ones concurred. For near two centuries the continual and bloody wars with the Danes had exhaufted the nation; the peace, which for a long time they were obliged to buy dearly, exhaufted it yet more; and it had not fufficient leifure, nor fufficient means, of acquiring wealth to yield at this time any extraordinary refources. The new people, which after fo long a struggle had mixed with the English, VI. A. D. English, had not yet so thoroughly incorporated with the ancient CHAP. inhabitants, that a perfect union might be expected between them; or that any strong uniform national effort might have refulted from it. Befides, the people of England were the moft backward in Europe in all improvements, whether in military or in civil life. Their towns were meanly built, and more meanly fortified; there was fcarcely any thing, that deferved the name of a strong place in the kingdom; there was no fortrefs, which, by retarding the progrefs of a conqueror, might give the people an opportunity of recalling their spirits and collecting their ftrength. To these we may add, that the Pope's approbation of William's pretenfions gave them great weight, especially amongst the clergy; and that this disposed and reconciled to submission a people, whom the circumstances we have mentioned had before driven to it. B CHAP. VII. Of the Laws and Infiitutions of the Saxons. EFORE we begin to consider the laws and conftitutions of the Saxons, let us take a view of the ftate of the country, from whence they are derived, as it is pourtrayed in ancient writers. This view will be the beft comment on their inftitutions. Let us reprefent to ourselves a people without learning, without arts, without induftry, folely pleafed and occupied with war, neglecting agriculture, abhorring cities, and feeking their livelihood only from pafturage and hunting through a boundless range of moraffes and forefts. Such a people muft neceffarily be united to each other by very feeble bonds; their ideas of government will neceffarily be imperfect, II. A. D. BOOK their freedom and their love of freedom great. From these difpofitions it muft happen of courfe that the intention of invefting one perfon, or a few, with the whole powers of government, and the notion of deputed authority or representation, are ideas, that never could have entered their imaginations. When therefore amongst such a people any refolution of consequence was to be taken, there was no way of effecting it but by bringing together the whole body of the nation, that every individual might confent to the law, and each reciprocally bind the other to the obfervation of it. This polity, if fo it may be called, subsists still in all its fimplicity in Poland. But as in fuch a fociety, as we have mentioned, the people cannot be claffed according to any political regulations, great talents have a more ample sphere, in which to exert themselves, than in a close and better formed fociety. Thefe talents must therefore have attracted a great fhare of the publick veneration, and drawn a numerous train after the perfon diftinguished by them of thofe, who fought his protection, or feared his power, or admired his qualifications, or wifhed to form themfelves after his example, or in fine, of whoever defired to partake of his importance by being mentioned along with him. Thefe the ancient Gauls, who nearly refembled the Germans in their cuftoms, called Ambacti; the Romans called them Comites; over these their Chief had a confiderable power, and the more confiderable, because it depended upon influence rather than inftitution; influence amongst fo free a people being the principal fource of power. But this authority, great as it was, never could by its very nature be stretched to defpotifm; because any defpotick act would have fhocked the only principle, by which that authority was fupported, the general good opinion. On the other hand, it could not have been bounded by any pofitive laws; because laws can hardly subsist amongst a people, who have not the ufe of letters. It was a fpecies of arbitrary power, VII. power, foftened by the popularity, from whence it arofe. It CHAP. came from popular opinion, and by popular opinion it was corrected. If people, fo barbarous as the Germans, have no laws, they have yet cuftoms, that ferve in their room; and these customs operate amongst them better than laws, because they become fort of nature both to the governours and the governed. This circumftance in fome measure removed all fear of the abuse of authority; and induced the Germans to permit their chiefs* to decide upon matters of leffer moment, their private differences, for fo Tacitus explains the minores res; these chiefs were a fort of Judges, but not legislators, nor do they appear to have had a share in the fuperiour branches of the executive part of government; the business of peace, and war, and every thing of a publick nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans; that what concerned all, ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Conftitution, which has fince been fo nobly fashioned and fo highly finished. This fine fyftem, fays Montefquieu, was invented in the woods; but whilft it remained in the woods, and for a long time after, it was far from being a fine one; no more indeed than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their babarity. The ancient State of the Germans was military; so that the orders, into which they were diftributed, their fubordination, their Courts, and every part of their government, muft be deduced from an attention to a military principle. A. D. * They had no other nobility; yet feveral families amongst them were confidered as noble. The BOOK II. A. D. The ancient German people, as all the other Northern tribes, confifted of freemen and flaves; the freemen profeffed arms, the flaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age feparated the boys from men. For when a young man approached to virility, he was not yet admitted as a member of the State, which was quite military, until he had been invested with a spear in the publick affembly of his tribe; and then he was adjudged proper to carry arms, and also to affift in the publick deliberations, which were always held armed†. This fpear he generally received from the hand of fome old and refpected chief, under‡ whom he commonly entered himself, and was admitted among his followers. No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as foon as he had fo enlifted, immediately he became bound to his leader in the ftrictest dependence, which was confirmed by an oath §, and to his brethren in a common vow for their mutual fupport in all dangers, and for the advancement and the honour of their common chief. This chief was ftyled Senior, Lord, and the like terms, which marked out a fuperiority in age and merit; the followers were called Ambacti, Comites, Leuds, Vaffals, and other terms; marking fubmiffion and dependence. This was the very first origin of civil, or rather military government, amongst the ancient people of Europe; and it arofe from the connexion, that Arma fumere non ante cuiquam moris, quàm civitas fuffecturum probaverit. Tacitus de Mor. Germ. 13. + Nihil autem neque publicæ neque privatæ rei nifi armati agunt. Id. ibid. Cæteri robuftioribus ac jam pridem probatis aggregantur. Id. ibid. § Illum defendere, tueri, fua quoque fortia facta ejus gloriæ affignare præcipuum facramentum eft. Id. 14. neceffarily |