PERSONAL RANK. THE FREEMAN. THE NOBLE.
The second principle laid down in the first chapter of this book, is
that of personal rank, which in the Teutonic scheme appears inseparably
connected with the possession of land.
The earliest records we can refer to, place before us a system founded
upon distinctions of birth, as clearly as any that we can derive from
the Parliamentary writs or rolls of later ages: in our history there is
not even a fabulous Arcadia, wherein we may settle a free democracy: for
even where the records of fact no longer supply a clue through the
labyrinths of our early story, the epic continues the tradition, and
still celebrates the deeds of nobles and of kings.
Tacitus, from whom we derive our earliest information, supplies us with
many details, which not only show the existence of a system, but tend
also to prove its long prevalence. He tells us not only of nobles, but
also of kings, princes and inherited authority[197], more or less fully
developed: and the unbiassed judgment of the statesman who witnessed the
operation of institutions strange to himself, warns us against
theoretical appeals to the fancied customs of ages not contemporaneous
with our own. The history of Europe knows nothing of a period in which
there were not freemen, nobles and serfs; and the institutions of
Europe, in proportion as we pursue them to their earliest principles,
furnish only the stronger confirmation of history. We may, no doubt,
theorize upon this subject, and suggest elementary forms, as the
necessary conditions of a later system: but this process is and must be
merely hypothetical, nor can such forms be shown to have had at any time
a true historical existence. That every German was, in the beginning,
Kaiser and Pope in his own house[198] may be perfectly true in one
sense; just as true is it that every Englishman’s house is his castle.
Nevertheless, the German lived under some government, civil or
religious, or both: and—to the great advantage of society—the process of
law surmounts without the slightest difficulty the imaginary battlements
of the imaginary fortress.
-----
Footnote 197:
The Cherusci feeling the want of a king sent to Rome for a descendant
of Arminius. Tac. An. xi. 17. The Heruli in Illyria having slain their
king, sent to their brethren in Thule (Scandinavia) for a descendant
of the blood royal. During his journey however they accepted another
king from the hands of Justinian. This person and their alliance with
the emperor they renounced upon the arrival of the prince from the
North. Procop. Bell. Got. ii. 15. “Reges ex nobilitate, duces ex
virtute summit.” Tac. Germ. vii. “Magna patrum merita principis
dignationem etiam adolescentulis assignant.” Ibid. xiii. Although mere
boys might be kings, they could hardly be _duces_, in the old Teutonic
sense.
Footnote 198:
Möser, Osnabrückische Geschichte (1780), 1^{er} Abschn. § 8. “Solche
einzelne wohner waren Priester und Könige in ihren Häusern und
Hofmarken,” etc. See his references to Tac. Germ. x. etc.
-----
The whole subject must be considered in one of two ways: with reference,
namely, to a man living alone with his family, or to the same man and
family, in a bond of union with others, that is in the _state_.
Could we conceive a permanent condition of society, such that each
particular family lived apart, without connection or communion with
others, we must admit the inevitable growth of a patriarchal system, of
which the eldest member of the family would be the head; a system
similar to that which we do find described as prevailing in the
wandering family of Abraham. But such a condition could only exist at a
period of time, and in a state of the earth, which admitted of frequent
migration, and while the population bore a small proportion to the means
of support, perhaps even in countries where water is of greater value
than land. Thus the moment the family of Abraham became too numerous,
and his herdsmen found it necessary to defend their wells and pastures
against the herdsmen of Lot, a separation took place and the Scheiks
parted, according to the provisions of a solemn compact, that there
might not be strife between them[199]. But, setting aside the mysterious
purposes for which the race of Abraham were made wanderers, and which
impress an exceptional character upon their whole history, it is clear
that even they were surrounded by a society, whose conditions were
totally different from any that could have existed in Germany. They fled
from the face of a depraved cultivation, prevalent in the cities, and
they were sojourners only from place to place, till the fulness of time,
when they were to found the normal theocracy of the world.
-----
Footnote 199:
Genesis xiii. 6, _seq._
-----
To a certain degree they resembled the squatters in the backwoods of
America; like them, they established a law for themselves, and acted
upon it:—with the nature of that law, divine or human, we have nothing
to do, for the purposes of this inquiry:—in this sense, indeed, they
could be kings and priests in their own house; but so are, or were, the
North American _Regulators_, who, in their own families and among all
over whom they could establish their power, acted as judges, and both
promulgated and executed a law which was necessary to their very
existence in the wilderness.
But I find it impossible to admit that the origin of our Germanic
nations is to be found in any such solitary households or families; were
it true, as Möser appears to argue[200], of some parts of Westphalia, it
would not be so of other districts in southern Germany, as he indeed
admits[201], and, particularly, it would not be true of England. In
these two cases there can be no doubt that some kind of military
organization preceded the peaceful settlement, and in many respects
determined its mode and character[202]. But, even if we admit to the
fullest extent, the doctrine of solitary settlements, we must still
contend that these are, in their very nature, temporary; that they
contain no possible provision for stability, in short that they are
excluded by the very idea itself of a state; yet it is as a member of a
state that man exists, that he is intended to exist[203], and unless as
a member of a state, he is incapable of existing as a man. He can as
little create a language as create a state: he is born to both, for
both, and without both he cannot exist at all.
-----
Footnote 200:
Osnab. Gesch. i. § 2.
Footnote 201:
Ibid. i. §. 7.
Footnote 202:
There cannot be any doubt respecting England, where the Germanic race
are not autochthonous. The organization of the Suevi may be learnt
from Caesar (Bell. Gall. iv. 1, 2, 3), and Möser very justly observes
that the Swabian law must necessarily have differed from the Saxon.
Osnab. Gesch. i. § 7. So, to a certain degree, must the Anglosaxon
from both.
Footnote 203:
Aristotle’s Politics, book i. cap. 1. Dahlmann, Politik, § 1, 2, 3.
-----
Each single family then is a state: two, three or four families are a
state, under larger conditions. How are these last to be settled?
Where a number of independent households are thinly dispersed over a
portion of the country, their reciprocal relations and position will
probably be more or less of the following kind.
Some arrangement will exist for the regulation of the terms on which the
use of the woods, waters and common uncultivated land may be enjoyed by
all the settlers: it is even possible that they may have some common
religious ceremonies as the basis of this arrangement[204]. But further
than this there need be no union or mutual dependence; each solitary
homestead is a state by itself, possessing the _jus belli_; in no
federal relation to, and consequently in a state of war with, every
other household, even though this right of war should not be in active
operation at any given moment[205].
-----
Footnote 204:
It is of course extremely difficult to conceive this apart from the
existence of a common priesthood; but such a priesthood is already the
commencement of a regular state.
Footnote 205:
In such a case, power or force being the only term of reference, each
household will be determined by that alone in its intercourse with
others. If A wants a slave, he will war upon and take B, if he can:
but to prevent this, B and C will unite: so that at last a regulated
union is found best for all parties, in respect to themselves as a
community, and against all other communities.
-----
In his own household every man may bear rule, either following his own
arbitrary will, or in accordance with certain general principles, which
he probably recognizes in common with his neighbours. He may have a
family worship of his own, of which he will be the chief priest[206],
and which worship may or may not be consistent with that of his
neighbours. If he is troublesome to them, they may root him out, slay or
enslave him, do with him what seems good in their eyes, or whatsoever
they have power to do. If he thrives and accumulates wealth, they may
despoil him, or he oppress them,—all, however, _jure belli_, for there
can be no _jus imperii_ in such a case.
-----
Footnote 206:
Tac. Germ. x. “Si publice consuletur, Sacerdos civitatis, _sin
privatim, ipse paterfamiliae, precatus Deos_....” This seems to
indicate, at the commencement, an independent priestly power in the
paterfamilias. Compare the remarkable history in Judges, cap. xvii,
xviii.
-----
This, however, cannot be the normal state of man. The anxious desire, it
might almost be called instinctive yearning, to form a part of a
civilized society, forbids its continuance, not less than the obvious
advantage of entering into a mutual guarantee of peace and security. The
production of food and other necessaries of life is the first business
of men: the attempt to take forcible possession of, or to defend,
accumulated property, presupposes the accumulation. While the land and
water are more than sufficient for the support of the population, the
institutions proper to peace will prevail. It is inconceivable, and
repugnant to the very nature of man, that such institutions should not
be established the moment that two or more separate families become
conscious of each other’s existence[207]: and in respect to our Germanic
forefathers, we find such in full vigour from their very first
appearance in history.
-----
Footnote 207:
The only place where I can admit of such solitary settlements is
Scandinavia, and even there they must have formed the exception, not
the rule. See Chap. II. p. 68.
-----
Some of the institutions essential to the great aim of establishing
civil society at the least possible sacrifice of individual freedom—such
as the _Wergild_, the _Frank pledge_, etc.—will be investigated in their
proper places: they seem to offer a nearly perfect guarantee for society
at an early period. But for the present we must confine ourselves to the
subject of personal rank: and as the centre and groundwork of the whole
Teutonic scheme is the individual freeman, it is with him that we must
commence our investigation.
The natural divisions into which all human society must be distributed,
with respect to the beings that form it, are the _Free_ and the
_Unfree_[208], those who can protect themselves and those who must be in
the protection of others. Even in the family this distinction must be
found, and the wife and son are unfree in relation to the husband and
the father; they are in his _mund_. From this mund the son indeed may be
emancipated, but not the wife or daughter: these can only change it; the
wife by the act of God, namely the death of the husband; the daughter by
marriage. In both cases the mund passes over into other hands[209].
-----
Footnote 208:
“Summa itaque divisio personarum hæc est, quod omnes homines aut
liberi sunt aut servi.” Fleta, bk. i. cap. 1. “Est autem libertas,
naturalis facultas ejus, quod cuique facere libet, nisi quod de jure
aut vi prohibetur.” Ibid. cap. 2.
Footnote 209:
See Fleta, bk. i. cap. 5, 6, 7, 9.
-----
Originally the Freeman is he who possesses at least as much land as,
being tilled, will feed him, strength and skill to labour, and arms to
defend his possession. Married to one free woman who shares his toils,
soothes his cares, and orders his household, he becomes the founder of
the family—the first unit in the state: the son who springs from this
marriage, completes the family, and centres in himself the blood, the
civil rights and the affections of his two progenitors. It is thus,
through the son, that the family becomes the foundation of the
state[210].
-----
Footnote 210:
It is probably in this sense that the Hindu Institutes assert, “Then
only is a man perfect when he consists of three persons united, his
wife, himself, and his son.” Manu, ch. ix. 45.
-----
The union of a greater or less number of free heads of houses upon a
district sufficient for their support, in a mutual guarantee of equal
civil rights, is the state itself: for man is evidently formed by God to
live in a regulated community, by which mode of life alone he can
develope the highest qualities of the nature which God has implanted in
him; and the first community is the union of free men for purposes of
friendly intercourse and mutual aid, each enjoying at the hands of every
other the same rights as he is willing to grant to every other, each
yielding something of his natural freedom in order that the idea of
state, that is of orderly government, may be realized. For the state is
necessary, not accidental. Man not living in a state, not having
developed and in some degree realized the idea of state, is, in so far,
not man but beast. He has no past and no future: he lives for the day,
and does not even accumulate for the days to come: he lives, thinks,
feels and dies like a brute. For man is free through the existence, not
the absence, of law; through his voluntary and self-conscious
relinquishment of the power to do wrong, and the adoption of means to
counteract and diminish his own tendency to evil. The amount of personal
liberty to be given up is the only question of practical importance, but
from the idea of Freedom itself results the law, that this amount must
be in all cases a minimum.
The ideas of freedom and equality are not, however, inseparable: a
nation of slaves may exist in sorrowful equality under the capricious
will of a native or foreign tyrant: a nation of free men may cheerfully,
wisely and happily obey the judge or the captain they have elected in
the exigencies of peace and war. Hence the voluntary union of free men
does not exclude the possibility of such union being either originally
based upon terms of inequality, or becoming sooner or later settled upon
such a basis. But, as the general term is the freedom, I take this as
the unity which involves the difference; the noble is one of the
freemen, and is made noble by the act of the free: the free are not made
so by the noble.
By these principles the divisions of this chapter are regulated.
The freeman is emphatically called Man, ceorl, _mas_, _maritus_; wæpned
man, _armatus_; after the prevalence of slavery, he is, for distinction,
termed _free_, frigman, frihals, i. e., _free neck_, the hand of a
master has not bent his neck[211]; but his oldest and purest
denomination is ceorl. Till a very late period the Anglosaxon law knows
no other distinction than that of ceorl and eorl[212]. The Old Norse
Rígsmál which is devoted to the origin of the races, considers Karl as
the representative of the freeman. His sons are Halr, Anglosaxon, Hæle,
_vir_; Drengr, Anglos. Dreng, _vir_; þegen, Anglos. þegn, _vir fortis_,
_miles_, _minister_; Höldr, Anglos. hold, _pugil_, _fidelis_; Búi,
Anglos. gebúr, _colonus_; Bondi, Anglos. bonda, _colonus_; Smiðr,
Anglos. Smið, _faber_; Seggr, Anglos. Secg, _vir_. Among the daughters
are Snót, Brúðr, Flioð and Wíf. Many of these terms yet survive, to
represent various classes of freemen in almost every Germanic
country[213].
-----
Footnote 211:
The converse is _collibertus_, _qui collum liberavit_, _culvert_,
_coward_.
Footnote 212:
Swá eác we settað be eallum hádum, ge ceorle, ge eorle: “so also we
ordain concerning all degrees of men, churl as well as earl.” Leg.
Ælfr. § 4.
Footnote 213:
Conf. Grimm, Deut. Rechtsalt. 283. The Latin laws of the Middle Ages
usually adopt the words, _Liber_, _liber homo_, _ingenuus_. In
reference to the noble, he is _mediocris_, _minofledus_,
καταδεέστερος; in respect of his wife, he is _baro_.
-----
The rights of a freeman are these. He has land within the limits of the
community, the éðel or hereditary estate (κληρος, hæredium, hýd) by
virtue of which he is a portion of the community, bound to various
duties and graced with his various privileges. For although his rights
are personal, inherent in himself, and he may carry them with him into
the wilderness if he please, still, where he shall be permitted to
execute them depends upon his possession of lands in the various
localities. In these he is entitled to vote with his fellows upon all
matters concerning the general interests of the community; the election
of a judge, general or king; the maintenance of peace or war with a
neighbouring community; the abrogation of old, or the introduction of
new laws; the admission of conterminous freemen to a participation of
rights and privileges in the district. He is not only entitled but bound
to share in the celebration of the public rites of religion, to assist
at the public council or Ðing, where he is to pronounce the customary
law, by ancient right, and so assist in judging between man and man;
lastly to take part, as a soldier, in such measures of offence and
defence as have been determined upon by the whole community. He is at
liberty to make his own alliances, to unite with other freemen in the
formation of gilds or associations for religious or political purposes.
He can even attach himself, if he will, to a lord or patron, and thus
withdraw himself from the duties and the privileges of freedom. He and
his family may depart whither he will, and no man may follow or prevent
him: but he must go by open day and publicly, (probably not without
befitting ceremonies and a symbolical renunciation of his old seats,)
that all may have their claims upon him settled before he departs[214].
-----
Footnote 214:
“Si quis liber homo migrare voluerit aliquo, potestatem habeat infra
dominium regni nostri, cum fara sua, migrare quo voluerit.” Leg. Roth.
177. The free folk on the Leutkircher Heide “are free and shall have
no _nachjagende Herr_,” (_i. e._ Lord hunting after them, the _Dominus
persequens_ of our early law-books). Lünig. Reichsarch. p. spec. cont.
4. p. 803. See further Grimm, Deut. Rechtsalt. 286, etc.
-----
The freeman must possess, and may bear arms; he is born to them,
_schildbürtig_; he wears them on all occasions, public and private,
“nihil neque publicae neque privatae rei nisi armati agunt[215];” he is
entitled to use them for the defence of his life and honour; for he
possesses the right of private warfare, and either alone, or with the
aid of his friends, may fight, if it seems good to him. This right is
technically named fǽðe, _feud_, from fá, _inimicus_; and to be exposed
to it is fǽðe beran, _to bear the feud_[216]. If he be strong enough, or
ill-disposed enough, to prefer a violent to a peaceful settlement of his
claims, he may attack, imprison and even slay his adversary, but then he
must bear the feud of the relations.
-----
Footnote 215:
Tac. Germ. xiii. A century ago gentlemen wore swords in France and
England, and courtiers still wear them. The Hungarian freeman
transacts no public business unarmed.
Footnote 216:
Lex. Fres. ii. 2.
-----
Beside the arms he wears, the sign and ornament of his freedom is the
long hair which he suffers to float upon his shoulders or winds about
his head[217].
-----
Footnote 217:
There were differences in this respect among the different races, and
in some, the long hair may have been confined to the noble families.
Among the Saxons, however, it seems that it was also used by the free:
gif freo wíf, locbore, lyswæs hwæt gedó, _if a free woman, that wears
long hair, do any wrong_. Lex Æðelb. § 73. To cut a freeman’s hair was
to dishonour him. Lex Ælfr. § 35. See also Grimm, Deut. Rechtsalt. pp.
240, 283. Eumenius speaks of the Franks as “prolixo crine rutilantes.”
Paneg. Constant. c. 18.
-----
His proper measure and value, by which his social position is
ascertained and defended, is the wergyld, or _price of a man_. His life,
his limbs, the injuries which may be done to himself, his dependants and
his property, are all duly assessed; and though not rated so highly as
the noble, yet he stands above the stranger, the serf or the freedman.
In like manner his land, though not entirely exempt from charges and
payments for public purposes, is far less burthened than the land of the
unfree. Moreover he possesses rights in the commons, woods and waters,
which the unfree were assuredly not permitted to exercise.
The great and essential distinction, however, which he never entirely
loses under any circumstances, is that he aids in governing himself,
that is in making, applying and executing the laws by which the free and
the unfree are alike governed; that he yields, in short, a voluntary
obedience to the law, for the sake of living under a law, in an orderly
and peaceful community.
In the state of things which we are now considering, the noble belongs
to the class of freemen; out of it he springs, in all its rights and
privileges he shares, to all its duties he is liable, but in a different
degree. He possesses however certain advantages which the freeman does
not. Like the latter he is a holder of real estate; he owns land in the
district, but his lot is probably larger, and is moreover free from
various burthens which press upon his less fortunate neighbour. He must
also take part in the Ðing, _placitum_, or general meeting, but he and
his class have the leading and directing of the public business, and
ultimately the execution of the general will[218]. The people at large
may elect, but he alone can be elected, to the offices of priest, judge
or king. Upon his life and dignity a higher price is laid than upon
those of the mere freeman. He is the unity in the mass, the
representative of the general sovereignty, both at home and abroad. The
tendency of his power is continually to increase, while that of the mere
freeman is continually to diminish, falling in the scale in exact
proportion as that of the noble class rises.
-----
Footnote 218:
“De minoribus rebus principes consultant; de majoribus omnes. Ita
tamen ut ea quoque quorum penes plebem arbitrium est, apud principes
pertractentur.” Tac. Germ. xi. Something similar to this probably
prevailed in the Dorian constitution, and in the old Ionian before the
establishment of the great democracy. The mass of the people might
accept or reject, but hardly, I think, debate the propositions of the
nobles. After all the πρόβουλοι seem necessary in all states. See
Arist. Polit. iv. § 15.
-----
The distinctive name of the noble is >Ëorl[219]. Æðele, _nobilis_, and
Ríce, _potens_, denote his qualities, and he bears other titles
according to the accidents of his social position: thus ealdor,
ealdorman, _princeps_; wita, weota, _consiliarius_; optimas; _senior_;
_procer_; _melior_, etc. In addition to his own personal privileges, the
noble possesses in the fullest extent every right of the freeman, the
highest order of whose body he forms.
-----
Footnote 219:
In the Rígsmál, Jarl is the progenitor of all the noble races, as Karl
is of the free.
-----