THE NOBLE BY SERVICE.
I have called the right to entertain a _Comitatus_, or body of household
retainers, a very jewel in the crown: it was so because it formed, in
process of time, the foundation of all the extended powers which became
the attributes of royalty, and finally succeeded in establishing, upon
the downfall of the old _dynasts_ or nobles by birth, a new order of
nobles by service, whose root was in the crown itself. A close
investigation of its gradual rise, progress and ultimate development,
will show that the natural basis of the Comitatus is in the superior
wealth and large possessions of the prince.
In all ages of the world, and under all conditions of society, one
profound problem has presented itself for solution; viz. how to
reconcile the established divisions of property with the necessities of
increasing population. Experience teaches us that under almost any
circumstances of social being, a body of men possessed of sufficient
food and clothing have been found to increase and multiply with a
rapidity far too great to be balanced by the number of natural or
violent deaths: and it follows therefore that in every nation which has
established a settled number of households upon several estates, each
capable of supporting but one household in comfort, the means of
providing for a surplus population must very soon become an object of
general difficulty. If the paternal estate be reserved for the support
of one son, if the paternal weapons descend to him, to be used in the
feuds of his house or the service of the state, what is to become of the
other sons who are excluded from the benefits of the succession? In a
few instances we may imagine natural affection to have induced a
painful, and ultimately unsuccessful, struggle to keep the family
together: here and there cases may have occurred in which a community
was fortunate enough from its position, to possess the means of creating
new estates to suit the new demand: and conquest, or the forcible
partition of a neighbouring territory, may have supplied a provision for
the new generation. Tacitus indeed tells us[290] that “numerum liberorum
finire aut quemquam ex agnatis necare, flagitium habetur:” yet tradition
contradicts this, and speaks of the exposure of children immediately
after birth, leaving it to the will of the father to save the life of
the child or not[291]. And similarly the tales of the North record the
solemn and voluntary expatriation of a certain proportion of the people,
designated by lot, at certain intervals of time[292]. However, in the
natural course of things, he who cannot find subsistence at home must
seek it abroad; if the family estate will not supply him with support,
he must strive to obtain it from the bounty or necessities of others:
for emigration has its own heavy charges, and for this he would require
assistance; and in a period such as we are describing, trade and
manufacture offer no resources to the surplus population. But all the
single hides or estates are here considered as included in the same
category, and it is only on the large possessions of the noble that the
poor freeman can hope to live, without utterly forfeiting everything
that makes life valuable. Some sort of service he must yield, and among
all that he can offer, military service, the most honourable and
attractive to himself, is sure to be the most acceptable to the lord
whose protection he requires.
-----
Footnote 290:
Mor. Germ. xix.
Footnote 291:
Grimm, Rechtsalt. p. 455.
Footnote 292:
“Cumque, ut dixi, sive parum compluta humo, seu nimium torrida,
torpentibus satis, ac parce fructificantibus campis, inediae languor
defectam escis regionem attereret, nullumque, parum suppetentibus
alimentis, trahendae famis superesset auxilium, Aggone atque Ebbone
auctoribus, plebiscito provisum est, ut senibus et parvulis caesis,
omnique demum imbelli aetate regno egesta, robustis duntaxat patria
donaretur; nec nisi aut armis, aut agris colendis habiles domestici
laris paternorumque penatium habitacula retinerent.” By the advice
however of Gambara, they cast lots, and a portion of the people
emigrate. “Igitur omnium fortunis in sortem coniectis, qui
designabantur, extorres adiudicati sunt.” Saxo Gram. p. 159. Under
similar circumstances, according to Geoffry of Monmouth, Hengest came
to Britain.
-----
The temptation to engage in distant or dangerous warlike adventures may
not appear very great to the agricultural settler, whose continuous
labour will only wring a mere sufficiency from the soil he owns. It is
with regret and reluctance that such a man will desert the land he has
prepared or the crops he has raised, even when the necessity of
self-defence calls the community to arms. Far otherwise however is it
with him who has no means of living by the land, or whom his means place
above the necessity of careful, unremitting toil. The prince, enriched
by the contributions of his fellow-countrymen, and the presents of
neighbouring states or dynasts, as well as master of more land than he
requires for his own subsistence, has leisure for ambition, and power to
reward its instruments. On the land which he does not require for his
own cultivation, he can permit the residence of freemen or even serfs,
on such conditions as may seem expedient to himself or endurable to
them. He may surround himself with armed and noble retainers, attracted
by his liberality or his civil and military reputation[293], whom he
feeds at his own table and houses under his own roof; who may perform
even servile duties in his household, and on whose aid he may calculate
for purposes of aggression or defence. Nor does it seem probable that a
community would at once discover the infinite danger to themselves that
lurks in such an institution: far more frequently must it have seemed
matter of congratulation to the cultivator, that its existence spared
him the necessity of leaving the plough and harrow to resist sudden
incursions, or enforce measures of internal police; or that the strong
castle with its band of ever-watchful defenders, existed as a garrison
near the disputable boundary of the Mark.
-----
Footnote 293:
“Erat autem rex Oswini et aspectu venustus, et statura sublimis, et
affatu iucundus, et moribus civilis, et manu omnibus, id est nobilibus
simul atque ignobilibus, largus: unde contigit ut ob regiam eius et
animi, et vultus, et meritorum dignitatem, ab omnibus diligeretur, et
undique ad eius ministerium de cunctis prope provinciis viri etiam
nobilissimi concurrerent.'” Bed. H. E. iii. 14.
-----
The Germania of Tacitus supplies us with a detailed account of the
institution of the Comitatus, which receives strong confirmation on
every point from what we gather from other authentic sources. In his own
words:—
“Illustrious birth or the great services of their fathers give the rank
of princes even to young men: they are associated with the rest who have
already made proof of their greater powers. Nor is there any shame in
appearing among the comites[294]. Moreover, the Comitatus itself has its
grades, according to the judgment of him they follow; and great is the
emulation among the comites, as to who shall hold the highest place in
the estimation of the prince, and among the princes, as to who shall
have the most numerous and the bravest comites. This is dignity, this is
power, to be ever surrounded with a troop of chosen youths, a glory in
time of peace, and a support in war. Nor is it only in their own tribe,
but in the neighbouring states as well, a name and glory, to be
distinguished for the number and valour of the comitatus; for they are
courted with embassies, and adorned with presents, and keep off wars by
their very reputation. When it comes to fighting, it is dishonourable
for the prince to be excelled in valour, for the comitatus not to equal
the valour of the prince; but infamous, and a reproach throughout life,
to return from battle the survivor of the prince. To defend and protect
him, to reckon to his glory even one’s own brave deeds, this is the
first and holiest duty. The princes fight for victory, the comites for
the prince. If the state in which they spring is torpid with long peace
and ease, the most of these young nobles voluntarily seek such nations
as may be engaged in war, partly because inaction does not please this
race, partly because distinction is more easy of attainment under
difficulties. Nor can you keep together a great comitatus, save by
violence and war: since it is from the liberality of the prince that
they exact that war-horse, that bloody and victorious lance. For feasts
and meals, ample though rude, take the place of pay. Wars and plunder
supply the means of munificence; nor will you so readily persuade them
to plough the land or wait with patience for the year, as to challenge
enemies and earn wounds; seeing that it seems dull and lazy to acquire
with sweat what you may win with blood[295].”
-----
Footnote 294:
This very assertion proves that the position of the comes was, _in
itself_, inferior to that of the freeman.
Footnote 295:
Mor. Germ. xiii. xiv.
-----
It would be difficult in a few lines to give anything like so clear and
admirable an account of the peculiarities of the Comitatus, as Tacitus
has left us in this vigorous sketch; and little remains but to show how
his view is confirmed by other sources of information, and to draw the
conclusions which naturally result from these premises.
To the influence and operation of these associations are justly
attributed not only the conquests of the various tribes, but the most
important modifications in the law of the people. As the proper name for
the freeman is ceorl, and for the born-noble eorl, so is the true word
for the comes, or comrade, gesíð. This is in close etymological
connection with síð, a journey, and literally denotes one who
accompanies another. The functions and social position of the gesíð led
however to another appellation: in this peculiar relation to the prince,
he is þegn, a thane, strictly and originally a servant or minister, and
only noble when the service of royalty had shed a light upon dependence
and imperfect freedom. Beówulf describes himself as the relative and
thane of Hygelác: but his royal blood and tried valour make him also the
head of a comitatus, and he visits Heort with a selected band of his own
comrades, swǽse gesíðas: they, like himself, belong however to his lord,
and are described as Hygelác’s beódgeneátas, heorðgeneátas
(tischgenossen, heerdgenossen), sharers in the monarch’s table and
hearth. A portion of the booty taken in war naturally became the
property of the gesíðas; this almost follows from the words of Tacitus;
and Saxo Grammaticus, who in this undoubtedly expresses a genuine fact,
although after a peculiar fashion of his own, says of one of his
heroes[296], “Proceres non solum domesticis stipendiis colebat, sed
etiam spoliis ex hoste quaesitis: affirmare solitus, pecuniam ad
milites, gloriam ad ducem redundare debere.” And again[297], “Horum
omnium clientelam rex liberali familiaritate coluerat. Nam primis apud
eum honoribus, habitum, cultos auro gladios, opimaque bellorum praemia
perceperunt.” Thus also Hialto sings[298],
“Dulce est nos domino percepta rependere dona,
Acceptare enses, famaeque impendere ferrum.
. . . . . . . . . . . . . . . . . . . . . .
Enses theutonici, galeae, armillaeque nitentes,
Loricae talo immissae, quas contulit olim
Rolvo suis, memores acuant in praelia mentes.
Res petit, et par est, quaecumque per otia summa
Nacti pace sumus, belli ditione mereri.”
The same amusing author tells us[299] how on some occasion, in
consequence of there being no queen in a court, the comites were ill
supplied with clothes, a difficulty which they could only provide
against by inducing their king to marry: “Igitur contubernales Frothonis
circa indumentorum usum feminea admodum ope defecti, quum non haberent
unde nova assuere, aut lacera reficere possent, regem celebrandi
coniugii monitis adhortantur.” There seems no reason to doubt the fact
thus recorded, however we may judge respecting its occurrence in the
time of Frotho. Similarly when Siegfried set out upon his fatal marriage
expedition into Burgundy, he and his twelve comrades were clothed by the
care of the royal Síglint[300]. From this relation between the prince
and the comites, are derived the names appropriated to the former in the
epopoea, of hláford, lord, literally _bread-giver_: sinces brytta, beága
brytta, _distributor of treasure, rings_; sincgifa, _treasure-giver_,
and the like. It is clear also that a right to any share in the booty
could not be claimed by the gesíð, as it undoubtedly could by the free
soldier in the _Hereban_, but depended entirely upon the will of the
chief, and his notions of policy: a right could not have been described
as the result of his liberality. In the historical time of Charlemagne
we have evidence of this[301]: “Quo accepto ... idem vir prudentissimus
idque largissimus et Dei dispensator magnam inde partem Romam ad limina
Apostolorum misit per Angilbertum dilectum abbatem suum; porro reliquam
partem obtimatibus, clericis sive laicis, caeterisque fidelibus suis
largitus est:” or, as it is still more clearly expressed in the annals
of Eginhart[302], “reliquum vero inter optimates et aulicos, caeterosque
in palatio suo militantes, liberali manu distribuit.” And similarly we
are told of Æðelstán: “Praeda quae in castro reperta fuerat, et ea
quidem amplissima, magnifice et viritim divisa. Hoc enim vir ille animo
imperaverat suo, ut nihil opum ad crumenas corraderet; sed omnia
conquisita, vel monasteriis, vel fidelibus suis, munificus
expenderet[303].” The share of the freeman who served under his geréfa,
and not under a lord, was his own by lot, and neither by _largitio_ nor
_liberalitas_,—a most important distinction, seeing that where all was
left to the arbitrary disposition of the chief, the subservience of the
follower would very naturally become the measure of his liberality.
-----
Footnote 296:
Hist. Dan. p. 6.
Footnote 297:
Ibid. p. 144.
Footnote 298:
Sax. Gram. Hist. Dan. p. 33.
Footnote 299:
Hist. Dan. p. 68.
Footnote 300:
Nibelunge Nôt. 66. p. 10, Lachmann.
Footnote 301:
Annal. Laurish. an. 796. Pertz, Mon. Germ. i. 182.
Footnote 302:
An. 796. Pertz, i. 183.
Footnote 303:
Will. Malm. Gest. Reg. i. 213, § 134.
-----
The relation of the Comites was one of fealty: it was undertaken in the
most solemn manner, and with appropriate, symbolic ceremonies, out of
which, in later times, sprung homage and the other incidents of
feudality. All history proves that it was of the most intimate nature;
that even life itself was to be sacrificed without hesitation if the
safety of the prince demanded it: the gesíðas of Beówulf expose
themselves with him to the attack of the fiendish Grendel[304]; Wígláf
risks his own life to assist his lord and relative in his fatal contest
with the firedrake[305]; and the solemn denunciation which he pronounces
against the remaining comites who neglected this duty, recalls the words
of Tacitus, and the infamy that attached to the survivors of their
chief[306]:
Hú sceal sincþego How shall the service of treasure
and swyrdgyfu, and the gift of swords,
eall éðelwyn, all joy of a paternal inheritance,
eówrum cynne [all] support fail
lufen álicgean: your kin:
londrihtes mót of the rights of citizenship must
ðǽre mǽgburge of your family
monna ǽghwilc every one
ídel hweorfan, go about deprived,
siððan æðelingas when once the nobles
feorran gefricgean far and wide shall hear
fleám eówerne, of your flight,
dómleásan dǽd. your dishonourable deed.
Deáð bið sella Death is better
eorla gehwylcum for every warrior
ðonne edwitlif. than a life of shame.
But we are not compelled to draw upon the stores of poetry and
imaginative tradition alone: the sober records of our earlier annalists
supply ample evidence in corroboration of the philosophical historian.
When Cwichelm of Wessex sent an assassin to cut off Eáduuini of
Northumberland, that prince was saved by the devotion of his thane
Lilia, who threw himself between, and received the blow that was
destined for his master; in the words of Beda[307]: “Quod cum videret
Lilla minister regis amicissimus, non habens scutum ad manum quo regem a
nece defenderet, mox interposuit corpus suum ante ictum pungentis; sed
tanta vi hostis ferrum infixit, ut per corpus militis occisi etiam regem
vulneraret.” Again we learn that in the year 786, Cyneheard, an ætheling
of Wessex, who had pretensions to the crown, surprised the king Cynewulf
at the house of a paramour at Merton, and there slew him. He proffered
wealth and honours to the comites of the king, which they refused, and
with small numbers manfully held out till every one had fallen. On the
following morning a superior force of the king’s thanes came up: to them
again the ætheling offered land and gold, but in vain: he was slain on
the spot with all his own comites, who refused to desert him in his
extremity. This is the account given of these facts in the words of the
Saxon Chronicle itself[308]:
And ðá gebeád he him heora ágenne And then he offered them their own
dóm feos and londes, gif hie him desire of money and land, if they
ðæs ríces úðon, and him cýðde, ðæt would grant him the kingdom, and he
heora mǽgas him mid wǽron, ða ðe told them that their own relatives
him from noldon. And ðá cwǽdon hie, were with him, who would not desert
ðæt him nǽnig mǽg leófra nǽre ðonne him. Then said they, that no
heora hláford, and hie næfre his relative was dearer to them than
banan folgian noldon. And ðá budon their lord, and that they never
hie heora mǽgum ðæt hie him gesunde would follow his murderer. And then
from eódon. And hie cwǽdon, ðæt ðæt they offered their relatives that
ilce heora geferum geboden wǽre ðe they should leave him, with safety
ǽr mid ðám cyninge wǽron; ðæt hie for themselves: but they said, that
hie ðæs ne onmunden, ðon má ðe the same offer had been made to
eówre geferan ðe mid ðám cyninge their own comrades who at first
ofslægene wǽron. were with the king: that they paid
no more attention to it, than your
comrades who were slaughtered with
the king.
Æthelweard, Florence of Worcester, and Henry of Huntingdon all follow
the chronicle, which in some details they apparently translate. William
of Malmesbury seems to adopt the same account, but adds a few words
which have especial reference to this portion of the argument[309]:
“quorum (_i. e._ comitum) qui maximus aevo et prudentia Osricus,
caeteros cohortatus ne necem domini sui in insignem et perpetuam suam
ignominiam inultam dimitterent, districtis gladiis coniuratos irruit.”
-----
Footnote 304:
Beówulf, l. 1582 _seq._
Footnote 305:
Ibid. l. 5262 _seq._, 5384 _seq._
Footnote 306:
Ibid. l. 5763.
Footnote 307:
Hist. Ecc. ii. 9.
Footnote 308:
Chron. Sax. an. 755.
-----
Footnote 309:
Gest. Reg. i. § 42.
-----
It is obvious that from this intimate relation between the prince and
the gesíð must arise certain reciprocal rights and duties, sanctioned by
custom, which would gradually form themselves into a code of positive
law, and ultimately affect the state and condition of the freemen. In
the earliest development of the Comitatus, it is clear that the idea of
freedom is entirely lost; it is replaced by the much more questionable
motive of _honour_, or to speak more strictly, of rank and station. The
comes may indeed have become the possessor of land, even of very large
tracts[310], by gift from his prince; but he could not be the possessor
of a free Hide, and consequently bound to service in the general _fyrd_,
or to suit in the folcmót: he might have wealth, and rank and honour, be
powerful and splendid, dignified and influential, but he could not be
free: and if even the freeman so far forgot the inherent dignity of his
station as to carry himself (for his éðel I think he could not carry)
into the service of the prince,—an individual man, although a prince,
and not as yet the state, or the representative of the state,—can it be
doubted that the remunerative service of the chief would outweigh the
barren possession of the farmer, or that the festive board and
adventurous life of the castle would soon supply excuses for neglecting
the humbler duties of the popular court and judicature? Even if the
markmen razed him from their roll, and committed his éðel to a worthier
holder, what should he care, whom the liberality of his conquering
leader could endow with fifty times its worth; and whose total divorce
from the vulgar community would probably be looked upon with no
disfavour by him who had already marked that community for his prey? Nor
could those whom the gesíð in turn settled upon lands which were not
within the general mark-jurisdiction, be free markmen, but must have
stood towards him in somewhat the same relation as he stood to his own
chief. Upon the plan of the larger household, the smaller would also be
formed: the same or similar conditions of tenure would prevail; and the
services of his dependants he was no doubt bound to hold at the disposal
of his own lord, and to maintain for his advantage. We have thus, even
in the earliest times, the nucleus of a standing army, the means and
instruments of aggrandizement both for the King and the praetorian
cohorts themselves; practised and delighting in battle, ever ready to
join in expeditions which promised adventure, honour or plunder, feasted
in time of peace, enriched in time of war; holding the bond that united
them to their chief as more sacred or stringent than even that of
blood[311], and consequently ready for his sake to turn their arms
against the free settlers in the district, whenever his caprice, his
passion or his ambition called upon their services. In proportion as his
power and dignity increased by their efforts and assistance, so their
power and dignity increased; his rank and splendour were reflected upon
all that surrounded him, till at length it became not only more
honourable to be the unfree chattel of a prince, than the poor free
cultivator of the soil, but even security for possession and property
could only be attained within the compass of their body. As early as the
period when the Frankish Law was compiled, we find the great advantage
enjoyed by the Comes over the Free Salian or Ripuarian, in the large
proportion borne by his wergyld, in comparison with that of the
latter[312].
-----
Footnote 310:
Beówulf, l. 5984 _seq._
Footnote 311:
Ælfred excepts the lord, while he defines the cases in which a man may
give armed assistance to his relative. The right of private feud is
not to extend to that sacred obligation of fealty. Leg. Ælf. § 42.
-----
The advantage derived by the community from the presence and protection
of an armed force such as the gesíðas constituted, must have gradually
produced a disposition to secure their favour even at the expense of the
free nobles and settlers: and a Mark that wished to entrust its security
and its interests to a powerful soldier, would probably soon acquiesce
in his assuming a direction and leadership in their affairs, hardly more
consistent with their original liberty, than the influence which a
modern nobleman may establish by watching, as it is called, over the
interests of the Registration. Even the old nobles by blood, who
gradually beheld themselves forced down into a station of comparative
poverty and obscurity, must have early hastened to give in their
adhesion to a new order of things which held out peculiar prospects of
advantage to themselves; and thus, the communities deserted by their
natural leaders, soon sunk into a very subordinate situation, became
portions of larger unities under the protection, and ultimately the
rule, of successful adventurers, and consented without a struggle to
receive their comites into those offices of power and distinction which
were once conferred by popular election.
-----
Footnote 312:
Leg. Salic. Tit. lvii. cap. 1, 2. Leg. Rip. liii. cap. 1, 2.
-----
As the gesíðas were not free, and could not take a part in the
deliberations of the freemen at the folcmót, or in the judicial
proceedings, except in as far as they were represented by their chief,
means for doing justice between themselves became necessary: these were
provided by the establishment of a system of law, administered in the
lord’s court, by his officers, and to which all his dependants were
required to do suit and service as amply as they would, if free, have
been bound to do in the folcmót. But the law, administered in such a
court, and in those formed upon its model in the lands of the comites
themselves,—a privilege very generally granted by the king, at least in
later periods[313],—was necessarily very different from that which could
prevail in the court of the freemen: it is only in a lord’s court that
we can conceive punishments to have arisen which affected life and
honour, and fealty with all its consequences to have attained a settled
and stringent form, totally unknown to the popular judicature.
Forfeiture, or rather excommunication, and pecuniary mulcts, which
partook more of the nature of damages than of fine, were all that the
freeman would subject himself to under ordinary circumstances.
Expulsion, degradation, death itself might be the portion of him whose
whole life was the property of a lord, to be by him disposed of at his
pleasure. Hence the forfeiture of lands for adultery and incontinence,
and hence even Ælfred affixes the penalty of death to the crime of
hláfordsyrwe, or conspiracy against a lord[314], while manslaughter
could still be compounded for by customary payments. One or two special
cases may be quoted to show how the relation of the gesíð to his chief
modified the general law of the state.
Footnote 313:
Eádweard of Wessex in 904 transferred his royal rights in Taunton to
the see of Winchester. He says: “Concessi ut episcopi homines, tam
nobiles quam ignobiles (i. e. XII hynde and II hynde) in praefato rure
degentes, hoc idem ius in omni haberent dignitate (hád), quo regis
homines perfruuntur, regalibus fiscis commorantes: et omnium
saecularium rerum iudicia ad usus praesulum exerceantur eodem modo quo
regalium negotiorum discutiuntur iudicia. Praedictae etiam villae
mercimonium quod Anglice ðæs túnes cýping appellatur, censusque omnis
civilis, sanctae dei aecclesiae in Wintonia civitate sine
retractationis obstaculo cum omnibus commodis aeternaliter deserviat.”
Cod. Dipl. No. 1084. He had previously granted an immunity from regal
and comitial interference; the result of which was to place all
judicial and fiscal functions in the hands of the bishop’s reeve
instead of the sheriff, or the king’s burgreeve. The document
furnishes an admirable example of an _Immunity_, or, as it is
technically called in the Anglosaxon law, a grant of _Sacn and Sócn_.
The horse and arms which, in the strict theory of the comitatus, had
been the gift, or rather the loan of the chief, were to be returned at
the death of the vassal, in order, according to the same theory, that
they might furnish some other adventurer with the instruments of
service[315]. These, technically called Heregeatwe, _armatura bellica_,
have continued even to our own day under the name of Heriot, and
strictly speaking consist of horses and weapons. In later imitation of
this, the unfree settlers on a lord’s land, who were not called upon by
their tenure to perform military service, were bound on demise to pay
the best chattel (_melius catallum_, _best head_, in German beste haupt,
heriot-custom, as opposed to heriot-service) to the lord, probably on
the theoretical hypothesis that he, at the commencement of the tenancy,
had supplied the necessary implements of agriculture. And this differs
entirely from a Relief[316], because Heriot is the act of the leaving,
Relief the act of the incoming tenant or heir[317]; and because in its
very nature and amount Heriot is of a somewhat indefinite character, but
Relief is not.
-----
Footnote 314:
Leg. Ælfr. Introduction, and § 4.
Footnote 315:
This is necessary in a country where the materials of which weapons
are fabricated are not abundant, which Tacitus notices as the case in
Germany, “ne ferrum quidem superest, sicut ex genere telorum
colligitur.” Germ. vi. Adventurers, ever on the move, are prone to
realize their gains in the most portable shape. Kings, gems and arms
are the natural form, and a Teutonic king’s treasury must have been
filled with them, in preference to all other valuables.
Footnote 316:
Relief, _relevium_, from _relevare_, to lift or take up again. It is a
sum paid by the heir to the lord, on _taking_ or _lifting up again_
the inheritance of an estate which has, as it were, fallen to the
ground by the death of the ancestor.
Footnote 317:
Fleta, lib. iii. cap. 18.
-----
In the strict theory of the comitatus, the gesíð could possess no
property of his own; all that he acquired was his lord’s, and even the
liberalities of the lord himself were only _beneficia_ or loans, not
absolute gifts[318]: he had the usufruct only during life, the _dominium
utile_: the _dominium directum_> was in the lord, and at the death of
the tenant it is obvious that the estate vested in the lord alone: the
gesíð could have no _ius testamenti_, as indeed he had no family: the
lord stood to him in place of father, brother and son. Hereditary
succession, which must at first have been a very rare exception, could
only have arisen at all either from the voluntary or the compelled grant
of the lord: it could only become general when the old distinction
between the free markman and the gesíð had become obliterated, and the
system of the Comitatus had practically and politically swallowed up
every other. Yet even under these circumstances it would appear that a
perfectly defined result was not attained; and hence, although the
document entituled “Rectitudines singularum personarum” numbers the _ius
testamenti_ among the rights of the þegen[319], yet even to the close of
the Anglosaxon monarchy, we find dukes, præfects, kings’ thanes, and
other great nobles humbly demanding permission from the king to make
wills, entreating him not to disturb their testamentary dispositions,
and even bribing his acquiescence by including him among the legatees.
In this as in all human affairs, a compromise was gradually found
necessary between opposing powers, and the king as well as the comites,
neither of whom could dispense with the assistance of the other, found
it advisable to make mutual concessions. I doubt whether at even an
earlier period than the eleventh century, the whole body of thanes would
have permitted the king to disregard the testament of one of their body,
unless upon definite legal grounds, as for example grave suspicion of
treason: but still they might consent to the nominal application and
sanction of the ancient principle, by allowing the insertion of a
general petition, that the will might stand, in the body of the
instrument[320].
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Footnote 318:
Montesquieu has seen this very clearly, when he considers even the
horse and _framea_ of Tacitus in the light of _beneficia_. From a
charter of Æðelflǽd, an. 915-922, it would seem that in Mercia a thane
required the consent of the lord, before he could purchase an estate
of bookland: “Ego Æðelflǽd ... dedi licentiam Eádríco meo ministro
comparandi terram decem manentium æt Fernbeorgen, sibi suisque
haeredibus perpetualiter possidendam.” Cod. Dipl. No. 343. About the
close of the ninth century, Wulfhere, a duke, having left the country,
and so deserted the duties of his position, was adjudged to lose even
his private lands of inheritance: “Quando ille utrumque et suum
dominum regem Ælfredum et patriam, ultra iusiurandum quam regi et suis
omnibus optimatibus iuraverat, sine licentia dereliquit; tunc etiam,
cum omnium iudicio sapientium Geuisorum et Mercensium, potestatem et
haereditatem dereliquit agrorum.” Cod. Dipl. No. 1078. The importance
of this passage seems to me to rest upon the words “sine licentia.”
Footnote 319:
“Þegenes lagu is ðæt he sý his bócrihtes wyrðe; taini lex est ut sit
dignus rectitudine testamenti sui.” Thorpe, i. 432. And with this
Ælfred’s law of entails is consistent. Leg. Ælf. § 41. Thorpe, i. 88.
Footnote 320:
Toward the end of the tenth century, Beorhtríc, a wealthy noble in
Kent, devised land by will to various relatives. He left the king, a
collar worth eighty mancuses of gold, and a sword of equal value; his
heriot, comprising four horses, two of which were saddled; two swords
with their belts; two hawks, and all his hounds. He further gave to
the queen, a ring worth thirty mancuses of gold, and a mare, that she
might be his advocate (forespræce) that the will might stand, “ðæt se
cwide stondan mihte.” Cod. Dipl. No. 492. Between 944 and 946,
Æðelgyfu devised lands and chattels to St. Albans, “cum consensu
domini mei regis.” The king and queen had a very fair share of this
spoil. Cod. Dipl. No. 410. Between 965 and 975, Ælfheáh, an ealdorman,
or noble of the highest rank, and cousin of Eádgár’s queen Ælfðrýð,
left lands, a good share of which went to the king and queen: the will
was made, “be his cynehláfordes geþafunge,” by his royal lord’s
permission, and winds up with this clause: “And the witnesses to this
permission which the king granted (observe, not to the will itself,
but to the king’s permission to leave the property as he did,) are
Ælfðrýð the queen and others.” Cod. Dipl. No. 593. Æðelflǽd a royal
lady, left lands, some of which went to the king: she says, “And ic
bidde mínan leófan hláford for Godes lufun, ðæt mín cwide standan
móte,”—and I beg my dear Lord, for God’s love, that this my will may
stand. Cod. Dipl. No. 685. In the time of Æðelred, Wulfwaru, a lady,
commences her will in these words: “Ic Wulfwaru bidde míne leófan
hláford Æðelred kyning, him tó ælmyssan, ðæt ic móte beón mínes cwides
wyrðe;” _i. e._ that I may be worthy of my right of devising by will;
that I may enjoy my right of making a will. Cod. Dipl. No. 694.
Ælfgyfu the queen in 1012 commences her will in similar terms: “Dis is
Ælfgyfe gegurning tó hire cynehláforde. Dæt is ðæt heó hine bitt for
Godes lufun and for cynescipe ðæt heó móte beón hyre cwides wyrðe.”
Cod. Dipl. No. 721. Æðelstân, king Æðelred’s son, made also a will,
from which I take the following passage: “Now I thank my father, with
all humility, in the name of Almighty God, for the answer which he
sent me on the Friday after Midsummer day, by Ælfgár Æffa’s son; that
was, that he told me, upon my father’s word, that I might, by God’s
leave and his, grant my realty and chattels, as I thought best,
whether for spiritual or temporal ends. And the witnesses to this
answer are Eádmund,” etc. Cod. Dipl. No. 722. Lastly, Ælfhelm
concludes his will with these words: “Now I entreat thee, my dear
lord, that my will may stand, and that thou permit not that any man
should set it aside. God is my witness that I was ever obedient to thy
father, to the utmost of my power, and full faithful to him both in
mind and main, and have ever been faithful to thee, in full faith and
full love, as God is my witness.” Cod. Dipl. No. 967.
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The circumstances thus brought under review show clearly that the
condition of the gesíð was unfree in itself; that even the free by birth
who entered into it, relinquished that most sacred inheritance, and
reduced themselves to the rank of thanes, ministers or servants. Certain
rights and privileges grew up, no doubt, by custom, and the counts were
probably not very long subject to the mere arbitrary will of the chief:
they had the protection of others in a similar state of dependency to
their own, and chances, such as they were, of subservience to the king’s
wishes: a bond of affection and interdependence surpassing that of
blood, and replacing the mutual free guarantee of life and security, was
formed between them; and they shared alike in the joys and sorrows, the
successes and reverses of peace and war: but with it all, and whatever
their rank; they were in fact menials, housed within the walls, fed at
the table, clothed at the expense of their chief; dependent upon his
bounty, his gratitude or forbearance, for their subsistence and position
in life; bound to sacrifice that life itself in his service, and,
strictly considered, incapable of contracting marriage or sharing in the
inestimable sanctities of a home. They were his cupbearers, stewards,
chamberlains and grooms; even as kings and electors were to the emperor,
whom they had raised out of their own body. The real nature of their
service appears even through the haze of splendour and dignity which
gradually surround the intimate servants of royalty; and as the chief
might select his comites and instruments from what class he chose, it
was the fate of these voluntary thanes, not unfrequently to be numbered
in the same category with the unfree by birth, and thus, in their own
persons, to witness the destruction of that essential principle of all
Teutonic law, the distinction between the freeman and the serf[321].
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Footnote 321:
“Libertini non multum supra servos sunt, raro aliquod momentum in
domo, nunquam in civitate; exceptis duntaxat iis gentibus, quae
regnantur: ibi enim et super ingenuos et super nobiles ascendunt: apud
caeteros impares libertini libertatis argumentum sunt.” Tac. Germ.
xxv.
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Great indeed ought to be the advantages which could compensate for
sacrifices like these, and great in their eyes, beyond a doubt, they
were. In return for freedom, the gesíð obtained a certain maintenance,
the chance of princely favour, a military and active life of adventure,
with all its advantages of pillage, festivals and triumphs, poets and
minstrels, courtly halls and adventitious splendour; the usufruct at
least, and afterwards the possession, of lands and horses, arms and
jewels. As the royal power steadily advanced by his assistance, and the
old, national nobility of birth, as well as the old, landed freeman sunk
into a lower rank, the gesíð found himself rising in power and
consideration proportioned to that of his chief: the offices which had
passed from the election of the freemen to the gift of the crown[322],
were now conferred upon him, and the ealdorman, duke, geréfa, judge, and
even the bishop, were at length selected from the ranks of the
comitatus. Finally, the nobles by birth themselves became absorbed in
the ever-widening whirlpool; day by day the freemen, deprived of their
old national defences, wringing with difficulty a precarious subsistence
from incessant labour, sullenly yielded to a yoke which they could not
shake off, and commended themselves (such was the phrase) to the
protection of a lord; till a complete change having thus been operated
in the opinions of men, and consequently in every relation of society, a
new order of things was consummated, in which the honours and security
of service became more anxiously desired than a needy and unsafe
freedom; and the alods being finally surrendered, to be taken back as
_beneficia_, under mediate lords, the foundations of the royal, feudal
system were securely laid on every side.
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Footnote 322:
By this step, the crown became the real leader of the hereban, or
posse comitatus, as well as of the gesíðas and their power: and thus
also, the head of the juridical power in the counties, as well as the
lords’ courts. Moreover it extended the powers and provisions of
martial law to the offences of the freemen.
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