The Roman legions and the outlying semi-military settlements along the
Rhine and the Danube, forming a cordon reaching from the German Ocean to
the Black Sea, kept back the tide of barbarians, but the volume of
force accumulated behind the barrier, and at length it poured in an
overwhelming and destructive tide over the fair and fertile provinces
whose weak and effeminate people offered but a feeble resistance to the
robust armies of the north. The Romans, under the instruction of Caesar
and Tacitus, had a faint idea of the usages of the people inhabiting the
verge that lay around the Roman dominions, but they had no knowledge
of the influences that prevailed in "the womb of nations," as Central
Europe appeared to the Latins, who saw emerging therefrom hosts of
warriors, bearing with them their wives, their children, and their
portable effects, determined to win a settlement amid the fertile
regions owned and improved by the Romans.
These incursions were not colonization in the sense in which Rome
understood it; they were the migrations of a people, and were as
full, as complete, and as extensive as the Israelitish invasion of
Canaan--they were more destructive of property, but less fatal to life.
These migratory hosts left a desert behind them, and they either gained
a settlement or perished. The Roman colonies preserved their connection
with the parent stem, and invoked aid when in need; but the barbarian
hosts had no home, no reserves. Other races, moving with similar intent,
settled on the land they had vacated. These brought their own social
arrangements, and it is very difficult to connect the land system
established by the aborigines with the system which, after a lapse of
some hundreds of years, was found to prevail in another tribe or nation
which had occupied the region that had been vacated.
Neither Caesar nor Tacitus gives us any idea of the habits or usages
of the people who lived north of the Belgae. They had no notion of
Scandinavia nor of Sclavonia. The Walhalla of the north, with its
terrific deities, was unknown to them; and I am disposed to think that
we shall look in vain among the customs of the Teutons for the basis
from whence came the polity established in England by the invaders of
the fifth century. The ANGLO-SAXONs came from a region north of the
Elbe, which we call Schleswig--Holstein. They were kindred to the
Norwegians and the Danes, and of the family of the sea robbers; they
were not Teutons, for the Teutons were not and are not sailors. The
Belgae colonized part of the coast--i.e., the settlers maintained a
connection with the mainland; but the Angles, the Saxons, and the Jutes
did not colonize, they migrated; they left no trace of their occupancy
in the lands they vacated. Each separate invasion was the settlement of
a district; each leader aspired to sovereignty, and was supreme in
his own domains; each claimed descent from Woden, and, like Romulus or
Alexander, sought affinity with the gods. Each member of the Heptarchy
was independent of, and owed no allegiance to, the other members; and
marriage or conquest united them ultimately into one kingdom.
The primary institutions were moulded by time and circumstance, and the
state of things in the eleventh century was as different from that of
the fifth as those of our own time differ from the rule of Richard II.
Yet one was as much an outgrowth of its predecessor as the other.
Attempts have been made, with considerable ingenuity, to connect races
with each other by peculiar characteristics, but human society has the
same necessities, and we find great similarity in various divisions of
society. At all times, and in all nations, society resolved itself into
the upper, middle, and lower classes. Rome had its Nobles, Plebeians,
and Slaves; Germany its Edhilingi, Frilingi, and Lazzi; England its
Eaorls, Thanes, and Ceorls. It would be equally cogent to argue that,
because Rome had three classes and England had three classes, the latter
was derived from the former, as to conclude that, because Germany had
three classes, therefore English institutions were Teutonic. If the
invasion of the fifth century were Teutonic we should look for similar
nomenclature, but there is as great a dissimilarity between the English
and German names of the classes as between the former and those of Rome.
The Germanic MARK system has no counterpart in the land system
introduced into England by the ANGLO-SAXONs. If village communities
existed in England, it must have been before the invasion of the Romans.
The German system, as described by Caesar, was suited to nomads--to
races on the wing, who gave to no individual possession for more than
a year, that there might be no home ties. The mark system is of a later
date, and was evidently the arrangement of other races who permanently
settled themselves upon the lands vacated by the older nations. And I
may suggest whether, as these lands were originally inhabited by the
Celts, the conquerors did not adopt the system of the conquered.
Even in the nomenclature of FEUDALISM, introduced into England in the
fifth century, we are driven back to Scandinavia for an explanation.
The word FEUDAL as applied to land has a Norwegian origin, from which
country came Rollo, the progenitor of William the Norman. Pontoppidan
("History of Norway," p.290) says "The ODHALL, right of Norway, and
the UDALL, right of Finland, came from the words 'Odh,' which signifies
PROPRIETORS, and 'all,' which means TOTUM. A transposition of these
syllables makes ALL ODH, or ALLODIUM, which means absolute property.
FEE, which means stipend or pay, united with OTH, thus forming FEE-OTH
or FEODUM, denoting stipendiary property. Wacterus states that the word
ALLODE, ALLODIUM, which applies to land in Germany, is composed of AN
and LOT--i.e., land obtained by lot.
I therefore venture the opinion that the settlement of England in
the fifth and sixth centuries was not Teutonic or Germanic, but
SCANDINAVIAN.
The lands won by the swords of all were the common property of all; they
were the lands of the people, FOLC-LAND; they were distributed by lot
at the FOLC-GEMOT; they were ODH-ALL lands; they were not held of
any superior nor was there any service save that imposed by the common
danger. The chieftains were elected and obeyed, because they represented
the entire people. Hereditary right seems to have been unknown. The
essence of feudalism WAS A LIFE ESTATE, the land reverted either to the
sovereign or to the people upon the death of the occupant. At a later
period the monarch claimed the power of confiscating land, and of giving
it away by charter or deed; and hence arose the distinction between
FOLC-LAND and BOC-LAND (the land of the book or charter), a distinction
somewhat similar to the FREEHOLD and COPYHOLD tenures of the present
day. King Alfred the Great bequeathed "his BOC-LAND to his nearest
relative; and if any of them have children it is more agreeable to me
that it go to those born on the male side." He adds, "My grandfather
bequeathed his land on the spear side, not on the spindle side;
therefore if I have given what he acquired to any on the female side,
let my kinsman make compensation."
The several ranks were thus defined by Athelstane:
"1st. It was whilom in the laws of the English that the people went by
ranks, and these were the counsellors of the nation, of worship
worthy each according to his condition--'eorl,' 'ceorl,' 'thegur,' and
'theodia.'
"2d. If a ceorl thrived, so that he had fully five hides (600 acres) of
land, church and kitchen, bell-house and back gatescal, and special duty
in the king's hall, then he was thenceforth of thane-right worthy.
"3d. And if a thane thrived so that he served the king, and on his
summons rode among his household, if he then had a thane who him
followed, who to the king utward five hides, had, and in the king's hall
served his lord, and thence, with his errand, went to the king, he might
thenceforth, with his fore oath, his lord represent at various needs,
and his and his plant lawfully conduct wheresoever he ought.
"4th. And he who so prosperous a vicegerent had not, swore for himself
according to his right or it forfeited.
"5th. And if a 'thane' thrived so that he became an eorl, then was he
thenceforth of eorl-right worthy.
"6th. And if a merchant thrived so that he fared thrice over the
wide sea by his own means (or vessels), then was he thenceforth of
thane-right worthy."
The oath of fealty, as prescribed by the law of Edward and Guthrum, was
very similar to that used at a later period, and ran thus:
"Thus shall a man swear fealty: By the Lord, before whom this relic is
holy, I will be faithful and true, and love all that he loves, and shun
all that he shuns, according to God's law, and according to the world's
principles, and never by will nor by force, by word nor by work, do
aught of what is loathful to him, on condition that he me keep, as I am
willing to deserve, and all that fulfil, that our agreement was, when I
to him submitted and chose his will."
The Odh-all (noble) land was divided into two classes: the in-lands,
which were farmed by slaves under Bailiffs, and the out-lands, which
were let to ceorls either for one year or for a term. The rents were
usually paid in kind, and were a fixed proportion of the produce. Ina,
King of the West Saxons, fixed the rent of ten hides (1200 acres), in
the beginning of the eighth century, as follows: 10 casks honey, 12
casks strong ale, 30 casks small ale, 300 loaves bread, 2 oxen, 10
wedders, 10 geese, 20 hens, 10 chickens, 10 cheeses, 1 cask butter,
5 salmon, 20 lbs. forage, and 100 eels. In the reign of Edgar the
Peaceable (tenth century), land was sold for about four shillings of
the then currency per acre. The Abbot of Ely bought an estate about this
time, which was paid for at the rate of four sheep or one horse for each
acre.
The FREEMEN (LIBERI HOMINES) were a very numerous class, and all were
trained in the use of arms. Their FOLC-LAND was held under the penalty
of forfeiture if they did not take the field, whenever required for the
defence of the country. In addition, a tax, called Danegeld, was levied
at a rate varying from two shillings to seven shillings per hide of land
(120 acres); and in 1008, each owner of a large estate, 310 hides, was
called on to furnish a ship for the navy.
Selden ("Laws and Government of England," p. 34) thus describes the
FREEMEN among the Saxons, previous to the Conquest:
"The next and most considerable degree of all the people is that of the
FREEMEN, anciently called Frilingi, [Footnote: This is a Teutonic, not
an ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] or Free-born, or
such as are born free from all yoke of arbitrary power, and from all law
of compulsion, other than what is made by their voluntary consent, for
all FREEMEN have votes in the making and executing of the general laws
of the kingdom. In the first, they differed from the Gauls, of whom
it is noted that the commons are never called to council, nor are much
better than servants. In the second, they differ from many free
people, and are a degree more excellent, being adjoined to the lords in
judicature, both by advice and power (consilium et authoritates adsunt),
and therefore those that were elected to that work were called Comites
ex plebe, and made one rank of FREEMEN for wisdom superior to the rest.
Another degree of these were beholden for their riches, and were called
Custodes Pagani, an honorable title belonging to military service, and
these were such as had obtained an estate of such value as that their
ordinary arms were a helmet, a coat of mail, and a gilt sword. The rest
of the FREEMEN were contented with the name of Ceorls, and had as sure
a title to their own liberties as the Custodes Pagani or the country
gentlemen had."
Land was liable to be seized upon for treason and forfeited; but even
after the monarchs had assumed the functions of the FOLC-GEMOT, they
were not allowed to give land away without the approval of the great
men; charters were consented to and witnessed in council. "There is
scarcely a charter extant," says Chief Baron Gilbert, "that is not proof
of this right." The grant of Baldred, King of Kent, of the manor of
Malling, in Sussex, was annulled because it was given without the
consent of the council. The subsequent gift thereof, by Egbert and
Athelwolf, was made with the concurrence and assent of the great men.
The kings' charters of escheated lands, to which they had succeeded by a
personal right, usually declared "that it might be known that what they
gave was their own."
Discussions have at various times taken place upon the question, "Was
the land-system of this period FEUDAL?" It engaged the attention of the
Irish Court of King's Bench, in the reign of Charles I., and was raised
in this way: James I. had issued "a commission of defective titles." Any
Irish owner, upon surrendering his land to the king, got a patent
which reconvened it on him. Wentworth (Lord Stafford) wished to SETTLE
Connaught, as Ulster had been SETTLED in the preceding reign, and, to
accomplish it, tried to break the titles granted under "the commission
of defective titles." Lord Dillon's case, which is still quoted as an
authority, was tried. The plea for the Crown alleged that the honor of
the monarch stood before his profit, and as the commissioners were only
authorized to issue patents to hold in capite, whereas they had given
title "to hold in capite, by knights' service out of Dublin Castle," the
grant was bad. In the course of the argument, the existence of feudal
tenures, before the landing of William of Normandy, was discussed,
and Sir Henry Spelman's views, as expressed in the Glossary, were
considered. The Court unanimously decided that feudalism existed in
England under the ANGLO-SAXONs, and it affirmed that Sir Henry Spelman
was wrong. This decision led Sir Henry Spelman to write his "Treatise on
Feuds," which was published after his death, in which he reasserted
the opinion that feudalism was introduced into England at the Norman
invasion. This decision must, however, be accepted with a limitation;
I think there was no separate order of NOBILITY under the ANGLO-SAXON
rule. The king had his councillors, but there appears to have been no
order between him and the FOLC-GEMOT. The Earls and the Thanes met with
the people, but did not form a separate body. The Thanes were country
gentleman, not senators. The outcome of the heptarchy was the Earls or
Ealdermen; this was the only order of nobility among the Saxons; they
corresponded to the position of lieutenants of counties, and were
appointed for life. In 1045 there were nine such officers; in 1065 there
were but six. Harold's earldom, at the former date, comprised Norfolk,
Suffolk, Essex, and Middlesex; and Godwin's took in the whole south
coast from Sandwich to the Land's End, and included Kent, Sussex,
Hampshire, Wilts, Devonshire, and Cornwall. Upon the death of Godwin,
Harold resigned his earldom, and took that of Godwin, the bounds being
slightly varied. Harold retained his earldom after he became king, but
on his death it was seized upon by the Conqueror, and divided among his
followers.
The Crown relied upon the LIBERI HOMINES or FREEMEN. The country was not
studded with castles filled with armed men. The HOUSE of the Thane was
an unfortified structure, and while the laws relating to land were, in
my view, essentially FEUDAL, the government was different from that
to which we apply the term FEUDALISM, which appears to imply baronial
castles, armed men, and an oppressed people.
I venture to suggest to some modern writers that further inquiry will
show them that FOLC-LAND was not confined to commonages, or unallotted
portions, but that at the beginning it comprised all the land of the
kingdom, and that the occupant did not enjoy it as owner-in-severalty;
he had a good title against his fellow subjects, but he held under the
FOLC-GEMOT, and was subject to conditions. The consolidation of the
sovereignty, the extension of laws of forfeiture, the assumption by
the kings of the rights of the popular assemblies, all tended to the
formation of a second set of titles, and BOC-LAND became an object of
ambition. The same individual appears to have held land by both titles,
and to have had greater powers over the latter than over the former.
Many of those who have written on the subject seem to me to have failed
to grasp either the OBJECT or the GENIUS of FEUDALISM. It was the device
of conquerors to maintain their possessions, and is not to be found
among nations, the original occupiers of the land, nor in the conquests
of states which maintained standing armies. The invading hosts elected
their chieftain, they and he had only a life use of the conquests. Upon
the death of one leader another was elected, so upon the death of the
allottee of a piece of land it reverted to the state. The GENIUS of
FEUDALISM was life ownership and non-partition. Hence the oath of fealty
was a personal obligation, and investiture was needful before the
new feudee took possession. The state, as represented by the king or
chieftain, while allowing the claim of the family, exercised its right
to select the individual. All the lands were considered BENEFICIA,
a word which now means a charge upon land, to compensate for duties
rendered to the state. Under this system, the feudatory was a commander,
his residence a barrack, his tenants soldiers; it was his duty to keep
down the aborigines, and to prevent invasion. He could neither sell,
give, nor bequeath his land. He received the surplus revenue as payment
for personal service, and thus enjoyed his BENEFICE. Judged in this way,
I think the feudal system existed before the Norman Conquest. Slavery
and serfdom undoubtedly prevailed. The country prospered under the
Scandinavians; and, from the great abundance of corn, William of
Poitiers calls England "the store-house of Ceres."