institutions. dred court of the hun the German scholars into their own legal antiquities have Their imfinally established the fundamental principle, that the whole portance as Teutonic race, from the earliest period of its history, vested both the administration of law and political administration in the hands of popular assemblies. The smallest of these assemblies is represented by the mark-moot; the circle then widens as we ascend to the assembly or court of the hundred until, in the state assembly, appears the highest development of popular power. The hundred court, like all other The hunTeutonic courts, was a popular assembly, composed of all the a popular freemen resident within the district. In this court was ad- assembly. ministered regularly and frequently the customary law. It met perhaps once a month, and, in addition to its judicial duties, it discharged many administrative functions.1 Tacitus tells us that each hundred, pagus, sent a hundred warriors to the army, called hundreders; and that this name, at first numerical only, became in time a title of honor.2 In President the state assembly a chief was chosen to act as magistrate dred court in each hundred. He presided in the hundred court, and chosen in with him were associated a hundred companions or assist- bly. ants, chosen from the body of the people, who attended to give their advice and to strengthen the hands of justice.3 9. As by the union of two or more marks the hundred was The state formed, so by the union of two or more hundreds the state was formed. The supreme powers of the state were vested in a state assembly, in which every freeman had his place. The character of this assembly and the methods of its procedure are described in the Germania with some detail. In the assembly of the hundred the people met in council, mainly for the purpose of judicial administration; in the state assembly they met together mainly for the purpose of political action. In the deliberation of the assembled peo- its functions chiefly ple every man had an equal voice; and it was the custom political; for all to appear fully armed. The state assembly met at fixed and stated intervals, unless sooner called together by 1 Essays in Anglo-Saxon Law, p. 5. 2 Tac., Germ., c. 6. 8 Ibid., c. 12. The duty of attendance upon the courts and the obligation of military service resulted from the possession of personal freedom, and were of universal application. — state assem assembly: some sudden emergency. When the people had assembled in sufficient numbers the business began after silence had first been proclaimed by the priests, who possessed the coits business ercive power to enforce it. The business presented to the prepared beforehand consideration of the assembly was all prepared beforehand by a perma- by a permanent council. This council was composed of the cil, which magistrates, principes, who decided all minor questions, reminor serving only the graver ones for the consideration of the questions. whole people. When the proper time arrived, the debate nent coun settled all Criminal law: All offences, was opened by the king, or a chief, and then the rest were heard in turn, according to age, nobility of descent, renown in war, or fame for eloquence. No one could dictate to the assembly, all could persuade, no one could command. When a proposition was put forward to which the people were opposed they expressed their dissent in loud murmurs; when it pleased them, they expressed their approval by the clash of arms. Here the magistrates, principes, were chosen to administer justice in the marks and hundreds, -pagos vicosque.2 10. In the state assembly, as a high court of justice, accusations were exhibited and capital offences prosecuted.3 Those guilty of treason and desertion were hanged, those guilty of cowardice and unnatural vices were suffocated in the mud. In the infliction of these penalties the spirit of the law was, that crimes against the state should be made notorious, while the infamous forms of vice should be buried out of sight. All other offences could be atoned for by except trea- fines, a part of which were paid to the king or state, and a effeminacy, part to the person injured, or to his family. The Germans felt bound to take up both the enmities and friendships of their parents and relatives. But in their enmities they were not implacable. Injuries were adjusted by a settled measure of compensation. Even homicide was atoned for by a fixed. number of cattle; and, in this way, the whole family received satisfaction, a useful institution to the state, as it served to curb that spirit of revenge, which naturally results from too much liberty. And the value of this method of settling son and could be atoned for by fines. 1 Tac., Germ., c. II. 2 Ibid., c. 12. 8 Sohm, Fr. R. G. V., p. 5. 4 Tac., Germ., c. 12. Ibid., c. 21. difficulties is increased when we reflect upon the fact that convivial meetings were frequent in which drunken brawls generally ended in a scene of blood.1 II. Tacitus makes it very clear that each state had its own Kingship: constitution and that these constitutions were substantially the same in every particular except one, -in some of the states kingship prevailed, in others it did not.2 In the monarchical states the kings were chosen from among those of noble blood, while the generals, duces, were chosen from among those who possessed the greatest military fame. The power of the king was neither arbitrary nor unlimited, while the general commanded more by exhibitions of valor than by positive authority.3 Although in war the sole command was not vested in the king, and although in peace his powers were very limited, yet he was certainly surrounded at all times with attributes of great dignity and privilege. He represented in his person the national unity, he was the noblest of the people, the head of the state. As a perquisite he received a portion of the fines imposed in the courts of justice. But the most important consideration arising out of this primitive kingship is the principle of election involved in it. principle of The king was simply one of the people made eligible by noble blood to an office which the people only by election could bestow. Noble blood simply made the candidate eligible; while the title to the office rested alone upon election. The operation of this complex principle pervades the whole history of English kingship. election. in states r In the non-monarchical states the conception of national Sovereignty unity was embodied solely in the idea of the civitas, working through the state assembly, and through the magistrates chosen by it for local administration. In such a state, in time of peace, all ordinary matters were determined by the permanent council composed of the magistrates; in the event of war the great council was convened and generals chosen by it for its management. Under this form of government, that portion of the fines accrued to the state which in the monarchical states passed to the king. 1 Tac., Germ., c. 22. 2 Ibid., cc. 7, 12, 25. 8 Ibid., c. 7. 4 Kemble, Saxons in England, vol. i. 5 Tac., Germ., c. 12. Military organization: to political organiza tion. 12. So closely did the scheme of military organization, common to all of the Teutonic tribes, resemble the system of political organization upon which the state was constructed, its likeness that a comparison has been happily made between the state in its territorial aspect and the army in permanent encampment.1 In the social and political order the narrowest form of local organization was represented by the kindred grouped together in village-communities. In one of the elements of which the army was composed, the same principle of cohesion. appeared. The mass of the people fought together in "families and affinities;" in these groups of kindred appeared upon the battle-field the village-communities. The larger divisions of the state were also distinctly represented. Each pagus or hundred contributed its quota of a hundred warriors to the host. These warriors, chosen from the flower of the youth, constituted the infantry, which was looked upon as the basis of the national strength.3 The comitatus: The third element of the army consisted of bands of professional warriors, united to a leader of their choice in a close and peculiar personal relation which Tacitus has described with terse and graphic force. The leader of such a band was the princeps, his war-like followers, the comites; and it was no disgrace to any man to be seen among the followers of a its divisions chief. The clanship or comitatus thus formed had its diviof rank; sions of rank, which were fixed by the princeps. There was great emulation among the comites of every princeps as to who should hold the highest place in his esteem; and among the principes as to who should have the most numerous and bravest following. To be always surrounded by a band of chosen young men - in peace an ornament-in war a bulwark - was the greatest dignity and power that a chief could possess. Upon the battle-field it was a disgrace for the prin princeps ceps to be surpassed by his comites, and it was a disgrace for and comites. the comites not to equal their leader in valor. To survive a battle in which their chief had fallen was eternal infamy. To defend and protect the princeps, to make even their own re nown subservient to his, was the highest and holiest duty of the comites. The chieftains fought for victory, the comites Relative duties of 1 Stubbs, Const. Hist., vol. i. p. 31. 2 Tac., Germ., c. 7. 8 Ibid., c. 6. for their chief. The comitatus could only be kept together by violence and war, for the comites were entirely dependent upon the bounty of their chief. At one time they demanded from him that war-horse, at another, this bloody and victorious lance. The table of the chief, though rude, had always to be bountiful, for it was the only pay of his followers. War and plunder supply the means of liberality. In the bonds. of this strange military association, the chief and his followers were united by the closest ties of mutual interest and honor. Both in peace and war the comites were required to serve the princeps even to the death, and in return the princeps shared his spoils with them and gave them bread. In the structure of the comitatus was imbedded the germ Origin of of a great after-growth. The relation of lord and vassal, the feudalism. first outcome of the comitatus, was purely a personal one. But in the process of time, when the lord makes a grant of land to his vassal in consideration of past services and upon the further consideration that the vassal will hold such land upon the tenure of military service, a new relation becomes. involved with the old one. When the two relations become inseparably welded together the result is feudalism. But we are now only concerned with the comitatus as an element in the host, its growth and influence belong to later times. composed The host was therefore composed of three distinct elements: The host the main body of the people fighting in groups united by the of three tie of kinships; the chosen infantry contributed by the hun- elements. dreds; and the bands of mounted warriors, each under the leadership of its own trusted chief. When the whole people were in arms we have "popular assembly, parliament, law court, and army in one."3 The close relationship thus existing between the systems of political and military organization is, in one respect, worthy of special attention. It is easy to understand how an army of invasion, composed either of the whole people of a state, or of a single subdivision, embodied in its very organization the primitive political system, which it would naturally reproduce wherever a settlement was made in the conquered territory. If the expedition happened to be 1 Tac., Germ., cc. 13, 14. See Kem- 2 Freeman, Norm. Conq., vol. i. pp. ble's chapter (vii.) on "The Noble by 58-63. Service," Saxons in England, vol. í. p. 162. 8 Essays in A. S. Law, p. |