dependent cultivator, whose dependence resulted from the fact that he was a landless man: he had no share in the land of the community; he was the cultivator of the land of another. As to the lord whose land he tilled he was unfree, but, save as against him, his life and limb were as secure as the ceorl's. He had his own house and home, and the lord could not take from him the land he tilled so long as he paid his rent in labor or in kind, and performed such other services as were due to his lord. But he could leave neither land nor lord at his will; and, as he owned no land in the village-community, he had originally no part or place in its political life.1 Below the læts were the slaves, whose condition repre- Slaves. sented the full measure of servitude, - a servitude as abject as the slavery described in the Germania. Slavery might result from one of many causes, and was either casu or natura.2 The lowest condition of slavery was represented by the The theow. theow, who was either wealh—that is, of British extraction -or of the Teutonic stock, and a descendant of the slaves of the first settlers. The wite-theow was the man who could not pay his debts, or who had lost his freedom through crime, and whose kindred would not make up the fine for him. The esne served either for hire or for land, and may have been a The esne. little better off than the theow.5 Then there were the men who, compelled by famine, "bowed their heads for meat in the evil days."6 But no matter what the cause from which the slavery may have resulted, in contemplation of law the slave was the mere chattel of his lord, a part of his stock, for whose wrong-doing he answered as for the mischief done by his cattle. The slave had no legal rights, no wergild, no his lord, credibility as a witness, and a wrong done to him was only an legal rights. offence as against his master. At his death his status descended to his children; and even the children of a freeman 8 Stubbs, Const. Hist., vol. i. p. 78. This form of involuntary servitude 7 Stubbs, Const. Hist., vol. i. p. 79; The slave chattel of the mere without Practice kinder than theory. The primi by a slave mother were slaves according to the old English proverb, "Mine is the calf that is born of my cow." But the dictates of humanity secured to the slave some rights which the theory of the law denied him. His two loaves a day and his holidays were secured to him, and out of his savings, which in theory at least belonged to his master, he was allowed to purchase his own freedom and that of his children.1 The primitive Teutonic village-community in Britain reptive village resented, therefore, a settlement made up of eorls and ceorls, in Britain; with their unfree dependents, who stood, in relation to their lords, in different degrees of servitude. The political power of such a community was embodied in the village-moot; in which the land-owning freemen met together, and passed all laws, or rather by-laws, necessary for the ordering of their village and agricultural life. The title to the territory of the free community, as a whole, was vested in the community itself; while within it each villager possessed his homestead and the right to a definite portion of arable land, which entitled him to the enjoyment of all common rights.2 With this conception of the primitive free community clearly before us, it will be possible to trace with more distinctness the development of an institution which grew up alongside of and at a miniature last overshadowed the miniature democracy. But in order democracy. fully to grasp the nature of this institution and its development, an examination must be made into the nature of the new kingship to which the migration and conquest gave birth. Growth of the new kingship. From the Germania we learn that in the fatherland kingship prevailed in some of the states, while in others it did not.3 That kingship did not prevail among the Saxons is affirmaInvading tively stated by Bæda; and the highest authorities agree in the inference that the other tribes that joined in the migra tion did not differ from the Saxons in that respect.5 Every band of invaders, great or small, that came to engage in the tribes non monarchical. 1 Kemble, Codex Diplomaticus, mcccli., and dccccxxxiv. 2 As to the character of the independent village-community in Britain, see Freeman, Norm. Cong., vol. i. p. 57; Essays in Anglo-Saxon Law, p. 82; Maine, Village-Communities, p. 10; Green, Making of Eng., pp. 175, 176. 8 Tac., Germ., cc. 7, 12, 25. 4 "Non enim habent regem iidem Antiqui Saxones, sed satrapas plurimos suæ genti præpositos." Hist. Eccl., v. 10. 5 Royalty among the conquerors of Britain was one of the results of the migration. Freeman, Norm. Cong., toga or eal work of conquest, was necessarily obliged to intrust its fortunes to some leader or chieftain of its choice. According to the Chronicle, the chieftains who led the first expeditions The hereinto Britain bore no higher title than heretoga or ealdorman. dorman. In A. D. 449 the Jutish war-bands landed under the command of two heretogas, Hengist and Horsa, and in a. D. 455 Horsa was slain, and Hengist and Esc his son obtained the kingdom. In A. D. 495 two ealdormen came to Britain, Cerdic and Cynric his son; and in A. D. 519 they became the kings of the West Saxons. The evidence justifies the conclusion that each expedition was led by a chosen chieftain, who might bear as a civil ruler the title of ealdorman, while as war leader he might bear the title of heretoga.1 But as the conquest advanced, and as definite districts of country were permanently secured, and as the various groups of conquerors within such districts felt the need of drawing together under a permanent instead of a temporary leadership, the ealdorman was advanced to the dignity of a king Ealdorman who could represent in his person the unity of a new national becomes life. In this wise a brood of petty kings grew up that continued to survive for centuries. In order to attach the idea of permanency to the new kingship, the name of the son was often associated with that of the father as a recognition of the hereditary principle; while, in order to impart sanctity to the person of the new king, fable at once traced his descent in an unbroken line from Woden. This recognition of the Blending hereditary principle was attended and modified, however, hereditary by the older principle of election. The right to the throne with the might be vested by the original choice in one royal house, but principle. the question as to which member of that house should receive the succession when a vacancy occurred was one which the national assembly alone could determine. For centuries the right to reject the immediate heir of the last king, in favor of vol. i. p. 51. See, also, Appendix K, "On the Change from Ealdormen or Heretogan to Kings," Stubbs, Const. Hist., vol. i. p. 66. Upon this subject Kemble says, "Kingship, in a certain sense, seems to me rooted in the German mind and institutions, and universal among some particular tribes and confederacies."-Saxons in Eng., vol. i. p. 137. 1 Freeman, Norm. Conq, vol. i. p. 51; Stubbs, Const. Hist., vol. i. p. 67. king. of the elective some other member of the same house more competent to govern, was freely exercised. How far the power and dignity. of a king exceeded that of an ealdorman it is difficult to determine, but it is quite clear that the title of king did carry with it an advance in both respects. It is probable that the king was not chosen until a group of war-bands, each under its own ealdorman, had united in the formation of a kingdom. In this way the king was advanced to the supreme command The ealdor- and to national authority, while the ealdorman, descended to the head of the status of a subordinate, although still possessing the highest command in his own district.1 man as his district. Tribal sovereignty. powers and duties. The fact must be constantly borne in mind, that the new king was the king of a nation, the leader of his people, the head of the race, —and not the king of a country and lord of the soil. The idea of territorial as distinguished from tribal The king's sovereignty was the growth of later times.2 In war the king, as leader of the host, possessed supreme command, while in peace his powers were coördinate with the national assembly, with whose concurrence he performed all important acts. He maintained, not his own peace, but the national peace, and executed justice on the breakers of it: but justice was not yet the king's justice; it was the justice of the village, the hundred, and the folk, in whose moots was vested jurisThe dignity diction.3 As the process of aggregation advanced, as the early kingdoms became bound up in the seven or eight hepthe process tarchic kingdoms, which finally united under the rule of one royal house, the institution of kingship grew with each expansion of territory. As an heptarchic king rose in power and importance above the petty royal head of a primitive state, so did the king of all the English rise in power and of kingship grows as of aggregation ad vances. 1 Freeman, Norm. Conq., vol. i. pp. 52, 66. 2 "Some years ago I pointed out (Ancient Law, pp. 103 et seq.) the evidence furnished by the history of international law that the notion of territorial sovereignty, which is the basis of the international system, and which is inseparably connected with dominion over a definite area of land, very slowly substituted itself for the notion of tribal sovereignty. Clear traces of the change are to be seen in the official style of kings. Of our own importance above an heptarchic king.1 In the process of aggregation was thus involved the growth of kingship, and in the growth of kingship were involved all the elements of constitutional life. tatus. the loaf Reference has heretofore been made to the structure of The comi the comitatus, the personal following of professional warriors who grouped themselves around a king or chief in a strange relation of fidelity and dependence which rendered them a class apart from the body of the people.2 Each chieftain by whom a war-band was led to the conquest of Britain came attended by his comites, and their fortunes advanced together. In return for their fidelity and service the comites expected to receive from their chief whatever of bounty lay in his power to bestow; but it was a part of his absolute duty to supply them from his own board with their daily bread. The chief therefore becomes in Old-English the hlaford, the loaf- The hlaford giver, a term which, by an entire departure from its original giver. meaning, finally softened down into the modern form of lord; while the comes, the hlafæta, the loaf-eater, becomes the The gesith gesio, gesith or companion. Under these names the old ion. relations at first reappear. The right upon the part of the king to maintain a body of gesiths or household retainers has been called a very jewel in the crown: but this right was not confined to kings alone; it was enjoyed alike by all the great men of the nation. As kingship advanced in power and privilege, kings were able, of course, to confer upon their dependents a status and emoluments such as no one else could bestow. And as the king grew in power and importance the companion or gesith soon changed his original title for a new one that more clearly expressed his somewhat The thegnchanged relation. He became the thegn or servant instead of the companion of his lord. In this way originated a new ity by sernobility by service, which grew and widened until it at last 1 Freeman, Norm. Conq., vol i. p. 53. 2 Above, p. 110. Kemble, Saxons in England, vol. i. p. 169. For an elaboration of the whole subject see Kemble's chapter, "The Noble by Service," in the first, and "The King's Court and Household," in the second, volume of Saxons in England. And also Freeman's Norm. Cong., vol. i. p. 58. 4 "The difference between the comites of the princeps and the household of the private man depends fundamentally only on the public and political position of the master. Now, the king, the perpetual princeps representative of the race, conveys to his personal following public dignity and importance."-Stubbs, Const. Hist., vol. i. pp. 149, 150. or compan. hood-the new nobil vice. |