§ 2. The Early Teutonic Constitution and its Decay

I said above that, in the very earliest glimpses of Teutonic political life, we find the monarchic, the aristocratic, and the democratic elements already clearly marked. There are leaders, with or without the royal title; there are men of noble birth, whose noble birth, in whatever the original nobility may have consisted, entitles them to pre-eminence in every way; but beyond these there is a free and armed people, in whom the ultimate sovereignty resides. Small matters are decided by the chiefs alone, great matters are submitted by the chiefs to the assembled nation. Such a system is far more than Teutonic; it |Analogy of the Homeric Achaians,| is a common Aryan possession; it is the constitution of the Homeric Achaians on earth and of the Homeric Gods on Olympos. Zeus or Agamemnôn is King; he has his inner Council of great Gods or of great leaders; he has his general Assembly of all the divine race or of all the |and the historical Macedonians.| warriors who fought before Ilios. The constitution of legendary Hellas remained the constitution of historical Macedonia; the assembly of the Macedonian nation—in war-time of the Macedonian army—remained, even under Philip and Alexander, the constitutional authority to decide on questions of succession to the throne and the tribunal in which was vested the power of adjudging a |The system a natural one in a small state.| Macedonian to death. In short, the division of powers between the supreme leader, the Council, and the general Assembly, is the form into which the government of a small state or independent tribe almost necessarily throws itself. The hereditary prince and the aristocratic council may be exchanged for an elective chief magistrate and an elective council; but the division of powers remains the same, and in either case the ultimate sovereignty remains in the general Assembly, in the Agorê, the Ekklêsia, the Comitia, the Marzfeld, the Landesgemeinde. Of the nature and functions of such an assembly I shall have presently to speak, when I trace out the origin and nature of the Old-English Witenagemót. My present point is the distinction |Distinction of Eorl and Ceorl.| of orders in the state. Tacitus sets before us a marked distinction between the noble and the common freeman, that is, in Old-English phrase, between the Eorl and the Ceorl. The modern English forms of these words have altogether lost their ancient meaning. The word Earl, after several fluctuations, has settled down as the title of one rank in the peerage; the word Churl has come to be a word of moral reprobation, irrespective of the rank of the person who is guilty of the offence. But in the earlier meaning of the words, Eorl and Ceorl—words whose happy jingle causes them to be constantly opposed to each other—form an exhaustive division of the free members of the state. The distinction in modern language is most nearly expressed by the words Gentle and Simple. The ceorl is the simple freeman, the mere unit in the army or in the assembly, whom no distinction of birth or office marks out from his fellows. It must not be forgotten that, among the ancient English, as among all other Teutonic nations, the system of slavery was in full force. The ceorl therefore, like the ancient Greek citizen, though he might be looked down upon by an aristocratic class, was actually a privileged person as compared with a large number of human beings in his own city or district. The origin of the distinction it is in vain to search after; the difference of the eorl and the ceorl is a primary fact from which we start; it is as old as the earliest notices of Teutonic institutions, and the only attempt at its explanation is to be found in an ingenious mythical story in a Northern saga. Nor is it very easy to see in what the privileges of the eorl consisted, or how far they were secured by definite laws. |Analogy of the democratic Cantons of Switzerland.| Perhaps we may gain some light by looking at those communities which have preserved the old Teutonic system of government with the least alteration, the democratic |Traditional predominance of certain families.| Cantons of Switzerland. There, amid the purest democracy in the world, where every adult freeman has a direct and equal vote in the Assembly, we still find that certain families, enjoying no legal privileges above their fellows, were long held in a kind of hereditary reverence, and that members of those families were preferred above all others to the highest offices in the state. Such were the houses of Reding in Schwyz, of Tschudi in Glarus, of the Barons of Attinghausen in Uri. The office of Landammann, the chief magistracy of the commonwealth, conferred by the yearly vote of the Landesgemeinde, commonly fell to the lot of members of these great houses; the same man was constantly re-elected year after year, and, when he died, |Comparison of old county families among ourselves.| his son was often elected in his place. Or without going so far from home, we may see what is essentially the same thing in the position of old county families, holding no legal advantages above their fellows, but which still enjoy an hereditary respect and preference at their hands. The eorl and the ceorl in fact answer pretty nearly to the esquire and the yeoman; the modern artificial peerage is something quite different, and we shall presently perhaps see its beginnings.

The primitive Teutonic community is thus set before us as one consisting of eorls and ceorls, headed by a King, Ealdorman, or other leader, temporary or permanent, elective or hereditary. Such a community occupies its own territory, its Mark, which territory consists of land of two kinds. There is the common land, either applied to the general use of the community or else held by individuals on such terms as the community, in its character of landowner, may think good to allow. There are also the particular possessions of individuals, portions assigned to them by common consent, which are the absolute property of their owners, held of no superior, but simply subject to such burthens as the community, in its political character, may think good to impose on its members. All this again is in no way distinctively Teutonic; it is the story of the ancient commonwealths of Greece and Italy over again. |Folkland or Ager Publicus.| The folkland of England and the ager publicus of Rome are the same thing. The English and the Latin names translate one another; they both describe the land which still belongs to the community as a body, and of which individuals cannot be more than the occupiers. The whole history of the Roman Agrarian Laws, so long misunderstood, turns simply on the regulation of this common land of the state. In the time of Cæsar it would seem that the whole territory of a Teutonic community was folkland; individuals could obtain no right in it beyond that of a yearly tenancy. But the custom of allotting portions of the common stock in absolute property gradually advanced. A conquest like that of Britain would be highly favourable to the growth of the practice. When a band of Teutonic warriors took possession of a district and slew or dispossessed its former inhabitants, we cannot doubt that, besides |Allodial property, eðel or odal.| the stock reserved as common property, each man who had borne his share in the labours and dangers of the conquest would claim his reward in the absolute ownership of some portion of the conquered territory. The eorls, who would doubtless act as the leaders of the expedition, may well have received a larger allotment; but we may be sure that no freeman bearing arms went altogether without some share of the spoil. Such an allotment in absolute property, held of no superior, subject to nothing but the laws of the state, is called in different Teutonic dialects eðel, odal, or alod. It is an estate, great or small, which the owner does not hold either of the King or of any other lord, but in regard to which he knows no superior but God and the law.

These communities of freemen, among whom some had a pre-eminence in rank, and doubtless in wealth, but among |The primitive democracy gives way to the institution of| whom every freeman was a member of the state, form one of the elements of Teutonic life as we see it in its very earliest pictures. But those same pictures set no less strongly before us another element, which grew up alongside of the primitive democracy, and which was destined in the long run to supplant it more or less completely in nearly every Teutonic country. The ancient Teutonic community can now be seen in its purity only in a few of the smallest Swiss Cantons, and in several even of these the ancient freedom had to be reconquered and was not uninterruptedly retained. Everywhere else it is as much as we can do to trace out some faint footsteps of the ancient system, such as we see in common lands, in some forms of communal institutions, in petty and half obsolete local |the Comitatus, the personal following of the Chiefs.| tribunals. The thing itself has given way to the other institution described by Tacitus, the Comitatus, the personal following of the chiefs. Every Teutonic King or other leader was surrounded by a band of chosen warriors, personally attached to him of their own free choice. The chief and his followers were bound together by the strongest ties of mutual trust, and a lack of faithfulness on either side was reckoned among the most shameful of crimes. The followers served their chief in peace and in war; they fought for him to the death, and rescued or avenged his |Nature of the relation.| life with their own. In return, they shared whatever gifts or honours the chief could distribute among them; and in our tongue at least it was his character of dispenser of |The Hlaford and his Gesiðas.| gifts which gave the chief his official title. He was the Hlaford, the Loaf-giver, a name which, through a series of softenings and contractions, and with an utter forgetfulness of its primitive meaning, has settled down into the modern form of Lord. His followers were originally his Gesiðas or Companions, a word which Ælfred uses to express the Latin Comes, but which must have dropped out of use |Origin of Þegnas (Thanes).| very early, as it is not found in the Chronicles. The Gesið or Companion became the Þegn (Thegn, Thane) or Servant, a change of name which might seem to imply a lowering of the nature of the relation, and which perhaps in a manner did so. As Kings grew in power and dominion, it was not unnatural that a certain element of servility should find its way into the relation of the Comitatus, of which there is no trace in the primitive shape of that institution. The service of the King or other great lord conferred dignity even on the freeman. This is a notion altogether foreign to the ideas of republican Greece and Rome; but here again the primitive Teuton is but the |Homeric analogies.| reproduction of the primitive Achaian. The Homeric Kings have their comitatus, their Gesiðas or ἑταῖροι, their Þegnas or θεράποντες, free, noble, the cherished companions of their lords, but who do for those lords, without any loss of their own dignity, services which in later Greece none but slaves would have rendered. Eteôneus, Automedôn, Mêrionês, the divine Patroklos himself, all appear in this relation; all are connected by this voluntary personal tie to a chieftain of higher rank. They are the very counterparts of Lilla, the faithful Thegn of Eadwine, and of those true companions who fought to the death for |Contrast with the republican Greeks and Romans.| Cynewulf and Cyneheard. The republican Greek knew no lord but the law. He was a member of a civil community, and as a good citizen he obeyed the magistrates whom the choice of the community clothed with a limited and temporary power. But personal dependence on another human being seemed to him the distinguishing mark of the slave as opposed to the citizen. The republican Roman shared the same feeling; the early Cæsars were served by slaves or freedmen; it was only as the Empire gradually grew into an avowed monarchy, and gradually assumed somewhat of the pomp of eastern kingship, that service about the person of the Emperor began to be looked upon as honourable in a man of free Roman birth. In the Teuton, as in the Homeric Achaian, the feeling of the civil community, though far from unknown, was less strong, and the tie of personal dependence was not felt to imply degradation. Indeed the Teuton carried the principle of personal service far further than the Roman ever did. It was held that purely menial services, when rendered to persons of higher rank, in no way degraded the ordinary freeman. It was even held that men of any rank short of the highest were actually honoured by rendering such services to those who were one degree higher than themselves. None of the old Cæsars ever held such lordly state |Developement of the principle in the later Empire and in modern Kingdoms.| as those among their successors who, while keeping hardly a trace of real Imperial power, still saw Kings and sovereign Dukes doing services about their person and household which, in the days of Augustus, would have been deemed a degradation to the meanest Roman citizen. So, among ourselves, offices about the person and household of the lord became high and honourable. The King’s dish-thegn, his bower-thegn, his horse-thegn or staller, all became great dignitaries of the kingdom, high in rank and influence, as some of them, among all the changes in our institutions, still remain. There thus arose a new kind of nobility, nobility by service, the nobility which gradually attached |The Thegns supplant the old Eorls.| to the Thegns or Servants of Kings and Ealdormen; and this nobility gradually supplanted the elder nobility of immemorial descent. Men pressed into the service of powerful leaders, till such service became the necessary badge of anything like distinguished rank. The Thegn, whose name might sound at first hearing like the exact opposite of the ancient Eorl, gradually took his place. The word Thegn became equivalent to noble or gentle. The King’s Thegns formed the highest class of gentry; the Thegns of Ealdormen and Bishops formed a lower class. Again to use a modern parallel, the ancient Eorl answers to the gentleman of ancient family, looked at simply as the descendant of certain forefathers and the owner of certain property; the Thegn answers to the gentleman, whether with or without such ancestry, looked at as holding, by royal commission, his place in the local magistracy and the local military force.

The Comitatus—the Thegnhood, as we may call it—thus |Effects of the growth of the Thegnhood.| grew and developed, and became the central institution of the state. With every advance of the kingly power—and every accession of territory, every free or constrained union of one district with another, implied an advance of the kingly power—the dignity of the King’s Thegns rose along with the dignity of their Hlaford. In one way |Favourable to individual Ceorls, but depressing to the class.| the change was a liberalizing one. The Ceorl could not become an Eorl, simply because a man cannot change his forefathers; but several ways were open to him of becoming a Thegn. And now Thegn’s rank had become practically equivalent to Eorl’s rank. But though individual Ceorls might thus rise, there can be no doubt that the growth of the Thegnhood was on the whole depressing to the Ceorls, the simple freemen, as a class. The idea of the simple landman—I must borrow a word from our continental brethren, as the word citizen brings in quite other ideas—the undistinguished, but still free and, in a sense, equal member of a free community, gradually died out. The institution of the Comitatus, which in its origin was essentially voluntary, was pressed, as it were, upon all men, till at last it became a principle that no man should be without his lord. The freeman might choose his lord; he might determine to whom, in technical phrase, he should commend |Commendation.| himself; but a lord he must have, a lord to act at once as |Every man must have a Lord.| his protector and as his surety, at once to watch over him and to give a guaranty for his good behaviour. The lordless man became a kind of outlaw, while in the older state of things the whole community would be lordless, except those who might of their own free will have entered |Depression of the Ceorls towards the period of the Conquest.| the Comitatus of some chief. And there is little doubt that the condition of the Ceorls had greatly changed for the worse in the later times as we approach the Norman Conquest. Some classes among them seem to have been fast approaching to the condition of villainage or even to that of serfdom. This change is not peculiar to England; but it is the peculiar glory of England that the bondage of the mass of its people began later, and that it certainly ended sooner, than in any other western country where such bondage existed. The peasantry of Germany gradually sank into a lower state of serfdom than ours, and they remained in it much longer. The free peasantry of Russia did not sink into serfdom till villainage was nearly forgotten in England, but their deliverance from the yoke has been reserved for our own times.

This sketch of the growth of the Thegnhood and its effects at once suggests the question, Did the Feudal System exist in England before the Norman Conquest? One might perhaps be allowed to answer this question by another, Did the Feudal System ever exist anywhere? In England, before the Norman Conquest, the Feudal System most certainly did not exist. There was no systematic feudalism, but the elements of feudalism were there. |Two elements of Feudalism;| Feudalism consists of two main elements; the feudal relation implies the union of two other relations. There is |the relation of the Comitatus and the holding of land by military service.| the personal relation of lord and vassal, lord and man, bound together by mutual will and mutual fidelity, the one owing service, the other owing protection; there is in short the old Teutonic relation of the Comitatus, the relation of the Hlaford and his Thegn. But alongside of this, the feudal relation commonly implies the holding of land by military service. To grant land on such a tenure is in truth one form, one among several, of that bounty of the lord to his followers to which his very title of Hlaford is |Military tenures suggested by the relation of the Comitatus,| owing. The lord makes his follower a grant of land as the reward of past services, and he makes the continuation of those services the condition of his follower’s keeping the land so granted. But there can be no doubt that the tendency to this particular form of bounty was greatly strengthened by the example of the Roman practice of |and also by the Roman tenures on the frontier.| granting out frontier lands to be held by military service. The holders of such lands held them of the Roman Republic, and to the Roman Republic their service was due. They stood in no personal relation to the Emperor; they were not his men, his vassals, his Gesiðas, his Thegns; their service was due to him only so far as he was the head and |The two elements united produce Feudalism.| representative of the commonwealth. But the union in the same person of the Teutonic tie of the Comitatus and the Roman tie of land held by military service would produce a relation coming very near to the strictly feudal relation. The Roman custom would easily suggest to the Teutonic conquerors the practice of rewarding their followers with grants of lands—in short with benefices or fiefs—as the most convenient and honourable form which the bounty of the lord could take. In Britain indeed, |Growth of Feudalism slower in England than on the Continent.| where Roman institutions were so utterly swept away, this influence would hardly exist; at any rate it would be far weaker than it was on the continent. Hence we find feudalism growing up far more slowly in England than in Gaul or even in Germany; in our old constitution we find the elements of feudalism; but they were not as yet worked into a systematic shape; they had not as yet become the materials of an elaborate jurisprudence. Homage was there; for the relation of every man to his lord was a relation of homage. Heriots too and other incidents of a feudal character already existed. But these feudal elements had not yet been wrought together into any harmonious feudal system. The Comitatus, the germ of feudalism, had thriven and developed and was now dominant; but the old Teutonic constitution had not been |Feudal elements strengthened by the Norman Conquest.| utterly wiped out. The Norman Conquest no doubt strongly tended to promote the further developement of the feudal element; but, as in every other case, it only opened and prepared the way for further changes.

The military service due from land held by a feudal tenure is strictly due to the lord as the lord. That lord may be the King; but if so, the service is still in strictness owing to him, not as head of the state, but as lord of the fief. But there is another obligation to military service which is older than this. All land in England was, by the earliest Common Law, subject to three burthens, to contributions to the three works most necessary for the defence of the country. These were the famous Trinoda Necessitas, the obligation to service in the field (fyrd) and to a share in the repairs of fortresses and of bridges. But these are duties owed by the citizen to the commonwealth, or by the subject to the sovereign, not duties owed by a personal vassal to a personal lord. Land, in an age when there was little property except in land, is simply taken as the measure of the contribution due from each man to the common defence. From these burthens, as a rule, no land could be free; even church lands were regularly subject to them, though in some cases their owners contrived to obtain exemptions. These ancient obligations pressed alike on the ancient allodial possession and on the land held by any more modern tenure. They were not feudal services, but a tax paid to the state. They were in fact the price paid to the commonwealth for the protection which it gave; or rather they were the share which each member of the commonwealth was bound to take in the protection of himself and his neighbours.

I have already mentioned the folkland, the common land of the community or of the nation, out of which the ancient allodial possessions were carved. This process of turning public property into private went on largely in later times. The alienation was now commonly made by a document in writing, under the signatures of the King and his Witan; land so granted was therefore said to be booked to the grantee, and was known as bookland. Portions of the folkland were thus cut off from the public ownership, and were booked to private individuals or corporations. The greater number of the existing ancient charters consists of grants of this kind. |Conversion of Folkland into Bookland in favour of the Church and of the King’s Thegns.| A vast number are of course in favour of the Church, but those which are made to the King’s faithful Thegns are hardly less common. In either case portions of the folkland are alienated, booked, to private use with the consent of the Witan. The booking might of course be made on any terms; any sort of tenure might be created; but the great object of the grantee was to get the land on the same terms as an ancient eðel, subject only to the three burthens, which not even the most favoured Thegn, hardly the most favoured churchman, could hope to escape.

The folkland, the common property of the state, was of course at the disposal of the state, and of the state only. It was granted by the King, but only by the consent and authority of his Witan. That is to say, in modern language, the change of folkland into bookland required an Act of Parliament, but acts to that effect were passed constantly and without difficulty. The folkland belonged to the nation and not to the King. The King was only its chief administrator, enjoying its use, so far as he enjoyed it, only as the head and representative of the nation. |The King’s private estate.| But the King, like any other man, had his private estate. Like any other man, he might have his ancient allodial property, or he might, like any other man, have land booked to him, land which followed the ordinary course of legal succession or testamentary disposal. It was indeed needful that the King should have such private possessions; for, in our ancient elective monarchy, the reigning King had no certainty that the crown, and the possessions attached to the crown, would ever pass to |Folkland passes into Terra Regis,| his descendants. But after the Norman Conquest, as the royal power increased, and as the modern notion of hereditary right was gradually developed, these two kinds of possession got confounded. On the one hand, the nation was forgotten or merged in the person of its chief; the folkland was held to be the King’s land, Terra Regis; the King was led to look on the possessions of the nation as his own, and to grant them away at his own pleasure without the consent of Parliament. On the other hand, lawyers brought in the strange doctrine that the King could hold no private property, but that, on his accession to the crown, his private estate was merged in what was now held to be the royal domain. By one of those curious cycles which so often come round in human affairs, both these wrongs have been redressed, one formally, the other practically. Our modern Kings have recovered the ancient right, common to them with other men, of inheriting, purchasing, and bequeathing |and becomes Folkland again.| private estates. On the other hand, now that the royal domain is given up to the nation to be controlled by Parliament, it is practically brought back to its ancient condition of folkland. That is to say, after so many centuries of usurpation, the land of which the Kings had defrauded the nation has come back to its lawful owners.

By these various means the old system of free Teutonic communities gradually died out in England, as it died out in all parts of the continent save one. It lingered in Friesland till the fifteenth century; in the primitive Switzerland it lingers still. Everywhere else it has utterly |It yields in England to a real national monarchy, in Germany to the dominion of petty princes.| vanished, or has left only such faint traces as it has left among ourselves. But England did not suffer from the change as Germany did. Our free marks and shires gradually gave way, but they gave way before the developement of a real national life, before the establishment of a really national sovereignty. But in Germany local freedom was rooted out, not in favour either of the nation or of its sovereign, but for the advantage of that crowd of princes, great and small, which were for ages the curse of the land. The free communities of Germany vanished; but the German nation gained nothing, the German King gained nothing; the liberties and rights alike of the King, of the nation, and of the local communities, were confiscated to the profit of a brood of petty despots. The constitution which Tacitus saw and wondered at, the constitution for which Arminius fought and conquered, the constitution whose working may still be seen year by year in the free air of Uri and Appenzell, gave way in the great Teutonic realm to the dominion of princes who represented nothing but themselves, who embodied no national or provincial being, who were the mere creation of modern dynastic and diplomatic arrangements,—arrangements which did their best to wipe out every historic name and every national memory, and to assign to each of their princely creatures an arbitrary extent of dominion traced out at haphazard upon the map. Such was the fate of the Teutonic mainland; such was not the fate of the Teutonic island. The uprooting of the old free communities, the growth of the power of the King and of his Thegns, no doubt tended in England, as elsewhere, to the degradation, at least for a while, of the lowest class of |Ceorldom sinks into Villainage, but the Villains are gradually emancipated.| freemen. The ceorl was fast sinking into the villain. Still, even in the worst times, enough of the old spirit remained in our laws to give the villain those means of obtaining enfranchisement which gradually did enfranchise the whole class, without the institution of villainage ever being formally done away with. And the uprooting of the old |Change of the old constitution necessary.| communities was needful, if England was ever to become a great and united nation. We must remember that the kingdom, like all our ancient divisions, from the shire, perhaps from the hundred, upwards, was formed by the aggregation of smaller divisions. The unit is the mark, roughly represented by the modern parish or manor. The shire must not be looked on as a division of the kingdom, nor the hundred or the mark as a division of the shire. |Shires formed out of Marks, and Kingdoms out of Shires.| The hundred is in truth formed by an aggregation of marks, the shire by an aggregation of hundreds, the kingdom by an aggregation of shires. The aggregation of marks into shires is indeed mainly to be inferred from local nomenclature and from the analogy of other Teutonic countries; but the aggregation of shires into kingdoms is |The Mark-system probably less perfect in England than elsewhere.| matter of recorded history. It is even possible that the circumstances of the English Conquest of Britain may have hindered the mark from ever possessing the same amount of independence in England which it possessed in the older Teutonic lands. When every English settlement had to defend itself, and if possible to extend itself, in the teeth of a hostile Welsh population, the different settlements must have kept up a very close union; there must have been from the beginning, if not centralization, yet at any rate something like federation. The first followers of Cerdic no doubt settled themselves in marks, forming self-governing communities; but all must have held themselves ready to march at Cerdic’s bidding, whenever it was needful to repel an inroad of the Welsh, whenever things promised well for a fresh inroad upon them. Still such communities, the mark and the shire, however dependent externally on some central authority, were doubtless internally self-governed from the beginning. We have already seen how shires, ruled each one by its own Ealdorman, came together into kingdoms under a single |Formation of the greater Kingdoms.| King. We have seen also that the nature of the process differed in different parts of the country, that in Mercia, for instance, wholly independent states were thus brought into union, while in Wessex, though there were many Ealdormen and even many Kings, there was still a certain unity from the first. There was always a head King of the West-Saxons, and all the Under-kings were most likely Æthelings of the blood of Cerdic. Gradually the connexion became closer, the process no doubt being quicker in Wessex than in Mercia or Northumberland. The head King became the only King, the only independent executive; and the assembly of his Witan became the only independent legislature. In place of Kings, independent or dependent, the shires received Ealdormen, named by the King and his Witan, and liable to be removed by |Process of amalgamation; royal officers in the Shires.| them. The folkland of the shire became the folkland of the whole kingdom. A crowd of royal officers of various ranks, whose main duty was to look after the royal interests, were scattered over all parts of the country. The Ealdorman still remained, the shadow of ancient kingship, and so far the representative of local independence. But beside him arose a new officer, the Scírgerefa, Shirereeve, or Sheriff, the immediate officer of the King, the agent of the central authority, the representative of the dependence of each local division on the common King and Assembly of the nation. Once the shires were the units, out of the union of which the kingdom was formed; now the kingdom forms a new whole, of which the shires have sunk to be mere administrative divisions. In Mercia we have seen that, after the Danish conquest, the country was artificially mapped out again into fresh shires, which must have been felt to be still more completely mere administrative divisions than those West-Saxon shires which had once been separate principalities.