No More Learning

We must suppose that the thought of the coronation was due to Leo
himself or to some one closely connected with him. At all events this
act was, in a certain sense, in sharpest contrast with the Papal ideas of the
Donation of Constantine. For in the latter the most important feature
was an Italy independent of the Emperor, but in 800 the Pope himself
set the Emperor as the highest secular Lord over his Rome. He must
have been conscious of this difference himself. But the Pope may have
considered that as patricius Charles was already supreme, and that his
absolute position was already established. And since the generally
prevailing ideas pointed clearly towards the Empire, it might have been
regarded as an advantage for the Roman Curia if this last development
was due to itself.
No doubt the coronation was intended to express the strongest
feeling of gratitude to the powerful King. But in this Leo deceived
himself. According to accounts which are trustworthy, Charles was
displeased at the unexpected event. It is not easy to understand the
reason of his displeasure. Did he not wish for the crown because he
felt himself a German ruler and put the German idea of the State in
conscious opposition to Roman absolutism? Or was it that he did not
desire it just at that time because he feared a collision with the Eastern
Empire? Or did he not wish for the crown from the hand of
the Pope because he foresaw the latter might build on it a right to
crown, and so deduce claims to supremacy? The later policy of Charles
gives many hints for the answer to these questions. We know that
Charles for a long time combined no actual political authority with his
position as Emperor, and that he ignored the office in his first division
of the Empire in 806. We also know that he laid the greatest weight
on an alliance with Byzantium, and finally that in 813 when he had to
arrange for the succession, he allowed no repetition of the precedent of
800, but rejected all co-operation of the Pope. We must therefore
conclude that Charles did not indeed wish to set up the idea of a
Germanic priestly kingship against that of the Roman Empire, but
that he held fast in 800 to that conception of a Frankish power which
had raised him so high. He was not moved by fear of complications
with the East, but he saw that they would arise through this step of the
Pope's. He did not dream of the far-reaching Papal pretensions of a
later age, but he did not wish that so important an event as that of 800
should rest on foreign interference. At the end of the eighth century he
had not himself weighed the significance of the change, he had not thought


## p. 623 (#655) ############################################

800] The Coronation. Byzantium 623
things were ripe for it, he saw in it something inexplicable, something
indefinite, which was ground enough for uneasiness and hesitation.
Charles certainly did not despise gifts which came to him from heaven,
but he wished to ask for them himself, not to receive them unexpectedly
through outside intervention.
The coronation came in 800 as a surprise but not as a chance. It
sprang entirely from the initiative of the Pope, but it was not a chance
idea of Leo's which might as well not have occurred to him. It was
rather the outcome of a long chain of events, the result of ordinary
historical factors. It had to come, but that it came actually on that
Christmas Day and in the manner in which it did, depended on mere
chance, purely individual circumstances. Hence the Western Empire
did not suddenly bring new elements into the political life of the West.
When a modern constitutional historian sees in it a radical constitutional
upheaval, when he finds the kingdoms of Charles combined into the
united empire and taking their historical form, and yet considers all this to
be without constitutional importance, it seems to accord little with the
actual circumstances, and even to contradict the clearest assertions of
our authorities. We see quite plainly that the new title of Emperor at
once took the place of the title of patricius which disappeared, while
the old title of king on the contrary remained. We must therefore
conclude that those offices which before the coronation were connected
with the Patriciate are to be looked upon as imperial offices. Even as
Charles as patricius had been protector of the Respublica Romano
and supreme in Christendom so was he as Emperor, only that now
the monarchical elements were of more significance. As he had been
king of the Franks and of the Lombards before 800, so he remained
after 800. It is true that the relations of the imperial and the
kingly authority were not clearly defined. There was no need, from
this point of view, to distinguish the offices which were united in the
person of the great monarch. It would not have been possible to draw
a sharp line of distinction. Even the duties and rights which originally
had certainly belonged to the Patriciate and therefore now belonged to
the ruler as Emperor and not as king, were soon combined with the
Frankish monarchy.
As "Emperor of the Romans" Charles was crowned, and as master
of the Imperium Romanum he regarded himself from that time. But
was not the seat of the Empire Byzantium? Could two Emperors act
side by side? Men asked themselves these questions at the time and the
Annals of Lorsch sought to answer them by explaining that the Greeks
had no Emperor but only an Empress over them and that therefore the
Imperia»"rank belonged to Charles, the ruler of Rome, the old seat of
the Caesars. Charles had taken the office of Roman Emperor in its
unlimited universal extent, but he was from the first inclined to allow
a limitation. He negotiated with Byzantium and earnestly sought a


## p. 624 (#656) ############################################

624 Relations with the East [802-813
good understanding. According to the account of a Greek historian,
Charles planned a betrothal with the Empress Irene, but the plan
fell through owing to the opposition of the powerful patricius
Aetius, and during the negotiations the Empress Irene was overthrown
in 802.
Charles eagerly sought recognition of his Imperial rank from Irene's
successors—from Nicephorus, then from Michael (after 811) and from
Leo V (after 813). He went upon the assumption of a division of the
Imperium, of a peaceful and independent coexistence of the Imperium
Orientate and of the Imperium Occidentale. Not till 810 did he come
to a preliminary agreement with Greek agents, whereby he gave up
claim to Venice and the towns on the Dalmatian coast, which were even at
the beginning of the ninth century occasionally under Frankish rule,
and in return was recognised as Emperor by the Greeks. Michael, the
successor of Nicephorus, was ready to conclude the treaty, and in the
church of Aachen in 812 the Greek ambassadors solemnly saluted
Charles as Emperor (/SatrtXeu? ). But Leo V first drew up the Greek
document of the treaty and sent envoys with it to Aachen where after
Charles' death it was solemnly delivered to Louis. This was the
formal step in the creation of the Empire of the West.
The coronation of 800 gave neither a new basis for the monarchical
authority nor a new direction for the obligations of the State. In the
vear 802 an order was issued for a universal renewal of the oath of
allegiance, and the religious side of the obligation was emphasised more
than before. The theocratic element of the great monarchy was
brought to the front. Yet this was nothing new in principle. When
in 809 Charles ordered the retention of the Filioque in the Creed, in
opposition to the action of the Pope, and when the Frankish use as a
matter of fact supplanted the Roman, this influence of Charles upon
doctrine was not a mere consequence of the coronation. The office of
Emperor only became gradually a definite political power, summing up
as it were the separate powers of the Frankish ruler and also giving
a legal basis for the relation of this absolute authority to the Church of
the Pope. When on 6 Feb. 806, to avoid wars of succession, a division
of the Empire among the three sons of Charles was arranged in case of
his death, the document was sent to the Pope for his signature, and care
for the Roman Church was enjoined upon the sons, but nothing was
decided about the office of Emperor. A few years later it was looked
upon as an office which conferred actual authority and must be reserved
for the house of Charles. In September of the year 813 an Assembly
was held at Aachen and Charles with his nobles resolved to rai^a Louis,
his only surviving son, to the position of Emperor, while a grandson
Bernard, the son of his dead son Pepin, was to be appointed under-king
of Italy. In his robes as Emperor, Charles advanced to the altar, knelt


## p. 625 (#657) ############################################

814] Death of Charles 625
in prayer, addressed warning words to his son, caused him to promise
fulfilment of all commands, and finally bade Louis take a second
crown that was lying upon the altar and place it himself upon his head.
The reign of Charles as Emperor was a period of quiet improvement
of great acquisitions. The wars of the earlier period had come to an
end, and conquest was over. His magnificent efforts to raise the
conditions of social and religious life became apparent. The world
power was universally recognised. Far beyond the Christian peoples of
the West, Charles enjoyed unconditional respect. In East and West he
was looked upon as the head of the Christian Empire, to the Slavs he
was so absolutely the ruler that his name (as Krai) served as an expression
for royal authority, just as formerly in the West those of Caesar and
Augustus had been chosen to express supreme monarchical power.
On 28 Jan. 814, at 9 o'clock in the morning, Charles died, after an
illness of a few days1 duration at Aachen, where he had resided by
preference during the last years of his reign. He was buried the same
day in the Basilica there, and in the manner customary in the West,
lying in a closed coffin. Only a later fanciful writer was able to
distort this well-attested simple fact. Count Otto of Lomello, one
of those who accompanied Otto III on his remarkable visit to the
grave of Charles in the year 1000, related, according to the Chronicum
Novaliciense, that Charles was found sitting on a throne like a living
man, with his crown upon his head and his sceptre in his hands, the
nails of which had grown through the gloves. Otto III, according to
this account, had the robes set in order, the lost portion of the nose
replaced by gold and a tooth of the great Dead brought away. It
may well be supposed that the awful moment in which the fanciful
Otto wished to greet his mighty predecessor in person dazzled the
senses of the Count, whose imagination and perhaps the desire for
sensation have led astray much learned investigation and popular
ideas.
Popular legends soon busied themselves with the person of the
Emperor to whom following generations very soon gave the title of the
Great. Even in the ninth century all kinds of fables were told about
him and the hero became exalted into the superhuman. In the amusing
little book of Notker the Stammerer, the Monk of St Gall, anecdotes
and popular tales play a part. By that time, two generations after the
death of the great king, these tales must have grown very much. In
Northern France the legends were specially busy, and the stories of
Charles and his Paladins were gathered together in poetic form in the
Chansons de Geste and later in the Chanson de Roland, to travel from
France to Germany and to live on in the Rolandslied, in the Willehalm,
and in the Chronicle of the German Emperors of the twelfth century.
Legends had long been developed on the ecclesiastical side. The
Poeta Saxo, as early as the end of the ninth century, had praised the
C MED. H. VOL. II. OH. XIX. 40


## p. 626 (#658) ############################################

626 Cliarles in Legend
Emperor as the Apostle of the land of the Saxons, and the struggle with
the Saracens also was praised from this point of view. It is true that
Charles could not be regarded as a saint so long as his manner of life
was remembered. This caused great trouble to the strict moralist.
The monk Wetti for instance represented Charles as suffering terrible
punishments in the other world on that account, and Walafridus Strabo,
who in the time of Louis turned the Visio Wettini into verse, relates
that a nun had beheld the tortures of Charles in the fires of Purgatory.
But these memories faded, and later it was only the soldier of God, the
champion of the faith, the builder of numerous churches, who was
remembered. As early as the second half of the tenth century stories
were told of a journey of Charles to Jerusalem. In the eleventh
century this was generally believed and Charles was extolled as a martyr
on account of his many adventures. The picture of the monarch was
transformed and his character became that of a Christian ecclesiastic,
even that of a monk. The purely ecclesiastical legends about Charles
originated in the twelfth century. His life was thought of, not as
ascetic, but as holy, and the solemn canonisation in 1165 was the final
step in the process.
No authentic portrait of Charles has come down to us, for the
equestrian statuette from the Treasury of the Cathedral of Metz, which
is now in the Carnevalet Museum at Paris, cannot be proved to
be a contemporary representation. The long moustache of the
otherwise beardless rider seems rather to belong to Charles the Bald.
The first Western Emperor was large in body. The examination of
the skeleton in the year 1861 shewed a length of nearly 6 ft. 4 in.
But we cannot form a clearer idea of his external appearance, in
spite of the excellent description which we owe to Einhard. This
faithful counsellor and friend wrote his Life soon after the death of the
great Emperor. His picture maintains its great value even though it
can be proved to borrow its general, and even its particular, features
from the biographies of Suetonius. Einhard made independent observa-
tions and drew the portrait of Charles with love and intelligence.
We see the old Emperor before us with his majestic form, his round
head resting upon a neck somewhat too short and thick, and covered
with beautiful white hair, and with his kindly face from which looked
the large quick eyes. We learn that much that was not beautiful, such
as his too great corpulence, was forgotten on account of the symmetry of
his limbs and his harmonious proportions. We learn that in the two
last years of his life, when his body had become somewhat weakened
through attacks of fever, his old vigorous gait had become a little feeble,
owing to the halting of one leg. We hear the Emperor speaking in a
curiously high voice, which was in marked contrast with the powerful
form of the speaker. We have exact information even about the habits
of his daily life, we see how Charles rises in the morning and receives his


## p. 627 (#659) ############################################

Character of Charles 627
friends even while dressing, how he discharges the business of government,
hears the reports of the Palsgraves, and decides difficult points of law.
We learn how he was dressed, how he took hot baths, how fond he was
of hunting and how he practised swimming, if possible in company with
many others, how he ate much and drank very moderately, how he liked
to hear music or to have some book read aloud during his chief meal.
We even learn how he took a long rest in the middle of the day
in summer, and how the activity of his mind disturbed his rest at
night.
Einhard was depicting the monarch in his later years. But the
picture does not shew the features of an old man. The vigour of the
great king remained unbroken. The whole personality of Charles is
made unusually human and brought very near to us by Einhard and by
the popular stories of the Monk of St Gall. It is a personality of magic
power from which no one can escape, of noble amiability, with a sense of
humour, and naturally kind. Tender chords also echoed in this great
soul, a deep love for his children, especially for his daughters, and he
felt the need of close confidence on the part of his family. But there
is not the pure honour of the simple father. His passion is always
breaking out, a strong desire, to which the moral ideas of the age could
set no limits, an unusually strong inclination for the other sex. And
this strong nature, so accustomed to command and to expect obedience,
could set no limits to his own desires. There was a remarkable
licentiousness in the private life of the Emperor and his court, a want of
discipline, immorality even in the eyes of a coarse age, an inclination for
freedom and at the same time for what is great. Only he who was
himself above rules and ordinances, demands unconditional submission
to his will. For the simplicity of his character, his affability and
popularity never did harm to his majesty or made him too free. From
this great nature there issued a strength which mastered everything. It
was a nature full of passion and yet of calm circumspection. Charles
never formed important resolutions in his angry moments. He went
his way without consideration for the rights or wishes of others, or for
individuals of the different peoples, but did so only when he served the
purpose of his high mission. This gave his actions invincible strength.
The wideness of his interests and his real understanding for the needs
of the people is unique even amongst the greatest in history. His care
was given to great things and small, even to the smallest matters—alike
to the political, the social, the literary, and to the artistic life of the
peoples. Everywhere he made ordinances, everywhere he gave encourage-
ment, everywhere he took a personal part. Everywhere of course as the
head of the community, everywhere as a man of action, as an intelligent
leader of his people. He was no theorist, no dreamer, not a man of
books. Quite pathetic is his endeavour to make himself acquainted with
the elements of the culture of the time. In addition to German, he was
ch. xix. 40—2


## p. 628 (#660) ############################################

628 The Empire and the Civitas Dei
master of Latin and understood Greek. But his attempts to acquire
the art of writing had as little success as his endeavour to produce new
ideas in the sphere of Grammar or Chronology. He was no great scholar,
no abstract thinker. And so he shewed himself in his relation to the
Church and to theocratic ideas. In spite of all his interest in questions
of doctrine he had no deep or independent grasp of religious problems.
The teaching of the Church was for him an unassailable truth. From
this he derived his high sense of mission. He placed himself at the
service of theocratic ideas in order to combine them with his quest for
power. This gave his policy an unexpected moral strength. A sense
of the grace of God dominated his work from the very beginning. That
does not mean that he acted as a simple Christian man who is anxious
about the salvation of his soul, but as the Plenipotentiary of God who
has to maintain earthly order in the Christian sense. Necessarily con-
nected with the Christian theocratic idea is all that would strengthen
authority in this world: on this then he seized, and this by virtue of his
naturally strong character he brought to accomplishment.
Charles looked upon his Empire as a Divine State. He felt that he
had been appointed by God as the earthly head of Christians. He read and
loved Augustine's book de Civitate Dei. He believed that he had set up
the Civitas Dei, in the second empirical sense, which Augustine placed
beside the Civitas Dei as the spiritual union of all saints under the
grace of God, as a great earthly organisation for the care of common
earthly needs in a manner pleasing to God, and for the worthy prepara-
tion for the better life in the world to come. Augustine, it is true, had
seen the empirical manifestation of the Civitas Dei in the universal
Catholic Church. Charles saw no contradiction. For him the ecclesi-
astical body and the secular were one. He was the head. And while
Augustine placed the Roman Empire as fourth in the order of world-
empires and as a Civitas Terrena in opposition to the Kingdom of God,
for Charles this dualism was no more—his Imperium Romanum is no
Civitas Terrena, it is identical with the earthly portion of the Church
founded by Christ. The words of Alcuin are significant: Charles rules
the kingdom of eternal peace founded by the Blood of Christ.
The Empire of Charles was intended to realise the Divine Kingdom
upon earth. On the one hand this answered to the great tendencies
which governed the life of the Christian peoples of the West, but on the
other it contradicted them. Government of the world by the laws of
Christ, uniformity of Christian organisation, universalism—these ideals
the new Imperium Romanum of Charles seemed to serve. But in the
Christian society there had long prevailed the idea of a Priesthood set
over the laity, the idea of the hierarchical order and of the Papal
Primacy—and these ideas demanded unity and universalism in the sense
that the supreme head of the Society could not be a secular monarch
but only the Bishop of Rome. Hence an imperial universalism could


## p. 629 (#661) ############################################

800] Charles in History 629
not finally overcome that of the Curia. Two different currents were
perceptible in the Christian-theocratic tendencies towards unity after
the year 800, often working together, often against each other. And
here it must be observed that the tendencies tewacdajriestly universal
rule are as little to be regarded as specially Roman, as the tendencies
towards the Theocratic-christian imperial power as specially German.
Rather both were the outcome of a general Western development, and
both have as their representatives both the Romance and the Germanic
peoples. On the one hand the universal ecclesiastical views necessarily
led again and again to a Priestly universal rule, and on the other hand
the increasing political needs of the rising Romance and German nations
necessarily caused a desire for the independence of the State.
The significance of Charles for the history of the world lies in this,
that he transferred the theocratic idea of absolute sovereignty, which
had begun to work as a great historical factor in Western history, from
the sphere of the Roman Curia to the Prankish-State. He prepared the
way for the social institutions peculiar to the Middle Ages and at the
same time opened the source of unavoidable wars. Of course there were
general antecedents for this in the political life of the Franks and of the
other Western peoples. But yet it was here that this mighty personality
was an independent force.
CB. XIX.


## p. 630 (#662) ############################################

630
!
CHAPTER XX.
FOUNDATIONS OF SOCIETY.
(ORIGINS OF FEUDALISM. )
The whole period of European history extending roughly from
a. d. 476 to a. d. 1000 appears at first sight as an epoch of chaotic
fermentation in which it is almost impossible to perceive directing
principles and settled institutions. The mere influx of hordes of bar-
barians was bound to break up the frame of Roman civilisation and to
reduce it to its rudimentary elements. But what made confusion worse
confounded was the fact that the Teutonic, Slavonic, and Turanian
invaders had come with social arrangements of their own which did not
disappear at the mere contact with the Roman worlds leaving, as it were,
a clean slate for new beginnings, but survived in a more or less shattered
and modified condition.
And yet when the eye becomes somewhat accustomed to the turmoil
of the dark ages, one cannot but perceive that certain principles and
institutions have had a guiding influence in this checkered Society,
that there is a continuous development from Roman or barbaric roots,
and that there is no other way to explain the course of events during
our period but to trace the working of both these elements of social
life.
One of the principles of concentration which seemed at the outset
to give fair promise of robust growth was kinship. Nature has taken
care to provide the most primitive human beings with ties of relationship
which raise them over individual isolation. Man and wife keep together,
parents rear up their children, and brothers are naturally allied against
strangers. Of course, much depends on the kind of union arising between
man and wife, on the share of each parent in the bringing up of children,
and on the views as to brotherhood and strangers. But before
examining the particular direction taken by these notions in the case of
the Teutonic tribes with whom we are primarily concerned, let us notice
the fact that, whatever shape the idea of kinship may have taken, it was
certainly productive of most important consequences in the arrangement
of early Germanic Society. When Caesar has to tell us about the


## p.
631 (#663) ############################################

Kinship 631
occupation of territory by a Germanic tribe he dwells on the fact that
the tribal rulers and princes assign land to clans (gentes) and kindreds of
men who have joined together (cognationes hominum qui una coierunt).
We need not try to put a very definite meaning on the curious difference
indicated by the two terms: it is sufficient for our present purpose to
take note of the fact that the idea of kinship lies at the root of both: a
Germanic tribe as described by Caesar was composed of clans and
clan-like unions. And when Tacitus speaks of the military array of a
tribe, he informs us that it was composed of families and kindreds
(familiae et propinquitates). No wonder we read in the poem of Beowulf
that the coward warrior disgraces his whole kindred and that the latter
has to share in his punishment.
Like the Roman gentes, the Greek yevt), the Keltic clans and septs,
the kindreds of the Teutonic tribes were based on agnatic relationship,
that is on relationship through men, the unmarried women remaining in
the family of their fathers or brothers while the married women and
their offspring joined the families of their husbands. There are not
many traces of an earlier " matriarchal" constitution of Society, except
the fact mentioned by Tacitus, that the Teutons considered the maternal
uncle with special respect and, indeed, in taking hostages, attributed
more importance to that form of relationship than to the tie between
father and son. It is not unlikely that this view goes back to a state of
affairs when the mother stood regularly under the protection of her
brother and her children were brought up by him and not by their
father. The mother's kin maintained a certain subsidiary recognition
even in later days: it never ceased to be responsible for the woman which
came from it, and always afforded her protection in case of grievous ill-
treatment by the husband; a protection which in some cases might
extend to children. Nevertheless in the ordinary course of affairs, the
father's authority was fully recognised and the families and kindreds of
the host must have been chiefly composed of agnatic groups bearing
distinctive names from real or supposed ancestors and tracing their
descent from him through a succession of males. In Norse custom these
agnatic relations formed the so-called bauggildi, that is the group
entitled to receive, and to pay, the armrings of gold constituting the
fine for homicide. The payment and reception of fines are, of course,
the other side of the protection afforded by the kindred to its members.
Not the State but the kindred was primarily appealed to in the case of
aggression, and the maegths, aet. i, Geschlechter, J'arae, or whatever the
kindreds were called by different tribes, resorted to private war in order
to enforce their claims and to wreak revenge on offenders. It is easy to
picture to ourselves the importance of such an institution by the contrast
it presents to present social arrangements, but in order to realise fully
how complex this system came to be, let us cast a glance at the
distribution of fines in one of the Norwegian laws—in the so-called


## p. 632 (#664) ############################################

632 Kinship—Bauggildi
Frostathingshv regulating the legal customs of the north-western
province of Throndhjem1.
In this Frostathingshv we read first in case six marks of gold are
adjudged, what everyone shall take and give of the rings (baugar). The
slayer or the slayers son shall pay all the rings unless he has ivissendr'1
to help him. The question is, who are called so, and here is the answer.
"If the father of the slayer is alive, or his sons or brothers, father's brother
or brother's son, cousins or sons of cousins, they are all called ' vissendr. ''
And they are so called because they are sure (viss) of paying the fines
which are to be paid. . . (c. &). The slayer or the slayer's son shall pay to
the son of the slain the principal ring of the six marks of gold, namely
five marks of weighted silver. The father of the slayer shall pay as much
to the father of the dead; the brother of the slayer shall pay the brother
of the dead four marks less two oras; the father's brothers and the sons
of the brother (of the slayer) shall pay to the father's brothers and to
the sons of the brother of the slain 8,0 oras. And the first cousins and
their sons. . . shall pay. . . 13 oras and an '6rtog. \. . "
By the side of the bauggildi, the agnatic group bearing the principal
brunt of collisions and claiming the principal compensation payments,
appear the nefgildi, the personal supporters of the slain, respectively—of
the offended man. These are connected with him through his female
relations. Together with the bauggildi group they would form what was
termed a cognatio by the Romans, that is the entire circle of kins-
men. The relative importance attached to the two sides of relationship
was generally expressed by a surrender of two-thirds of the wergeld, the
slain man's price, to the father's kin and of one-third to the mother's
kin. With mother's kin, however, one would have to reckon also the
relations through sisters, aunts, nieces, etc. In fact the nefgildi would
correspond to what the continental Germans called the spindle side
of relationship, while the bauggildi constituted the spear side. For
purposes of organisation the spear side formed a solid group, while the
spindle side was divided among several agnatic groups according to
the position of the husbands of women supposed to carry the spindles.
The natural advantage of the bauggildi or spear kindred found
another expression in the fact that in the earlier customary law of
Teutonic tribes women were not admitted to inherit land. It was
reserved to men as fighting members of the kindred, and the coat of mail
went with the land inheritance. {Lex Angliorum et Werinorum, 6. )
Besides the power of protecting and revenging its members the kindred
exercised a number of other functions: it acted as a contracting party
in settling marriages with members of other kindreds; it exercised the
right of wardship in regard to minors; it provided a family tribunal in
1 Though the Norwegian and other Scandinavian laws are late in their present
text, they are based on archaic customs, and are commonly used by scholars to
ascertain the principles of ancient Germanic law.


## p. 633 (#665) ############################################

Kinship (German) 633
case of certain grievous offences against unwritten family law, especially
in the case of adultery; it supported those of its members who had been
economically ruined and were unable to maintain themselves; it had to
guarantee to public authorities the good behaviour of its members if
they were not otherwise trustworthy.
Altogether the German system of kinship at starting resembled
that of Greece and Italy and of the Keltic tribes as a comprehensive
arrangement of society on clan-lines. One of the most momentous
turning-points in the history of the race consists in the fact that
Germanic Commonwealths did not, on the whole, continue to develop in
this direction. The natural kindreds were too much broken and mixed
up by the migrations, the protracted struggle with the Romans and the
confusion of the settlement on conquered soil. There was a loss of that
continuity of tradition and comparative isolation which contributed
powerfully to shape the tribal arrangements of other Aryan races, more
especially of the Kelts of Scotland, Wales and Ireland, and of the Slavs
in the Balkan mountains. It is interesting to notice, however, that
where the necessary seclusion and continuity of tradition did exist a
complicated federation of clans might spring up. The classical case
within the region of Germanic settlements is that of the Ditmarschen
in Schleswig-Holstein.
"The propinquitates, parentelae, proximi (of the Ditmarschen),
German Vriind, or as they are called in charters from the fourteenth
century the Slachten, Geschlechter (kindreds), are close associations, the
members of which are bound to help each other in private war and revenge,
before the courts and in case of economic difficulties. They are very
different in size, the largest being that of the Wollermannen who, as
Neocorus tells us, were able to send 500 warriors into the field. It
happens that the kindreds admit new men after an examination of their
worth. . . . Most kindreds originate in voluntary leagues or associations.
But the right to membership is inherited by all male descendants. The
kindreds (Geschlechter) are subdivided accordingly into narrower groups
of kinsmen—the Kliiften and brotherhoods1. "
Although as a rule the arrangement on lines of relationship declined
steadily and rapidly, we witness the existence and operations of kindreds
in most Western countries in the earlier centuries of the Middle Ages.
The Alemannic Law, for instance, tells us that disputes as to land are
carried on by kindreds (genealogiae), and a Frankish edict of 571 asserts
the right of direct descendants and brothers to inherit land against
traditional claims of neighbours which could only have been based on
the conception of a kindred owning the land of the township. (Edictum
Chilperici, 3. ) The Burgundians were settled in farae, and among the
Bavarians five kindreds enjoyed special consideration. In a Bavarian
charter of 750 the kindreds of the Agilolh'ngs and of Fagana grant land
1 Serine, Erhrechl- und Agrarrerfaxmng in Schleswig-Holstein, p. 124.


## p. 634 (#666) ############################################

634 Later Traces of Kinship
to a bishop of Freising. In these cases the kindreds are represented by
certain leaders and their consortes et partkipes1. The maegths of the
Angles and Saxons, the aets of the Scandinavians appear often in legal
custom and historical narratives, and, in the light of such continental
parallels, it seems more than probable (though this has been disputed)
that a good number of English place-names containing the suffix ing
were derived from settlements of kindreds. The Aescingas, Effingas,
Getingas, Wocingas, mentioned in Saxon charters in Surrey, as well as
numbers of similar names, have left an abiding trace in local nomenclature.
In this way the kindreds did not disappear from the history of
Western Europe without leaving many traces, and such traces were most
noticeable in the case of noble families keenly interested in tracing their
pedigrees and able to keep their cohesion and privileges. But even
of the nobility the greater part of them arose through the success
of new men and especially through service remunerated by kings and
other potentates. As for the rest of the people it became more and
more difficult to keep up the neatly framed groups of kinsmen. From
being definite organisations the kindreds were diverted into the position
of aggregates of persons claiming certain rights and obligations in regard
to each other. The complicated wergeld protection ceases to be enforce-
able. A man's life is still taxed at a certain sum, but this sum will be
levied under the authority of the government, and this government will
try to prevent feuds and even to legislate against the economic ruin in
which innocent persons are involved by the misdeeds of their relations.
The same Frostathingslov, from which I have quoted a paragraph as
to the distribution of rings of wergeld, is very much concerned about the
disorder and disasters which follow on blood feuds. (Inledning, 8): "It
is known to all to what extent a perverse custom has prevailed in this
country, namely that in the case of a homicide the relatives of the slain
try to pick out from the kindred him who is best (for revenge), although
he may have been neither wishing, willing nor present, when they
do not want to avenge the homicide on the slayer even if they have
the means. " And in Eadmund Fs legislation we find enactments which
free the magas, the kindred, from all responsibility for the misdeeds of
the kinsman, unless they want of their own accord to come to his help in
the matter of paying off the fine.
As regards the very important department of landed property, the
collective right of kinsmen as to land yields to customs of inheritance
which still savour of the original view that individuals only use the
land while the kindred is the real owner, but the conception is embodied
in a series of consecutive individual claims. In Norway, for instance,
odal land ought to remain in the kindred, but this means that if some
possessor wishes to sell it, he has to offer it to the heirs at law for
1 Bitterauf, Traditionen dee Hochstifls Freising, i. p. 5, quoted by Brunner,
Deutsche RechUgeschichte, xn. p. 117 n. 33.


## p. 635 (#667) ############################################

Adoption 635
pre-emption, and that even after a sale to a stranger has been effected
the rightful heir may reclaim the land by paying somewhat less than
the sum given for it by the outsider.
Let as, however, go back to a time when the social co-operation
and defensive alliance of a group of strong men was recognised as
a most efficient means of getting on in the world and of meeting
possible aggression. People born and bred in a mental atmosphere
instinct with such views were not likely to surrender them easily even
if circumstances were against their realisation on the basis of natural
kinship. Blood relationship is surrounded by artificial associations
assimilated to relationship, and acting as its substitutes—by adoption,
artificial brotherhood, and voluntary associations of different kinds. The
practice of adoption did not attain in Teutonic countries the importance
it assumed in India, Greece or Rome. One of the causes of its lesser
significance lay in the early predominance of Christianity which prevented
Germanic heathendom from developing too powerfully the side of ancestor-
worship. But yet we find practices of adoption constantly mentioned in
different Teutonic countries. The adopted father became, of course, a
patron and leader and, on the other hand, looked to his adopted son for
support and efficient help. The ceremony of setting the new child on
the parent's knee was a fitting expression of the tie created by adoption.
A certain difficulty in the reading of our evidence as to adoption arises,
however, from the fact that a "foster-father," as well as a "foster-mother,"
was sought, not for the sake of protection and lordship, but for providing
the material care needed by children under age. The great people of
those days were often loth to devote their time and attention to such
humble occupations, and a common device was to quarter a boy with
a dependent, a churl of some kind, who would have to act as a proper
foster-father in rearing the child in the same way as a nurse would do
for infants. A curious example of the contrast between the two forms
of artificial fatherhood is presented by the Norse Saga of King Hakon,
Aethelstan's foster-son. Young Hakon is sent by his father Harald to
the court of the powerful ruler of England, King Aethelstan, who
receives him kindly and lets him sit on his knee, adopting him thereby
as his son. No sooner has the boy sat down on the knee of the monarch
of Britain than he claims Aethelstan as Harald's vassal, because he has
taken up the duty of a foster-father. In Scandinavian laws adoption in
the form of aetleiding, admission to the kindred, appears complicated
with emancipation from slavery. The unfree man receiving his freedom
drinks "emancipation ale" with the members of his new kindred and
afterwards steps into a shoe roughly prepared from the hide of an ox's
foreleg. This latter ceremony symbolises the coming in of the new
member of the kindred into all the rights and privileges of the kinsmen
who have admitted him into their midst. The connexion between both
sides of this rite—adoption and emancipation—seems to be provided by


## p. 636 (#668) ############################################

636 Artificial Relationships
the frequent recourse to aetleiding in the case of sons born to Scandinavian
warriors by their unfree concubines. But the ceremonies are characteristic
of any kind of adoption bringing new blood and new claimants into a
kindred of old standing.
Another form of union constantly occurring in Teutonic Societies
was artificial brotherhood. A common practice for starting it was to
exchange weapons; sometimes each of the would-be brothers made
a cut on his arm or chest and mixed the blood flowing from it with
that of his comrade. The newly created tie of brotherhood was usually
confirmed by an oath; a historical instance of this variety is presented by
the arrangement between Canute and Eadmund Ironside. This kind
of artificial relationship lent itself readily to the formation of fresh
associations not engrafted on existing kindreds, but carrying the idea
of close alliance into the sphere of voluntary unions. We hear of
"affratationes" among Lombards, of "hermandades" in Spain, and
the English gilds are a species of the same kind. The Anglo-Saxon
laws tell us of gilds of wayfarers, who evidently found it necessary to
seek mutual support outside the ordinary family groups. In the later
centuries of Anglo-Saxon history gilds appear as religious and economic,
as well as military institutions, and they are closely akin to Norse
associations of the same name.
Here are some paragraphs from the statutes of the thanes gild in
Cambridge organised some time in the eleventh century: "That then is
first, that each should give oath on the holy relics to the others, before
the world, and all should support those who have the greatest right.
If any gild-brother die, let all the gildship bring him to where he
desired. . . and let the gild defray half the expenses of the funeral
festival after the dead. . . . And if any gild-brother stand in need of his
fellows' aid it be made known to his neighbour. . . and if the neighbour
neglect it, let him pay one pound. . . . And if anyone slay a gild-brother,
let there be nothing for compensation but eight pounds, but if the
slayer scorns to pay the compensation, let the whole gildship avenge
their fellow And if any gild-brother slay a man. . . and the slain be a
twelfe hynde man, let each gild-brother contribute a half-mark for
his aid; if the slain be a ceorl two oras; if he be Welsh one ora. "
The principles of artificial relationship were easily carried over into
the domain of rural husbandry and landed property. A custom with
which one has to reckon in all Teutonic countries is the joint house-
hold," the large family of grown-up descendants living and working
with their father or grandfather. It may also consist of brothers and
cousins continuing to manage their affairs in common after the death
of the father or grandfather. In the first case the practice implies
a reluctance to emancipate grown-up sons and to cut out separate
plots for them. In the second case the joint household gives a peculiar
cast to Succession. The partners are Ganerben, joint heirs, and each


## p. 637 (#669) ############################################

Households 637
has an ideal share in the common household which falls to his children
or accrues to his fellows on his death. The Ganerbschaft proved
an important expedient in order to reconcile the equality of personal
rights among co-heirs with the unity of an efficient household. But the
existence of the "joint inheritance'1 was not enforced by law: it resulted
from agreement and tradition and could be dissolved at any given
moment.
The tenacity and wide diffusion of these unions in practice prove
the value of such co-operative societies and the strength of the
habits of mind generated by relationship. The same causes operated
to give a communal cast to economic associations formed by neighbours
or instituted by free agreement among strangers. We cannot generally
trace the rural unions of the mark, the township, the by, to one or
the other definite cause. In some cases they must have grown out
of the settlement of natural kindreds; in other instances they were
generated by the necessity of combining for the purpose of settling
claims of neighbours and arranging the forms of their co-operation;
in many cases, again, they were the product of the settlement of
colonising associations or military conquerors. But in all these
instances the people forming the rural group were accustomed by
their traditions of natural or artificial kinship to allow a large share
for the requirements of the whole and to combine individual efforts
and claims. The contrast between individualism and communalism
was not put in an abstract and uncompromising manner. Both
principles were combined according to the lie of the land, the density
of population, the necessities of defence, the utility of co-operation.
In mountain country the settlements would spread, while on flat land
they would profit by concentration. Forest clearings would be
occupied by farms of scattered pioneers; the wish to present a close
front to enemies might produce nucleated villages. At the same time,
even in cases of scattered settlements there would be scope left for
mutual support and the exercise of rights of commons as to wood
and pasture, while in concentrated villages the communalistic features
would extend to the allotment regulation and management of agricul-
tural strips. But all these expedients, though suggested by custom,
were not in the nature of hard and fast rules, and in the face of strong
inducements they were departed from. A new settler joining a rural
community of old standing had to be admitted by all the shareholders
of the territory, but if he had succeeded in remaining undisturbed for
a year and a day or in producing a special licence to migrate from the
King, he could not be ousted any more. A householder who had special
opportunities as an employer of slaves, freedmen or free tenants, could
easily acquire ground for his exclusive use and start on an individualistic
basis.
There is ample evidence to shew that in the earlier centuries the


## p. 638 (#670) ############################################

638 Personal Subjection
customs and arrangements of kindreds and of associations resembling
them were widely prevalent, while private occupation formed an ex-
ception. Matters were greatly changed by the conquest of provinces
with numberless Roman estates in full working order and with a vast
population accustomed to private ownership and individualistic economy.
But it took some time even then to displace old-fashioned habits, and in
the northern parts of France, in England, in Germany, and in the
Scandinavian countries communalistic features in the treatment of
arable and pasture asserted themselves all through the Middle Ages as
more consonant with extensive tillage and a complex intermixture of
the claims of single householders. The point will have to be examined
again in another connexion, but it is material to emphasise at once that
the rural arrangements of Teutonic nations were deeply coloured by
practices generated during an epoch when relations of kindreds and
similar associations were powerful.
The possibility for strong and wealthy men to make good their
position as individual owners and magnates was partly derived from a
germ existing in every Teutonic household, namely from the power of
the ruler of such a household over the inmates of it, both free and unfree.
Even a ceorl, that is a common free man, was master in his own house
and could claim compensation for the breach of his fence or an infrac-
tion of the peace of his home. In the case of the King and other great
men the fenced court became a burgh, virtually a fortress. Every ruler
of a household, whether small or great, had to keep his sons, slaves and
clients in order and was answerable for their misdeeds. On the other
hand he was their patron, offered them protection, had to stand by
them in case of oppression from outsiders and claimed compensation for
any wrong inflicted on them. In this way by the side of the family
and of the gild or voluntary association of equals another set of
powerful ties was recognised by legal custom and political authority—
the relations between a patron and his clients or dependents. The lines
of both sets of institutions might coincide, as for instance, when the
chieftain of a kindred acted as the head of a great household, or when a
gild of warriors joined under the leadership of a famous war-chief. But
they might also run across each other and develop independently: there
were no means to make everything fit squarely into its place.
The contrast between the permanent arrangements of the tribes and
the shifting relations springing from personal subjection and devotion
seemed very striking to Roman observers. Tacitus in his tract on the
site and usages of Germany describes the institution of the comitates,
the following gathered around a chief. While in the tribe the stress is
laid on the unconquerable spirit of independence and the lack of discipline
of German warriors, in the comitatus Tacitus dwells on exactly opposite
features. The follower, though of free and perhaps of noble descent,
looks up to his chief, fights for his glory, ascribes his own feats of


## p. 639 (#671) ############################################

The Gaue 639
arms to his patron, seems to revel in self-abnegation and depen-
dence. Of course, such authority is acquired and kept up only by
brilliant exploits and successful raids, so that if a particular tribe gets
slack in these respects, its youths are apt to leave home and to flock
abroad around warriors who achieve fame and obtain booty. Thus the
comitatus appeared chiefly as a school of military prowess and young
men entered it as soon as they were deemed fit to receive arms. It was
capable of developing into a mighty and permanent political factor.
Arminius and Marbod were not merely tribal chiefs but also leaders of
military followings, and it is difficult to make out in every instance
whether the greater part of a barbaric chieftain's authority was due to
his tribal position or to his sway over his followers.
The peculiar features of Germanic social organisation were greatly
modified by the conquest of Roman provinces and the formation of
extensive states in the interior of Germany and in Scandinavian countries.
The loose tribal bonds make way for territorial unions and Kingship
arises everywhere as a powerful factor of development. As regards
territorial arrangements the hundred appears as a characteristic unit in
nearly all countries held by Teutonic nations. It seems based on ap-
proximate estimates of the number of units of husbandry, of typical free
households in a district; each of these households had to contribute
equally to the requirements of taxation and of the host, while the heads
or representatives of all formed the ordinary popular courts. Such
territorial divisions could not, of course, be framed with mathematical
regularity and even less could they be kept up in the course of centuries
according to definite standards, but the idea of equating territorial units
according to the number of households proves deeply rooted and re-
appears, e. g. , in England in the artificial hundreds based on the hundred
hides of the Dane law assessment.
By the side of these more or less artificial combinations rose the
Gaue (pagi), or shires, mostly derived from historical origins, as territories
settled by tribes or having formed separate commonwealths at some
particular time. Such were, for instance, the south-eastern shires of
England—Kent, Sussex, Essex, Norfolk, Suffolk, etc.
Roman writers lay stress on the tendency of Germanic nations
towards autonomy of the different provinces and subdivisions of the
tribe. Caesar says that in time of peace they had no common rulers
but that the princes of regions and districts administered justice and
settled disputes among their own people. A section of a tribe, a gau
as it was styled, could sometimes follow its own policy: Ingvioiner's
pagua, e. g. , did not join with the rest of the Cherusci in Arminius1
war with the Romans. But continual military operations not only
forced the tribes to form larger leagues, but also to submit to more
concentrated and active authorities. Kingships arose in this connexion
and Tacitus tells us that royal power exercised a great influence in


## p. 640 (#672) ############################################

640 Growth of Kingship
modifying the internal organisation of the people. It was hostile to the
traditional noble houses which might play the part of dangerous rivals.
and it surrounded itself with submissive followers whom it helped to
promotion and wealth so that freedmen protected by the King often
surpassed men of free and even of noble descent. Tacitus' remarks on
the social influence of Kingship are fully borne out by the state of affairs
after the Conquest.