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.
but that the princes of regions and districts administered justice and
settled disputes among their own people.
Cambridge Medieval History - v2 - Rise of the Saracens and Foundation of the Western Empire
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.
It is clear that the occupation of extended territory over which
Germanic warriors were more or less dispersed contributed powerfully to
strengthen the hands of the King. Without any definite change in the
constitution, by the sheer force of distance and the diversion caused by
private concerns the King became the real representative of the nation
in its collective life. There could be no question of gathering the
popular assembly for one of those republican meetings described by
Tacitus where Kings and princes appeared as speakers, not as chiefs, and
had to persuade their audience instead of giving commands. Thus the
popular assemblies of the Franks degenerated into gatherings of the
military array which took place once a year in the spring, first in March,
later on in May. These meetings were not unimportant as they brought
together the King and his folk and offered an occasion for some legisla-
tion and a good deal of private intercourse with persons who came from
distant parts of the Kingdom. But the assembly was not organised
for systematic political action or for regular administrative business.
So the King remained the real ruler of his people in peace and war, and
the persons he had to reckon with were the princes of his house, the
officers of his household, magnates of different kinds, and the clergy.
The absence of a definite constitution gave rise to a great deal of violence:
indeed violence seems to have been the moving power of government.
It impressed people's imagination and even wise rulers could not dispense
with it. The famous story of the Soissons chalice is characteristic of the
whole course of affairs in Gaul under the Merovingian Kings. Clovis
tries to save a precious chalice for the Church after the taking of
Soissons and puts it by as an extra share of the loot. A common
Frankish soldier, however,- does not want to submit to any such privilege
and cleaves the chalice with a stroke of his battle-axe. "The King is
not to have more than his share,1,1 he explains, and Clovis dares not curb
his unruly follower in the presence of comrades who evidently would
have sympathised with the latter. He bides his time and at the next
review cleaves the man's head, in remembrance of the chalice of Soissons.
Everything depended on the personal authority of the King and on
his exploits. Theodoric the son of Clovis persuades his army to take
part in an expedition against Burgundy. When he plans a campaign
against the Thuringians he takes care to incite the wrath of the Franks
by describing the misdeeds and offences committed by their enemies.
But if the King and the host are not of the same opinion, an unpopular
## p. 641 (#673) ############################################
Power of the Kings 641
King is exposed to contumelious treatment. Gregory of Tours tells the
story of an altercation between Chlotar I and his host. The Frankish
warriors wanted to fight the Saxons while the King urged them to
desist from this plan and warned them that if they went to war against
his will he would not go with them. Thereupon they waxed wroth and
threw themselves on the King, tore up his tent, assailed him with
exasperating abuse and threatened to kill him if he did not come with
them. He went with them against his wish, and they were beaten.
The great means for upholding power under these circumstances was to
act with relentless cruelty against enemies or rivals. The annals of
Merovingian Gaul are especially notorious in this respect, but they
exhibit feelings and moods which are characteristic to some extent of the
whole barbaric world of those times. We read in the life of St Didier of
Cahors of the wrath of a king who decreed terrible things: some were
maimed, others killed, others sent into exile, others again thrown into
prison for life1. Guntram of Burgundy swore that he would destroy
the household of a rebel up to the ninth generation in order to put a
stop to the pernicious custom of murdering kings. Sometimes this
policy, worthy of wild beasts, achieved its aim of spreading terror, and
a tyrant like Chilperic might think that he had it in his power to
command anything he wished, e. g. to reform the alphabet, to improve
the dogma of the Trinity and to impose baptism on all the Jews.
But the general result was that when the flush of conquest had passed
and the danger of further invasions seemed remote, all the springs and
ties which hold and move society gave way. Men ceased to care for
the Commonwealth, everyone was intent on his private lust and lucre.
These appalling results are ascribed in as many words by Frankish
chiefs to this same King Guntram, who swore to exterminate rebels
and all their kith and kin. "What shall we do,11 they said, "when the
whole people is affected by vice and everyone finds delectation in iniquity?
No one fears the King, no one has any reverence for a duke or a count,
and should this state of things displease some of the rulers—seditions
rise at once, disturbances begin. '"
However great the disorder of these lawless times, certain institu-
tional features stand out as the principal means of government. The
comitatus described above on the strength of the narrative of Tacitus,
did not disappear but rather grew in importance after the Conquest.
To begin with it encountered on Roman soil a relation which had most
probably sprung from the same Germanic root, but had acquired new
strength under Imperial rule. I mean the so-called buccllarii which
appear definitely in the Roman Empire from 395, but are connected with
the older practice of employing Germans and other barbarians as guards-
men of the Emperors and of generals. The bucellarius was a soldier who
1 Vita Desiderii Caturcentis, c. 5, quoted by Waitz, Deutsche Verfansungsgesckichte,
ii. p. 195.
C. MED. H. VOL. D. CB. XX. 41
## p. 642 (#674) ############################################
642 Comites
had taken service by private agreement with a military chief. The term
is derived from bucella, a roll or biscuit of better quality than the
ordinary bread provided for the use of soldiers. Thus the very name of
these hired warriors implied a privileged treatment. They received their
military outfit from their chiefs and on their death this outfit was
returned to the commander. Troops of men enlisted on such lines came to
play a great part in the wars of the fifth and sixth centuries. Belisarius'
best soldiers were private followers of this kind gathered from among
warlike barbarian tribes: among others Huns were greatly appreciated
as light cavalry. The Visigothic kings also kept troops of bucellarii as
a regular part of their army. In other Germanic kingdoms we find the
followers (comiies) under different names, but always in similar employ-
ment. In fact the different terms afford some indication in regard to
what was expected from the follower. They were gasindi, gesith
(Gesinde) of their chiefs, that is, servants. The same notion of service
was expressed by the German degen, the Anglo-Saxon thegen (minister),
while hiredma (A. S. ), hirdr (Norse), hzidian (Russian) point to the fact
that the follower was a member of the household of his chief. An
expression derived from the tie of mutual fidelity is antrustio (Frank,
from trust—fidelity, protection and troop of confederates). The Danish
sources use vederlag (Society) while the German lay more stress on the
fact that the members of the association are followers (Gefolge, cf. A. S.
folgere, folgod).
The relation is generally initiated by two acts: firstly, the submission
of the follower to his chief as symbolised by the former stretching out his
folded hands which the latter receives in his own; secondly, fin oath
of fidelity by which the follower promised to support his lord and to
be true and faithful to him in every respect The corresponding duties
of the lord were to afford protection to his followers and to keep them
well. The Beowulf poem presents a vivid description of the life of
a following, a camitatus, of this kind—the communion in peace and
war, the common feasting in the hall, the moral obligations incurred
by the parties to the agreement. It shews also that the hird or gesith
was differentiated into two halves—the elder councillors and the younger
fighters (duguth and gogoth—excellence and youth), exactly in the same
way as the " friends" of a Russian chief (drujina) were distinguished as
the seniors and the juniors. The chief provided the outfit for his
followers—horses, swords, coats of mail, shields—but this outfit went
back to him on the death of the follower. This is the origin of the
heregeatu (heriot) of the English followers, so well illustrated by many
charters {e. g. Earle, Land Charters, 223, Will of Abp Aelfric) and by
the legislation of Canute. There was no obstacle to the collection of
a following by any free warrior; followings are distinctly admitted by
Franks, Lombards, Scandinavians and Anglo-Saxons to all who can
attract them, and this is characteristic of the rudimentary state of
## p. 643 (#675) ############################################
Sajones. Huskarls 643
public law in those times, inasmuch as the holding of armed retainers
who have sworn fidelity to their chief does not agree well with any
properly organised government. As a matter of fact, the keeping of a
following was mostly restricted by economic considerations to powerful
magnates, chieftains and kings. Under ordinary circumstances the
outlay was too great for common free men. But, of course, if there
appeared a prospect of looting or of starting on adventures there was
nothing to prevent famous warriors from collecting a hird of their own,
and the Viking raids were to a great extent the results of such private
enterprise.
When tribes settled down and territorial governments were put into
shape, the following became an instrumentum regni and the King's
following, his trustes or gesith, assumed an exceptional importance.
With the Goths of Theodoric and Athalaric the Sajones became a body
of officials. The Ostrogothic kings employed them not only as a body-
guard, but as messengers, as revising officers, as commissioners provided
with special powers and not only exempt from ordinary jurisdiction but
sent to control the regular members of the administration. In the same
way the King's thegns of later Anglo-Saxon history become a privileged
official class, without whom no government can be carried on and
who lead in the host, in the Witenagemot and in the moots of the
shires and hundreds. The huskarls of the Danish period were in
a similar position. Their service as a fighting body-guard is well ex-
emplified by the battle of Hastings and other events of the eleventh
century; but let us also remember that they were used, among other
things, to collect the geld, as may be seen from the story of the two
huskarls of Harthacnut who were killed at Worcester. In England as
well as in France or Italy the situation was much complicated by the
fact that a great number of the followers were settled by their chiefs
on separate estates and thus ceased to be ordinary members of the
chiefs' households. Still a seat in the King's hall along with an estate
of five hides was deemed one of the distinctive privileges of a King's
thegn.
This point raises the question: What means had a government of
those times to carry on its work? In every political organisation there
must be some sources of income to defray expenses, or else the popula-
tion must be made to provide for necessary contingencies by compulsory
services of different kinds. Where did the governments of Italy, of
France, of England get their money and how were the contributions of
the people towards political organisation collected and administered?
Nowadays these questions would present no difficulties. We are
taught by bitter experience that any effort in the preparation for
war, or in judicial organisation, or in improvement of roads and
sanitary conditions has to be paid for by an increase of taxes and
rates. Therefore it will be rather difficult for us to realise that early
ch. xx. 41—2
## p. 644 (#676) ############################################
644 Taxation
medieval governments had no taxes or rates to speak of at their
disposal. The complex and oppressive system of Roman taxation
could not be kept up: already in the late years of the Empire its
overburdened subjects sought refuge with the barbarians in order to
escape from tax collectors. After the downfall of Imperial rule, all
the efforts of barbarian kings to maintain systematic taxation were
in vain. They called forth insurrections, and even more powerful was
a passive resistance in which all persons concerned joined more or
less. Taxes broke up into customary payments, and were mixed up in
an inextricable manner with rents and profits originating in private
ownership.
Here are extracts from two Lombard grants illustrating the con-
fusion between public and private payments and rents. King Aistulf
gave some land to the monastery of St Lawrence in Bergamo (a. d. 755)
and added the following exemptions from tribute and dues: "Donamus
in suprascripta ecclesia omnes scuvias (excubias—repairs of roads and
bridges) et utilitates quas homines exinde in puplico habuerunt ad
consuetudinem faciendum excepto quando utilitas fuerit ce(n)sus facien-
dum ubi consuetudinem habuerint, nam ab aliis scuviis et utilitatibus
puplicis quieti permaneant1. " The peasantry on the estates of the said
monastery are thus freed from road-making, bridge-making and other
public work, although the right to levy a tax {census) where it is
customary is reserved. And here is a fragment from a donation of a
certain deacon Gallus: "Ipsa suprascripta casa cum suprascriptis massariis
(colonis) ividem resedentem aliut redditum non facias, nee angarias,
nee nulla scufias ad ipsa suprascripta Dei Ecclesia, nisi tantum per
singulos annos quattuor modia grano, uno animale quale abuerit; pro
jamissia tremisse uno, una libra cera, uno sistario mel et amplius nulla
dationem aut scufia perexsolvant, quia mihi sic actum est'. " The donor
fixed the amount of dues in favour of the monastery according to the
custom followed in his own time and exempts expressly the coLmi of
the estate he is granting from all payments and services, except some
specified customary rents in kind. The occasional datkmes and collectae
which were still levied did not constitute a regular fiscal system, and
it may be said that the principal traces of such a system in the earlier
Middle Ages are connected with progresses of the King and of Royal
officers, who had to be fed and provided with the necessities of life
according to a certain customary scale. This is the origin of the
so-called J'eorms of rights, of which we hear a good deal in Domesday
and in Anglo-Saxon sources. Corresponding arrangements of compulsory
hospitality are reported from other places and these could easily be
turned into a regular system of provender rents to be levied in the
domanial courts of the King.
1 Monumenta historian patriae, xm. p. 33, 15.
4 Troya, Codice diplomatico Langohardo, iv. pp. 331, 620, a. d. 748.
## p. 645 (#677) ############################################
New forms of Taxation 645
In the laws of King Ine of Wessex we find the following curious
account of the provender rents due from 10 hides of land: 10 casks
honey, 800 loaves of bread, 12 buckets of Welsh ale, 30 of clear ale,
2 full grown oxen or 10 wethers, 10 geese, 20 chickens, 10 pieces of cheese,
one bucketful of butter, 5 salmon, 20 pounds of fodder and 100 eels
(Ine, 70, 1).
The Carlovingian restoration and especially the desperate struggles
against the Norsemen compelled the populations of Western Europe to
submit to new forms of direct taxation. Of these the most formidable
and the best known is the Danegeld; but a detailed account of it must
be given elsewhere. But even the Danegeld and the continental impo-
sitions corresponding to it were never meant to cover the entire cost of
administration. They were chiefly designed to meet extraordinary
expenditure, to pay off pirates, to raise heavy contributions of war, etc.
In this way the question as to the ordinary means of meeting the
requirements of administration has still to be answered. And the
answer is clear. The-jegujar administration of medieval States was
kept_J^^frpm_Jthe_proceeds of crown domains. This point of view is
clearly expressed, for instance, in a letter of Bede to Archbishop Ecgbert
of York in which the famous historian complains of the reckless squan-
dering of the Kings' estates, while their property should be con-
sidered as a fund for the outfit of soldiers and officials. The connexion
between landholding and public service was underlined almost to a
fault by historical writers until a German scholar, Paul Roth, argued
that the Merovingian land charters do not shew any special obligation
on the part of the donees and are, in fact, one-sided grants in full
property without any agreement as to service attached to them and
without any reserved right of confirmation or resumption in favour of
the donor. From a technical point of view Roth was quite right:
a Merovingian grant does not disclose on the face of it the implied
connexion between tenure and service. But the mere fact that such
grants of property in land became the regular means of recompensing
services to the State is in itself of the greatest consequence. Indeed it
may be said that such unconditional grants were more dangerous for
the sovereign power in the State than actual beneficia with a clearly
expressed condition attached to them, because it was impossible to go
on remunerating services by grants of estates in full ownership without
exhausting the stock in land.
A government proceeding on such lines was sure to be soon con-
fronted by an empty exchequer and no legal means to refill it. But
though no juridical condition was formulated, the Frankish or Lombard
government never lost sight of the beneficia and their holders. The
notion that men who had received such beneficia were expected to be
especially eager in their service to the kings was not only a precept of
morals, but led to practical consequences. Officials who had called
CH. XX.
## p. 646 (#678) ############################################
646 Carlovingian Taxation
forth the displeasure of their masters would very likely see their
beneficia confiscated. In England the confiscation of book-land in
case of treason or neglect of military duty was recognised by law.
Lombard practice shews another curious expedient for asserting the
superior right of the Sovereign in regard to estates granted to followers.
They were often given in usufruct without charter so that the donee
enjoyed only a matter of fact possession without any legal right and
could be ousted at pleasure. As a higher degree of favour this precari-
ous tenure of the estate was exchanged for a regular title to it. Thus
the earlier period of medieval life may be characterised by the words—
a regime based on grants of usufruct and of ownership in land. This
fund was nearly exhausted in France towards the end of the first dynasty,
and in consequence the monarchy itself was weakened in every respect
and the Merovingian rulers had sunk into the state of rois Jainicmts—
good-for-nothing kings, while real authority rested with the managers
of the privy purse and palace stewards—the majores dornus.
The national revival occasioned by the necessity to defend Christian
Society against the Arabs on one side, and heathen Germans on the other,
took the shape of a concentration of power in the hands of the Carlovin-
gian dynasty. And the first thing the new rulers had to do was to
replenish the domanial fund and to reorganise the methods of granting
estates. In order to acquire the necessary land capital nothing was left
but to lay hands on part of the enormous landed property which had
been accumulated by the Church. The earlier Carlovingian rulers, more
especially. Charles. Mart el, simply appropriated ecclesiastical estates to
endow their military retainers. Another device was to quarter soldiers
on monasteries and even to appoint officers lay abbots of wealthy ecclesi-
astical foundations. With Pepin the Short and his brother Carloman
these irregular methods savouring of downright pillage were abandoned
and a kind of compromise between State and Church was arrived at.
We are told that in 751 a " division" of estates took place. Some were
given back to the Church, while other lands were registered as " precari-
ous loans" (precaritu verbo regis) conceded to laymen by ecclesiastical
institutions at the request of the King and on condition of the payment
of a rent of about one-fifth of the income (nonae et decimae) to the
owners of the land.
This system was based on the distinct recognition of the superior
domain of the Church and on a division of the proceeds between two
masters, between the holders of the eminent and of the useful domain,
as we might be tempted to put it in conformity with later terminology,
although from the point of view of eighth century law the estate of the
tenant was not a form of ownership, of dominium, at all, but a pre-
carious tenancy. As a matter of custom, however, these tenancies soon
grew to be recognised as estates of inheritance conditioned by the
performance of certain duties to the King as well as by the payment of
## p. 647 (#679) ############################################
Tenures by Service 647
rents to the Church. The process described exerted a great deal of
influence on the formation of a general doctrine as to beneficia in which
the conditional character of such donations was emphasised and carried
to practical consequences. The Carlovingians worked the administrative
apparatus of their empire, as formerly, by means of land-grants, but
these grants created definitely conditional tenements. Although as a
rule the son succeeded the father as to the "benefice" he was made to
ask for a confirmation of his father's estate and might be obliged to pay
something for this confirmation. In case of a change in the person of
the owner, the superior or senior lord, the practice of resuming the
ownership of benefices and of issuing them again under new grants began
also to come in. Thus the technical aspect of the practice of feoffment
was gradually evolved. In England the process is not characterised by
such clearly marked stages, but on the whole the practice of grants of
loan-land and book-land followed in the same direction, the form of
"loans" being used for constituting tenements which it was especially
desirable to retain in the ownership of the lord, while even as to book-
land the special obligations of lay holders in regard to the Crown became
more and more definitely recognised. Still the final constitution of the
doctrine and of the system of fees was effected in England under the
influence of French feudalism, as carried over by the Norman Conquest.
This history of tenements conditioned by service is intimately con-
nected with the spread of the relation between lord and follower on one
side, with the growth of the economic practice of constituting tenancies
on the other. As to followers I shall merely call attention to the con-
venience of renhinerating an armed servant by the grant of a tenement
instead of keeping him as a member of the household or paying him
wages. The other side of the surrounding conditions requires some
further notice. Apart from the incitement towards the creation of
tenements which came from the wish to recompense officials and soldiers,
there were powerful incitements to the formation of tenancies on lands
held by the Church. The teaching of the Church as to good works
and salvation was eagerly taken up by the laity, who tried to make
amends for all shortcomings and sins by showering gifts on ecclesiastical
institutions. It is computed that about one-third of the soil of Gaul
belonged to the Church in the Carlovingian epoch. The monastery of
Fulda, the famous foundation of Boniface, gathered 15,000 mansi in a
short time from pious donors. A considerable part of this property
came from small people, who tried in this way not only to propitiate
God, but also to win protectors in the persons of powerful ecclesiastical
lords. A most common expedient in order to guarantee the ownership
of a plot to a monastery without losing one's own subsistence was to
constitute a so-called precaria oblata, that is to grant the land and to
receive it back at the same time as a dependent tenement, usually under
the condition of paying some nominal rent, for the sake of a recognition
## p. 648 (#680) ############################################
€48 The Beneficium
of ownership. On the other hand ecclesiastical corporations stood in
need of farmers who would undertake the management of scattered
portions of property, and it was a common policy for abbots and clerics
to concede such dispersed smaller estates or plots to trustworthy men
for more or less substantial rents on the strength of so-called precariae
datae. The expression beneficium. was in use for such transactions, but
it became gradually specialised to denote the tenements of vassals, or
higher military retainers. There was thus a characteristic tendency to
organise land-tenures based on a combination between superior lords or
seniors and inferior, dependent tenants.
The same result was reached from yet another point of view, namely
through the working of the system of political obligations laid on the
citizens. As taxation was undeveloped and had to be represented largely
by dues from estates, the demands of the government as expressed in
personal services of the subject were very great. The machinery of
public institutions was based largely on what was afterwards called trinoda
necessitas—attendance at the host, repair of bridges and roads, construc-
tion of fortresses, and also on the attendance of suitors at the different
public courts, more especially at the county and the hundred. Originally
it was reckoned in England that one man should serve for one hide:
in the Frankish territories the unit of assessment was smaller than the
hide, the mansus (Hufe), roughly corresponding to the English virgate in
size, although its value must have been more considerable, at least in
Gaul, on account of the more intensive husbandry of the Southern
countries. Anyhow it was soon found that owners of single Hufen were
not of much use to the army while the army service was a crushing
burden for them, and we see in all the principal countries of Western
Europe attempts to graduate the standards of equipment of the members
of the host by combining the poorer men into larger units. The
principle of graduated general service is well expressed in Lombard
legislation. The second and third clauses of Aistulfs laws subdivide the
host into three classes according to equipment. The poorest freemen,
characteristically called arimanni or exercitales—army-men, are bound
to attend the host with shield, bow and arrows; the owners of forty Juga
(Jugera are meant) of land have to appear with spear, shield and horse;
the wealthiest whose estates are computed at seven tributary holdings
have to attend in a coat of mail, and if they own more landed property
have to muster additional soldiers in proper equipment in proportion to
their wealth; merchants should have their duties apportioned on a similar
scale. A clause of the laws of Liutprand (83) provides that judges and
administrative officials should have leave to exempt a certain number of
the poorer freemen from personal attendance, on condition that they
should help to carry loads for the army with their horses and perform
week-work for the officials during their absence in the host.
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.
It is clear that the occupation of extended territory over which
Germanic warriors were more or less dispersed contributed powerfully to
strengthen the hands of the King. Without any definite change in the
constitution, by the sheer force of distance and the diversion caused by
private concerns the King became the real representative of the nation
in its collective life. There could be no question of gathering the
popular assembly for one of those republican meetings described by
Tacitus where Kings and princes appeared as speakers, not as chiefs, and
had to persuade their audience instead of giving commands. Thus the
popular assemblies of the Franks degenerated into gatherings of the
military array which took place once a year in the spring, first in March,
later on in May. These meetings were not unimportant as they brought
together the King and his folk and offered an occasion for some legisla-
tion and a good deal of private intercourse with persons who came from
distant parts of the Kingdom. But the assembly was not organised
for systematic political action or for regular administrative business.
So the King remained the real ruler of his people in peace and war, and
the persons he had to reckon with were the princes of his house, the
officers of his household, magnates of different kinds, and the clergy.
The absence of a definite constitution gave rise to a great deal of violence:
indeed violence seems to have been the moving power of government.
It impressed people's imagination and even wise rulers could not dispense
with it. The famous story of the Soissons chalice is characteristic of the
whole course of affairs in Gaul under the Merovingian Kings. Clovis
tries to save a precious chalice for the Church after the taking of
Soissons and puts it by as an extra share of the loot. A common
Frankish soldier, however,- does not want to submit to any such privilege
and cleaves the chalice with a stroke of his battle-axe. "The King is
not to have more than his share,1,1 he explains, and Clovis dares not curb
his unruly follower in the presence of comrades who evidently would
have sympathised with the latter. He bides his time and at the next
review cleaves the man's head, in remembrance of the chalice of Soissons.
Everything depended on the personal authority of the King and on
his exploits. Theodoric the son of Clovis persuades his army to take
part in an expedition against Burgundy. When he plans a campaign
against the Thuringians he takes care to incite the wrath of the Franks
by describing the misdeeds and offences committed by their enemies.
But if the King and the host are not of the same opinion, an unpopular
## p. 641 (#673) ############################################
Power of the Kings 641
King is exposed to contumelious treatment. Gregory of Tours tells the
story of an altercation between Chlotar I and his host. The Frankish
warriors wanted to fight the Saxons while the King urged them to
desist from this plan and warned them that if they went to war against
his will he would not go with them. Thereupon they waxed wroth and
threw themselves on the King, tore up his tent, assailed him with
exasperating abuse and threatened to kill him if he did not come with
them. He went with them against his wish, and they were beaten.
The great means for upholding power under these circumstances was to
act with relentless cruelty against enemies or rivals. The annals of
Merovingian Gaul are especially notorious in this respect, but they
exhibit feelings and moods which are characteristic to some extent of the
whole barbaric world of those times. We read in the life of St Didier of
Cahors of the wrath of a king who decreed terrible things: some were
maimed, others killed, others sent into exile, others again thrown into
prison for life1. Guntram of Burgundy swore that he would destroy
the household of a rebel up to the ninth generation in order to put a
stop to the pernicious custom of murdering kings. Sometimes this
policy, worthy of wild beasts, achieved its aim of spreading terror, and
a tyrant like Chilperic might think that he had it in his power to
command anything he wished, e. g. to reform the alphabet, to improve
the dogma of the Trinity and to impose baptism on all the Jews.
But the general result was that when the flush of conquest had passed
and the danger of further invasions seemed remote, all the springs and
ties which hold and move society gave way. Men ceased to care for
the Commonwealth, everyone was intent on his private lust and lucre.
These appalling results are ascribed in as many words by Frankish
chiefs to this same King Guntram, who swore to exterminate rebels
and all their kith and kin. "What shall we do,11 they said, "when the
whole people is affected by vice and everyone finds delectation in iniquity?
No one fears the King, no one has any reverence for a duke or a count,
and should this state of things displease some of the rulers—seditions
rise at once, disturbances begin. '"
However great the disorder of these lawless times, certain institu-
tional features stand out as the principal means of government. The
comitatus described above on the strength of the narrative of Tacitus,
did not disappear but rather grew in importance after the Conquest.
To begin with it encountered on Roman soil a relation which had most
probably sprung from the same Germanic root, but had acquired new
strength under Imperial rule. I mean the so-called buccllarii which
appear definitely in the Roman Empire from 395, but are connected with
the older practice of employing Germans and other barbarians as guards-
men of the Emperors and of generals. The bucellarius was a soldier who
1 Vita Desiderii Caturcentis, c. 5, quoted by Waitz, Deutsche Verfansungsgesckichte,
ii. p. 195.
C. MED. H. VOL. D. CB. XX. 41
## p. 642 (#674) ############################################
642 Comites
had taken service by private agreement with a military chief. The term
is derived from bucella, a roll or biscuit of better quality than the
ordinary bread provided for the use of soldiers. Thus the very name of
these hired warriors implied a privileged treatment. They received their
military outfit from their chiefs and on their death this outfit was
returned to the commander. Troops of men enlisted on such lines came to
play a great part in the wars of the fifth and sixth centuries. Belisarius'
best soldiers were private followers of this kind gathered from among
warlike barbarian tribes: among others Huns were greatly appreciated
as light cavalry. The Visigothic kings also kept troops of bucellarii as
a regular part of their army. In other Germanic kingdoms we find the
followers (comiies) under different names, but always in similar employ-
ment. In fact the different terms afford some indication in regard to
what was expected from the follower. They were gasindi, gesith
(Gesinde) of their chiefs, that is, servants. The same notion of service
was expressed by the German degen, the Anglo-Saxon thegen (minister),
while hiredma (A. S. ), hirdr (Norse), hzidian (Russian) point to the fact
that the follower was a member of the household of his chief. An
expression derived from the tie of mutual fidelity is antrustio (Frank,
from trust—fidelity, protection and troop of confederates). The Danish
sources use vederlag (Society) while the German lay more stress on the
fact that the members of the association are followers (Gefolge, cf. A. S.
folgere, folgod).
The relation is generally initiated by two acts: firstly, the submission
of the follower to his chief as symbolised by the former stretching out his
folded hands which the latter receives in his own; secondly, fin oath
of fidelity by which the follower promised to support his lord and to
be true and faithful to him in every respect The corresponding duties
of the lord were to afford protection to his followers and to keep them
well. The Beowulf poem presents a vivid description of the life of
a following, a camitatus, of this kind—the communion in peace and
war, the common feasting in the hall, the moral obligations incurred
by the parties to the agreement. It shews also that the hird or gesith
was differentiated into two halves—the elder councillors and the younger
fighters (duguth and gogoth—excellence and youth), exactly in the same
way as the " friends" of a Russian chief (drujina) were distinguished as
the seniors and the juniors. The chief provided the outfit for his
followers—horses, swords, coats of mail, shields—but this outfit went
back to him on the death of the follower. This is the origin of the
heregeatu (heriot) of the English followers, so well illustrated by many
charters {e. g. Earle, Land Charters, 223, Will of Abp Aelfric) and by
the legislation of Canute. There was no obstacle to the collection of
a following by any free warrior; followings are distinctly admitted by
Franks, Lombards, Scandinavians and Anglo-Saxons to all who can
attract them, and this is characteristic of the rudimentary state of
## p. 643 (#675) ############################################
Sajones. Huskarls 643
public law in those times, inasmuch as the holding of armed retainers
who have sworn fidelity to their chief does not agree well with any
properly organised government. As a matter of fact, the keeping of a
following was mostly restricted by economic considerations to powerful
magnates, chieftains and kings. Under ordinary circumstances the
outlay was too great for common free men. But, of course, if there
appeared a prospect of looting or of starting on adventures there was
nothing to prevent famous warriors from collecting a hird of their own,
and the Viking raids were to a great extent the results of such private
enterprise.
When tribes settled down and territorial governments were put into
shape, the following became an instrumentum regni and the King's
following, his trustes or gesith, assumed an exceptional importance.
With the Goths of Theodoric and Athalaric the Sajones became a body
of officials. The Ostrogothic kings employed them not only as a body-
guard, but as messengers, as revising officers, as commissioners provided
with special powers and not only exempt from ordinary jurisdiction but
sent to control the regular members of the administration. In the same
way the King's thegns of later Anglo-Saxon history become a privileged
official class, without whom no government can be carried on and
who lead in the host, in the Witenagemot and in the moots of the
shires and hundreds. The huskarls of the Danish period were in
a similar position. Their service as a fighting body-guard is well ex-
emplified by the battle of Hastings and other events of the eleventh
century; but let us also remember that they were used, among other
things, to collect the geld, as may be seen from the story of the two
huskarls of Harthacnut who were killed at Worcester. In England as
well as in France or Italy the situation was much complicated by the
fact that a great number of the followers were settled by their chiefs
on separate estates and thus ceased to be ordinary members of the
chiefs' households. Still a seat in the King's hall along with an estate
of five hides was deemed one of the distinctive privileges of a King's
thegn.
This point raises the question: What means had a government of
those times to carry on its work? In every political organisation there
must be some sources of income to defray expenses, or else the popula-
tion must be made to provide for necessary contingencies by compulsory
services of different kinds. Where did the governments of Italy, of
France, of England get their money and how were the contributions of
the people towards political organisation collected and administered?
Nowadays these questions would present no difficulties. We are
taught by bitter experience that any effort in the preparation for
war, or in judicial organisation, or in improvement of roads and
sanitary conditions has to be paid for by an increase of taxes and
rates. Therefore it will be rather difficult for us to realise that early
ch. xx. 41—2
## p. 644 (#676) ############################################
644 Taxation
medieval governments had no taxes or rates to speak of at their
disposal. The complex and oppressive system of Roman taxation
could not be kept up: already in the late years of the Empire its
overburdened subjects sought refuge with the barbarians in order to
escape from tax collectors. After the downfall of Imperial rule, all
the efforts of barbarian kings to maintain systematic taxation were
in vain. They called forth insurrections, and even more powerful was
a passive resistance in which all persons concerned joined more or
less. Taxes broke up into customary payments, and were mixed up in
an inextricable manner with rents and profits originating in private
ownership.
Here are extracts from two Lombard grants illustrating the con-
fusion between public and private payments and rents. King Aistulf
gave some land to the monastery of St Lawrence in Bergamo (a. d. 755)
and added the following exemptions from tribute and dues: "Donamus
in suprascripta ecclesia omnes scuvias (excubias—repairs of roads and
bridges) et utilitates quas homines exinde in puplico habuerunt ad
consuetudinem faciendum excepto quando utilitas fuerit ce(n)sus facien-
dum ubi consuetudinem habuerint, nam ab aliis scuviis et utilitatibus
puplicis quieti permaneant1. " The peasantry on the estates of the said
monastery are thus freed from road-making, bridge-making and other
public work, although the right to levy a tax {census) where it is
customary is reserved. And here is a fragment from a donation of a
certain deacon Gallus: "Ipsa suprascripta casa cum suprascriptis massariis
(colonis) ividem resedentem aliut redditum non facias, nee angarias,
nee nulla scufias ad ipsa suprascripta Dei Ecclesia, nisi tantum per
singulos annos quattuor modia grano, uno animale quale abuerit; pro
jamissia tremisse uno, una libra cera, uno sistario mel et amplius nulla
dationem aut scufia perexsolvant, quia mihi sic actum est'. " The donor
fixed the amount of dues in favour of the monastery according to the
custom followed in his own time and exempts expressly the coLmi of
the estate he is granting from all payments and services, except some
specified customary rents in kind. The occasional datkmes and collectae
which were still levied did not constitute a regular fiscal system, and
it may be said that the principal traces of such a system in the earlier
Middle Ages are connected with progresses of the King and of Royal
officers, who had to be fed and provided with the necessities of life
according to a certain customary scale. This is the origin of the
so-called J'eorms of rights, of which we hear a good deal in Domesday
and in Anglo-Saxon sources. Corresponding arrangements of compulsory
hospitality are reported from other places and these could easily be
turned into a regular system of provender rents to be levied in the
domanial courts of the King.
1 Monumenta historian patriae, xm. p. 33, 15.
4 Troya, Codice diplomatico Langohardo, iv. pp. 331, 620, a. d. 748.
## p. 645 (#677) ############################################
New forms of Taxation 645
In the laws of King Ine of Wessex we find the following curious
account of the provender rents due from 10 hides of land: 10 casks
honey, 800 loaves of bread, 12 buckets of Welsh ale, 30 of clear ale,
2 full grown oxen or 10 wethers, 10 geese, 20 chickens, 10 pieces of cheese,
one bucketful of butter, 5 salmon, 20 pounds of fodder and 100 eels
(Ine, 70, 1).
The Carlovingian restoration and especially the desperate struggles
against the Norsemen compelled the populations of Western Europe to
submit to new forms of direct taxation. Of these the most formidable
and the best known is the Danegeld; but a detailed account of it must
be given elsewhere. But even the Danegeld and the continental impo-
sitions corresponding to it were never meant to cover the entire cost of
administration. They were chiefly designed to meet extraordinary
expenditure, to pay off pirates, to raise heavy contributions of war, etc.
In this way the question as to the ordinary means of meeting the
requirements of administration has still to be answered. And the
answer is clear. The-jegujar administration of medieval States was
kept_J^^frpm_Jthe_proceeds of crown domains. This point of view is
clearly expressed, for instance, in a letter of Bede to Archbishop Ecgbert
of York in which the famous historian complains of the reckless squan-
dering of the Kings' estates, while their property should be con-
sidered as a fund for the outfit of soldiers and officials. The connexion
between landholding and public service was underlined almost to a
fault by historical writers until a German scholar, Paul Roth, argued
that the Merovingian land charters do not shew any special obligation
on the part of the donees and are, in fact, one-sided grants in full
property without any agreement as to service attached to them and
without any reserved right of confirmation or resumption in favour of
the donor. From a technical point of view Roth was quite right:
a Merovingian grant does not disclose on the face of it the implied
connexion between tenure and service. But the mere fact that such
grants of property in land became the regular means of recompensing
services to the State is in itself of the greatest consequence. Indeed it
may be said that such unconditional grants were more dangerous for
the sovereign power in the State than actual beneficia with a clearly
expressed condition attached to them, because it was impossible to go
on remunerating services by grants of estates in full ownership without
exhausting the stock in land.
A government proceeding on such lines was sure to be soon con-
fronted by an empty exchequer and no legal means to refill it. But
though no juridical condition was formulated, the Frankish or Lombard
government never lost sight of the beneficia and their holders. The
notion that men who had received such beneficia were expected to be
especially eager in their service to the kings was not only a precept of
morals, but led to practical consequences. Officials who had called
CH. XX.
## p. 646 (#678) ############################################
646 Carlovingian Taxation
forth the displeasure of their masters would very likely see their
beneficia confiscated. In England the confiscation of book-land in
case of treason or neglect of military duty was recognised by law.
Lombard practice shews another curious expedient for asserting the
superior right of the Sovereign in regard to estates granted to followers.
They were often given in usufruct without charter so that the donee
enjoyed only a matter of fact possession without any legal right and
could be ousted at pleasure. As a higher degree of favour this precari-
ous tenure of the estate was exchanged for a regular title to it. Thus
the earlier period of medieval life may be characterised by the words—
a regime based on grants of usufruct and of ownership in land. This
fund was nearly exhausted in France towards the end of the first dynasty,
and in consequence the monarchy itself was weakened in every respect
and the Merovingian rulers had sunk into the state of rois Jainicmts—
good-for-nothing kings, while real authority rested with the managers
of the privy purse and palace stewards—the majores dornus.
The national revival occasioned by the necessity to defend Christian
Society against the Arabs on one side, and heathen Germans on the other,
took the shape of a concentration of power in the hands of the Carlovin-
gian dynasty. And the first thing the new rulers had to do was to
replenish the domanial fund and to reorganise the methods of granting
estates. In order to acquire the necessary land capital nothing was left
but to lay hands on part of the enormous landed property which had
been accumulated by the Church. The earlier Carlovingian rulers, more
especially. Charles. Mart el, simply appropriated ecclesiastical estates to
endow their military retainers. Another device was to quarter soldiers
on monasteries and even to appoint officers lay abbots of wealthy ecclesi-
astical foundations. With Pepin the Short and his brother Carloman
these irregular methods savouring of downright pillage were abandoned
and a kind of compromise between State and Church was arrived at.
We are told that in 751 a " division" of estates took place. Some were
given back to the Church, while other lands were registered as " precari-
ous loans" (precaritu verbo regis) conceded to laymen by ecclesiastical
institutions at the request of the King and on condition of the payment
of a rent of about one-fifth of the income (nonae et decimae) to the
owners of the land.
This system was based on the distinct recognition of the superior
domain of the Church and on a division of the proceeds between two
masters, between the holders of the eminent and of the useful domain,
as we might be tempted to put it in conformity with later terminology,
although from the point of view of eighth century law the estate of the
tenant was not a form of ownership, of dominium, at all, but a pre-
carious tenancy. As a matter of custom, however, these tenancies soon
grew to be recognised as estates of inheritance conditioned by the
performance of certain duties to the King as well as by the payment of
## p. 647 (#679) ############################################
Tenures by Service 647
rents to the Church. The process described exerted a great deal of
influence on the formation of a general doctrine as to beneficia in which
the conditional character of such donations was emphasised and carried
to practical consequences. The Carlovingians worked the administrative
apparatus of their empire, as formerly, by means of land-grants, but
these grants created definitely conditional tenements. Although as a
rule the son succeeded the father as to the "benefice" he was made to
ask for a confirmation of his father's estate and might be obliged to pay
something for this confirmation. In case of a change in the person of
the owner, the superior or senior lord, the practice of resuming the
ownership of benefices and of issuing them again under new grants began
also to come in. Thus the technical aspect of the practice of feoffment
was gradually evolved. In England the process is not characterised by
such clearly marked stages, but on the whole the practice of grants of
loan-land and book-land followed in the same direction, the form of
"loans" being used for constituting tenements which it was especially
desirable to retain in the ownership of the lord, while even as to book-
land the special obligations of lay holders in regard to the Crown became
more and more definitely recognised. Still the final constitution of the
doctrine and of the system of fees was effected in England under the
influence of French feudalism, as carried over by the Norman Conquest.
This history of tenements conditioned by service is intimately con-
nected with the spread of the relation between lord and follower on one
side, with the growth of the economic practice of constituting tenancies
on the other. As to followers I shall merely call attention to the con-
venience of renhinerating an armed servant by the grant of a tenement
instead of keeping him as a member of the household or paying him
wages. The other side of the surrounding conditions requires some
further notice. Apart from the incitement towards the creation of
tenements which came from the wish to recompense officials and soldiers,
there were powerful incitements to the formation of tenancies on lands
held by the Church. The teaching of the Church as to good works
and salvation was eagerly taken up by the laity, who tried to make
amends for all shortcomings and sins by showering gifts on ecclesiastical
institutions. It is computed that about one-third of the soil of Gaul
belonged to the Church in the Carlovingian epoch. The monastery of
Fulda, the famous foundation of Boniface, gathered 15,000 mansi in a
short time from pious donors. A considerable part of this property
came from small people, who tried in this way not only to propitiate
God, but also to win protectors in the persons of powerful ecclesiastical
lords. A most common expedient in order to guarantee the ownership
of a plot to a monastery without losing one's own subsistence was to
constitute a so-called precaria oblata, that is to grant the land and to
receive it back at the same time as a dependent tenement, usually under
the condition of paying some nominal rent, for the sake of a recognition
## p. 648 (#680) ############################################
€48 The Beneficium
of ownership. On the other hand ecclesiastical corporations stood in
need of farmers who would undertake the management of scattered
portions of property, and it was a common policy for abbots and clerics
to concede such dispersed smaller estates or plots to trustworthy men
for more or less substantial rents on the strength of so-called precariae
datae. The expression beneficium. was in use for such transactions, but
it became gradually specialised to denote the tenements of vassals, or
higher military retainers. There was thus a characteristic tendency to
organise land-tenures based on a combination between superior lords or
seniors and inferior, dependent tenants.
The same result was reached from yet another point of view, namely
through the working of the system of political obligations laid on the
citizens. As taxation was undeveloped and had to be represented largely
by dues from estates, the demands of the government as expressed in
personal services of the subject were very great. The machinery of
public institutions was based largely on what was afterwards called trinoda
necessitas—attendance at the host, repair of bridges and roads, construc-
tion of fortresses, and also on the attendance of suitors at the different
public courts, more especially at the county and the hundred. Originally
it was reckoned in England that one man should serve for one hide:
in the Frankish territories the unit of assessment was smaller than the
hide, the mansus (Hufe), roughly corresponding to the English virgate in
size, although its value must have been more considerable, at least in
Gaul, on account of the more intensive husbandry of the Southern
countries. Anyhow it was soon found that owners of single Hufen were
not of much use to the army while the army service was a crushing
burden for them, and we see in all the principal countries of Western
Europe attempts to graduate the standards of equipment of the members
of the host by combining the poorer men into larger units. The
principle of graduated general service is well expressed in Lombard
legislation. The second and third clauses of Aistulfs laws subdivide the
host into three classes according to equipment. The poorest freemen,
characteristically called arimanni or exercitales—army-men, are bound
to attend the host with shield, bow and arrows; the owners of forty Juga
(Jugera are meant) of land have to appear with spear, shield and horse;
the wealthiest whose estates are computed at seven tributary holdings
have to attend in a coat of mail, and if they own more landed property
have to muster additional soldiers in proper equipment in proportion to
their wealth; merchants should have their duties apportioned on a similar
scale. A clause of the laws of Liutprand (83) provides that judges and
administrative officials should have leave to exempt a certain number of
the poorer freemen from personal attendance, on condition that they
should help to carry loads for the army with their horses and perform
week-work for the officials during their absence in the host.
