Chapter V: Personal Rank. the Freeman. the Noble

The second principle laid down in the first chapter of this book, is that of personal rank, which in the Teutonic scheme appears inseparably connected with the possession of land.

The earliest records we can refer to, place before us a system founded upon distinctions of birth, as clearly as any that we can derive from the Parliamentary writs or rolls of later ages: in our history there is not even a fabulous Arcadia, wherein we may settle a free democracy: for even where the records of fact no longer supply a clue through the labyrinths of our early story, the epic continues the tradition, and still celebrates the deeds of nobles and of kings.

Tacitus, from whom we derive our earliest information, supplies us with many details, which not only show the existence of a system, but tend also to prove its long prevalence. He tells us not only of nobles, but also of kings, princes and inherited authority[197], more or less fully developed: and the unbiassed judgment of the statesman who witnessed the operation of institutions strange to himself, warns us against theoretical appeals to the fancied customs of ages not contemporaneous with our own. The history of Europe knows nothing of a period in which there were not freemen, nobles and serfs; and the institutions of Europe, in proportion as we pursue them to their earliest principles, furnish only the stronger confirmation of history. We may, no doubt, theorize upon this subject, and suggest elementary forms, as the necessary conditions of a later system: but this process is and must be merely hypothetical, nor can such forms be shown to have had at any time a true historical existence. That every German was, in the beginning, Kaiser and Pope in his own house[198] may be perfectly true in one sense; just as true is it that every Englishman’s house is his castle. Nevertheless, the German lived under some government, civil or religious, or both: and—to the great advantage of society—the process of law surmounts without the slightest difficulty the imaginary battlements of the imaginary fortress.

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Footnote 197:

The Cherusci feeling the want of a king sent to Rome for a descendant
of Arminius. Tac. An. xi. 17. The Heruli in Illyria having slain their
king, sent to their brethren in Thule (Scandinavia) for a descendant
of the blood royal. During his journey however they accepted another
king from the hands of Justinian. This person and their alliance with
the emperor they renounced upon the arrival of the prince from the
North. Procop. Bell. Got. ii. 15. “Reges ex nobilitate, duces ex
virtute summit.” Tac. Germ. vii. “Magna patrum merita principis
dignationem etiam adolescentulis assignant.” Ibid. xiii. Although mere
boys might be kings, they could hardly be _duces_, in the old Teutonic
sense.

Footnote 198:

Möser, Osnabrückische Geschichte (1780), 1^{er} Abschn. § 8. “Solche
einzelne wohner waren Priester und Könige in ihren Häusern und
Hofmarken,” etc. See his references to Tac. Germ. x. etc.

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The whole subject must be considered in one of two ways: with reference, namely, to a man living alone with his family, or to the same man and family, in a bond of union with others, that is in the _state_.

Could we conceive a permanent condition of society, such that each particular family lived apart, without connection or communion with others, we must admit the inevitable growth of a patriarchal system, of which the eldest member of the family would be the head; a system similar to that which we do find described as prevailing in the wandering family of Abraham. But such a condition could only exist at a period of time, and in a state of the earth, which admitted of frequent migration, and while the population bore a small proportion to the means of support, perhaps even in countries where water is of greater value than land. Thus the moment the family of Abraham became too numerous, and his herdsmen found it necessary to defend their wells and pastures against the herdsmen of Lot, a separation took place and the Scheiks parted, according to the provisions of a solemn compact, that there might not be strife between them[199]. But, setting aside the mysterious purposes for which the race of Abraham were made wanderers, and which impress an exceptional character upon their whole history, it is clear that even they were surrounded by a society, whose conditions were totally different from any that could have existed in Germany. They fled from the face of a depraved cultivation, prevalent in the cities, and they were sojourners only from place to place, till the fulness of time, when they were to found the normal theocracy of the world.

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Footnote 199:

Genesis xiii. 6, _seq._

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To a certain degree they resembled the squatters in the backwoods of America; like them, they established a law for themselves, and acted upon it:—with the nature of that law, divine or human, we have nothing to do, for the purposes of this inquiry:—in this sense, indeed, they could be kings and priests in their own house; but so are, or were, the North American _Regulators_, who, in their own families and among all over whom they could establish their power, acted as judges, and both promulgated and executed a law which was necessary to their very existence in the wilderness.

But I find it impossible to admit that the origin of our Germanic nations is to be found in any such solitary households or families; were it true, as Möser appears to argue[200], of some parts of Westphalia, it would not be so of other districts in southern Germany, as he indeed admits[201], and, particularly, it would not be true of England. In these two cases there can be no doubt that some kind of military organization preceded the peaceful settlement, and in many respects determined its mode and character[202]. But, even if we admit to the fullest extent, the doctrine of solitary settlements, we must still contend that these are, in their very nature, temporary; that they contain no possible provision for stability, in short that they are excluded by the very idea itself of a state; yet it is as a member of a state that man exists, that he is intended to exist[203], and unless as a member of a state, he is incapable of existing as a man. He can as little create a language as create a state: he is born to both, for both, and without both he cannot exist at all.

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Footnote 200:

Osnab. Gesch. i. § 2.

Footnote 201:

Ibid. i. §. 7.

Footnote 202:

There cannot be any doubt respecting England, where the Germanic race
are not autochthonous. The organization of the Suevi may be learnt
from Caesar (Bell. Gall. iv. 1, 2, 3), and Möser very justly observes
that the Swabian law must necessarily have differed from the Saxon.
Osnab. Gesch. i. § 7. So, to a certain degree, must the Anglosaxon
from both.

Footnote 203:

Aristotle’s Politics, book i. cap. 1. Dahlmann, Politik, § 1, 2, 3.

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Each single family then is a state: two, three or four families are a state, under larger conditions. How are these last to be settled?

Where a number of independent households are thinly dispersed over a portion of the country, their reciprocal relations and position will probably be more or less of the following kind.

Some arrangement will exist for the regulation of the terms on which the use of the woods, waters and common uncultivated land may be enjoyed by all the settlers: it is even possible that they may have some common religious ceremonies as the basis of this arrangement[204]. But further than this there need be no union or mutual dependence; each solitary homestead is a state by itself, possessing the _jus belli_; in no federal relation to, and consequently in a state of war with, every other household, even though this right of war should not be in active operation at any given moment[205].

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Footnote 204:

It is of course extremely difficult to conceive this apart from the
existence of a common priesthood; but such a priesthood is already the
commencement of a regular state.

Footnote 205:

In such a case, power or force being the only term of reference, each
household will be determined by that alone in its intercourse with
others. If A wants a slave, he will war upon and take B, if he can:
but to prevent this, B and C will unite: so that at last a regulated
union is found best for all parties, in respect to themselves as a
community, and against all other communities.

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In his own household every man may bear rule, either following his own arbitrary will, or in accordance with certain general principles, which he probably recognizes in common with his neighbours. He may have a family worship of his own, of which he will be the chief priest[206], and which worship may or may not be consistent with that of his neighbours. If he is troublesome to them, they may root him out, slay or enslave him, do with him what seems good in their eyes, or whatsoever they have power to do. If he thrives and accumulates wealth, they may despoil him, or he oppress them,—all, however, _jure belli_, for there can be no _jus imperii_ in such a case.

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Footnote 206:

Tac. Germ. x. “Si publice consuletur, Sacerdos civitatis, _sin
privatim, ipse paterfamiliae, precatus Deos_....” This seems to
indicate, at the commencement, an independent priestly power in the
paterfamilias. Compare the remarkable history in Judges, cap. xvii,
xviii.

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This, however, cannot be the normal state of man. The anxious desire, it might almost be called instinctive yearning, to form a part of a civilized society, forbids its continuance, not less than the obvious advantage of entering into a mutual guarantee of peace and security. The production of food and other necessaries of life is the first business of men: the attempt to take forcible possession of, or to defend, accumulated property, presupposes the accumulation. While the land and water are more than sufficient for the support of the population, the institutions proper to peace will prevail. It is inconceivable, and repugnant to the very nature of man, that such institutions should not be established the moment that two or more separate families become conscious of each other’s existence[207]: and in respect to our Germanic forefathers, we find such in full vigour from their very first appearance in history.

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Footnote 207:

The only place where I can admit of such solitary settlements is
Scandinavia, and even there they must have formed the exception, not
the rule. See Chap. II. p. 68.

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Some of the institutions essential to the great aim of establishing civil society at the least possible sacrifice of individual freedom—such as the _Wergild_, the _Frank pledge_, etc.—will be investigated in their proper places: they seem to offer a nearly perfect guarantee for society at an early period. But for the present we must confine ourselves to the subject of personal rank: and as the centre and groundwork of the whole Teutonic scheme is the individual freeman, it is with him that we must commence our investigation.

The natural divisions into which all human society must be distributed, with respect to the beings that form it, are the _Free_ and the _Unfree_[208], those who can protect themselves and those who must be in the protection of others. Even in the family this distinction must be found, and the wife and son are unfree in relation to the husband and the father; they are in his _mund_. From this mund the son indeed may be emancipated, but not the wife or daughter: these can only change it; the wife by the act of God, namely the death of the husband; the daughter by marriage. In both cases the mund passes over into other hands[209].

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Footnote 208:

“Summa itaque divisio personarum hæc est, quod omnes homines aut
liberi sunt aut servi.” Fleta, bk. i. cap. 1. “Est autem libertas,
naturalis facultas ejus, quod cuique facere libet, nisi quod de jure
aut vi prohibetur.” Ibid. cap. 2.

Footnote 209:

See Fleta, bk. i. cap. 5, 6, 7, 9.

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Originally the Freeman is he who possesses at least as much land as, being tilled, will feed him, strength and skill to labour, and arms to defend his possession. Married to one free woman who shares his toils, soothes his cares, and orders his household, he becomes the founder of the family—the first unit in the state: the son who springs from this marriage, completes the family, and centres in himself the blood, the civil rights and the affections of his two progenitors. It is thus, through the son, that the family becomes the foundation of the state[210].

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Footnote 210:

It is probably in this sense that the Hindu Institutes assert, “Then
only is a man perfect when he consists of three persons united, his
wife, himself, and his son.” Manu, ch. ix. 45.

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The union of a greater or less number of free heads of houses upon a district sufficient for their support, in a mutual guarantee of equal civil rights, is the state itself: for man is evidently formed by God to live in a regulated community, by which mode of life alone he can develope the highest qualities of the nature which God has implanted in him; and the first community is the union of free men for purposes of friendly intercourse and mutual aid, each enjoying at the hands of every other the same rights as he is willing to grant to every other, each yielding something of his natural freedom in order that the idea of state, that is of orderly government, may be realized. For the state is necessary, not accidental. Man not living in a state, not having developed and in some degree realized the idea of state, is, in so far, not man but beast. He has no past and no future: he lives for the day, and does not even accumulate for the days to come: he lives, thinks, feels and dies like a brute. For man is free through the existence, not the absence, of law; through his voluntary and self-conscious relinquishment of the power to do wrong, and the adoption of means to counteract and diminish his own tendency to evil. The amount of personal liberty to be given up is the only question of practical importance, but from the idea of Freedom itself results the law, that this amount must be in all cases a minimum.

The ideas of freedom and equality are not, however, inseparable: a nation of slaves may exist in sorrowful equality under the capricious will of a native or foreign tyrant: a nation of free men may cheerfully, wisely and happily obey the judge or the captain they have elected in the exigencies of peace and war. Hence the voluntary union of free men does not exclude the possibility of such union being either originally based upon terms of inequality, or becoming sooner or later settled upon such a basis. But, as the general term is the freedom, I take this as the unity which involves the difference; the noble is one of the freemen, and is made noble by the act of the free: the free are not made so by the noble.

By these principles the divisions of this chapter are regulated.

The freeman is emphatically called Man, ceorl, _mas_, _maritus_; wæpned man, _armatus_; after the prevalence of slavery, he is, for distinction, termed _free_, frigman, frihals, i. e., _free neck_, the hand of a master has not bent his neck[211]; but his oldest and purest denomination is ceorl. Till a very late period the Anglosaxon law knows no other distinction than that of ceorl and eorl[212]. The Old Norse Rígsmál which is devoted to the origin of the races, considers Karl as the representative of the freeman. His sons are Halr, Anglosaxon, Hæle, _vir_; Drengr, Anglos. Dreng, _vir_; þegen, Anglos. þegn, _vir fortis_, _miles_, _minister_; Höldr, Anglos. hold, _pugil_, _fidelis_; Búi, Anglos. gebúr, _colonus_; Bondi, Anglos. bonda, _colonus_; Smiðr, Anglos. Smið, _faber_; Seggr, Anglos. Secg, _vir_. Among the daughters are Snót, Brúðr, Flioð and Wíf. Many of these terms yet survive, to represent various classes of freemen in almost every Germanic country[213].

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Footnote 211:

The converse is _collibertus_, _qui collum liberavit_, _culvert_,
_coward_.

Footnote 212:

Swá eác we settað be eallum hádum, ge ceorle, ge eorle: “so also we
ordain concerning all degrees of men, churl as well as earl.” Leg.
Ælfr. § 4.

Footnote 213:

Conf. Grimm, Deut. Rechtsalt. 283. The Latin laws of the Middle Ages
usually adopt the words, _Liber_, _liber homo_, _ingenuus_. In
reference to the noble, he is _mediocris_, _minofledus_,
καταδεέστερος; in respect of his wife, he is _baro_.

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The rights of a freeman are these. He has land within the limits of the community, the éðel or hereditary estate (κληρος, hæredium, hýd) by virtue of which he is a portion of the community, bound to various duties and graced with his various privileges. For although his rights are personal, inherent in himself, and he may carry them with him into the wilderness if he please, still, where he shall be permitted to execute them depends upon his possession of lands in the various localities. In these he is entitled to vote with his fellows upon all matters concerning the general interests of the community; the election of a judge, general or king; the maintenance of peace or war with a neighbouring community; the abrogation of old, or the introduction of new laws; the admission of conterminous freemen to a participation of rights and privileges in the district. He is not only entitled but bound to share in the celebration of the public rites of religion, to assist at the public council or Ðing, where he is to pronounce the customary law, by ancient right, and so assist in judging between man and man; lastly to take part, as a soldier, in such measures of offence and defence as have been determined upon by the whole community. He is at liberty to make his own alliances, to unite with other freemen in the formation of gilds or associations for religious or political purposes. He can even attach himself, if he will, to a lord or patron, and thus withdraw himself from the duties and the privileges of freedom. He and his family may depart whither he will, and no man may follow or prevent him: but he must go by open day and publicly, (probably not without befitting ceremonies and a symbolical renunciation of his old seats,) that all may have their claims upon him settled before he departs[214].

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Footnote 214:

“Si quis liber homo migrare voluerit aliquo, potestatem habeat infra
dominium regni nostri, cum fara sua, migrare quo voluerit.” Leg. Roth.
177. The free folk on the Leutkircher Heide “are free and shall have
no _nachjagende Herr_,” (_i. e._ Lord hunting after them, the _Dominus
persequens_ of our early law-books). Lünig. Reichsarch. p. spec. cont.
4. p. 803. See further Grimm, Deut. Rechtsalt. 286, etc.

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The freeman must possess, and may bear arms; he is born to them, _schildbürtig_; he wears them on all occasions, public and private, “nihil neque publicae neque privatae rei nisi armati agunt[215];” he is entitled to use them for the defence of his life and honour; for he possesses the right of private warfare, and either alone, or with the aid of his friends, may fight, if it seems good to him. This right is technically named fǽðe, _feud_, from fá, _inimicus_; and to be exposed to it is fǽðe beran, _to bear the feud_[216]. If he be strong enough, or ill-disposed enough, to prefer a violent to a peaceful settlement of his claims, he may attack, imprison and even slay his adversary, but then he must bear the feud of the relations.

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Footnote 215:

Tac. Germ. xiii. A century ago gentlemen wore swords in France and
England, and courtiers still wear them. The Hungarian freeman
transacts no public business unarmed.

Footnote 216:

Lex. Fres. ii. 2.

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Beside the arms he wears, the sign and ornament of his freedom is the long hair which he suffers to float upon his shoulders or winds about his head[217].

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Footnote 217:

There were differences in this respect among the different races, and
in some, the long hair may have been confined to the noble families.
Among the Saxons, however, it seems that it was also used by the free:
gif freo wíf, locbore, lyswæs hwæt gedó, _if a free woman, that wears
long hair, do any wrong_. Lex Æðelb. § 73. To cut a freeman’s hair was
to dishonour him. Lex Ælfr. § 35. See also Grimm, Deut. Rechtsalt. pp.
240, 283. Eumenius speaks of the Franks as “prolixo crine rutilantes.”
Paneg. Constant. c. 18.

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His proper measure and value, by which his social position is ascertained and defended, is the wergyld, or _price of a man_. His life, his limbs, the injuries which may be done to himself, his dependants and his property, are all duly assessed; and though not rated so highly as the noble, yet he stands above the stranger, the serf or the freedman. In like manner his land, though not entirely exempt from charges and payments for public purposes, is far less burthened than the land of the unfree. Moreover he possesses rights in the commons, woods and waters, which the unfree were assuredly not permitted to exercise.

The great and essential distinction, however, which he never entirely loses under any circumstances, is that he aids in governing himself, that is in making, applying and executing the laws by which the free and the unfree are alike governed; that he yields, in short, a voluntary obedience to the law, for the sake of living under a law, in an orderly and peaceful community.

In the state of things which we are now considering, the noble belongs to the class of freemen; out of it he springs, in all its rights and privileges he shares, to all its duties he is liable, but in a different degree. He possesses however certain advantages which the freeman does not. Like the latter he is a holder of real estate; he owns land in the district, but his lot is probably larger, and is moreover free from various burthens which press upon his less fortunate neighbour. He must also take part in the Ðing, _placitum_, or general meeting, but he and his class have the leading and directing of the public business, and ultimately the execution of the general will[218]. The people at large may elect, but he alone can be elected, to the offices of priest, judge or king. Upon his life and dignity a higher price is laid than upon those of the mere freeman. He is the unity in the mass, the representative of the general sovereignty, both at home and abroad. The tendency of his power is continually to increase, while that of the mere freeman is continually to diminish, falling in the scale in exact proportion as that of the noble class rises.

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Footnote 218:

“De minoribus rebus principes consultant; de majoribus omnes. Ita
tamen ut ea quoque quorum penes plebem arbitrium est, apud principes
pertractentur.” Tac. Germ. xi. Something similar to this probably
prevailed in the Dorian constitution, and in the old Ionian before the
establishment of the great democracy. The mass of the people might
accept or reject, but hardly, I think, debate the propositions of the
nobles. After all the πρόβουλοι seem necessary in all states. See
Arist. Polit. iv. § 15.

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The distinctive name of the noble is >Ëorl[219]. Æðele, _nobilis_, and Ríce, _potens_, denote his qualities, and he bears other titles according to the accidents of his social position: thus ealdor, ealdorman, _princeps_; wita, weota, _consiliarius_; optimas; _senior_; _procer_; _melior_, etc. In addition to his own personal privileges, the noble possesses in the fullest extent every right of the freeman, the highest order of whose body he forms.

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Footnote 219:

In the Rígsmál, Jarl is the progenitor of all the noble races, as Karl
is of the free.

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