120 FEUDALISM Feudalism in a broad sense may be taken to mean a social organization based on the ownership of land, and per sonal relations created by the ownership of land, a state of things in which public relations are dependent on private relations, where political rights depend on landed rights, and the land is concentrated in the hands of a few. Feudalism in this sense has existed, and perhaps may still exist, in various parts of the world ; but the feudal system par excellence is always understood to mean that special form of feudalism which was developed on the soil of Gaul by the conquering Franks. England had a feudalism of its own, developed simultaneously but independently through the operation of similar causes. Just as the insular feudalism had reached its maturity, the continental feudalism was brought over ready-made by the Normans, and superimposed on the basis of the domestic product. Thus our social state exhibits elements derived from both forms of feudalism, in conjunction with fossil relics of still earlier institutions. Both varieties of feudalism may be regarded as transition states, intervening between the rough wild liberty of primitive society based on individualism and the carefully organized liberty of modern society based on the effectual supremacy of the law. Both forms of feudalism had their roots in the organiza tion of primitive Germany. A glance at that system is desirable for a thorough comprehension of our subject ; it will help us to realize what feudalism was, if not to discern how it grew up. The leading characteristics of the Teutonic polity were individual liberty and tribal autonomy. Each tribe or canton is theoretically independent, and entitled to manage its own concerns ; within the tribe all free heads of houses are politically equal, and entitled to a voice in the affairs of the community. Each free villager has his share of the tribe lands, his homestead, his proper tion of the arable land, with corresponding rights over the forest and pasture lands. The shares are not necessarily equal, as social distinctions exist, and are fully recognized by the law ; but whether large or small, the shares are held on the like terms of participation in all public duties, chief of which are the obligations of attendance in the communal meetings and in the host. The shares so held " bore among the northern nations the name of Odal or Edhel." 1 Whether any etymological connexion exists between the words odal and alod " may be questioned, but their signification as applied to land is the same : the alod is the hereditary estate derived from primitive occupation, for which the owner owes no service except the personal obligation to appear in the host and in the council." 2 As above intimated, political equality was not held incompatible with social inequality ; the population was divided into three classes, rated at different values in the legal tariff. First came the nobilis, eorl, or cetheling, the man distinguished by ancestral wealth and reputed purity of blood ; next ranked the simple freeman, the ingenmis, frilingus, or ceorl ; at the bottom of the social scale stood the serf or slave (colonus lazzus, Icet, servus, theoiv). An injury done to an eorl or his property would cost the offender twice or three times as much as the same injury done to a ceorl ; at an equal distance below the ceorl ranks the slave, but the compensation for injury done to him of course goes to his master. The official magistracy (principes) are selected from the ranks of the nobility ; very distinguished parentage will at times entitle a mere lad to high office, but this is rare. 3 Superior birth gives weight la premiere fois dans une charte de Charles le Gros, en 884." Up to that date bcneficium is used apparently to designate the same thing. Guizot, Civil. France, iv. 41. Cf. Robertson, Scotland under her early Kings, ii. 454. 1 Also known as Hube in Germany ; in England and France as mansus, hide, cassata, terra familite, &c. 2 Stubbs, sup., 53. 3 Tacitus, Germ., ch. 13. and precedence in the national councils ; above all, where a powerful tribe or confederation of tribes think fit to exalt their dignity by conferring regal honours on their chief, care is taken to select the king from the family of noblest birth. But in critical times the instinct of a free people taught that the claims of birth must give place to more weighty considerations : whoever might be allowed to rule in time of peace, on the field of battle only the man of tried ability could take the lead. 4 Judicial and political business was transacted in the various national assemblies held at fixed times, " generally at the new or full moon." Local questions and matters of police were determined in the meetings of the mark or township (vicus, dorjf) ; the higher criminal jurisdiction and questions of a political nature were reserved for the malls or gemotes of the hundred, canton, or tribe (gau, pagus, gens); "there was no distinction of place ; all were free, all appeared in arms." The order of business was settled beforehand by the chiefs in com mittee , a leading elder would open the debate ; others followed as the spirit moved them ; the people decided as they thought fit. "Opposition was expressed by loud shouts, assent by the striking of spears, enthusiastic applause by the clash of spear and shield." 5 The analogy of popular meetings in other ages and countries will warrant the belief that under ordinary circumstances the people would be greatly swayed by the policy of their leaders, but the fact remains that the ultimate appeal was to the people. So with the local judi cial meetings : the position of the elected princeps is " rather that of president than of judge ; " all the free men sit as his assessors. "Doubtless they both declared the law and weighed the evidence." The authority of the princeps was in all cases limited : " De minoribus rebus principes consultant ; de majoribus omnes." 6 Even the prerogatives of the monarchical chiefs were subject to strict limitations. Their position was one of high honour but not of irresponsible power. The practical influence of the chief, whether exalted to royal dignity or not, depended largely upon the strength of his comitatus, or household retinue. This institution, " one of the strangest but most lasting features " of early Aryan civilization, was an arrangement " partly private and partly public in its character," which served to furnish " a sort of supplement to an otherwise imperfect organization." 7 The comitatus was a voluntary bond of partial vassalage, intended for mutual protection and support, by which a freeman, even a man of noble birth, attached himself to a more powerful lord (hlafwd, 8 princeps). At the table of his lord the free companion, as he was called (comes, gesith), found a comfortable seat ; from his lord he received his equipment for war or the chase (Jieregeatwe, heriot), which reverted to the lord at his death. In return he was bound to espouse the cause of his lord as against all men and by all means. The position of a favoured gesith was one of comfort and social importance ; but involving, as it did, the surrender of all freedom of individual action, it probably entailed a certain diminution of political status. 9 The tie of the comitatus, when coupled with the tenure of land, gives us the germ from which the whole feudal system was developed. 10 It has been commonly held, apparently on the authority of Montesquieu, that the Frankish con quests in Gaul were effected by independent nobles fighting each with a powerful comitatus at his back : that the lands
- Tacitus, Germ., ch. 7. This, however, would hardly apply to the
case of a monarchical tribe. 5 Stubbs, sup., 29 ; Tacitus, sup., ch. 11-13. 6 Tacitus, sup. " Stubbs, sup. , 25. 8 Literally "Loaf-giver." Kemlle. Tacitus, sup., 13-14. On the whole subject see Kemble s Saxons, i. 168 ; Stubbs, sup., 24 ; Freeman s Norm. Conquest, i. 92. 10 "Ainsi chez les Germains il y avoit dcs vassaux, et non pas des fiefs,"" Montesq., Esprit des Lois, xxx. iii.
