LECTURE IV.

The companions of a German prince—The constitution of a German kingdom—The condition of property in Germany—The methods followed there of distributing justice, and the nature of the punishments inflicted on criminals.

Before we can be fully acquainted with all the several constituent parts of the German state, it will be necessary to form a just notion of those who were called the companions of the king or prince; who, being chosen out of the most robust and daring of the youth, and having attached themselves particularly to the person of their sovereign, were his chief defence in war, and the great support of his dignity in times of tranquillity. A few words of Tacitus will set this institution of theirs in a clear light. Speaking of their princes, he says, “This is their principal state, their chief strength, to be at all times surrounded with a numerous band of chosen young men, for ornament and glory in peace, for security and defence in war; nor is it among his own people only, but also from the neighbouring communities, that a prince reaps high honour, and great renown, when he surpasses in the number and magnanimity of his followers; for such are courted by embassies, and distinguished with presents, and by the terror of their fame alone often dissipate wars. In the day of battle, it is scandalous for the prince to be surpassed in feats of bravery, scandalous to the followers to fail in matching the valour of the prince. But it is infamy during life, and an indelible reproach to return alive from a battle wherein their prince was slain. To preserve him, to defend him, and to ascribe to his glory all their gallant actions, is the sum, and most sacred part of their oath. For from the liberality of their prince they demand and enjoy that war-horse of theirs, and that terrible javelin, dyed in the blood of their enemies. In place of pay, they are supplied with a daily table and repasts, though grossly prepared, yet very profuse. For maintaining such liberality and munificence, a fund is furnished by continual wars and plunder[58].”

Here, then, are to be seen most plainly the rudiments of that feudal connection, that afterwards subsisted between the king and all his military vassals, and of the oath of fealty which the latter took to him. To his person, and to aid him in all he undertook, his companions were bound, during his and their lives, by the strictest ties; but as to other freemen, who lived apart in their villages, the bonds of allegiance were much more loose. This rude people had no notion of what almost every civilized nation hath laid down as a maxim, that being born in, and protected by a society, creates a durable obligation. They served, indeed, in consideration of the lands they held, in all defensive wars; and in all offensive ones, which either were generally approved of, or in which they chose particularly to engage themselves. Nay, so great was the notion of particular independence among these people, that they thought that all of the freemen or soldiers, except the comites, who had by oath bound themselves to the person of the king for life, were at liberty to engage in expeditions, that neither the king, nor the majority of the nation consented to; and that under leaders of their own choosing. For as, at their general meetings, war was necessarily the most common subject of deliberation, if any one proposed an enterprize, all who approved the motion were at liberty to undertake it; and if the king declined commanding therein, they chose a general capable thereof; and when, under his conduct, they had succeeded, they either returned, and divided the spoil, and became subjects of their former king as before; or, if they liked the country they had subdued better, settled there, and formed a new kingdom, under their victorious leader. Duces ex virtute sumunt, saith Tacitus; a practice hard to be accounted for among nations exposed to continual danger, and which must be thereby frequently weakened, on any other supposition, than that it was first introduced to disburthen a narrow territory, overstocked with inhabitants. This effect, however, it must have had, that their kings were rendered more martial, and obliged equally by their glory and interest, to command in every expedition, that was agreeable to any considerable number of their subjects.

From this custom Montesquieu very ingeniously conjectures, that the Franks derived their right of conferring on their mairs de palais the power of war, at a time, when, by the long continued slaughters of the royal family, they were obliged to place the crown on the heads of minors, or of princes as incapable as minors; a power that enabled them, by degrees, to usurp the civil administration, and at length to transfer the title also of royalty to a new race, in the person of Pepin[59].

Such, then, was the face of a German state. A king chosen for his illustrious extraction, attended by a numerous body of chosen youth, attached to his service in war by the strictest bonds of fidelity; a number of freemen divided into villages, over each of which was an elective chief, engaged, likewise, to military duty, but in a laxer manner; and under all these were the servants, who occupied the greatest part of the land, and supplied the freemen with the necessaries of life.

It is time now to attend a little to their domestic policy, and to inform ourselves what were the rights of each of these orders in the time of peace. The king, we are assured by Tacitus, was far from being absolute[60]. He was judge, indeed, among his own peculiar vassals, who lived on his demesne, as the other chieftains were in their respective districts. He presided in their general assemblies, and was the first who proposed matters for their deliberation. His opinion had great weight, indeed, from his rank and dignity, but his power was rather that of persuasion than of command. The royal family was no otherwise distinguished from others, than as their personal merit acquired influence, or their high birth and capability of succession engaged respect. The companions of the prince were highly honoured for their faithful attachment to him, and their valourous atchievements in war; but, as to rights and privileges, were on the common footing of other freemen. The only distinction was between the chieftains, or lords of the villages, and the vassals who were under their jurisdiction. The chieftains were judges in their respective districts; but, to prevent partiality, to each of them were assigned an hundred persons, chosen among the populace, to accompany and assist him, and to help him at once with their authority and their counsel. And this institution was, in all probability, the original of the jurisdiction of the pares curiæ in the feudal law. Another, and a very great check on their chieftains, was their being elective, and consequently amoveable every year, if their conduct was displeasing either to prince or people. These elections, as well as those of their assessors, were made in their assemblies; where, indeed, every thing of any consequence was transacted, and therefore they deserve to be particularly treated of.

These conventions, then, unless they were summoned on extraordinary occasions, were regularly held once a month, on certain stated days; but such was the impatience of this people of controul, or any regularity of proceeding, that Tacitus observes, that frequently two or three days were spent before they were all assembled. For in these meetings, every freeman, that is, every soldier, had an equal voice. They appeared all in arms, and silence was proclaimed by the priests, to whom also it belonged to keep the assembly in order, and to punish all disturbers of its regularity. The king in the first place was heard, next such of the chiefs as had any thing to propose, and lastly others, according to their precedence in age, nobility, military virtue, or eloquence. If the proposition displeased, they rejected it by an inarticulate murmur. If it was pleasing, they brandished their javelins; the most honourable manner of signifying their consent being by the sound of their arms. But this approbation of the general assemblies was not of itself sufficient to establish a resolution. As the sudden determinations of large multitudes are frequently rash, and injudicious, it was found necessary to have what they had so determined re-considered by a select body, who should have a power of rejecting or confirming them. For this purpose the chieftains were formed into a separate assembly, who, in conjunction with the king, either disannulled, or ratified what had been agreed to by the people at large[61].

Such then was the constitution of a German kingdom, a constitution so nearly resembling our own at present, as at first view would tempt any one to think the latter derived immediately from thence. Yet this was not the case. With respect to the Saxon times, as far as we can judge from the few lights remaining, the form of government seems very nearly to resemble this account which Tacitus gives us; but, for two centuries, at least, after the conquest, the English constitution wore a face purely feudal. The sub-vassals had long lost the privilege of being members of the general assembly, from causes that shall be hereafter attempted to be explained; and the whole legislative power was lodged in the king and his immediate vassals, whose interests frequently clashing, and creating continual broils, it was found necessary, for the advantage both of the sovereign and nobles, that a proper balance should be formed. Accordingly, much at the same time in France, Spain, and England, namely, in or about the thirteenth century, the happy method of readmitting the third estate, by way of representation, was found out, with an addition very favourable to the natural rights of mankind, that traders and artizans, who before had been treated with the most sovereign contempt, were now permitted to make part of the general assembly, and put on an equal footing with other subjects[62].

But to return to the assembly of German chieftains, or their house of lords, as I may call it; besides a share in the legislative power, they were likewise a council, to assist the king in the execution of the resolutions of the general assembly, and determined solely by their own authority all matters of lesser moment, that did not immediately affect the whole community. De minoribus rebus principes consultant, de majoribus omnes.

Many other things were likewise transacted in these general assemblies, as particularly the admission of a new member into the political society. When a youth was judged capable of bearing arms, he was introduced by his relations into the assembly; and if they testified his capacity of wielding them, he was dignified with a lance and javelin by one of the chieftains, or by his father, or some other near relation. This was his toga virilis. Then, and not before, was he emancipated from the family he belonged to, was permitted to become a soldier, and in consequence admitted to all the privileges of a free subject. A practice that, in after ages, gave rise to the solemn and public manner of creating knights[63].

This, likewise, was the proper place of accusing criminals of public crimes, namely such as were looked upon by those people particularly to affect the whole society; neither was it unusual, likewise, to bring hither accusations of private wrongs, if the party injured was apprehensive of partiality in his own canton.

But the business of greatest moment, next to legislation, was, that, once in a year, in these assemblies, each village, with the approbation of the king, chose their chiefs, and their hundred assistants[64]. Here it was they either received a testimony of their good behaviour, by being continued in office another year, or saw themselves reduced to the rank of private subjects, if their conduct had not been acceptable. At the same time were the lands distributed to the several chieftains, which leads me to say something on the next head, their regulations with respect to property; as to which their institutions were very singular, and totally different from those of all ancient, as well as modern nations.

All property being then naturally divisible into two kinds, moveable and immoveable, of the first these people had but a scanty share, their whole wealth consisting in their arms, a few mean utensils, and perhaps some cattle. The use of gold and silver, in the way of commerce, was utterly unknown to them, except to a few of their nations, namely such as lived near the Rhine, and had acquired some by dealing with the neighbouring Gauls. Consequently, there was no such thing as an accumulation of wealth among them, or any great disparity in the distribution of this kind of property, over which each had uncontrouled dominion during his life. But as testaments, or last wills, were unknown amongst them, upon death, the right went according to the plain dictates of nature. Tacitus saith, “To every man his own children were heirs and successors. For want of them, his nearest of kin, his own brothers, next his father’s brothers, or his mother’s.” Whatever there was, was divided among the males next in degree; save that to each of the females, a few arms were assigned, the only dowry in use among those people; a dowry which, as Tacitus saith, signified that they were to share with their husbands in all fortunes of life and death. Accordingly, they constantly attended them to the field, were witnesses of their valour, took care of the wounded[65]; and often, if their party had the worst, they ran into the ranks, and by their presence and danger, animated the men to renew the charge.

But with respect to real or landed property, the case was very different. Here a man had only the use, or enjoyment of the profits; and that, too, but a temporary one. The real property, or dominium verum, was lodged in the community at large; and was, at the end of every year, cantoned out, and distributed to the several tribes of the people; and the portion assigned to each was after that subdivided to the respective individuals; who by these means were perpetually removed from one part of the territory to another; nor could any man tell in what place his lot was to fall the next year[66]. And this custom, absurd as it seems to us, they were so fond of, as to continue for some time after they settled in the Roman territories; until, growing by degrees acquainted with the conveniencies of life, a change of manners was introduced, and they wished for more settled habitations. Then came into use grants for terms of years, after for life, and lastly, estates descendible to heirs, which are those we, properly speaking, called fiefs. This continual removal of habitation, so intolerable to a people any way accustomed to comfortable dwellings, was no manner of inconvenience to them. Their little substance was easily removed, and two or three days were sufficient to erect a sorry hovel, which contented the wishes of the greatest among them[67]. But their passion for this constant change of place seems derived from that condition which I have already observed they were in, namely, a middle state between hunters and shepherds; and that they still retained that practice, was an evidence that they had not been long reclaimed from a savage life. Tacitus indeed says, that, in the intervals of war, they were not much employed in hunting, but lived a lazy and inactive life. This, however, I apprehend, must be understood only of a few nations, nearest to the Romans, where game was not so plentiful, and not of all the Germans in general: for it is certain the Franks had a strong passion that way, after they were settled in Gaul; and from them the plan of the forest laws, so justly complained of in England, after the conquest, was derived. And true it is, that whole nations, as well as individuals, were possessed with this rambling inclination; and that, not always with a view of settling in a better country. If the Germans changed their barren wilds for the warm sun and fertile climate of Gaul, we are assured by the same authority, that many tribes of the Gauls, on the other hand, removed to the forests of Germany. If Jornandes tells us, that the Goths quitted the bleak and barren mountains of Scandinavia for the pleasant banks of the Danube, he likewise informs us, that, afterwards, they returned back into their native country.

As to their methods of administering justice, I have already observed, that their chieftains, in the several districts, assisted by their assessors, were their judges. Before them all causes were brought, which were not discussed in their general assemblies; but as to the manner of investigating the truth, all the German nations did not agree. Nay the Salian Franks differed considerably from their brethren, the Ripuarian Franks. If the judge, or his assessors, or any of them, had knowledge of the fact in dispute, which often happened, as these people lived much in public, and in the open air, they gave sentence on such their knowledge. This was common to them all; but if there was no such knowledge in any of the pares curiæ, as I may call them, and the fact in question was denied, the Salians proceeded thus: The accuser or plaintiff produced his witnesses, the accused did the like; and on comparing the evidence on both sides, the judges gave sentence. If the plaintiff had no witnesses, the defendant, on his denial, was dismissed of course. If the witnesses for the plaintiff failed in fully proving the point, and yet their testimony was such, as induced a presumption which the other party was not able to remove, the trial was referred to the ordeal[68]. That of boiling water was the most usual among them. The manner was thus: The person suspected plunged his hand into the boiling water, which was afterwards carefully closed up, and inspected at the end of three days: If no sign of the scalding then appeared, he was acquitted; if otherwise, he was esteemed guilty[69].

It is strange that any people should, for ages, make use of such a method, which a very little reflection, or common experience, might easily satisfy them had no manner of connection with guilt or innocence. But, besides the gross superstition of these nations, who thought the honour of providence concerned in the detection and punishment of criminals, Montesquieu hath given us another reason for this practice, which, whether just or not, for its ingenuity, deserves to be taken notice of. He observes, that the military profession naturally inspires its votaries with magnanimity, candour, and sincerity, and with the utmost scorn for the arts of falshood and deceit. This trial, then, he imagines calculated to discover plainly to the eye, whether the person accused had spent his whole life in the arts of war, and in the handling of arms. For if he had, his hands would thereby have acquired such a callousness, as would prevent any impression from the boiling water, discernible at that distance of time. He therefore was acquitted, because it was presumed he would not screen himself by a falshood. But if the marks appeared, it was plain he was an effeminate soldier, had resisted the force of education, and the general bent of his countrymen; that he was not to be moved by the spur of constant example, that he was deaf to the call of honour; and consequently such a person whose denial could have no weight to remove the presumption against him[70].

These were the methods of trial among the Salians, but the Ripuarian Franks, the Burgundians, and several other German nations acted very differently. No witnesses were produced among them on either side, but they contented themselves with what were called negative proofs; that is, the person accused swore positively to his own innocence, and produced such a number of his relations as the custom of the country required: or if he had not relations enough, the number was made up out of his intimate acquaintance: These were to swear that they believed his oath to be true, and upon this he was acquitted. But if he declined the oath, or could not produce a sufficient number of compurgators, he was found guilty; a practice that fully proves these nations were, when this method was introduced, a people of great simplicity and sincerity[71].

But as, by this means, every profligate person, with the assistance of a few others as wicked as himself, was sure to escape, the defects of this kind of trial introduced another, or rather revived an antient one, no less inconclusive. Antiently, the Germans had no judicatures for the decision of private wrongs; but each in person took his own satisfaction, and this introduced perpetual combats. When the new method of trial came in use, a party seeing his adversary ready to defeat his just demands, and screen his injustice with perjury, resorted to his antient right, refused to accept the oath, and appealed to the providence of God by the trial of battle: a method as absurd, indeed, as the former, but peculiarly adapted to the way of thinking of the Germans, who frequently, before they entered into a war, prognosticated the success of it from the event of a combat between one of their own nation, and a captive of the enemy[72]. This kind of trial gained ground among all the defendants of this ferocious people[73], and introduced itself at length among the Salians, who had it not at first, and who, by admitting positive proofs, had no need of it; and, though long fallen into disuse, hath left behind, its offspring, private duelling. It hath been long since observed, that this fashionable custom owed its origin to these northern nations, the ancestors of the present inhabitants of Europe, as no other nations, antient or modern, however martial or disposed to war, had any knowledge or practice of it; but it is undeniably evinced by this, that as a lie, above all other provocations, is the strongest, and what lays gentlemen of honour under an indispensible necessity of duelling, so were you lie the very words mutually given and received in old times, the accustomed form of joining issue by battle, after which neither party, without perpetual infamy and degradation from his rank, could recede.

I have taken the more notice of these four different methods of trial among the old Germans, as every one of them has been received into England. Concerning the first, the trial by witnesses, little need be said. As it is the fairest, and the justest, it has accordingly, pursuant to the practice of all civilized nations, prevailed over all the rest; and it is that, and that only, that we use at this day. But the ordeal also was in use among the Saxons, and continued some time after the Norman conquest; as appears, not only by the old records of the law, but from the famous story, whether true or false, of queen Emma, mother of Edward the Confessor, and the plow-shares[74]. The trial by negative proofs, though out of practice, is still in being, in what is called by us the wager of law; where, if a person is impleaded in an action of debt, on a simple contract, he may clear himself, by swearing he oweth it not, and by producing eleven others, who swear to their belief that he has deposed the truth[75]. Hence it has happened, that, for a long time past, actions of debt, in such cases, have not been brought, but another, called an action on the case, is the usual method, which admits the parties on both sides, as to the point of debt, vel non debet to an examination of witnesses. For the last, the trial by battle, our old books are full of it, in real actions; and although, to prevent the inconvenience and uncertainty of it, the grand assize was invented; yet was it in the tenant’s, that is, the defendant’s option, to choose which method of trial he pleased. The latest instance of joining issue by battle, I have met with, is in Dyer’s Reports, in the beginning of Elizabeth’s reign[76]; but by this time it was so much discouraged, that, by force of repeated adjournments, the parties were prevailed on to agree, and judgment was at length given upon the failure of one of the parties appearing on the day appointed for the combat.

When the truth, by some of the methods above-mentioned, was ascertained, judgment was to be given. Here it will be proper to observe, that, among these people, there were only two kinds of crimes, that were looked upon as public ones, and consequently capital. The first was treason, or desertion in the field, the punishment hanging; the second cowardice, or unlawful lust, for they were strict observers of the nuptial band, the punishment stifling in a morass, with an hurdle over them. It seems, at first view, surprising, that murder, which Tacitus assures us, from sudden gusts of passion, and intemperance in liquor, was very frequent, should not, as it so much weakened the strength of the nation, be considered as a criminal offence, and punished accordingly[77]. But a little reflection on their situation will reconcile us to it. The person slain was already lost to the society, and if every murder was a capital offence, the state would lose many of its members, who were its chief supporters. Besides, if the slayer had no hopes of mercy, nothing else could be expected than his desertion to their enemies, to whom he could be of infinite service, and to them of infinite detriment, from his knowledge of their strength and circumstances, and of the passes into their country, through the morasses and forests, which were their chief defence. Murder, therefore, like other lesser crimes, was atoned among those people, as it was among the ancient Greeks, who were in pretty similar circumstances, in the heroic times, as Ajax assures us in these words, in the ninth Iliad:

και μεν τις τε κασιγνητοιο φονοιο

Ποινεν, η του παιδος εδεζατο τεθνειωτος,

namely, by a satisfaction of cattle, corn, or money, to the persons injured, that is, to the next of kin to the deceased, with a fine to the king or lord, as an acknowledgment of his offence, and to engage the society to protect him against the future attempts of the party offended. These satisfactions were not regulated originally, nor fixed at any certain rate, but left to the discretion of the injured, or next of kin. However, if he appeared extraordinarily unreasonable, and refused what was judged competent, the society, upon payment of his fine to their head, took the offender into protection, and warranted his security against the attempts of the other party, or his friends. After these nations were settled in the Roman empire, these satisfactions for each offence were reduced to a certainty by their laws[78].

This is as much as I have thought necessary to observe at present, concerning the manners and customs of these people, while they remained beyond the Rhine. It will next be proper to see how far afterwards they retained them, and what alterations were introduced by their new situation.