CHAPTER VII.
OF THE LAWS AND INSTITUTIONS OF THE SAXONS.
Before we begin to consider the laws and constitutions of the Saxons, let us take a view of the state of the country from whence they are derived, as it is portrayed in ancient writers. This view will be the best comment on their institutions. Let us represent to ourselves a people without learning, without arts, without industry, solely pleased and occupied with war, neglecting agriculture, abhorring cities, and seeking their livelihood only from pasturage and hunting through a boundless range of morasses and forests. Such a people must necessarily be united to each other by very feeble bonds; their ideas of government will necessarily be imperfect, their freedom and their love of freedom great. From these dispositions it must happen, of course, that the intention of investing one person or a few with the whole powers of government, and the notion of deputed authority or representation, are ideas that never could have entered their imaginations. When, therefore, amongst such a people any resolution of consequence was to be taken, there was no way of effecting it but by bringing together the whole body of the nation, that every individual might consent to the law, and each reciprocally bind the other to the observation of it. This polity, if so it may be called, subsists still in all its simplicity in Poland.
But as in such a society as we have mentioned the people cannot be classed according to any political regulations, great talents have a more ample sphere in which to exert themselves than in a close and better formed society. These talents must therefore have attracted a great share of the public veneration, and drawn a numerous train after the person distinguished by them, of those who sought his protection, or feared his power, or admired his qualifications, or wished to form themselves after his example, or, in fine, of whoever desired to partake of his importance by being mentioned along with him. These the ancient Gauls, who nearly resembled the Germans in their customs, called Ambacti; the Romans called them Comites. Over these their chief had a considerable power, and the more considerable because it depended upon influence rather than institution: influence among so free a people being the principal source of power. But this authority, great as it was, never could by its very nature be stretched to despotism; because any despotic act would have shocked the only principle by which that authority was supported, the general good opinion. On the other hand, it could not have been bounded by any positive laws, because laws can hardly subsist amongst a people who have not the use of letters. It was a species of arbitrary power, softened by the popularity from whence it arose. It came from popular opinion, and by popular opinion it was corrected.
If people so barbarous as the Germans have no laws, they have yet customs that serve in their room; and these customs operate amongst them better than laws, because they become a sort of Nature both to the governors and the governed. This circumstance in some measure removed all fear of the abuse of authority, and induced the Germans to permit their chiefs[49] to decide upon matters of lesser moment, their private differences,—for so Tacitus explains the minores res. These chiefs were a sort of judges, but not legislators; nor do they appear to have had a share in the superior branches of the executive part of government,—the business of peace and war, and everything of a public nature, being determined, as we have before remarked, by the whole body of the people, according to a maxim general among the Germans, that what concerned all ought to be handled by all. Thus were delineated the faint and incorrect outlines of our Constitution, which has since been so nobly fashioned and so highly finished. This fine system, says Montesquieu, was invented in the woods; but whilst it remained in the woods, and for a long time after, it was far from being a fine one,—no more, indeed, than a very imperfect attempt at government, a system for a rude and barbarous people, calculated to maintain them in their barbarity.
The ancient state of the Germans was military: so that the orders into which they were distributed, their subordination, their courts, and every part of their government, must be deduced from an attention to a military principle.
The ancient German people, as all the other Northern tribes, consisted of freemen and slaves: the freemen professed arms, the slaves cultivated the ground. But men were not allowed to profess arms at their own will, nor until they were admitted to that dignity by an established order, which at a certain age separated the boys from men. For when a young man approached to virility,[50] he was not yet admitted as a member of the state, which was quite military, until he had been invested with a spear in the public assembly of his tribe; and then he was adjudged proper to carry arms, and also to assist in the public deliberations, which were always held armed.[51] This spear he generally received from the hand of some old and respected chief, under whom he commonly entered himself, and was admitted among his followers.[52] No man could stand out as an independent individual, but must have enlisted in one of these military fraternities; and as soon as he had so enlisted, immediately he became bound to his leader in the strictest dependence, which was confirmed by an oath,[53] and to his brethren in a common vow for their mutual support in all dangers, and for the advancement and the honor of their common chief. This chief was styled Senior, Lord, and the like terms, which marked out a superiority in age and merit; the followers were called Ambacti, Comites, Leudes, Vassals, and other terms, marking submission and dependence. This was the very first origin of civil, or rather, military government, amongst the ancient people of Europe; and it arose from the connection that necessarily was created between the person who gave the arms, or knighted the young man, and him that received them; which implied that they were to be occupied in his service who originally gave them. These principles it is necessary strictly to attend to, because they will serve much to explain the whole course both of government and real property, wherever the German nations obtained a settlement: the whole of their government depending for the most part upon two principles in our nature,—ambition, that makes one man desirous, at any hazard or expense, of taking the lead amongst others,—and admiration, which makes others equally desirous of following him, from the mere pleasure of admiration, and a sort of secondary ambition, one of the most universal passions among men. These two principles, strong, both of them, in our nature, create a voluntary inequality and dependence. But amongst equals in condition there could be no such bond, and this was supplied by confederacy; and as the first of these principles created the senior and the knight, the second produced the conjurati fratres, which, sometimes as a more extensive, sometimes as a stricter bond, are perpetually mentioned in the old laws and histories.
The relation between the lord and the vassal produced another effect,—that the leader was obliged to find sustenance for his followers, and to maintain them at his table, or give them some equivalent in order to their maintenance. It is plain from these principles, that this service on one hand, and this obligation to support on the other, could not have originally been hereditary, but must have been entirely in the free choice of the parties.
But it is impossible that such a polity could long have subsisted by election alone. For, in the first place, that natural love which every man has to his own kindred would make the chief willing to perpetuate the power and dignity he acquired in his own blood,—and for that purpose, even during his own life, would raise his son, if grown up, or his collaterals, to such a rank as they should find it only necessary to continue their possession upon his death. On the other hand, if a follower was cut off in war, or fell by natural course, leaving his offspring destitute, the lord could not so far forget the services of his vassal as not to continue his allowance to his children; and these again growing up, from reason and gratitude, could only take their knighthood at his hands from whom they had received their education; and thus, as it could seldom happen but that the bond, either on the side of the lord or dependant, was perpetuated, some families must have been distinguished by a long continuance of this relation, and have been therefore looked upon in an honorable light, from that only circumstance from whence honor was derived in the Northern world. Thus nobility was seen in Germany; and in the earliest Anglo-Saxon times some families were distinguished by the title of Ethelings, or of noble descent. But this nobility of birth was rather a qualification for the dignities of the state than an actual designation to them. The Saxon ranks are chiefly designed to ascertain the quantity of the composition for personal injuries against them.
But though this hereditary relation was created very early, it must not be mistaken for such a regular inheritance as we see at this day: it was an inheritance only according to the principles from whence it was derived; by them it was modified. It was originally a military connection; and if a father loft his son under a military age, so as that he could neither lead nor judge his people, nor qualify the young men who came up under him to take arms,—in order to continue the cliental bond, and not to break up an old and strong confederacy, and thereby disperse the tribe, who should be pitched upon to head the whole, but the worthiest of blood of the deceased leader, he that ranked next to him in his life?[54] And this is Tanistry, which is a succession made up of inheritance and election, a succession in which blood is inviolably regarded, so far as it was consistent with military purposes. It was thus that our kings succeeded to the throne throughout the whole time of the Anglo-Saxon, empire. The first kings of the Franks succeeded in the same manner, and without all doubt the succession of all the inferior chieftains was regulated by a similar law. Very frequent examples occur in the Saxon times, where the son of the deceased king, if under age, was entirely passed over, and his uncle, or some remoter relation, raised to the crown; but there is not a single instance where the election has carried it out of the blood. So that, in truth, the controversy, which has been managed with such heat, whether in the Saxon times the crown was hereditary or elective, must be determined in some degree favorably for the litigants on either side; for it was certainly both hereditary and elective within the bounds, which we have mentioned. This order prevailed in Ireland, where the Northern customs were retained some hundreds of years after the rest of Europe had in a great measure receded from them. Tanistry continued in force there until the beginning of the last century. And we have greatly to regret the narrow notions of our lawyers, who abolished the authority of the Brehon law, and at the same time kept no monuments of it,—which if they had done, there is no doubt but many things of great value towards determining many questions relative to the laws, antiquities, and manners of this and other countries had been preserved. But it is clear, though it has not been, I think, observed, that the ascending collateral branch was much regarded amongst the ancient Germans, and even preferred to that of the immediate possessor, as being, in case of an accident arriving to the chief, the presumptive heir, and him on whom the hope of the family was fixed: and this is upon the principles of Tanistry. And the rule seems to have taken such deep root as to have much influenced a considerable article of our feudal law: for, what is very singular, and, I take it, otherwise unaccountable, a collateral warranty bound, even without any descending assets, where the lineal did not, unless something descended; and this subsisted invariably in the law until this century.