Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

In the next lecture I shall give an account of the companions of the prince among the Germans, and finish what I have to observe of the constitution of their governments, and of their laws and customs, unto the time of their entering into the Roman empire.

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.