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]].
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]].
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]].
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]].
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[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.
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]].