As conservator of the public peace, the king was entitled to a portion of the fines inflicted on criminals, and the words in which Tacitus mentions this fact show that he was in this function the representative of the whole state[[283]]: it is a prerogative derived from his executive power. And similar to this is his right to the forfeited lands of felons, which, if they were to be forfeited, could hardly be placed in other hands than those of the king, as representative of the whole state[[284]].
In proportion as this idea gains ground, the influence of the king in every detail of public life necessarily increases, and the regalia or royal rights become more varied and numerous: he is looked upon as the protector of the stranger, who has no other natural guardian, inasmuch as no stranger can be a member of any of those associations which are the guarantee of the freeman. He has the sole right of settling the value and form of the medium of exchange: through his power of calling out the armed force, he obtains rights which can only consist with martial law,—even the right of life and death[[285]]: the justice of the whole country flows from him: the establishment of fiscal officers dependent upon himself places the private possessions of the freeman at his disposal. The peculiar conservancy of the peace, and command over the means of internal communication enable him to impose tolls on land- and water-carriage: he is thus also empowered to demand the services of the freemen to receive and conduct travelling strangers, heralds or ambassadors from one royal vill to another; to demand the aid of their carts and horses to carry forage, provisions or building-materials to his royal residence. Treasure-trove is his, because where there is no owner, the state claims the accidental advantage, and the king is the representative of the state. It is part of his dignity that he may command the aid of the freemen in his hunting and fishing; and hence that he may compel them to keep his hawks and hounds, and harbour or feed his huntsmen. As head of the church he has an important influence in the election of bishops, even in the establishment of new sees, or the abolition of old established ones. His authority it is that appoints the duke, the geréfa, perhaps even the members of the Witena-gemót. Above all, he has the right to divest himself of a portion of these attributes, and confer them upon those whom he pleases, in different districts.
The complete description of the rights of Royalty, in all their detail, will find a place in the Second Book of this work; they can only be noticed cursorily here, inasmuch as they appertain, in strictness, to a period in which the monarchical spirit, and the institutions proper thereto, had become firmly settled, and applied to every part of our social scheme. But whatever extension they may have attained in process of time, they have their origin in the rights permitted to the king, even in the remotest periods of which we read.
There cannot be the least doubt that many of them were usurpations, gradual developments of an old and simple principle; and it is only in periods of advanced civilization that we find them alluded to. Nevertheless we must admit that even at the earliest recorded time in our history, the kings were not only wealthy but powerful far beyond any of their fellow-countrymen. All intercourse with foreign nations, whether warlike or peaceful, tends to this result, because treaties and grave affairs of state can best be negotiated and managed by single persons: a popular council may be very properly consulted as to the final acceptance or rejection of terms; but the settlement of them can obviously not be beneficially conducted by so unwieldy a multitude. Moreover contracting parties on either side will prefer having to do with as small a number of negotiators as possible, if it be only for the greater dispatch of business. Accordingly Tacitus shows us, on more than one occasion, the Senate in communication with the princes, not the populations of Germany[[286]]: and this must naturally be the case where the aristocracy, to whose body the king belongs, have the right of taking the initiative in public business[[287]].
But although we find a great difference in the social position, wealth and power of the king, and those of the noble and freeman, we are not to imagine that he could at any time exercise his royal prerogatives entirely at his royal pleasure[[288]]: held in check by the universal love of liberty, by the rights of his fellow nobles, and the defensive alliances of the freemen[[289]], he enjoyed indeed a rank, a splendour and an influence which placed him at the head of his people,—a limited monarchy, but happier than a capricious autocracy: and the historian who had groaned over the vices and tyranny of Tiberius, Nero and Domitian, could give the noble boon of his testimony to the eternal memory of the barbarous Arminius.
[220]. There is a tradition among the Swedes that if the gods expressed their anger with the people by scarcity, or ill success in war, the most acceptable offering to them was the King. See Yngling, Sag. c. xviii. (Laing, i. 230); again, c. xlvii. (vol. i. p. 256), where the scene is laid in Norway: because, says the Yngl. Sag., the Swiar were wont to attribute to their kings the fruitfulness or dearth of the seasons. Yet they did not interfere with the succession in the son of the sacrificed king. See Geijer, Hist. i. 404.
[221]. 1 Peter, ii. 5, 9.
[222]. The various forms of the ordeal were undoubtedly pagan, though retained by the Christian communities of the Germans.
[223]. Even in war the general had not at first the power of punishing the freeman. The very urgencies of military discipline were subordinated to the divine authority of the priests. “Duces exemplo potius quam imperio, si prompti, si conspicui, si ante aciem agant, admiratione praesunt. Ceterum neque animadvertere, neque vincire, ne verberare quidem nisi sacerdotibus permissum; non quasi in poenam, nec ducis jussu, sed velut deo imperante, quem adesse bellantibus credunt.” Tac. Germ. vii.