[284]. “Unam mansam quam fur quidam ante possederat, a rege cum triginta mancusis auri emit.” Cod. Dipl. No. 580. Bishop Denewulf had leased lands to a relative named Ælfred, for a fixed rent. “Is equidem insipiens adulterans stuprum, propriam religiose pactatam abominans, scortum diligens, libidinose commisit. Quo reatu omni substantia peculiali recte privatus est, et praefatum rus ab eo abstractum rex huius patriae suae ditioni avidus devenire iniuste optavit.” Cod. Dipl. No. 601. The injustice complained of is in the king’s seizing lands that were really not the offender’s: but so strong was the king’s right, that the church was obliged to buy back its own land for one hundred and twenty mancusses of gold. That these forfeitures resulted from a solemn judicial act admits of no doubt. In 1002, a lady who owned lands was found guilty of certain acts, her lands were forfeited, and made over to the king, in the language of the instrument, “vulgari traditione.” Cod. Dipl. No. 1296. In 938 Æðelstán gave seven hides of land to the church at Winchester: “istarum autem vii mansarum quantitas iusto valde iudicio totius populi, seniorum et primatum, ablata fuit ab eis qui eorum possessores fuerunt, quia aperto crimine furti usque ad mortem obnoxii inventi sunt; ideoque decretum est ab omni populo ut libri illorum, quos ad has terras habebant, aeternaliter dampnarentur,” etc. Cod. Dipl. No. 374. Æðelsige stole Æðelwine’s swine: his land at Dumbleton was accordingly forfeited to the king. “⁊ man geréhte Æðelrede cyninge ðæt land ⁊ ǽhta.” Cod. Dipl. No. 692. The law of the Ripuarian Franks seems to have been somewhat different: see Tit. § lxxix. de homine penduto et eius hereditate; and Eichhorn, i. 269.
[285]. I may again refer to the story of the vase at Soissons. Clovis put the soldier to death on pretext of a breach of discipline; in reality, because the man had opposed him with respect to the booty. But, except in the field, it is not to be imagined that Clovis could have taken his life; and certainly not without a legal conviction and condemnation by the people.
[286]. “Adgandestrii, principis Cattorum, lectas in Senatu literas.” Annal. ii. 88. “Maroboduum ... per dona et legationes petivisse foedus.” Annal. ii. 45. “Misitque legatos ad Tiberium oraturos auxilia.” Ibid.
[287]. “De minoribus rebus principes consultant; de maioribus omnes: ita tamen, ut ea quoque, quorum penes plebem arbitrium est, apud principes pertractentur.... Mox rex vel princeps, prout aetas cuique, prout nobilitas, prout decus bellorum, prout facundia est, audiuntur, auctoritate suadendi magis quam iubendi potestate.” Mor. Germ. xi.
[288]. “Nec regibus infinita, nec libera potestas.” Mor. Germ. vii. “Auctore Verrito et Malorige, qui nationem eam regebant, in quantum Germani regnantur.” Tac. Annal. xiii. 54.
[289]. “Ceterum Arminius, abscedentibus Romanis et pulso Maroboduo, regnum adfectans, libertatem popularium adversam habuit, petitusque armis, cum varia fortuna certaret, dolo propinquorum cecidit.” Tac. Annal. ii. 88.
CHAPTER VII.
THE NOBLE BY SERVICE.
I have called the right to entertain a Comitatus, or body of household retainers, a very jewel in the crown: it was so because it formed, in process of time, the foundation of all the extended powers which became the attributes of royalty, and finally succeeded in establishing, upon the downfall of the old dynasts or nobles by birth, a new order of nobles by service, whose root was in the crown itself. A close investigation of its gradual rise, progress and ultimate development, will show that the natural basis of the Comitatus is in the superior wealth and large possessions of the prince.
In all ages of the world, and under all conditions of society, one profound problem has presented itself for solution; viz. how to reconcile the established divisions of property with the necessities of increasing population. Experience teaches us that under almost any circumstances of social being, a body of men possessed of sufficient food and clothing have been found to increase and multiply with a rapidity far too great to be balanced by the number of natural or violent deaths: and it follows therefore that in every nation which has established a settled number of households upon several estates, each capable of supporting but one household in comfort, the means of providing for a surplus population must very soon become an object of general difficulty. If the paternal estate be reserved for the support of one son, if the paternal weapons descend to him, to be used in the feuds of his house or the service of the state, what is to become of the other sons who are excluded from the benefits of the succession? In a few instances we may imagine natural affection to have induced a painful, and ultimately unsuccessful, struggle to keep the family together: here and there cases may have occurred in which a community was fortunate enough from its position, to possess the means of creating new estates to suit the new demand: and conquest, or the forcible partition of a neighbouring territory, may have supplied a provision for the new generation. Tacitus indeed tells us[[290]] that “numerum liberorum finire aut quemquam ex agnatis necare, flagitium habetur:” yet tradition contradicts this, and speaks of the exposure of children immediately after birth, leaving it to the will of the father to save the life of the child or not[[291]]. And similarly the tales of the North record the solemn and voluntary expatriation of a certain proportion of the people, designated by lot, at certain intervals of time[[292]]. However, in the natural course of things, he who cannot find subsistence at home must seek it abroad; if the family estate will not supply him with support, he must strive to obtain it from the bounty or necessities of others: for emigration has its own heavy charges, and for this he would require assistance; and in a period such as we are describing, trade and manufacture offer no resources to the surplus population. But all the single hides or estates are here considered as included in the same category, and it is only on the large possessions of the noble that the poor freeman can hope to live, without utterly forfeiting everything that makes life valuable. Some sort of service he must yield, and among all that he can offer, military service, the most honourable and attractive to himself, is sure to be the most acceptable to the lord whose protection he requires.
The temptation to engage in distant or dangerous warlike adventures may not appear very great to the agricultural settler, whose continuous labour will only wring a mere sufficiency from the soil he owns. It is with regret and reluctance that such a man will desert the land he has prepared or the crops he has raised, even when the necessity of self-defence calls the community to arms. Far[Far] otherwise however is it with him who has no means of living by the land, or whom his means place above the necessity of careful, unremitting toil. The prince, enriched by the contributions of his fellow-countrymen, and the presents of neighbouring states or dynasts, as well as master of more land than he requires for his own subsistence, has leisure for ambition, and power to reward its instruments. On the land which he does not require for his own cultivation, he can permit the residence of freemen or even serfs, on such conditions as may seem expedient to himself or endurable to them. He may surround himself with armed and noble retainers, attracted by his liberality or his civil and military reputation[[293]], whom he feeds at his own table and houses under his own roof; who may perform even servile duties in his household, and on whose aid he may calculate for purposes of aggression or defence. Nor does it seem probable that a community would at once discover the infinite danger to themselves that lurks in such an institution: far more frequently must it have seemed matter of congratulation to the cultivator, that its existence spared him the necessity of leaving the plough and harrow to resist sudden incursions, or enforce measures of internal police; or that the strong castle with its band of ever-watchful defenders, existed as a garrison near the disputable boundary of the Mark.