As the gesíðas were not free, and could not take a part in the deliberations of the freemen at the folcmót, or in the judicial proceedings, except in as far as they were represented by their chief, means for doing justice between themselves became necessary: these were provided by the establishment of a system of law, administered in the lord’s court, by his officers, and to which all his dependants were required to do suit and service as amply as they would, if free, have been bound to do in the folcmót. But the law, administered in such a court, and in those formed upon its model in the lands of the comites themselves,—a privilege very generally granted by the king, at least in later periods[[313]],—was necessarily very different from that which could prevail in the court of the freemen: it is only in a lord’s court that we can conceive punishments to have arisen which affected life and honour, and fealty with all its consequences to have attained a settled and stringent form, totally unknown to the popular judicature. Forfeiture, or rather excommunication, and pecuniary mulcts, which partook more of the nature of damages than of fine, were all that the freeman would subject himself to under ordinary circumstances. Expulsion, degradation, death itself might be the portion of him whose whole life was the property of a lord, to be by him disposed of at his pleasure. Hence the forfeiture of lands for adultery and incontinence, and hence even Ælfred affixes the penalty of death to the crime of hláfordsyrwe, or conspiracy against a lord[[314]], while manslaughter could still be compounded for by customary payments. One or two special cases may be quoted to show how the relation of the gesíð to his chief modified the general law of the state.
The horse and arms which, in the strict theory of the comitatus, had been the gift, or rather the loan of the chief, were to be returned at the death of the vassal, in order, according to the same theory, that they might furnish some other adventurer with the instruments of service[[315]]. These, technically called Heregeatwe, armatura bellica, have continued even to our own day under the name of Heriot, and strictly speaking consist of horses and weapons. In later imitation of this, the unfree settlers on a lord’s land, who were not called upon by their tenure to perform military service, were bound on demise to pay the best chattel (melius catallum, best head, in German beste haupt, heriot-custom, as opposed to heriot-service) to the lord, probably on the theoretical hypothesis that he, at the commencement of the tenancy, had supplied the necessary implements of agriculture. And this differs entirely from a Relief[[316]], because Heriot is the act of the leaving, Relief the act of the incoming tenant or heir[[317]]; and because in its very nature and amount Heriot is of a somewhat indefinite character, but Relief is not.
In the strict theory of the comitatus, the gesíð could possess no property of his own; all that he acquired was his lord’s, and even the liberalities of the lord himself were only beneficia or loans, not absolute gifts[[318]]: he had the usufruct only during life, the dominium utile: the dominium directum> was in the lord, and at the death of the tenant it is obvious that the estate vested in the lord alone: the gesíð could have no ius testamenti, as indeed he had no family: the lord stood to him in place of father, brother and son. Hereditary succession, which must at first have been a very rare exception, could only have arisen at all either from the voluntary or the compelled grant of the lord: it could only become general when the old distinction between the free markman and the gesíð had become obliterated, and the system of the Comitatus had practically and politically swallowed up every other. Yet even under these circumstances it would appear that a perfectly defined result was not attained; and hence, although the document entituled “Rectitudines singularum personarum” numbers the ius testamenti among the rights of the þegen[[319]], yet even to the close of the Anglosaxon monarchy, we find dukes, præfects, kings’ thanes, and other great nobles humbly demanding permission from the king to make wills, entreating him not to disturb their testamentary dispositions, and even bribing his acquiescence by including him among the legatees. In this as in all human affairs, a compromise was gradually found necessary between opposing powers, and the king as well as the comites, neither of whom could dispense with the assistance of the other, found it advisable to make mutual concessions. I doubt whether at even an earlier period than the eleventh century, the whole body of thanes would have permitted the king to disregard the testament of one of their body, unless upon definite legal grounds, as for example grave suspicion of treason: but still they might consent to the nominal application and sanction of the ancient principle, by allowing the insertion of a general petition, that the will might stand, in the body of the instrument[[320]].
The circumstances thus brought under review show clearly that the condition of the gesíð was unfree in itself; that even the free by birth who entered into it, relinquished that most sacred inheritance, and reduced themselves to the rank of thanes, ministers or servants. Certain rights and privileges grew up, no doubt, by custom, and the counts were probably not very long subject to the mere arbitrary will of the chief: they had the protection of others in a similar state of dependency to their own, and chances, such as they were, of subservience to the king’s wishes: a bond of affection and interdependence surpassing that of blood, and replacing the mutual free guarantee of life and security, was formed between them; and they shared alike in the joys and sorrows, the successes and reverses of peace and war: but with it all, and whatever their rank; they were in fact menials, housed within the walls, fed at the table, clothed at the expense of their chief; dependent upon his bounty, his gratitude or forbearance, for their subsistence and position in life; bound to sacrifice that life itself in his service, and, strictly considered, incapable of contracting marriage or sharing in the inestimable sanctities of a home. They were his cupbearers, stewards, chamberlains and grooms; even as kings and electors were to the emperor, whom they had raised out of their own body. The real nature of their service appears even through the haze of splendour and dignity which gradually surround the intimate servants of royalty; and as the chief might select his comites and instruments from what class he chose, it was the fate of these voluntary thanes, not unfrequently to be numbered in the same category with the unfree by birth, and thus, in their own persons, to witness the destruction of that essential principle of all Teutonic law, the distinction between the freeman and the serf[[321]].
Great indeed ought to be the advantages which could compensate for sacrifices like these, and great in their eyes, beyond a doubt, they were. In return for freedom, the gesíð obtained a certain maintenance, the chance of princely favour, a military and active life of adventure, with all its advantages of pillage, festivals and triumphs, poets and minstrels, courtly halls and adventitious splendour; the usufruct at least, and afterwards the possession, of lands and horses, arms and jewels. As the royal power steadily advanced by his assistance, and the old, national nobility of birth, as well as the old, landed freeman sunk into a lower rank, the gesíð found himself rising in power and consideration proportioned to that of his chief: the offices which had passed from the election of the freemen to the gift of the crown[[322]], were now conferred upon him, and the ealdorman, duke, geréfa, judge, and even the bishop, were at length selected from the ranks of the comitatus. Finally, the nobles by birth themselves became absorbed in the ever-widening whirlpool; day by day the freemen, deprived of their old national defences, wringing with difficulty a precarious subsistence from incessant labour, sullenly yielded to a yoke which they could not shake off, and commended themselves (such was the phrase) to the protection of a lord; till a complete change having thus been operated in the opinions of men, and consequently in every relation of society, a new order of things was consummated, in which the honours and security of service became more anxiously desired than a needy and unsafe freedom; and the alods being finally surrendered, to be taken back as beneficia, under mediate lords, the foundations of the royal, feudal system were securely laid on every side.
[290]. Mor. Germ. xix.
[291]. Grimm, Rechtsalt. p. 455.
[292]. “Cumque, ut dixi, sive parum compluta humo, seu nimium torrida, torpentibus satis, ac parce fructificantibus campis, inediae languor defectam escis regionem attereret, nullumque, parum suppetentibus alimentis, trahendae famis superesset auxilium, Aggone atque Ebbone auctoribus, plebiscito provisum est, ut senibus et parvulis caesis, omnique demum imbelli aetate regno egesta, robustis duntaxat patria donaretur; nec nisi aut armis, aut agris colendis habiles domestici laris paternorumque penatium habitacula retinerent.” By the advice however of Gambara, they cast lots, and a portion of the people emigrate. “Igitur omnium fortunis in sortem coniectis, qui designabantur, extorres adiudicati sunt.” Saxo Gram. p. 159. Under similar circumstances, according to Geoffry of Monmouth, Hengest came to Britain.
[293]. “Erat autem rex Oswini et aspectu venustus, et statura sublimis, et affatu iucundus, et moribus civilis, et manu omnibus, id est nobilibus simul atque ignobilibus, largus: unde contigit ut ob regiam eius et animi, et vultus, et meritorum dignitatem, ab omnibus diligeretur, et undique ad eius ministerium de cunctis prope provinciis viri etiam nobilissimi concurrerent.'” Bed. H. E. iii. 14.