Hence the profound importance attached to chastity, and the undoubted influence of alliances by marriage[[444]], through which separate kindreds are fused into one body, adopting common interests, pursuing common objects, and recognizing in the bond which unites its members, obligations which are still exhibited in oriental countries, which we trace throughout the middle ages of Europe, but which are gradually vanishing under the conditions of our modern mercantile society.
It lies in the very nature of things that among a people animated with such principles as have now been described, and so placed by circumstances on tracts of land far more than sufficient for their support, the very earliest organization should be based upon the family relations. Dwelling near to one another, united by a community of interests and the endearing ties of mutual relationship, or the scarcely weaker bond of adoption,—strong as regards other families in direct proportion to their union among themselves,—the mǽgð or family offer all the guarantees in their own natural position which the primitive state can require. In the popular councils the largest and most distinguished family has necessarily the greatest weight; but association of others, severally less powerful, is always capable of counteracting danger which might arise in a free state from the ambition of any of its portions. In the absence of a central power,—or rather its dispersion through all the several members of the community, the collection of revenue and the maintenance of the peace must be left to the heads of the several fractions, whether villages (as in the East), or families, which at one time are identical with villages. The police therefore especially belongs to the family, and is by it exercised over all the individuals that compose it; hence also the grave misconduct of the individual may justly have the effect of destroying the social position of the whole mǽgð. In Beówulf, the warriors who deserted their prince in his utmost need, are sternly told by his successor, that not only they, but their whole mǽgburh will thenceforth have forfeited the rights of citizenship,
folcrihtes sceal
ðǽre mǽrge
monna ǽghwylc
ídel hweorfan,
not, each of you individually, but each and every man of your kin, cognation or mǽgsceaft, shall be deprived of his rights of citizenship: from which we must infer that the misconduct of one person might compromise his relatives, who are held responsible for his actions[[445]]. And this rule, coupled with the fact of all serving together, under one selected from among themselves, and each under the eye of his nearest and dearest friends, supplied a military organization capable of enabling the barbarians to cope with far more disciplined and scientific military systems than their own; serving to explain the almost irresistible power with which, like the Turks of more recent times, the Teutons of old burst upon the nations exposed to their onset[[446]]. The wergyld, or price of blood, the earliest institution of this race, only becomes perfectly intelligible when considered from this point of view: the gens or family at large are injured by the loss of their associate, and to them compensation must be made; so they, in turn, must make compensation for him, since rights and duties are commensurate. This principle, however darkly, is still involved in the theory of our civil actions for seduction.
It lies in the very nature of things that this, albeit a natural, cannot be an enduring system. Its principal condition is neighbourhood, the concentration of the family upon one spot: as population increases, and with it emigration, the family bond gradually becomes weaker, and at last perishes as a positive and substantive institution, surviving only fragmentarily in the traces which it leaves upon the latter order that replaces it. War, commerce, cultivation,—the effect and cause of increasing population,—gradually disperse the members of the sibsceaft or cognation, and a time arrives when neighbours are no longer kinsmen. At this point the old organization ceases to be effective, and a new one becomes necessary, unless the ancient principle is to be entirely abandoned. But principles are not easily abandoned in early stages of society; a young nation finds it easier to adopt artificial arrangements founded upon the ancient form: nor is it necessary that the later should have totally superseded its predecessor; it is enough that when the earlier ceases to fulfil its object, the latter should be directed to supply its obvious deficiency, and be united with it, as circumstances best permit.
Throughout the earliest legislation of the Teutonic nations, and especially in our own, we find arrangements, based upon two distinct principles, in active operation. The responsibility of the family lies ever in the background, the ultimate resort of the state against the individual, of the individual against the state. But we also find small bodies of men existing as corporations, founded upon number and neighbourhood, and thus making up the public units in the state itself. From the first, we find the inhabitants of the Mark classed in tens and hundreds (technically in England, Tithings and Hundreds) each probably comprising respectively a corresponding number of members, together with the necessary officers, viz. a tithing-man for each tithing, and a hundred-man for the hundred, thus making one hundred and eleven men, or Heads of houses in the territorial hundred[[447]]. The Frankish law names the officers thus alluded to: in it the tithing-man is Decanus, the hundred-man Centenarius[[448]]. The Anglosaxon law does not indeed mention its divisions by these names till a comparatively late period, when their significations had become in some respects altered; but it seems probable that it does imply them under the term Gegyldan, fellows, brothers of the gyld. In a case of aggravated crime it is provided that the offender’s relatives shall pay a third part of the fine, his gegyldan a third part, and if he cannot pay the remainder himself, he is to become an outlaw, i. e. forfeit his land and flee, perhaps formally abjure the country[[449]]. Now it is perfectly clear that a law expressed in such general terms as these, cannot be directed to a particular and exceptional condition; that it does not apply to the accidental existence of gegyldan, but on the contrary assumes every man to have such: we cannot therefore construe it of voluntary associations formed for religious, social or funereal objects[[450]], and for the purposes of this law we must look upon gegylda as a general name borne by every individual in respect of some gyld or association of which he was taken to be a member. The only meanings which the root gyld enables us to attach to the word gegylda are these; either, one who shares with others in paying; or, one who shares with others in worshipping. If we adopt the former rendering, we must suppose that certain contributions were made by a number of persons to a common purse, partly for festive purposes, partly as a mutual guarantee and club-fund for legal costs, for the expenses of reciprocal aid and defence, perhaps even for mortuary celebrations and charitable distributions. Another, though perhaps a less probable, suggestion is that such gegyldan may have been jointly responsible for taxes, or the outfit of armed men who attended in the fyrd or military expedition, on behalf of them all. But this we cannot further illustrate, in the absence of all record of the financial system of the early Teutonic monarchs, even those of Charlemagne himself, which would have been invaluable guides to us through the intricacies of that dark subject of enquiry. The second meaning given to gegylda would rest upon the assumption of some private and as it were hero-worship, common to the gyld-brothers,—a fact familiar enough to us in the Athenian φυλαι and Roman gentes; but the existence of any such foundation for the gyld among the Anglosaxons is extremely improbable, when we consider the small numbers that appear to have constituted the association, and that no trace of any such worship remains in our heathen mythology[[451]]. I therefore prefer the first rendering of the word, and look upon gegyldan as representing those who mutually pay for one another; that is, under a system of pecuniary mulcts, those who are mutually responsible before the law,—the associates in the tithing and the hundred.
It is well known that in the later Anglosaxon law, and even to this day, the tithing and hundred appear as local and territorial, not as numerical divisions: we hear of tithings where there are more, and tithings where there are fewer people; we are told of the spoor of cattle being followed into one hundred, or out of another[[452]]. I do not deny that in process of time these divisions had become territorial; but this does not of necessity invalidate the doctrine that originally the numbers were calculated according to the heads of families, or that the extent of territory, and not the taxable, military or corporate units, formed at first the varying quantity. Had it been otherwise we should naturally have found a much greater equality in the size of the territorial hundreds throughout at least each Saxon kingdom; nor in all probability would the numbers of the hundreds in respective counties differ so widely,—a difference intelligible only if we assume population, and not space, to have been the basis of the original calculation. Moreover to a very late period, in one part of England the abstract word Teoðung was replaced by the more concrete Tenmantale (tyn-manna-tǽl)[[453]], to which it is impossible to give any meaning but the simple one the words express, viz. the tale or count of ten men. Again, as late as the tenth century, in a part of England where men, and not acres, became necessarily the subjects of calculation, viz. in the city of London[[454]], we find the citizens distributing themselves into Friðgylds or associations for the maintenance of the peace, each consisting of ten men; while ten such gylds were gathered into a Hundred. The remarkable document known as “Judicia Civitatis Londinensis” gives the following detailed account of the whole proceeding: