CHAPTER XX

FOUNDATIONS OF SOCIETY

(ORIGINS OF FEUDALISM)

THE whole period of European history extending roughly from A.D. 476 to A.D. 1000 appears at first sight as an epoch of chaotic fermentation in which it is almost impossible to perceive directing principles and settled institutions. The mere influx of hordes of barbarians was bound to break up the frame of Roman civilisation and to reduce it to its rudimentary elements. But what made confusion worse confounded was the fact that the Teutonic, Slavonic, and Turanian invaders had come with social arrangements of their own which did not disappear at the mere contact with the Roman world, leaving, as it were, a clean slate for new beginnings, but survived in a more or less shattered and modified condition.

And yet when the eye becomes somewhat accustomed to the turmoil of the dark ages, one cannot but perceive that certain principles and institutions have had a guiding influence in this checkered Society, that there is a continuous development from Roman or barbaric roots, and that there is no other way to explain the course of events during our period but to trace the working of both these elements of social life.

One of the principles of concentration which seemed at the outset to give fair promise of robust growth was kinship. Nature has taken care to provide the most primitive human beings with ties of relationship which raise them over individual isolation. Man and wife keep together, parents rear up their children, and brothers are naturally allied against strangers. Of course, much depends on the kind of union arising between man and wife, on the share of each parent in the bringing up of children, and on the views as to brotherhood and strangers. But before examining the particular direction taken by these notions in the case of the Teutonic tribes with whom we are primarily concerned, let us notice the fact that, whatever shape the idea of kinship may have taken, it was certainly productive of most important consequences in the arrangement of early Germanic Society. When Caesar has to tell us about the

occupation of territory by a Germanic tribe he dwells on the fact that the tribal rulers and princes assign land to clans (gentes) and kindreds of men who have joined together (cognationes hominum qui una coierunt). We need not try to put a very definite meaning on the curious difference indicated by the two terms: it is sufficient for our present purpose to take note of the fact that the idea of kinship lies at the root of both: a Germanic tribe as described by Caesar was composed of clans and clan-like unions. And when Tacitus speaks of the military array of a tribe, he informs us that it was composed of families and kindreds (familiae et propinquitates). No wonder we read in the poem of Beowulf that the coward warrior disgraces his whole kindred and that the latter has to share in his punishment.

Like the Roman gentes, the Greek yévn, the Keltic clans and septs, the kindreds of the Teutonic tribes were based on agnatic relationhip, that is on relationship through men, the unmarried women remaining in the family of their fathers or brothers while the married women and their offspring joined the families of their husbands. There are not many traces of an earlier "matriarchal" constitution of Society, except the fact mentioned by Tacitus, that the Teutons considered the maternal uncle with special respect and, indeed, in taking hostages, attributed more importance to that form of relationship than to the tie between father and son. It is not unlikely that this view goes back to a state of affairs when the mother stood regularly under the protection of her brother and her children were brought up by him and not by their father. The mother's kin maintained a certain subsidiary recognition even in later days: it never ceased to be responsible for the woman which came from it, and always afforded her protection in case of grievous illtreatment by the husband; a protection which in some cases might extend to children. Nevertheless in the ordinary course of affairs, the father's authority was fully recognised and the families and kindreds of the host must have been chiefly composed of agnatic groups bearing distinctive names from real or supposed ancestors and tracing their descent from him through a succession of males. In Norse custom these agnatic relations formed the so-called bauggildi, that is the group entitled to receive, and to pay, the armrings of gold constituting the fine for homicide. The payment and reception of fines are, of course, the other side of the protection afforded by the kindred to its members. Not the State but the kindred was primarily appealed to in the case of aggression, and the maegths, aets, Geschlechter, farae, or whatever the kindreds were called by different tribes, resorted to private war in order to enforce their claims and to wreak revenge on offenders. It is easy to picture to ourselves the importance of such an institution by the contrast it presents to present social arrangements, but in order to realise fully how complex this system came to be, let us cast a glance at the distribution of fines in one of the Norwegian laws in the so-called

Frostathingslov regulating the legal customs of the north-western province of Throndhjem.1

In this Frostathingslov we read first in case six marks of gold are adjudged, what everyone shall take and give of the rings (baugar). The slayer or the slayer's son shall pay all the rings unless he has 'vissendr' to help him. The question is, who are called so, and here is the answer. "If the father of the slayer is alive, or his sons or brothers, father's brother or brother's son, cousins or sons of cousins, they are all called ‘vissendr.' And they are so called because they are sure (viss) of paying the fines which are to be paid... (c. 3). The slayer or the slayer's son shall pay to the son of the slain the principal ring of the six marks of gold, namely five marks of weighted silver. The father of the slayer shall pay as much to the father of the dead; the brother of the slayer shall pay the brother of the dead four marks less two oras; the father's brothers and the sons of the brother (of the slayer) shall pay to the father's brothers and to the sons of the brother of the slain 20 oras. And the first cousins and their sons...shall pay...13 oras and an 'örtog."..."

By the side of the bauggildi, the agnatic group bearing the principal brunt of collisions and claiming the principal compensation payments, appear the nefgildi, the personal supporters of the slain, respectively - of the offended man. These are connected with him through his female relations. Together with the bauggildi group they would form what was termed a cognatio by the Romans, that is the entire circle of kinsmen. The relative importance attached to the two sides of relationship was generally expressed by a surrender of two-thirds of the wergeld, the slain man's price, to the father's kin and of one-third to the mother's kin. With mother's kin, however, one would have to reckon also the relations through sisters, aunts, nieces, etc. In fact the nefgildi would correspond to what the continental Germans called the spindle side of relationship, while the bauggildi constituted the spear side. For purposes of organisation the spear side formed a solid group, while the spindle side was divided among several agnatic groups according to the position of the husbands of women supposed to carry the spindles.

The natural advantage of the bauggildi or spear kindred found another expression in the fact that in the earlier customary law of Teutonic tribes women were not admitted to inherit land. It was reserved to men as fighting members of the kindred, and the coat of mail went with the land inheritance. (Lex Angliorum et Werinorum, 6.) Besides the power of protecting and revenging its members the kindred exercised a number of other functions: it acted as a contracting party in settling marriages with members of other kindreds; it exercised the right of wardship in regard to minors; it provided a family tribunal in

1 Though the Norwegian and other Scandinavian laws are late in their present text, they are based on archaic customs, and are commonly used by scholars to ascertain the principles of ancient Germanic law.

case of certain grievous offences against unwritten family law, especially in the case of adultery; it supported those of its members who had been economically ruined and were unable to maintain themselves; it had to guarantee to public authorities the good behaviour of its members if they were not otherwise trustworthy.

Altogether the German system of kinship at starting resembled that of Greece and Italy and of the Keltic tribes as a comprehensive arrangement of society on clan-lines. One of the most momentous turning-points in the history of the race consists in the fact that Germanic Commonwealths did not, on the whole, continue to develop in this direction. The natural kindreds were too much broken and mixed up by the migrations, the protracted struggle with the Romans and the confusion of the settlement on conquered soil. There was a loss of that continuity of tradition and comparative isolation which contributed powerfully to shape the tribal arrangements of other Aryan races, more especially of the Kelts of Scotland, Wales, and Ireland, and of the Slavs in the Balkan mountains. It is interesting to notice, however, that where the necessary seclusion and continuity of tradition did exist a complicated federation of clans might spring up. The classical case within the region of Germanic settlements is that of the Ditmarschen in Schleswig-Holstein.

"The propinquitates, parentelae, proximi (of the Ditmarschen), German Vründ, or as they are called in charters from the fourteenth century the Slachten, Geschlechter (kindreds), are close associations, the members of which are bound to help each other in private war and revenge, before the courts and in case of economic difficulties. They are very different in size, the largest being that of the Wollermannen who, as Neocorus tells us, were able to send 500 warriors into the field. It happens that the kindreds admit new men after an examination of their worth....Most kindreds originate in voluntary leagues or associations. But the right to membership is inherited by all male descendants. The kindreds (Geschlechter) are subdivided accordingly into narrower groups of kinsmen - the Kluften and brotherhoods.1"

Although as a rule the arrangement on lines of relationship declined steadily and rapidly, we witness the existence and operations of kindreds in most Western countries in the earlier centuries of the Middle Ages. The Allemannic Law, for instance, tells us that disputes as to land are carried on by kindreds (genealogiae), and a Frankish edict of 571 asserts the right of direct descendants and brothers to inherit land against traditional claims of neighbours which could only have been based on the conception of a kindred owning the land of the township. (Edictum Chilperici, 3.) The Burgundians were settled in farae, and among the Bavarians five kindreds enjoyed special consideration. In a Bavarian charter of 750 the kindreds of the Agilolfings and of Fagana grant land 1 Sering, Erbrecht- und Agrarverfassung in Schleswig-Holstein, p. 124.

634

Later Traces of Kinship

to a bishop of Freising. In these cases the kindreds are represented by certain leaders and their consortes et participes.1 The maegths of the Angles and Saxons, the aets of the Scandinavians appear often in legal custom and historical narratives, and, in the light of such continental parallels, it seems more than probable (though this has been disputed) that a good number of English place-names containing the suffix ing were derived from settlements of kindreds. The Aescingas, Effingas, Getingas, Wocingas, mentioned in Saxon charters in Surrey, as well as numbers of similar names, have left an abiding trace in local nomenclature. In this way the kindreds did not disappear from the history of Western Europe without leaving many traces, and such traces were most noticeable in the case of noble families keenly interested in tracing their pedigrees and able to keep their cohesion and privileges. But even of the nobility the greater part of them arose through the success of new men and especially through service remunerated by kings and other potentates. As for the rest of the people it became more and more difficult to keep up the neatly framed groups of kinsmen. From being definite organizations the kindreds were diverted into the position of aggregates of persons claiming certain rights and obligations in regard to each other. The complicated wergeld protection ceases to be enforceable. A man's life is still taxed at a certain sum, but this sum will be levied under the authority of the government, and this government will try to prevent feuds and even to legislate against the economic ruin in which innocent persons are involved by the misdeeds of their relations.

The same Frostathingslov, from which I have quoted a paragraph as to the distribution of rings of wergeld, is very much concerned about the disorder and disasters which follow on blood feuds. (Inledning, 8): “It is known to all to what extent a perverse custom has prevailed in this country, namely that in the case of a homicide the relatives of the slain try to pick out from the kindred him who is best (for revenge), although he may have been neither wishing, willing, nor present, when they do not want to avenge the homicide on the slayer even if they have the means." And in Eadmund I's legislation we find enactments which free the magas, the kindred, from all responsibility for the misdeeds of the kinsman, unless they want of their own accord to come to his help in the matter of paying off the fine.

As regards the very important department of landed property, the collective right of kinsmen as to land yields to customs of inheritance which still savour of the original view that individuals only use the land while the kindred is the real owner, but the conception is embodied in a series of consecutive individual claims. In Norway, for instance, ōdal land ought to remain in the kindred, but this means that if some possessor wishes to sell it, he has to offer it to the heirs at law for

Bitterauf, Traditionen des Hochstifts Freising, 1. p. 5, quoted by Brunner, Deutsche Rechtsgeschichte, XII. p. 117 n. 33.