The Golem Speaks

English Constitutional History 2: The Germans

Published by Peter Mains on December 12, 2012 at 11:23 PM

Caesar and Tacitus

In his introductory chapter, Stubbs gave a broad overview of Europe and his Four Great Nations. Now he turns to the pre-medieval Germans. The constitution of these German peoples is sketched mostly in generalities. Particular tribes, people, dates or events are not discussed. What we do see are basic economic and political systems.

As sources, we have the accounts of Caesar and Tacitus, which means we have a lot of Latin names being used to describe German people and things. The classes are nobles (nobiles), freemen (ingenui), freedmen (liberti) and a servile or slave class (servi). The nobles are broken down as principes (magistrates or princes), duces (leaders or dukes), sacerdotes (priests) and reges (kings).

This sort of stratification is not unfamiliar, especially to people who have studied other medieval and pre-medieval cultures. The distinction between noble and common, free and unfree is seen in later English history and elsewhere.

National Assemblies

The first point of interest from a constitutional perspective was the assembly. Nobles and freemen could vote in the assemblies, while freedmen and slaves could not. The fact that these assemblies were held at fixed times seems rather modern. The English parliament, by contrast, would grow by fits and starts, having irregular elections and session lengths.

Less modern were the use of a lunar calendar and voting by "loud shouts" (against a motion), "shaking of spears" (in favor) and "clash of spear and shield" (more emphatically in favor). Based on Stubbs' description, the assembly seems to have combined executive, judicial and legislative power into a single body.

Put an asterisk next to legislative, though. We tend to think of assemblies as being legislatures, but tribal societies often have a tradition of customary law. This means that it is taken for granted that nobody has a right to change the natural law. Stubbs does not comment on this point, but neither does he talk about laws being passed at these assemblies.

Also, the magistrates would govern over territories (pagi, plural of pagus), so some executive power is not being exercised by the assembly. Since it is unlikely that, say, criminal law was discussed at these assemblies, motions would likely have to do with policy. Consider that everyone came armed to these events, and you can see what would be meant by policy.

The fact that this assembly settled disputes is not foreign to more modern English history. The House of Lords long served as a judicial court as well as a legislature. Since these tribesmen likely had no concept of a tripartite government, I would suggest that it is also likely that the line between settling disputes (judicial power) and setting policy (executive power) would have been somewhat hazy.

Magistrates

The magistrates were elected by the assembly, presumably from among the nobles. How they were elected is unclear. Perhaps it was by a voice vote or some type of proportional system. To muddle things further, what Stubbs does mention is that each magistrate receives "votes" of "corn" (probably barley) and cattle. This is confusing, because what he describes as "votes" are really tribute.

The land given to these magistrates served a source of income. Here we see hints of feudalism that would develop. The serfs and slaves would farm the land, funding the magistrate as he administered his pagus.

The Magistrate would select assessors as well as support a "comitatus." The assessors seem to be judges, but their name suggests that they are also tax collectors. This puts them in the same class as early English sheriffs, who were the shire reeves, or revenue officers.

The comitatus is the magistrate's group of retainers. That is a nice way of saying that they were a gang. When we see viking leaders described as "ring givers," this gives us an idea of how the magistrate exerted his control. His wealth allowed him to hire followers, who would in turn help him in his military exploits. The fact that the magistrate was an elected position meant that the magistrate did not want comites ("friends") who would surpass him.

Economic System

Even though the magistrates lived as feudal lords, this does not mean that the German tribes were feudal in the time of Caesar and Tacitus. Rather, land was held by the tribe. Members of the tribe would be assigned land to cultivate, but they did not own the land or even their house. Occasionally, land and houses would be reapportioned and everyone would rotate. How much land you received would be based on your status (dignatio, another Latin word trying to describe a Germanic concept) among your people. Not surprisingly given the lack of land ownership, no roads were built.

It was somewhat feudal, though. You did have serfs (coloni) and slaves. Serfs had houses, a portion of land and, Stubbs tells us, were "rarely beaten." By implication, slaves did not have these things. Serfs were likely the descendants of conquered tribes. Serfs were obligated to give a portion of what they earned to their lord, which is the classic feudal relationship.

What happened to these slaves is not clearly explained. These lower servi became slaves either through accumulating gambling debts or being taken as prisoners of war. If these slaves could work off their debts or earn their freedom is not clear. Some slaves did escape slavery, though, since we have freedmen (liberti) as a distinct class.

For freemen and freedmen without slaves, feudalism would not describe their economic system. With cows as the primary form of wealth, it would be hard to classify this society as capitalist. Neither was it entirely socialist. It was somewhat collectivist and yet hierarchical. Perhaps "tribalism" is the best descriptor here.

Barbarians

Stubbs does not use the word, "barbarians" here. Yet, we have a society that is still semi-nomadic. They have a weak sense of property rights. Their tribal system of government is based in large part on who can best leverage wealth and personal loyalty.

Stubbs does not use the phrase, "rape and pillage." Nevertheless, we can read between the lines here. The Germans were proud of having either subjugated their neighbors or terrified them into fleeing. They had no walled cities because, unlike most of their contemporaries, they were not afraid of being looted and pillaged. They were the ones doing the looting and pillaging.

The Larger Narrative

All of this matters because it leads us to the Anglo-Saxons. These Germanic peoples would later conquer the Britons. For now, though, we are studying them in their native German lands. The Witenagemot of the Anglo-Saxons would be the descendant of these "national assemblies" and the predecessor of the English Parliament. This system of nobles, freemen and slaves would be replicated, albeit not in every detail, in England.

Unfortunately, what we do see of the Germans here is transmitted through the eyes of Roman observers. Tacitus was not even a direct observer. Both Caesar and Tacitus also had their own agendas. Stubbs, as an historian, works to sift through the bias, but we are dealing with probabilities rather than certainties.

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