178
THE SAXONS IN ENGLAND.
[BOOK I
to be by him disposed of at his pleasure. Hence
the forfeiture Oflandsforadulteryandincontinence,
and hence even Æ1 Sred affixes the penalty of death
to the crime of hlafordsyrwe, or conspiracy against
a lord1, while manslaughter could still be com-
pounded for by customary payments. One or two
special cases may be quoted to show how the rela-
tion of the gesi<S 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 service2. These, technically
called Heregeatwe, armatura bellica, have con-
tinued even to our own day under the name of
Heriot, and Stiictly speaking consist of horses and
weapons. In later imitation of this, the unfree set-
tlers 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
‘ Leg. Ælfr. Introduction, and § 4.
2 This is necessary in a country where the materials of which wea-
pons are fabricated are not abundant, which Tacitus notices as the case
in Germany, “ne ferrum quideιu superest, sicut ex genere telorum
colligitur.” Germ. vi. Adventurers, ever on the move, are prone to
realize their gains in the most portable shape. Rings, gems and arms
are the natural form, and a Teutonic king’s treasury must have been
filled with them, in preference to all other valuables.
CH. VII.]
THE NOBLE BY SERVICE.
179
the commencement of the tenancy, had supplied
the necessary implements of agriculture. And this
differs entirely from a Relief1, because Heriot is the
act of the leaving, Relief the act of the incoming
tenant or heir2; 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 gesi,δ
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 bénéficia or loans,
not absolute gifts3 : 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 iri^ the lord alone :
the gesflδ could have no ius testamenti, as indeed
he had no family : the lord stood to him in place
* Relief, relevium, from relevare, to lift or take up again. It is a
sum paid by the heir to the lord, on taking or lifting up again the in-
heritance of an estate which has, as it were, fallen to the ground by the
death of the ancestor.
2 Fleta, lib. iii. cap. 18.
3 Montesquieu has seen this very clearly, when he considers even the
horse and framea of Tacitus in the light of bénéficia. From a charter of
ÆtSelflæd, an. 916-922, it would seem that in Mercia a thane required
the consent of the lord, before he could purchase an estate of bookland :
“ Ego ÆSelfléd.... dedi Iicentiam Eâdrico meo ministro comparand!
terram decem manentium æt Fernbeorgen, sibi suisque haeredibus per-
petualiter possidendam.” Cod. Dipl. No. 343. About the close of the
ninth century, Wulfhere, a duke, having left the country, and so de-
serted the duties of his position, was adjudged to lose even his private
lands of inheritance : “ Quando ille utrumque et suum dominum regem
Ælfredum et patriam, ultra iusiurandum quam régi et suis omnibus op-
tinɪatɪbus iuraverat, sine Iicentia dereliquit ; tunc etiam, cum omnium
mdicio Sapientium Geuisorum et Mercensium, potestatem et hf⅛sredita-
tem dereliquit agrorum.” Cod. Dipl. No. 1078. The importance of this
passage seems to me to rest upon the words “ sine Iicentia. ”
N 2