Part 42

[1104] Vinogradoff, Villainage, 301.

[1105] Even T. R. W. and in a thoroughly manorial county such as Hampshire we may find a village in which the lord has no demesne. See e.g. D. B. i. 41 b, Alwarestoch.

[1106] Hist. Eng. Law, ii. 315

[1107] Ine, 67. See Schmid's note.

[1108] See above, p. 15.

[1109] See Meitzen, Siedelung und Agrarwesen der Germanen, ii. 97 ff.

[1110] Stubbs, Const. Hist. i. 223.

[1111] The subject is treated at length by Kemble, Saxons, ii. 490 and App. D, and Schmid, p. 545.

[1112] D. B. i. 174. Compare Ine, 4; Æthelr. VIII. 11; Cnut, I. 10.

[1113] Hist. Eng. Law, ii. 95.

[1114] Æthelred, III. 3; Schmid, App. II. 67 and Schmid, Glossar, s. v. _land-ceáp_.

[1115] See above, pp. 55, 122, 125.

[1116] See above, p. 6. In a charter of Æthelred, K. 689 (iii. 284), Abp. Sigeric, the reputed inventor of the danegeld, is represented as pledging a village of thirty manses in order that he may pay the money demanded by the pirates. He thus raises 90 pounds of purest silver and 200 mancuses of purest gold. If the mancus was the eighth of a pound (Schmid, p. 595) we have 90 pounds of silver and 25 of gold, or in all perhaps £390. The whole danegeld of Kent under Henry II. was less than £106. For other transactions of a similar kind, see Crawford Charters, 76.

[1117] See above, p. 27.

[1118] Hist. Eng. Law, i. p. 416.

[1119] K. 1327 (iv. 190): 'swa full and swa forð swa Sihtric eorll of ðan ministre þeowlic it heold.'

[1120] Cnut, II. 20.

[1121] Hist. Eng. Law, ii. p. 458.

[1122] Chron. Petrob. 166: 'Sunt etiam in eadem scira 15 undersetes qui nullum servicium faciunt nisi husbondis in quorum terra sedent.'

[1123] See above, p. 136.

[1124] Schmid, App. III. p. 370; Seebohm, English Village Community, p. 129. See also Liebermann's article in Anglia, ix. 251, where the _Gerefa_, which seems to be a second part of this document, is printed.

[1125] We here adopt Schmid's conjecture: 'and scorp to friðscipe [_corr._ fyrdscipe].'

[1126] Ibid.: 'and hlaford feormian,' and supply a feorm (firma) for his lord.

[1127] The text says that he must lie at his lord's fold; but probably it refers to the _soca faldae_. See above, p. 76.

[1128] Of the serfs we hear (c. 8, 9) what they are to receive, but not what they ought to do; their services are unlimited.

[1129] Schmid, p. 596: Maurer, K. U. ii. 405.

[1130] See above, p. 305, also Maurer, K. U. ii. 406.

[1131] He is to 'work' for his lord; but then see how Oswald speaks of his knights and radmen: 'semper illius ... dominatui et voluntati ... cum omni humilitate et subiectione subditi fiant secundum ipsius voluntatem.' Cf. D. B. i. 172 b: 'deserviebat sicut episcopus volebat' ... 'tenuit ad servitium quod episcopus voluit.' The translator who turned him into a villanus was capable of turning the king's _geneat_ of Ine's law into a _colonus_, a _colonus_ with a wergild of 1200 shillings! See Schmid, p. 29.

[1132] See above, p. 36.

[1133] See e.g. cap. i., where it is pretty clear that he can not translate _scorp_. So in the Latin version of Edgar II. c. 1 he renders _geneatland_ by _terra villanorum_. But about such a matter as this the testimony of the Quadripartitus is of no value. See Liebermann, Gerefa, Anglia, ix. 258.

[1134] Mr Seebohm, p. 130, commits what seems to me the mistake of saying that the cottiers and boors are 'various classes of geneats.' To my thinking a great contrast is drawn between the _geneat_ and the _gebúr_ both in this document and in the account of Tidenham. So in Edgar II. c. 1 the contrast is between land which the great man has in hand and land which he has let to his 'fellows,' his _equites_ and _ministri_. See Konrad Maurer, K. U. ii. 405-6. Such words as _gebúr_ and _burus_ are obviously very loose words and it is likely that many a man who answered to the description of the _gebúr_ given by the Rectitudines appears in Domesday Book, which in general cares only about fiscal distinctions, as a _villanus_ or _bordarius_. But we have clear proof that the surveyors saw a class of _buri_ ( = _coliberti_) who were distinct from the ordinary _villani_. See above, p. 36.

[1135] K. 452 (ii. 327). See also Two Chartularies of Bath Abbey (Somerset Record Society), pp. 5, 18, 19.

[1136] K. iii. 449; E. 375: Seebohm, 148. Both documents come from MS. C.C.C. Camb. cxi. The conveyance is on f. 57, the statement of services on f. 73. The statement of services immediately precedes the lease of Tidenham to Stigand, K. 822 (iv. 171). Thus we have really better reason for referring that statement to the very eve of the Norman Conquest than to 956. See also Kemble, Saxons, i. 321, and Maurer, K. U. ii. 406.

[1137] K. 1077 (v. 146; iv. 306); T. 143; Kemble, Saxons, i. 319; Seebohm, 160. But the form of the instrument as given in the Codex Wintoniensis is best seen in B. ii. 240. We have quoted above the estimate of this Codex formed by Mr Haddan and Dr Stubbs (Councils, iii. 638).

[1138] B. ii. 238.

[1139] B. ii. 239.

[1140] See above, p. 129.

[1141] Ine, 67.

[1142] Ine, 39. The man who leaves his lord (not his lord's land, but his lord) without license, or steals himself away into another shire, is to pay 60 shillings (no trivial sum) to his lord.

[1143] Surely the law, Hloth. and Ead. c. 15, which begins 'If a man receive a guest three nights in his own home (an his agenum hame)' is not directed only against the lords of manors. See Meitzen, Siedelung und Agrarwesen, ii. 123.

[1144] Ashley, Translation of Fustel de Coulanges, Origin of Property, p. xvi.

[1145] K. 220 (i. 280): 'ad regalem villam Lundoniae perveniens.'

[1146] Fustel de Coulanges, L'Alleu, ch. vi. There is much to be said on the other side; see Flach, Les origines de l'ancienne France, ii. pp. 47-62. As to the _villa_ of the Lex Salica, see Blumenstok, Entstehung des deutschen Immobiliareigenthums, i. 219 ff.

[1147] The suggestion that _villa_ appears in some of our place-names as the termination _-well_ runs counter, so Mr Stevenson tells me, to rules of phonology.

[1148] See Bosworth's Dictionary; Kemble, Cod. Dipl. iii. p. xli. In the translation of St. Mark viii. 23, 26 both _wíc_ and _tun_ are used as equivalents for _vicus_:--'eduxit eum extra vicum ... et si in vicum introieris' = 'and lædde hine butan þa wic ... and ðeah þu on tun ga.' Even in France the word _vicus_ becomes part of numerous place-names: see Flach, op. cit. i. p. 53.

[1149] There is something curious about the use made of _wick_. It is often used to distinguish a hamlet or small cluster of houses separate from the main village. Thus in the parish of _X_ we shall find _X-wick_. The _berewicks_ and _herdwicks_ of D. B. (see above, p. 114) seem to be small clusters. On the other hand London is a _wíc_; Hloth. and Ead. 16.

[1150] K. 1041 (v. 88): 'in Dorobernia etiam civitate unam villam donabo ad quam pertinet quinque iugera terrae et duo prata.' K. 276 (ii. 57): 'dabo unam villam, quod nos Saxonice an haga dicimus.' K. 259 (ii. 26): 'villam unam ab orientale parte muri Doroverniae civitatis.'

[1151] K. 829 (iv. 191).

[1152] K. 845 (iv. 204). In a passage which has been interpolated into one copy of the A.-S. Chronicle (Thorpe, p. 220) we read 'And se biscop ... bohte þa feala cotlif æt se king.'

[1153] Crawford Charters, pp. 22, 125; K. 1293 (vi. 138).

[1154] Thus K. 109 (i. 133): 'villam unam ... quae iam ad Quenegatum urbis Dorovernensis in foro posita est.' It is not denied that in some quite early charters a king gives a _villa_ or _villula_, e.g. K. 209 (i. 264): 'Heallingan cum villulis suis'; see also K. 140 (i. 169), in which _villula_ and _viculus_ are used as synonyms.

[1155] A good example is that abominable forgery K. 984 (v. 2), Wulfhere's charter for Peterborough.

[1156] For example, K. 117-8-20 (i. 144-7).

[1157] One of the earliest instances of what looks like manorial organization will be found in K. 201 (i. 253); B. i. 485. In 814 Cenwulf gives to the Abp. of Canterbury a plough-land: 'et hoc aratrum cum omnibus utensilibus bonis ad mansionem in grafon æa [Graveney] æternaliter concessum est.'

[1158] A.D. 880, K. 311 (ii. 107): 'Insuper etiam huic donationi in augmentum sex homines, qui prius pertinebant ad villam regiam in Beonsinctune, cum omni prole stirpeque eorum ad eandem conscripsimus aecclesiam.' A.D. 889, K. 315 (ii. 117): 'cum hominibus ad illam pertinentibus.' A.D. 962, K. 1239 (vi. 49): 'vineam ... cum vinitoribus.' In late documents penned in English it is common to convey land 'with meat and with man.' Instances are collected in Crawford Charters, 127.

[1159] Therefore we sometimes meet with the form _cassata_, while _manens_ is treated as a feminine word; K. i. 301; B. i. 573: 'has x. manentes ... dividendas dimisit.' So Asser (ed. Camden, p. 4) says that Æthelwulf ordered that one poor man should be fed and clothed 'per omnem hereditariam terram suam semper in x. manentibus.'

[1160] K. 1033 (v. 73): 'aliquam portionem terrae ... in modum videlicet ut autumo v. cassatorum.' K. 1308 (v. 83): 'aliquam portionem terrae ... in modum videlicet ut autumo xx. manentium.' K. 565 (iii. 64): 'quoddam ruris clima sub aestimatione decem cassatorum.' K. 573 (iii. 87): 'ruris quandam particulam, denis ab accolis aestimatam mansiunculis.' K. 602 (iii. 146): 'quoddam rus x. videlicet mansarum quantitate taxatum.'

[1161] Let us open the Cod. Dipl. at the beginning of Edmund's reign (ii. 218). The number of manses given in twenty-five consecutive charters is as follows: 10, 20, 10, 10, 9, 10, 15, 7, 8, 20, 10, 3, 5, 20, 30, 3, 6, 5, 3, 7, 20, 20, 5, 8, 5.

[1162] It seems almost necessary to protest that to-day our landowners are not semi-servile occupants of the soil, though they pay land taxes, house taxes, income taxes and rates innumerable.

[1163] I can not but think that Fustel de Coulanges knew his business thoroughly well, and that if the German is to be taught his proper and insignificant place, the less that is said of intermixed 'strip-holding' the better, though to ignore it utterly was, even in France, a bold course.

[1164] Meitzen, op. cit. i. 431-41.

[1165] See above, p. 139.

§ 6. _The Village Community._

[The village community.]

We have argued for an England in which there were many free villages. It remains for us to say a word of the doctrines which would fill England with free landowning village communities. Here we enter a misty region where arguments suggested by what are thought to be 'survivals' and inferences drawn from other climes or other ages take the place of documents. We are among guesses and little has as yet been proved.

[The popular theory.]

A popular theory teaches us that land belonged to communities before it belonged to individuals. This theory has the great merit of being vague and elastic; but, as it seems to think itself precise, and probably owes some of its popularity to its pretence of precision, we feel it our duty to point out to it its real merit, its vague elasticity.

[Co-ownership and ownership by corporations.]

It apparently attributes the ownership of land to communities. It contrasts communities with individuals. In so doing it seems to hint, and yet to be afraid of saying, that land was owned by corporations before it was owned by men. The hesitation we can understand. No one who has paid any attention to the history of law is likely to maintain with a grave face that the ownership of land was attributed to fictitious persons before it was attributed to men. But if we abandon ownership by corporations and place in its stead co-ownership, then we seem to be making an unfortunate use of words if we say that land belonged to communities before it belonged to individuals. Co-ownership is ownership by individuals. When at the present day an English landowner dies and his land descends to his ten daughters, it is owned by individuals, by ten individuals. If each of these ten ladies died intestate leaving ten daughters, the land would still be owned by individuals, by a hundred individuals.

['Communities' as owners.]

The distinction that modern law draws between the landowning corporation and the group of co-owners is as sharp as any distinction can be. It will be daily brought home to any one who takes an active share in the management of the affairs of a corporation, for example, a small college which has a master, six fellows and eight scholars. A conveyance of land to the college and a conveyance of land to these fifteen men would have utterly different effects. A corporation may be deep in debt while none of its members owes a farthing. Now we may suspect, and not without warrant, that in a remote past these two very different notions, namely that of land owned by a corporation and that of land owned by a group of co-owners were intimately blent in some much vaguer notion that was neither exactly the one nor exactly the other. We may suspect that could we examine the conduct of certain men who lived long ago we should be sorely puzzled to say whether they were behaving as the co-owners of a tract of land or as the members of a corporation which was its owner. But to fashion for ourselves any clear and stable notion of a _tertium quid_ that is neither corporate ownership nor co-ownership, but partly the one and partly the other, seems impossible[1166]. Therefore if, in accordance with the popular theory, we attribute the ownership of lands to 'communities,' we ought to add that we do not attribute it to corporations and that we are fully aware that co-ownership can not be sharply contrasted with ownership by individuals.

[Possession and ownership.]

Also since we are apt to fall into the trick of talking about possession when we mean ownership or proprietary right, we need not perhaps ask pardon for the remark that land owned by a group of three joint tenants may be possessed in many different ways. The three may be jointly possessing the whole; each may be severally possessing a physically divided third; the whole may be possessed by one of them or by some fourth person; the possession may be rightful or wrongful.

But there is a graver question that must be raised. When we say that land belonged to communities before it belonged to individuals, are we really speaking of ownership or of something else?

[Ownership and governmental power.]

At the present day no two legal ideas seem more distinct from each other than that of governmental power and that of proprietary right. The 'sovereign' of Great Britain (be the sovereignty where it may) is not the owner of Great Britain, and if we still say that all land is 'held of' the king, we know that the abolition of this antique dogma, this _caput mortuum_, might be easily accomplished without any perceptible revolution in the practical rules of English law. A landowner in the United States does not 'hold of' the State or the people or the government of the State. The 'eminent domain' of the State is neither ownership nor any mode of ownership. Further, we conceive that the sovereign person or sovereign body can, without claiming any ownership in the soil, place many restrictions on the use that an owner may make of his land. A law may prohibit owners from building on certain lands: those lands are still their lands. Again, the supposed law may be not a negative but a positive rule; it may require that the owners of certain lands shall build upon them, or shall till them, or shall keep them as pasture[1167]: still neither state nor sovereign will be owner of those lands or have any proprietary interest in them. Our law may subject certain lands to a land-tax to be paid to the state in money, or to a tithe to be paid to the church in kind, but the state will not and the church will not be part-owner of those lands. Our state may habitually expropriate owners, may take their lands from them because they are felons or because their lands are wanted for the construction of railways. We may conceive it expropriating owners who have done no wrong and yet are to have no compensation; but until the expropriation takes place the state does not own the land. As with land, so with chattels. The owner of a cart may find that it is impressed for the purpose of military transport[1168] and yet the cart is his and not the state's.

[Ownership and the powers of subordinate governors.]

Similar powers may be exercised by persons or bodies that are not sovereign, for example, by the governor of a province, by a county council or a municipal corporation. Suppose that the owners of land situate within a certain borough are prohibited by a by-law from placing on their soil any buildings the plans of which have not been approved by the town council. Carry this supposition further:--suppose that the town council is a 'folk-moot' which every inhabitant of the borough may attend. Still, according to our thinking, there would here be no communal ownership and no division of ownership between individuals and a corporation. If we thought it well to say that in such a case the community would have some kind of 'eminent domain' over the land of individuals, we should have to add that this kind of eminent domain was not a proprietary right, but merely governmental power, a power of making general rules and issuing particular commands. Nor would the case be altered if the expressed object of such rules and commands was the interest, it may even be the pecuniary interest, of the men of the town. The erection of buildings may be controlled in order that the town may be wholesome and sightly, or we may conceive that landowners in the suburbs are compelled to keep their land as market-gardens or as dairy-forms in order that vegetables or milk may be cheap:--for all this the town council or community of townsfolk would have no property in the land.

[Evolution of sovereignty and ownership.]

But though this be so, we can not doubt that could we trace back these ideas to their origin, we should come to a time when they were hardly distinct from each other. The language of our medieval law tells us that this is so. The one word _dominium_ has to cover both proprietary rights and many kinds of political power; it stands for ownership, lordship, sovereignty, suzerainty. The power that Edward I. wields over all England, the power that he claims over all Scotland, all Gascony, the right that he has in his palace of Westminster, the right that he has in his war-horse, all these are but modes of _dominium_. Then we imagine a barbarous horde invading a country, putting its inhabitants to the sword and defending it against all comers. Doubtless in some sort the land is its land. But in what sort? In the sort in which Queen Victoria or the British nation has lands in every quarter of the globe, the sort in which all France belongs to the French Republic, or the sort in which Blackacre is the land of John Styles? Have the barbarians themselves answered this question? Have they asked it[1169]?

[Communal ownership as a stage.]

Now if we are going to confuse sovereignty with ownership, _imperium_ with _dominium_, political power with proprietary right, why then let our socialists and collectivists cease their striving and sing _Te Deum_. Already their ideal must be attained. Every inch of the soil of France, to name one instance, 'belongs' to the French Republic. But, if we would not be guilty of this confusion, then we must be very careful before we assent to the proposition that in the normal course of history (if indeed in such a context history can be said to have a normal course) the ownership of land by communities appears before the ownership of land by individuals. Even if we put aside all such criticisms as would be legal quibbles in the eyes of impatient theorists, and refuse to say whether the 'community' is a mass of men, an ideal person or _tertium quid_, we still are likely to find that the anthropologists will be against us. We are now told by one of the acutest of explorers that, if we leave out of account as no true case of ownership the sort of inchoate sovereignty which an independent tribe of hunters may exercise over a piece of the world's surface, 'ownership of land by individuals' is to be found at a much lower grade in the scale of civilization than that at which 'communal ownership' makes its first appearance[1170]. Communal ownership, it is said, is not seen until that stage is reached at which the power of the chieftain is already a considerable force and the work of centralization is progressing. With these inductions we do not meddle; but if the anthropologist will concede to the historian that he need not start from communalism as from a necessary and primitive _datum_, a large room will be open for our guesses when we speculate about the doings of a race of barbarians who have come into contact with Roman ideas. Even had our anthropologists at their command materials that would justify them in prescribing a normal programme for the human race and in decreeing that every independent portion of mankind must, if it is to move at all, move through one fated series of stages which may be designated as Stage _A_, Stage _B_, Stage _C_ and so forth, we still should have to face the fact that the rapidly progressive groups have been just those which have not been independent, which have not worked out their own salvation, but have appropriated alien ideas and have thus been enabled, for anything that we can tell, to leap from Stage _A_ to Stage _X_ without passing through any intermediate stages. Our Anglo-Saxon ancestors did not arrive at the alphabet, or at the Nicene Creed, by traversing a long series of 'stages'; they leapt to the one and to the other.

[A normal sequence of stages.]