Part 43

But in truth we are learning that the attempt to construct a normal programme for all portions of mankind is idle and unscientific. For one thing, the number of such portions that we can with any plausibility treat as independent is very small. For another, such is the complexity of human affairs and such their interdependence, that we can not hope for scientific laws which will formulate a sequence of stages in any one province of man's activity. We can not, for instance, find a law which deals only with political and neglects proprietary arrangements, or a law which deals only with property and neglects religion. So soon as we penetrate below the surface, each of the cases whence we would induce our law begins to look extremely unique, and we shall hesitate long before we fill up the blanks that occur in the history of one nation by institutions and processes that have been observed in some other quarter. If we are in haste to drive the men of every race past all the known 'stages,' if we force our reluctant forefathers through agnatic _gentes_ and house-communities and the rest of it, our normal programme for the human race is like to become a grotesque assortment of odds and ends.

[Was land owned by village communities?]

It is an interesting question whether in the history of our own people we ought to suppose any definite 'stage' intermediate between the introduction of steady agriculture and the ownership of land by individuals. To say the least, we have no proof that among the Germans the land was continuously tilled before it was owned by individuals or by those small groups that constituted the households. This seems to be so whether we have regard to the country in which the Germans had once lived as nomads or to those Celtic and Roman lands which they subdued. To Gaul and to Britain they seem to have brought with them the idea that the cultivable land should be allotted in severalty. In some cases they fitted themselves into the agrarian framework that they found; in other cases they formed villages closely resembling those that they had left behind them in their older home. But to all appearance, even in that older home, so soon as the village was formed and had ploughed lands around it, the strips into which those fields were divided were owned in severalty by the householders of the village. Great pains had been taken to make the division equitable; each householder was to have strips equal in number and in value, and to secure equivalence each was to have a strip in every part of the arable territory. But our evidence, though it may point to some co-operation in agriculture, does not point to a communistic division of the fruits[1171]. Nor does it point to a time when a village council or a majority of villagers conceived that it had power to re-allot the arable strips at regular or irregular intervals[1172]. On the contrary, the individual's hold upon his strips developed very rapidly into an inheritable and partible ownership. No doubt this ownership grew more intense as time went on. It is a common remark that during yet recent ages the ownership of land that is known to our law has been growing more intense. This is true and patent enough; the landowner has gained powers of alienation that his predecessors did not enjoy. Possibly the only ownership of land that was known to the Lex Salica was inalienable and could be inherited only by sons of the dead owner. Then again, in old days a trespass that did no harm would have been no trespass. 'Nominal damages' are no primitive institution, and for a long time a man may have had no action if strange cattle browsed over land on which no crop of corn was ripening[1173]. But this growing intensity of ownership may be seen also in the case of movable goods. Indeed there is a sense in which English law may be said to have known a full ownership of land long ages before it knew a full ownership of chattels[1174]. What, however, we are concerned to observe is that the German village community does not seem to have resisted this development of ownership or set up for itself any antagonistic proprietary claim. It sought no more as regards the arable fields than a certain power of regulating their culture, and in old times the _Flurzwang_, the customary rotation of crop and fallow, must have appeared less as the outcome of human ordinance than as an unalterable arrangement established by the nature of things in general and of acre strips in particular[1175].

[Sidenote: Meadows, pasture and wood.]

Thus, so far back as we can see, the German village had a solid core of individualism. There were, however, lands which in a certain sense belonged to it and which were not allotted for good and all among its various members. For one thing, the meadows were often subjected to a more communal scheme. In the later middle ages we may see them annually redistributed by rotation or by lot among the owners of the arable. The meadows, which must be sharply distinguished from the pasture, were few, and, as we may see from Domesday and other records, they were exceedingly valuable. Probably their great but varying value stood in the way of any permanent partition that would have seemed equitable. Still they were allotted annually and the right to an allotment 'ran with' the house and the arable strips. But again, there were woods and pastures. If we must at once find an owner for this _Almende_, we may be inclined to place the ownership in a village community, though not without remembering that if this community may develop into a land-owning corporation, it may develop into a group of co-owners. But in all likelihood the question as to the whereabouts of ownership might go unanswered and unasked for a long time. Rights of user exercisable over these woods and pastures were attached to the ownership of the houses and the arable strips, and such 'rights of common' may take that acutely individualistic form which they seem to have taken in the England of the thirteenth century. The freeholder of 'ancient arable,' whose tenement represents one of the original shares, has a right to turn out beasts on the waste, on the whole waste and every inch of it, and of this right nor lord, nor community can deprive him[1176]. Perhaps we may attribute to our law about this matter an unusual and, in a certain sense, an abnormal individualism. In the much governed England of the Angevin time, the strong central power encouraged every freeholder to look to it for relief against all kinds of pressure seignorial or communal. Elsewhere a village moot may assume and retain some control over these pasture rights. But still the untilled land, the waste, the _Almende_, exists mainly, if not solely, for the benefit of a small group of tenements that are owned and possessed in severalty. As to the ownership of the land that is subject to the rights of pasture, it is a nude, a very nude _dominium_, and for a long while no one gives it a thought.

[The bond between neighbours.]

In a favourable environment the German village community may and will become a landowning corporation. But many dangers lie before it: internal as well as external dangers. We must not think of it as a closely knit body of men. The agrarian is almost the only tie that keeps it together. Originally the men who settle down in a village are likely to be kinsmen. Some phrases in the continental folk-laws, and some perhaps of our English place-names, point in this direction. But (explain this how we will) the German system of kinship, which binds men together by the sacred tie of blood-feud, traces blood both through father and through mother, and therefore will not suffer a 'blood-feud-kin' to have either a local habitation or a name[1177]. Very soon, especially if daughters or the sons of daughters are allowed (and very ancient Frankish laws allow them) to inherit the dead man's land, a man who lives in one village will often be closer of kin to men who live in other villages than to his neighbours. The village community was not a _gens_. The bond of blood was sacred, but it did not tie the Germans into mutually exclusive clans. Nor did it hold them in large 'house-communities,' for the partible inheritance seems as a general rule to have been soon partitioned[1178]. Nor again may we ascribe to the German house-father much power over his full-grown sons[1179].

[Feebleness of the village community.]

Moreover, the village community was not a body that could declare the law of the tribe or nation. It had no court, no jurisdiction. If moots were held in it, these would be comparable rather to meetings of shareholders than to sessions of a tribunal. In short, the village landowners formed a group of men whose economic affairs were inextricably intermixed, but this was almost the only principle that made them an unit, unless and until the state began to use the township as its organ for the maintenance of the peace and the collection of taxes. That is the reason why we read little of the township in our Anglo-Saxon dooms[1180]. Only as the state's pressure increases, does the vill become one of the public institutions of the kingdom. We may even exaggerate the amount of agricultural co-operation that was to be found within it. Beyond the age in which the typical peasant is a virgater contributing two oxen to a team of eight, our English evidence seems to point to a time when the normal 'townsman' held a hide and had slaves and oxen enough for its cultivation. Nor in all probability was the village community a large body. We may doubt whether in the oldest days it usually comprised more than some ten shareholders[1181].

[Absence of organization.]

Whatever might come in course of time, we must not suppose that the village had much that could be called a constitution. In particular, we must be careful not to carry too far back the notion that votes will be counted and that the voice of a majority will be treated as the voice of all. When that marvellous title _De migrantibus_ raises a corner of the curtain and gives us our only glance into a village of newly settled Salian Franks, the one indisputable trait that we see among much that is disputable is that the new-comer must leave the village if one villager objects to his presence. His presence, we may suppose, might be objectionable because it might add to the number of those who enjoyed wood, waste and water in common; but any one villager can insist on his departure. Out of this state of things 'communal ownership' may grow; but all the communalism that we see at present is very like individualism[1182]. Above all, we must not picture these village lands as 'impressed with a trust' in favour of unborn generations or as devoted to 'public purposes.' If in course of time small folk, cottiers, 'under-settles' and the like, are found in the village, they will have to struggle for rights in the waste, and the rights, if any, that they get will be meagre when compared with those of the owners of 'whole lands' and 'half lands.' An oligarchy of peasant proprietors may rule the waste and the village.

[The German village on conquered soil.]

Thus even in favourable circumstances there were many difficulties to be overcome if the communalism, such as it was, of the village community was to be maintained and developed. But where the village was founded upon conquered soil the circumstances were not favourable. If the Germans invaded Gaul or Britain, the very fields themselves seemed to rebel against communalism and to demand a ring-fenced severalty. Throughout large tracts in Gaul the barbarians were content to adapt themselves to the shell that was provided for them. A certain aliquot share of every estate might be taken from its former owner and be allotted to a Burgundian or a Goth according to a uniform plan[1183]. Throughout other large tracts villages of the Germanic type were founded; a large part of northern Gaul was studded with such villages, and it may be well for us to remember that some of our Norman subjugators came to us from a land of villages, if others came from a land of isolated homesteads[1184]. There can be little doubt that in Britain numerous villages were formed which reproduced in all essentials the villages which Saxons and Angles had left behind them on the mainland, and as little doubt that very often, in the west and south-west of Britain, German kings and eorls took to themselves integral estates, the boundaries and agrarian arrangement whereof had been drawn by Romans, or rather by Celts[1185].

[Development of kingly power.]

Then the invasions and the long wars called for a rapid development of kingship. Very quickly the Frankish kingship became despotism. In England also the kings became powerful and the hereditary nobles disappeared. There was taxation. The country was plotted out according to some rude scheme to provide the king with meat and cheese and ale[1186]. Then came bishops and priests with the suggestion that he should devote his revenues to the service of God and with forms of conveyance which made him speak as if the whole land were his to give away. Here, so we have argued, was the beginning of a process which placed many a village under a lord. The words of this lord's 'book' told him that he was owner, or at least lord, of this village 'with its woods and its pastures.' The men of the village might or might not maintain all their accustomed rights, but at any rate no expansion of those rights beyond the ancient usage was possible. The potentialities of the waste (if we may so speak) had been handed over to a lord; the future was his.

[Free villages in England.]

We must not, however, repeat what has been lengthily said above touching the growth of the manorial system, though we are painfully aware that we have neglected many phases of the complicated process. Here let us remember that this process was not complete in the year 1066, and let us look once more at the free villages in the east; for example, at Orwell[1187]. Who owned the land that served as a pasture for the _pecunia villae_? Shall we place the ownership in the thirteen holders of the arable strips into which the four hides were divided, or in a corporation whereof they were the members, or in their various lords, those eight exalted persons to whom they were commended, or shall we say that here is _res nullius_? The supposition that the lords are owners of the waste we may briefly dismiss. The landholders are free to 'withdraw themselves' and seek other lords. That the land is _res nullius_ we may also positively deny, if thereby be meant that it lies open to occupation. Let a man of the next village turn out his beasts there and he will find out fast enough that he has done a wrong. But who will sue him? Will all the villagers join as co-plaintiffs or will the village corporation appear by its attorney? Far more in accordance with all that we see in later days is it to suppose that any one of the men of Orwell who has a right to turn out beasts can resent the invasion[1188]. This brings to our notice the core of individualism that lies in the centre of the village. The houses and the arable strips are owned in severalty, and annexed to these houses and arable strips are pasture rights which are the rights of individuals and which, it may be believed, seem to exhaust the utility of the waste. What remains to dispute about? A nude, a very nude _dominium_, which is often imperceptible.

[The village meeting.]

Not always imperceptible. From time to time these Orwell people in town meeting assembled may have taken some grave resolution as to the treatment of the waste. They may now and then have decided to add to the amount of arable and diminish the amount of pasture. But occasional measures of this sort, for which a theoretical, if not a real, unanimity is secured, will not generate a regulative organ, still less a proprietary corporation. In decade after decade a township-moot at Orwell would have little to do. The moot of the Wetherley hundred is the court that deems dooms for the men of Orwell. If the lands of Orwell had been steadily regarded as the lands of a corporation they would have passed in one lump to some one Norman lord. But such corporate feeling as there was was weak. The men of Orwell had been seeking lords, each man for himself, in the most opposite quarters. Many of the virgates that are physically in one village have, as we have seen[1189], been made 'to lie in' other villages; for the free man can carry his land where he pleases. When this is so, he is already beginning to feel that the tie which keeps him in a village community is a restraint that has, perhaps unfortunately, been imposed upon him and his property by ancient history.

[What might have become of the free village.]

The fate of these lordless communities and of their waste was still trembling in the balance when King Harold fell. To guess what would have happened had he held his own is not easy. It is possible that what was done by foreigners would have been done, though less rapidly, by lords of English race, and that by consolidating soke and commendation into a firm landlordship and then making among themselves treaties of

## partition, they would have acquired the ownership of the pasture land

subject to the rights of common. It is perhaps more probable that in some cases the old indeterminate state of things might have been maintained until the idea of a fictitious personality had spread from the chapter-house to the borough and from the borough to the village. Then the ownership of the soil might have been attributed to a corporation of which the freeholders in the village were the members. One famous case which came to light in the seventeenth century may warn us that throughout the middle ages there were here and there groups of freeholders, and even of customary tenants, who were managing agrarian affairs in a manner which feudalism could not explain and our English law would not warrant, for they were behaving as though they were members of a landowning corporation[1190]. Often in the east of England the manors must have been so intermixed that village meetings, not however of a democratic kind, may have dealt with business which lay outside the competence of any seignorial court. We know little and, it is to be feared, must be content to know little of such meetings. They were not sessions of a tribunal; they kept no rolls; the law knew them not. But we dare not say that if all seignorial pressure had been removed, the village lands would have been preserved as communal lands for modern villagers. Where there was no seignorial pressure, no joint and several liability for dues, the tie was lax between the owners of the strips in the village fields; and if there was a corporate element in their union, there was also a strong element of co-ownership. Had they been left to themselves, we can not say with any confidence that they would not sooner or later have partitioned the waste. Was it not their land, and might they not do what they liked with their own?

[Mark communities.]

One other question may be touched. It was the fashion in England some years ago that those who spoke of village communities should say something of 'the Germanic mark.' What they said seemed often to imply that the German village community was a mark community. This was a mistake. It seems indeed that there were parts of Germany in which the word 'mark' was loosely used[1191]; but the true _Markgenossenschaft_ was utterly different from the _Dorfgenossenschaft_, and the lands with which it dealt were just those lands that belonged to no village[1192]. In the country which saw the Germans becoming an agricultural race, the lands belonging to the villages were but oases in a wild territory. In later days some large piece of this territory is found to be under the control of a 'mark-community,' whose members are dwelling here and there in many different villages and exercise rights over the land (for the more part it is forest land[1193]) that belongs to no village but constitutes the mark. Traces of what might have become 'the mark system' may perhaps be found in England; but not where they have been usually sought.

[Intercommoning between vills.]

We read of a tract in Suffolk which is common pasture for the whole hundred of Coleness[1194]. Instances in which a piece of land is common pasture for many vills were by no means uncommon in the thirteenth century. They grow rarer as time goes on. Our law provided but a precarious and uncomfortable niche for them under the rubric _common pur cause de vicinage_[1195]. These are the traces of what in different surroundings might have become, and perhaps were near to becoming, mark communities. In the thirteenth century the state seems to have been already enforcing the theory that every inch of land ought to lie within the territory of some vill[1196]. This was a police measure. The responsibility of one set of villagers was not to cease until the boundary was reached where the responsibility of another set began. But even in recent times there have been larger moors in the north of England which 'belonged' (we will use a vague word) to two or more townships in common. At any rate, we must not take back this theory that the vills exhaust the land into the days of the Germanic settlement[1197]. In some districts the vills must have been separated from each other by wide woods, and in all likelihood large portions of these woods were not proper to any one village, but were regarded as belonging, in some sense or another, to a group of villages. However, land of this kind was just the land which was most exposed to an assertion of royal ownership, and we imagine that a mark community had from the first little chance of organizing itself in England[1198]. But we have already made too many guesses.

[Last words.]