Part 44

We must not be in a hurry to get to the beginning of the long history of law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous, and can only be accomplished little by little. If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If, for example, we introduce the _persona ficta_ too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation. The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the 'archaic,' of accustoming our eyes to the twilight before we go out into the night.

FOOTNOTES:

[1166] This seems to me the net outcome of the long and interesting controversy which has divided the Germanists as to the nature of the German _Genossenschaft_.

[1167] This is no extravagant hypothesis. See e.g. Stat. 7 Hen. VIII. c. 1 Thacte advoidyng pullyng downe of townes.

[1168] See Army Act, 1881, 44 and 45 Vic. c. 58, sec. 115.

[1169] Flach, Les origines de l'ancienne France, ii. 45, referring to the classical passages in Cæsar and Tacitus, says: 'Ce serait un abus de mots de dire que la tribu ou que le clan sont propriétaires. La tribu (_civitas_) a la souveraineté du territoire, les clans de leurs subdivisions ont l'usage des parts qui leur sont assignées. La conception même de la propriété est exclue par la nature des terres: étendue de friches toujours renaissantes et en surabondance toujours: _superest ager_.' See also Dargun, Ursprung des Eigenthums, Zeitschrift für vergleichende Rechtswissenschaft, v. 55.

[1170] Dargun, Ursprung des Eigenthums, Zeitschrift für vergleichende Rechtswissenschaft, v. 1 (1884). See also Hildebrand, Recht und Sitte, Jena, 1896.

[1171] In the A.-S. laws about tithes there is really no hint of communalism. When a landowner has ploughed his tenth acre, he is to assign that acre, or rather the crop that it will bear next year, to the church. That is all; and though it may be a rude plan, it is compatible with the most absolute individualism. Mr Seebohm, Village Community, 114, however, seems to think otherwise. As to the Welsh laws, we beg an enormous question if we introduce them into this context. A distribution of acres when the ploughing is done is just what we do not see in England.

[1172] As to the famous words of Tacitus 'Agri pro numero cultorum ab uniuersis in uices [_al._ inuicem] occupantur' and the proposal to read _uniuersis vicis_, one of the best suggestions yet made (Meitzen, Siedelung, iii. 586) is that Tacitus wrote merely _ab uniuersis occupantur_, that a copyist repeated the word _uniuersis_, and that other copyists tried to make sense of nonsense.

[1173] As to the state of things represented by the Lex Salica see Blumenstok, Entstehung des deutschen Immobiliareigenthums, Innsbruck, 1894, pp. 196 ff.

[1174] Hist. Eng. Law, ii. 155. It may be convenient now-a-days to say that _ownership_ implies a power of alienation. See Pollock, Jurisprudence, 166. But to insist on this usage in such discussions as that in which we are engaged would lead to needless circumlocution. The question that is before us is whether as a complaint to which a court of law will give audience 'This acre is mine' is more modern than 'This acre is ours.'

[1175] As to the whole of this matter see Meitzen, op. cit., especially iii. 574-589. As regards arable land in this country the only 'survivals' which point to anything that should be called communal ownership are singularly inconclusive. They relate to small patches of arable land held by burgesses: that is to say, they relate to places in which a strong communal sentiment was developed during the later middle ages, and they do not relate to communities that ought to be called agricultural. The 'burgess plot' is not large enough to have been any man's livelihood when cultivated in medieval fashion, and it may well be modern. It is demonstrable that in one case a very 'archaic' arrangement was deliberately adopted in the nineteenth century by burgesses who preferred 'allotment grounds' to pasture rights. Maitland, Survival of Archaic Communities, Law Quarterly Review, ix. 36.

[1176] Hist. Eng. Law, i. 610-12.

[1177] Hist. Eng. Law, ii. 238. A hypothetical practice of endogamy will hardly give us the requisite explanation, for on the whole the church seems to have encountered little difficulty in imposing its extravagantly exogamous canons. To persuade the converts not to marry their _affines_ was a much harder task.

[1178] Heusler, Institutionen, 229.

[1179] As to the ownership of land by 'families,' see Hist. Eng. Law, ii. 242.

[1180] See above, p. 147.

[1181] Of this in the next essay.

[1182] A valuable and interesting discussion of the proprietary system of the Lex Salica will be found in Blumenstok, Entstehung des deutschen Immobiliareigenthums, Innsbruck, 1894. This will serve as a good introduction to the large literature which surrounds the _De migrantibus_. The least probable of all interpretations seems that given by Fustel de Coulanges.

[1183] See Meitzen, op. cit. i. 526-35.

[1184] Meitzen, i. 517 and the Maps 66 _a_, 66 _b_ in the Atlas.

[1185] Meitzen, ii. 97-122.

[1186] See above, p. 237.

[1187] See above, p. 129.

[1188] Throughout the historical time, so far as we know, the right of every commoner has been well protected against strangers. He might drive off the stranger's beasts, impound them, and, at all events if he had been incommoded, might sue for damages. See _Marys's case_, 9 Coke's Reports, 111 b; _Wells_ v. _Watling_, 2 W. Blackstone's Reports, 1233. He needed no help from his neighbours.

[1189] See above, pp. 13, 124.

[1190] I refer to the much discussed case of Aston and Cote. See Law Quarterly Review, ix. 214.

[1191] Meitzen, op. cit. i. 573.

[1192] Ibid. i. 122-60.

[1193] Therefore its assembly is a _Holtding_, and a _Holzgraf_ presides there: Meitzen, op. cit. i. 125.

[1194] D. B. ii. 339 b: 'In hundret de Coleness est quedam pastura communis omnibus hominibus de hundret.' At Rhuddlan (D. B. i. 269) Earl Hugh has given to Robert half the castle, half the burg, and 'half of the forests which do not pertain to any vill of the said manor.' This, however, is in Wales.

[1195] Hist. Eng. Law, i. 608.

[1196] Ibid. i. 547.

[1197] Blomefield, Hist. Norfolk, iv. 691 gives an account of an extremely fertile tract of pasture known as Tilney Smeeth upon which the cattle of seven 'towns' intercommoned.

[1198] If we are right in supposing that very generally a royal land-book disposes of a whole village, then if it proceeds to give rights in the _communis silva_, it is probably speaking of a wood that is not regarded as annexed to that village but of one which is common to various villages. The intercommoning of vills in a forest is illustrated by the famous Epping case, _Commissioners of Sewers_ v. _Glasse_, Law Reports, 19 Equity, 134. But for the king's rights in forest land, a 'mark community' might have grown up in Epping. On the other hand, but for the king's rights, the land might long ago have been partitioned among the mark-men.

ESSAY III.

THE HIDE.

[What was the hide?]

What was the hide? However unwilling we may be to face this dreary old question, we can not escape it. At first sight it may seem avoidable by those who are interested in the general drift of national life, but have no desire to solve petty problems or face unnecessary difficulties. The history of weights and measures, some may say, is probably very curious and no doubt is worth study; but we, who shall be amply satisfied if we understand the grand movements and the broad traits, must leave this little province, as we must leave much else, to antiquarian specialists. Unfortunately, however, that question about the hide is 'pre-judicial' to all the great questions of early English history.

[Importance of the question.]

If our choice lay between 30 and 40 acres, or again between a long and a short hundred, then indeed we might refuse to take part in the conflict. But between the advocates of big hides of 120 acres or thereabouts and the advocates of little hides of 30 acres or thereabouts there should be no peace. In the construction of early English history we shall adopt one style of architecture if we are supplied with small hides, while if our materials consist of big hides an entirely different 'plan and elevation' must be chosen. Let us take one example. We find the kings giving away manses or hides by fives and tens. What are they really doing? Are they or are they not giving away whole villages? Obviously this question is pre-judicial to many another. Our whole conception of the Anglo-Saxon kingship will be profoundly affected by our attribution or our denial to the king of an alienable superiority over villages that are full of free landowners. This question, therefore, we should have upon our hands even if we thought that we could rear the fabric of political and constitutional history without first laying an economic foundation. But the day for such castles in the air is passing.

Howbeit, we must not talk in this pompous way of castles or foundations. We are not going to lay foundations, nor even to choose a site. We hope to test a few materials and perhaps to show how a site may some day be acquired.

[Hide and manse in Bede.]

From the Norman Conquest so far back as we can go, a certain possessory unit or a certain typical tenement is being thrust upon our notice by the laws, the charters, the historians[1199]. We may begin with Bede. When he is going to speak of the area or the capacity of a tract of land, be it large or be it small, he refers to a certain unit or type, namely, the land of one family (_terra unius familiae_). The abbess Hild acquires the land of one family and erects a religious house upon it[1200]; king Oswy gives away twelve tracts of land, each of which consists of 'the _possessiones_ of ten families'[1201]; the kingdom of the South Saxons contains the land of 7,000 families[1202]. We see that already Bede is thinking rather of the size or capacity of a tract of soil than of the number of households that happen to be dwelling there. 'The measure (_mensura_) of the Isle of Wight is, according to the English mode of reckoning, 1200 families[1203].' 'The isle of Thanet is no small island: that is to say, according to the customary English computation, it is of 600 families[1204].' Some apology is due from a scholar who writes in Latin and who writes thus; so Bede tells us that he is using the English mode of reckoning; he is literally translating some English term.

[Hide and manse in the land-books.]

When his own book is rendered into English that term will reappear. Usually it reappears in the form _híd_, but occasionally we have _hiwisc_ or _hiwscipe_. There seems no room for doubt that _hiwisc_ and the more abstract _hiwscipe_ mean a household, and very little room for doubt that _híd_ springs from a root that is common to it and them and has the same primary meaning[1205]. Elsewhere we may find an equivalence between the hide and the _hiwisc_:--'If a Welsh man thrives so that he has a _hiwisc_ of land and can render the king's gafol, then his wergild is 120 shillings; but if he attains only to a _half-hide_ then his wergild is 80 shillings[1206].' In the charters also we may now and then find that the land to be conveyed is a _hiwisc_[1207], or is the land of one _familia_[1208]. However, the common English term is _hide_, while the scribes of the land-books, who as yet are above inventing a Latin _hida_, ring the changes on half-a-dozen phrases[1209]. We begin with _terra unius manentis_, _terra unius casati_, _terra unius tributarii_, which keep clearly before our eyes the fact or the theory that the normal householder, the normal taxpayer, will possess one of these units. At a little later time the more convenient _mansa_ (sometimes _mansio_[1210] or _mansiuncula_) becomes popular, and we may see also that men are beginning to speak of manents, casates, tributaries 'of land,' much as they would speak of acres or perches of land[1211]. So far as we can see, all these terms are being used as though they were absolutely equivalent. If a clerk has to describe several different tenements, he will write of _manentes_ in one clause and _casati_ in the next, merely because a repetition of the same term would be inelegant[1212]. In Kentish charters we read more of the _aratrum_ and the _sullung_ than of the manse and the hide; but apparently we have here other names for what is a similar and in some sort an equivalent unit[1213]; and it is by no means unknown that Kentish tenements will be called manses and hides[1214].

[The large hide and the manorial arrangement.]

Now if we ask whether the type to which reference is thus made is a tenement comprising about six-score acres of arable land, we are asking a question of the gravest importance. For let us look at some of the consequences which will flow from an affirmative answer. Let it be granted that, long before the Norman Conquest, the hide has become an unit in an unwieldy system of taxation, which has been governed by false assumptions and vitiated by caprice, until the fiscal hide in a given case may widely diverge from its original or indeed from any fixed type. None the less, this system has for its base the theory that the typical man of Anglo-Saxon law, the typical householder or taxpayer, has a hide, has land enough for a team of oxen, has 120 arable acres. The language of the charters supposes that this is so. No doubt the supposition is, as every supposition of this kind must be, untrue; but still it must have a core of truth, and in the remotest age this core will be at its largest. Men will not fall into a habit of speaking of 120 arable acres or thereabouts as the tenement of one family or of one householder, unless as a matter of fact the tenement of one family or of one householder has in a preponderant number of cases some such content as this. Suppose, for example, that the Anglo-Saxon kingdoms of the sixth century had been composed chiefly of lords, whose estates ranged from 600 acres to some much larger quantity, and of 'semi-servile' cultivators, the average size of whose tenements was 30 acres, such a usage of words as that which we are considering could never have struck root. Either the small tenement of the cultivator or the big tenement of his lord must have been taken as the typical 'manse,' the typical 'land of one householder.' Let us at once press home this argument, though at present it involves a hypothesis, for in the dull disquisitions that follow we may be cheered by the thought that great questions are at stake. If in the oldest time the typical 'land of one householder' had 120 arable acres, the manorial system was not prevalent, not dominant, in England. It will be admitted on all hands that this would be much too large a tenement for a serf or a semi-servile _colonus_. On the other hand, it is much too small a tenement for any one who is going to play the part of a manorial lord, unless we use the term _manorial_ in so wide a sense that it becomes useless. For how many tenants will this manorial lord, who is to be taken as the typical householder, have upon his 120 acres? If his arrangements are at all like those revealed to us by Domesday Book, he will keep at least one-third of his land in demesne, and there will remain but 80 acres for the _coloni_. Shall we give him three _coloni_, or four or five? We can hardly give him a larger number. Furthermore, it is quite clear that this 'manorial lord' will not own a village. The villages as we see them in the earliest charters and thence onward into Domesday Book contain five, ten, fifteen hides. Our manorial lord must be content to take his hide in little scraps scattered about among the scraps of some ten or twenty other 'manorial lords' whose hides are similarly dispersed in the open field of a village. All this seems to follow inevitably if once we are satisfied that the hide of the old days had 120 arable acres or thereabouts; for the hide is the land of one typical householder[1215].

[Our course.]

Now for a long time past there has been among historians and antiquaries a good deal of agreement in favour of this large hide, but against it appeal may be made to honoured names, such as those of Kemble and Eyton[1216]. Also it must be confessed that in favour of much smaller hides, or at least of much smaller hides for the earliest days, some weighty arguments may be advanced. In order that they may be understood, and perchance refuted, we must pursue a long and devious course and must raise by the way many questions, touching which we have no right to an opinion: questions about agriculture, questions about land measurement, perhaps even physiological questions. Also it is our misfortune that, as we stumble through the night, we must needs stumble against some of our fellow adventurers.

FOOTNOTES:

[1199] The word _tenement_ will be often employed hereafter. Has it become needful to protest that a _tenement_ need not be a house? If my body is my soul's 'frail tenement,' that is not because my body holds my soul (a reprobate error), but because (for this is better philosophy and sound law) my soul holds my body. But, to descend from these heights, it will be a thousand pities if a vulgar blunder compels us to abandon the excellent _tenement_ in favour of the feeble _holding_ or the over-worked _estate_.

[1200] Hist. Eccl. lib. 4, c. 21 (23), ed. Plummer, i. 253.

[1201] Ibid. lib. 3, c. 24, ed. cit. i. 178.

[1202] Ibid. lib. 4, c. 13, ed. cit. i. 230.

[1203] Ibid. lib. 4, c. 14 (16), ed. cit. i. 237.

[1204] Ibid. lib. 1, c. 25, ed. cit. i. 45.

[1205] If, as Mr Seebohm suggests (Village Community, p. 398), this word meant the skin of an ox, some one would assuredly have Latined it by _corium_, and not by _terra unius familiae_ (_manentis_ etc.)

[1206] Schmid, App. VII. (Wergilds), 2, § 7. By comparing this with Ine 32 we get an even more explicit equation: 'Gif Wylisc mon hæbbe hide londes' = 'Gif Wilisc mon geþeo þæt he hæbbe hiwisc landes.'

[1207] K. 271 (ii. 52), a forgery: 'æt Cemele tien hyda, æt Domeccesige þriddehalf hiwisce.'--K. 1077 (v. 146): 'æt hilcan hiwisce feowerti penega.'--K. iii. 431: 'ðæs anes hiwisces boc ... ðas oðres hiwisces.'--K. 1050 (v. 98). See also Crawford Charters, 127, for _hiwscipe_.

[1208] K. 1006 (v. 47): 'de terra iuris mei aliquantulam portionem, iuxta mensuram scilicet decem familiarum.' See also K. 1007.

[1209] The would-be Latin _hida_ occurs already in K. 230 (i. 297), but is rare before the Conquest. On the other hand, as an English word _híd_ is in constant use.

[1210] K. 131 (i. 159); K. 140 (i. 169).

[1211] Thus, to give one early example, K. 1008 (v. 49): 'duodecim tributarios terrae quae appellantur Ferrinig.' So in K. 124 (i. 151) we have the neuter form _manentia_.

[1212] A good instance in Egbert's Dialogue, H. & S. iii. 404. For how many hides may the clergy swear? A priest may swear 'secundum numerum 120 tributariorum'; a deacon 'iuxta numerum 60 manentium'; a monk 'secundum numerum 30 tributariorum.' Here _tributarii_ alternates with _manentes_ for the same reason that _secundum_ alternates with _iuxta_. So K. 143 (i. 173): '_manentes_ ... _casati_ ... _manentes_ ... _casati_.'

[1213] See Schmid, p. 611.

[1214] See, for instance, Werhard's testament (A.D. 832), K. 230 (i. 297): 'Otteford 100 hidas, Grauenea 32 hidas.' These are Kentish estates. Hereafter we shall give some reasons for thinking that the Kentish _sullung_ may have a history that is all its own.

[1215] Mr Seebohm, Village Community, p. 395, admits that the _familia_ of Bede and the _casatum_ of the charters is the hide, and that the hide has 120 acres. This does not prevent him from holding (p. 266) that when Bede speaks of king Oswy giving to a church twelve _possessiunculae_, each of ten families, we must see _decuriae_ of slaves, 'the bundle of ten slaves or semi-servile tenants.' He seems also to think that while the hide was 'the holding of the full free landholder,' the _hiwisc_ was the holding of a servile family. But the passage which he cites in a note (Wergilds, § 7) seems to disprove this, for there undoubtedly, as he remarks, _hiwisc_=_hide_. It is the passage quoted above on p. 359. The Welshman gets a wergild of 120 shillings (three-fifths of an English ceorl's wergild) by acquiring a _hiwisc_ or (Ine 32) _hide_ of land. Why the _hide_ should not here mean what it admittedly means elsewhere is not apparent.

[1216] Though Eyton has (for some reason that we can not find in his published works) allowed but 48 'gheld acres' to the 'gheld hide,' he can hardly be reckoned as an advocate of the Small Hide. His doctrine, if we have caught it, is that the hide has never been a measure of size. This raises the question--How comes it then that the fractions into which a hide breaks are indubitably called (gheld) 'acres'? Why not ounces, pints, pence?

§ 1. _Measures and Fields._

[Permanence and change in agrarian history.]