The lords and the strips.

We are far from saying that wherever there is strip-holding, there liberty and equality have once reigned[1164]. It is very possible that where a barbarian chieftain obtained a ring-fenced allotment of conquered soil, he sometimes divided it into scattered strips which he parcelled out among his unfree dependants. But if he did this, he did it because his only idea of agriculture was derived from a village formed by men who were free and equal. The maintenance of a system of intermixed strip-holding may be due to seignorial power, and a great deal of the rigidity of the agrarian arrangements that we see in the England of the thirteenth century may be due to the same cause. Seignorial power was not, at least in origin, absolute ownership. It had to make the best it could of an existing system. For the lord’s purposes that system was at its best when it was rigid and no tenement was partible. But assuredly this plan was not originally invented by great proprietors who were seeking to get the most they could out of their land, their slaves and their capital.

The ceorl and the slave.

That we have not been denying the existence of slavery will be plain. Indeed we may strongly suspect that the men who parcelled out our fields were for the more part slave-owners, though slave-owners in a very small way. To say nothing of Welshmen, there was quite enough inter-tribal warfare to supply the ceorl with a captive. But it was not for the sake of slaves or serfs or ‘semi-servile’ folk that the system of intermixed strips was introduced.

The condition of the Danelaw.

Lastly, the theory which would derive the English manor from the Roman villa must face the grave problem presented to it by the account which Domesday Book, when speaking of the Confessor’s day, gives of the eastern and northern counties, of a large quarter of all England, and of just that part of England which was populous. We see swarms of men who are free men but who are subject, they and their land, to various modes and degrees of seignorial power. The modes are many, the degrees are gentle. Personal, tenurial, justiciary threads are woven into a web that bewilders us. Here we see the work of commendation, there the work of the land-loan, and there again what comes of grants of sake and soke. We see the formation of manors taking place under our eyes, and as yet the process is by no means perfect. In village after village there is nothing that our economic historians would consent to call a manor. Now, no doubt, the difference between the east and the west is, at least in part, due to Danish invasions and Danish settlements. But how shall we picture to ourselves the action of the Danes? Is it to be supposed that they found the Anglo-Roman manor-villa a prevalent and prosperous institution, that they destroyed it and put something else in its place, put in its place the village of free peasants who could ‘go with their land’ to what lord they pleased? If so, then we have to face the question why these heathen Danes acted in a manner so different from that in which their predecessors, the heathen Angles and Saxons, had acted. Surely one part of the explanation is that the inswarming barbarians checked the manorializing process that was steadily at work in Wessex and Mercia. We do not say that this is the whole explanation. We have seen how free were many of the Cambridgeshire villages and have little reason to believe that they had been settled by Danes[1165]. The west country is the country to which we shall naturally look for the most abundant traces of the Wealh theow. There it is that we find numerous servi, and there that we find rather trevs than villages. But also we have hardly a single land-book of early date which deals with any part of the territory that became the Danelaw. Many a book the Danes may have burnt when they sacked the monasteries. They sacked the monasteries, burnt the books and freed the land. But still we may doubt whether the practice of booking lands to the churches had gone far in East Anglia and the adjacent shires when they were once more overwhelmed by barbarism. No doubt in course of time the churches of the east became rich: Ely and St Edmunds, Peterborough and Ramsey, Croyland and Thorney. But, even when supplemented by legend and forgery, their titles to wide territories can seldom be compared for antiquity to the titles that might have been pleaded by the churches of Kent and Wessex and the Severn Valley. Richly endowed churches mean a subjected peasantry. And thus we may say of the Danes that if in a certain sense they freed the districts which they conquered, they in the same sense enslaved the rest of England. Year by year Wessex and Mercia had to strain every nerve in order to repel the pagans, to fit out fleets, build burgs and keep armies always in the field. The peasant must in the end bear the cost of this exhausting struggle. Meanwhile in the north and the east the process that makes manors has been interrupted; it must be begun once more. It was accomplished by men some of whom had Scandinavian blood in their veins, but who were not heathens, not barbarians: it was accomplished by Normans steeped in Frankish feudalism.

§ 6. The Village Community.

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.

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].

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.

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.

ESSAY III.
THE HIDE.

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.

§ 1. Measures and Fields.

At the present moment there is no need for arguments which insist upon the immutable character of ancient agrarian arrangements. If we take up a map of a common field drawn in the eighteenth century, the lines that we see upon it are in the main very old. The scheme seems fashioned for the purpose of resisting change and compelling the men of one age to till the land as their fathers tilled it. Nothing but an unanimous agreement among those who are not likely to agree can break up that prison-house of cells in which agriculture has been cramped and confined. Rather, it may be, the student who is perusing the ‘estate map’ and who is fascinated by the possession of a new tool for picking historical locks, should warn himself that, though there has been permanence, there has also been change, and that in a far-off time changes of a certain sort came quickly. True that in the current of agricultural progress there is a rapid acceleration as it flows towards our own day. We may easily go back to an age when the introduction of a new process or new implement was rare. On the other hand, if we fix our attention on the map of any one village and contemplate its strips and balks and virgates, the hazard involved in an assumption of their antiquity will increase swiftly when we have left behind us the advent of Duke William and are urging our inferential career towards Hengest or, it may be, towards Cæsar.

Rapidity of change in old times.

Let us look, for example, at the changes that take place in some Essex villages during the twenty years that precede the Domesday Inquest. The following table shows them:

These are but specimens of the obscure little revolutions that are being accomplished in the Essex villages. In general there has been a marked increase in the number of bordarii, at the expense of the villeins on the one part and the serfs on the other[1222], and this, whatever else it may represent, must tell us of a redistribution of tenements, perhaps of a process that substitutes the half-virgate for the virgate as the average holding of an Essex peasant. The jar of conquest has made such revolutions easy[1223].

Devastation of villages.

But, it will be said, though the ‘bundles’ of strips be cut in half, the main features of the field remain constant. Let us, however, look at Yorkshire, where for fifteen years an immense tract of land has been lying ‘waste.’ Have we any reason to believe that when agriculture slowly steals back into this desert there will be a mere restoration of the defaced map? Surely not. If for a few years an ‘open field’ lies waste, there will be no mere restoration. For one thing, many of the old outlines will have utterly vanished. Even if the acres were already divided by the so-called ‘balks’ (and we can not be sure that they always were[1224]), the balk was but a narrow strip of unploughed sward and would hardly be perceptible when the whole field was once more a sheet of grass and weeds. For another thing, new settlers would probably begin by ploughing only a small portion of the old field. It is likely enough that their measuring rod would not be even approximately equal to the rod employed in a previous century, and they would have ample opportunity for the introduction of novelties, for the substitution of three fields for two and for all that such a change implies. Now William’s deliberate devastation of the north is but one final and grandiose exploit of an ancient kind of warfare. After his day agrarian history becomes more stable because invasions cease and the character of civil warfare changes. The strife between York and Lancaster, between King and Parliament, passes like a thunderstorm over the fields; it damages the crops; but that is all, and Bosworth ‘Field’ and Naseby ‘Field’ will next year be tilled in the same old way. A raid of the Danes, a feud between Angle and Saxon, was a different affair. The peasants fought. Men, women and children were sold as slaves. Also there was deliberate devastation. ‘They make a wilderness and call it peace.’ What else should they call it, when a foodless wilderness is the most scientific of all frontiers? Readers of the English Chronicle will doubt whether there is any village in England that has not been once, or more than once, a deserted village. And if we must reckon with war, there is famine also to be reckoned with. When in a few brief words the English Chronicler tells us that in 1043 there was mickle hunger in the land so that the sestar of corn sold for sixty pence and even more[1225], he is, like enough, telling us of a disaster which depopulated many a village and forced many a villager to bow his head for meat in those evil days[1226]. Agrarian history becomes more catastrophic as we trace it backwards.

Village colonies.

And, putting on one side the ravages of war and famine, we must call to mind the numerous hints that our map gives us of village colonization[1227]. Men did not make two contiguous villages at one time and call them both Hamton. Names are given to places in order that they may be distinguished from neighbouring places. So when we see two different villages, called Hamton and Other Hamton, lying next each other, we may be fairly certain that they are not of equal antiquity, and it is not unlikely that the one is the offshoot and daughter of the other[1228]. There are about one hundred and fifty Newtons and Newtowns in England. Every instance of colonization, every new settlement in the woods, gave scope for the introduction of novelties, such scope as was not to be found in after days when men stood thicker on the soil and all the best land was already tilled[1229].

Antiquity of the three-field system.

Therefore we must not trust a method of husbandry or a scheme of land-measures much further than we can see it. Nothing, for example, could be rasher than the assumption that the ‘three-course system’ of tillage was common in the England of the seventh century[1230]. We have a little evidence that it was practised in the eleventh[1231], perhaps some evidence, that it was not unknown in the ninth[1232]. But ‘the two-course system’ can be traced as far[1233], and seems to have been as common, if not commoner, in the thirteenth century[1234]. If on a modern map we see a village with ‘trinity fields,’ we must not at once decide that those who laid them out sowed two in every year, for it is well within the bounds of possibility that two were left idle[1235]. An agriculture of this kind was not unknown in the Yorkshire of the fourteenth century[1236], and indeed we read that in the eighteenth ‘one crop and two fallows’ was the traditional course in the open field of a Suffolk village[1237].

Differences between the different shires.

We have time enough on our hands. Between Domesday Book and the withdrawal of the legions lies as long an interval as that which separates the Conqueror from Mr Arthur Young. Also we have space enough on our hands. Any theory that would paint all England as plotted out for proprietary and agricultural purposes in accordance with a single pattern would be of all theories the least probable. We need not contrast Kent with Westmoreland, or Cornwall with Norfolk, for our maps seem to tell us that Somerset differed from Wiltshire and Dorset. The settlement of a heathen folk loosely banded together under a war-lord was one thing; the conquest of a new province by a Christian king who was advised by foreign bishops and had already been taught that he had land to ‘book,’ would be another thing. If, as seems possible, we read in Ine’s laws of a ‘plantation’ of some parts of Somerset effected by means of large allotments made to the king’s gesiths, who undertake to put tillers on the soil[1238], we must not at once infer that this is an old procedure, for it may be very new, and may have for its outcome an agrarian arrangement strikingly unlike that which existed in the heart of the older Wessex.

New and old villages.

Moreover there are upon the face of our map many cases which seem to tell us that in the oldest days the smallest district that bore a name was often large, and therefore that the territory which subserved a single group of homesteads was often spacious. One example we will take from Norfolk. We find a block of land that now-a-days consists of eleven parishes, namely, Wiggenhall S^t. Mary the Virgin, Wiggenhall S^t. German, Wiggenhall S^t. Peter, Wiggenhall S^t. Mary Magdalen, Tilney cum Islington, Tilney All Saints, Tilney S^t. Lawrence, Terrington S^t. Clement, Terrington S^t. John, Walpole S^t. Peter, Walpole S^t. Andrew[1239]. In such a case we can hardly suppose that all these villages belong to the same age, even if we are not entitled to infer that the later villages were not founded until the day for parish churches had arrived. This being so, it is highly probable that some villages were formed at all stages of the feudalizing process, and therefore that a historical account of ‘the’ English township, or even of ‘the’ English nucleated village, would of necessity be untrue. And, while this East Anglian specimen is still before us, we may notice another interesting trait. In the Marshland Fen there is a considerable tract of ground which consists of ‘detached portions’ of these and other villages. Each has been given a block there, a fairly rectangular block. At one point the partition is minute. A space of less than 36 acres has been cut up so that no less than six villages shall have a piece, a rectangular piece of it[1240]. It seems very possible that this fen has at some time been common ground for all these villages, and, as already said, it is in this quarter that we may perhaps find traces of something that resembled the ‘marks’ of Germany[1241]. The science of village morphology is still very young, and we must not be led away into any discussion of its elements; but there is the more reason why we should take to heart those warnings that it already gives us, because what we can read of hides is to be found for the more part in documents proceeding from a central power, which, for governmental and fiscal purposes, endeavours to preserve fictitious continuity and uniformity in the midst of change and variety. However, we must draw nearer to our task.

History of measures.

As regards land measurement, we may be fairly certain that in the days before the Norman Conquest there was little real, though much nominal uniformity. The only measures for the size of things with which nature has equipped the natural man are his limbs. For the things that he handles he uses his thumb, span, cubit, ell; for the ground upon which he walks, his foot and his pace. For large spaces and long distances he must have recourse to ‘time-labour-units,’ to the day’s journey and the morning’s ploughing. Then gradually, under the fostering care of government, steady equations are established between these units:—twelve thumbs, for instance, are to make a foot. Thus the measures for land are brought into connexion with the more delicate measures used for cloth and similar stuff. Then an attempt to obtain some standard less variable than the limb may forge a link between thumbs and grains of corn. Another device is the measuring rod. One rod will represent the arm of an average man; a longer rod may serve to mediate between the foot which is short and the acre or day’s ploughing which is large. In laying out a field in such wise that it shall consist of equal pieces, each of which can be ploughed in a forenoon, we naturally use a rod. We say, for example, that to plough a strip that is 4 rods wide and 40 long is a fair day’s work. For some while there is no reason why the rods employed in two neighbouring villages should be strictly or even approximately equal[1242]. Taxation is the great force that makes for standard land measures. Then a king declares how many thumbs there ought to be in the cloth-ell or cloth-yard. At a later time he actually makes cloth-ells or cloth-yards and distributes them, keeping an ultimate standard in his own palace. Thenceforward all other units tend to become mere fractions or multiples of this royal stick. The foot is a third, the thumb or inch a thirty-sixth part thereof. Five and a half cloth-measuring yards make a royal land-measuring rod. Plot out a space which is four rods by forty, you will have an acre.