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].
[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.]