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.

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.]

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