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.]