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THE ENGLISH MANOR vii

THE ORIGIN OF PROPERTY IN LAND 1

THE THEORY OF MAURER AS TO COMMUNITY OF LAND AMONGST THE GERMANIC NATIONS 3

THE THEORY OF M. VIOLLET AS TO COMMUNITY OF LAND AMONGST THE GREEKS 73

THE THEORY OF M. MOMMSEN AS TO COMMUNITY OF LAND AMONGST THE ROMANS 100

OF THE COMPARATIVE METHOD 106

THE THEORY OF M. DE JUBAINVILLE AS TO COMMUNITY OF LAND AMONG THE GAULS 132

CONCLUSION 149

INTRODUCTORY CHAPTER.

THE ENGLISH MANOR.

In spite of all the labour that has been spent on the early history of England, scholars are at variance upon the most fundamental of questions: the question whether that history began with a population of independent freemen or with a population of dependent serfs. Nothing less than this is at issue in the current discussions as to the existence of the "mark" and the origin of the manor; as well as in the discussions, at first sight of less significance, as to the character of our mediaeval constitution. Neither for the government of the parish nor for the government of the nation is it possible to construct an historical theory which does not rest, consciously or unconsciously, on some view as to the position of the body of the people.

But, though we can understand how it was that historians came to discover the imposing figure of the free Teuton, it does not necessarily follow that they were mistaken. The disproof must be accomplished, if at all, by erudition equal to that by which the doctrine has been supported; and it has been the task of M. Fustel de Coulanges to assail with enormous learning and a cogent style almost every one of those propositions as to early mediaeval constitutional history, which we were beginning to deem the secure achievements of German science.

The second line of defence is the evidence of "comparative custom." India, at any rate, it is urged, displays the village community: there we may see, crystallised by the force of custom, conditions which in Europe have long since passed away. Now it is, of course, true that the village is "the unit of all revenue arrangements in India;" that, over large districts, cultivation is carried on by village groups; and that in some provinces, notably the Punjab, this village group is at present recognised as the joint owner of the village lands. But it is a long step from this to the proposition that "the oldest discoverable forms of property in land," in India, "were forms of collective property;" and that all existing rights of private ownership have arisen from the break-up or depression of the original communities. The truth is, that of late years Indian facts have been looked at almost exclusively through the spectacles of European theory. Now that the mark is receding into improbability, it is urgently to be desired that Indian economic history should be looked at for what it will itself reveal. It would be unwise to anticipate the results of such an investigation. But there is one preliminary caution to be expressed; we must take care not to exaggerate the force of custom. Professor Marshall, in his recent great work, has indicated some of the reasons for believing that custom is by no means so strong in India as is generally supposed; and it is to be hoped that he will see his way to publishing the not-inconsiderable mass of evidence that he has accumulated.

It is reassuring to find, on referring to Gibbon's chapter on the English conquest of Britain, that this conclusion agrees with the judgment of one "whose lightest words are weighty." Gibbon dwells as strongly as anyone could wish on the thorough character of the English operations: "Conquest has never appeared more dreadful or destructive than in the hands of the Saxons." He lays due stress on the fate of Andredes-Ceaster: "the last of the Britons, without distinction of age or sex, was massacred in the ruins of Anderida; and the repetition of such calamities was frequent and familiar under the Saxon heptarchy." He asserts, with vigorous rhetoric, that a clean sweep was made of the Roman administrative organisation:

"The arts and religion, the laws and language, which the Romans had so carefully planted in Britain, were extirpated by their barbarous successors.... The kings of France maintained the privileges of their Roman subjects, but the ferocious Saxons trampled on the laws of Rome and of the emperors. The proceedings of civil and criminal jurisdiction, the titles of honour, the forms of office, the ranks of society ... were finally suppressed.... The example of a revolution, so rapid and so complete, may not easily be found."

Nevertheless, he does not agree with those who hold that such a revolution involved either the "extirpation" or the "extermination" or even the "displacement" of the subject population.

On the whole, we may conclude that the main features of the later manorial system were of Roman origin, and that a large part--how large we are unable to say--of the working population was of Provincial blood. But it does not follow that every later manor represents a Roman villa, or that all the Roman estates had the extent of the manors which now represent them. In both of these directions there was opportunity for much later development: many new manors were doubtless created on new clearings, and many old manors were enlarged. It would be easy enough to create fresh servile tenancies if there was a large body of slaves; and such there certainly was even in the early centuries of the English occupation. One of the most unfortunate consequences of the mark theory has been to create a vague impression that any condition lower than absolute freedom was altogether exceptional in early English society. But we can hardly turn over the old English laws without seeing that this could not have been the case. Not only is there frequent reference to slaves, but manumission occupies as prominent a position as in the Continental codes, was accomplished by ceremonies of a similar character, and brought with it the same consequence in the abiding subjection of the freedman to his former master. As on the Continent also, the Church interfered for the slave's protection, and endeavoured to secure for him a property in the fruits of his labour. It is not necessary to revert to the discussion as whence this class came. It is enough to point to it as explaining the extension of the manorial system. It will, however, be noticed that every fresh proof that the conditions of society in England were similar to those on the Continent strengthens the argument of the preceding pages.

Difficulties such as these can only be satisfactorily overcome by taking into account both sides of the subject--the economic as well as the constitutional or legal. Side by side with a development which combined together gangs of slaves and the households of dependent coloni into the homogeneous class of serfs, and then went on to make out of the mediaeval serf the modern freeman, another series of changes was going on of which M. Fustel de Coulanges says nothing. It was the development from a "wild field grass husbandry," where a different part of the area in occupation was broken up for cultivation from time to time, to the "three-field system" with its permanent arable land pasture, and then again from that to the "convertible husbandry" and the "rotation of crops" of more recent times. The task for the economic historian is to put these two developments into their due relation the one to the other.

The study of economic history is altogether indispensable, if we are ever to have anything more than a superficial conception of the evolution of society. But it must be thorough; and we must not be over-hasty in proclaiming large results. And although a principal motive for such inquiry will be the hope of obtaining some light on the direction in which change is likely to take place in the future, it will be wise for some time to come for students resolutely to turn away their eyes from current controversies. There is a sufficient lesson in the topic we have been considering. The history of the mark has served Mr. George as a basis for the contention that the common ownership of land is the only natural condition of things; to Sir Henry Maine it has suggested the precisely opposite conclusion that the whole movement of civilisation has been from common ownership to private. Such arguments are alike worthless, if the mark never existed.

NOTE A.--ON THE VILLAGE IN INDIA.

NOTE B.--ON THE RUSSIAN MIR.

M. Kovalevsky is none the less a strenuous supporter of the village community theory; and he is indignant with M. Fustel for "endorsing an opinion," that of M. Tchitcherin, "which has already been refuted" by M. Beliaiev. Unfortunately he does not cite any of the facts on which M. Beliaiev relied. He himself allows that but scanty evidence can be found in old Russian documents in support of the theory ; and bases his own argument rather on what has taken place in recent centuries, from the sixteenth down to our own day, when outlying territories have been colonized by immigrants. But this is a dangerous method of proof when used by itself; it would lead, for instance, to the conclusion that because the early communities in New England were not subject to manorial lords, there had never been manorial lords in England. And even in the cases he describes, "the unlimited right of private homesteads to appropriate as much soil as each required was scrupulously maintained" --which is very different from the Mark of Maurer.

See Note A.

Seebohm, 294 n. 3.

References in Seebohm, pp. 283, 287.

THE ORIGIN OF PROPERTY IN LAND

During the last forty years a theory has made its way into historical literature, according to which private ownership in land was preceded by a system of cultivation in common. The authors of this theory do not confine themselves to saying that there was no such thing as private property in land among mankind when in a primitive or savage state. It is obvious that when men were still in the hunting or pastoral stage, and had not yet arrived at the idea of agriculture, it did not occur to them to take each for himself a share of the land. The theory of which I speak applies to settled and agricultural societies. It asserts that among peoples that had got so far as to till the soil in an orderly fashion, common ownership of land was still maintained; that for a long time it never occurred to these men who ploughed, sowed, reaped and planted, to appropriate to themselves the ground upon which they laboured. They only looked upon it as belonging to the community. It was the people that at first was the sole owner of the entire territory, either cultivating it in common, or making a fresh division of it every year. It was only later that the right of property, which was at first attached to the whole people, came to be associated with the village, the family, the individual.

"All land in the beginning was common land," says Maurer, "and belonged to all; that is to say to the people." "Land was held in common," says M. Viollet, "before it became private property in the hands of a family or an individual." "The arable land was cultivated in common," says M. de Laveleye; "private property grew up afterwards out of this ancient common ownership." In a word, the system of agriculture was, in the beginning, an agrarian communism.

This theory is not, strictly speaking, a new one. Long before the present century, there were thinkers who loved to picture to themselves mankind living together, when society was first formed, in a fraternal communism. What is new in this, what is peculiar to our own times, is the attempt to rest this theory on a foundation of historical fact, to support it with quotations from historical documents, to deck it out, so to speak, in a learned dress.

G. L. von Maurer is, if not the earliest, at any rate the chief author of the theory we are examining.

"The idea of property," he says again, "only came as a result of Roman law" . "Property, as we find it in later times, was produced by the decomposition of the ancient mark" .

Our author re-stated his doctrine in another book published two years later: "The associations of the mark are bound up with the primitive cultivation of the soil; they can be traced back to the earliest German settlements, and in all probability once occupied the whole of Germany." We have to consider what are the facts, and what the authorities on which Maurer builds up this doctrine.

As the question concerns very early times, he naturally begins with early authorities. The first is Caesar. Caesar calls our attention, we are told, to the fact that amongst the Germans "there are no separate estates or private boundaries."

The Salic law is a much less complete code than those we have been considering. It makes no mention of sale; but it contains the rule of hereditary succession. Land passes from father to son. We also find enclosed corn fields and meadows,--a state of things hardly to be reconciled with community of land; there are even forests which are one man's property, and where no one has the right of getting wood.

The Ripuarian law indicates the use of hedges and enclosures; it recognises the right of hereditary succession to land, and also the power of disposing of it by sale. All these are unmistakable signs of the prevalence of private ownership.

In Bavarian law property in land is hereditary. Each domain is surrounded by a boundary made "either by a bank of earth, or by stones stuck in the ground, or by trees marked with some particular sign." And we must not suppose that these boundaries merely enclosed gardens; they enclosed fields and vineyards. "He who, whilst tilling his field or planting his vine, has unwittingly moved a land mark, shall restore it in the presence of his neighbours." "When two neighbours having a common boundary have a dispute, if the land marks are not clear, the one says, 'My ancestors possessed the land as far as this line, and left it me by inheritance:' and the other protests and maintains that the land belonged to his ancestors as far as some other line; then the dispute is settled by judicial combat." This is a good instance of individual ownership. Ownership has long been hereditary; since each of the litigants says he has received his estate from his ancestors, and the lands have been held by the same families for several generations. Nor is it only to land under tillage that the right of ownership applies; it applies equally to forests and pastures; to uncultivated as well as to cultivated land: "If any one sells his property, whether cultivated land, or uncultivated, meadows or forests, the sale ought to be transacted in writing and before witnesses."

In Thuringian law, land passes from father to son. Saxon law also recognises the right of private property; and authorises the sale and gift of land.

And so we find that Maurer cannot, from all these nations, produce a single instance of a village holding its land in common or of an association of the mark. Not a single instance either from writers of the time, or from codes of law, or from charters, or from legal formulae. And it is impossible to reply that this is simply a case of omission; for in these laws, charters and formulae, we not only do not find common ownership, but we do find exactly the opposite; we find signs everywhere of private property, and of the rights of inheritance, donation and sale.

We must go further. Are the eighteen or twenty deeds referred to by Maurer given correctly? Do they really mean what our author wishes them to mean? Observe that he never quotes more than a single line, sometimes only one or two words. We must go to the documents themselves and verify them.

Sometimes the owner of the estate divides the forest into two, keeps one part for himself and leaves the other for the use of his tenants. Sometimes, again, he exacts payment in return for these advantages, and this forms part of the yearly rent. Instances of this kind make it clear that the common occupation of a part of a forest does not come down from an earlier custom of joint-ownership, but is connected with the old system of the private estate and its servile holdings.

The success, therefore, of Maurer's theory is not to be attributed to the strength of his evidence. He has not furnished us with a single proof, a single quotation, in support of the community or association of the mark that he pictures to himself as existing when history first begins. Go over the innumerable quotations at the bottom of the pages of his book: more than two-thirds relate to private property; of the rest some hundreds are concerned with minor points unconnected with the subject; not a single one touches the main question; or if there are any which at first sight appear to do so, the slightest examination shows that they have been misunderstood and misinterpreted. The book, nevertheless, has had an enormous influence. It has won many by its neat consistency, others by its apparent learning. Anything like verification of its arguments was gladly dispensed with; especially as this is not an easy thing to do unless you happen to possess the originals. And so, year after year, for forty years, the same story has been repeated, the same arguments brought forward, the same authorities quoted.

"The Frank village," he says, "was a portion of the mark, and the mark was the common property of all its inhabitants; everything was in common--arable land, meadows, forests." You look at the foot of the page for the authorities on which this statement is based, and you find a reference to a document of 786; you turn to this; it is in Beyer, , and you see that it has nothing whatever to do with the mark, that not even the word is to be found in it, and that the document merely relates to a "villa Sentiacus."

Caesar, vi., 22.

The expedition upon the right bank of the Rhine lasted only 18 days.

"Si quis tam burgundio quam romanus in silva communi exartum fecerit, aliud tantum spatii de silva hospiti suo consignet, et exartum quod fecit, remota hospitis communione, possideat."

"Silvarum, montium, et pascui unicuique pro rata possessionis suppetit esse commune." The same rule is to be found in another form in the law of the Burgundians, tit. 67: "Quicumque agrum vel colonicas tenent, secundum terrarum modum vel possessionis suae ratam, sic silvam inter se noverint dividendam." Neither in the one passage nor in the other is there any reference to a forest common to all.

M. Viollet copies Maurer, but forces the meaning still further: "King Chilperic," says he, "was obliged to declare that the neighbours should not succeed and that the sons should" . Such an interpretation is the very opposite of the original.

Neugart, i. p. 153.

Victor Vitensis, i. 4; "Exercitui provinciam Zeugitanam funicuo hereditates divisit."

Lacomblet, No. 4.

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