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ill understood. Districts of ground are in many instances understood to belong to townships or communities, possessing what may be arable by patches, and what is moor as a commonty pro indiriso. But then individuals of such a township often take it upon them to grant feus of particular parts of the property thus possessed pro indiriso. The town of Lerwick is built upon a part of the commonty of Sound; the proprietors of the houses having feu-rights from different heritors of that township, but why from one rather than other. . . . seems altogether uncertain,'
The word ‘mark,' just mentioned in describing the 'out-mark' of the Scandinavian village, involves the leading idea of the whole Germanic land-system, to which the Scandinavian belongs. The Teutonic Township, as Sir Henry Maine defines it, was an organized, self-acting group of Teutonic families, exercising a common proprietorship over a definite tract of land, its mark, cultivating its domain on a common system, and sustaining itself by the produce. This tract was divided into three parts. * These three portions were, the Mark of the Township or Village, the Common Mark or Waste, and the Arable Mark, or cultivated area. The community inhabited the village, held the common mark in mixed ownership, and cultivated the arable mark in lots appropriated to the several families.' Though it need hardly be said that the organization of the ancient mark has long occupied the attention of historians and legists in Germany, it is especially through the recent series of researches by G. L. von Maurer* that its importance in explaining the facts of modern German land-tenure has been established. The · Allmende,' or * Allmand,' of the German townships is still used for tillage and pasture by the householders, under regulations little changed in principle for this thousand
and more. In the more backward parts of the country, especially, the vestiges of collective property are most abundant. A summary account of Von Maurer's conclusions will be found in Mr. Morier's paper in the volume of "Systems of Land Tenure in Various Countries,' recently published under the sanction of the Cobden Club. Instead of entering on this branch of the evidence, however, it will answer the purpose to speak of the remarkable traces of similar Teutonic land-laws surviving in our own English counties. Why the bearing of the facts in question was till lately overlooked is clear enough. It was hardly the fault of historians such as Palgrave, Kemble, or Freeman, who have kept clearly in view the fact that the early English proprietary-system was that of the mark or township. The question was, whether this ancient form of property had died out,
, and our legal text-books had led to the impression that this was
* See the list of Maurer's works in Appendix II. to · Village-Communities.'
It is not quite to the credit of historico-legal science in England, that it should have been left to Professor Nasse, of Bonn, to bring into prominent notice the proofs that local landholdings which our commentators have treated as incidental, and the intention of which they have explained, if at all, by superficial guesses, are in fact relics of the domains of English villagecommunities, dating from before the Norman Conquest.
Such lands, when arable, are called 'common fields,' 'open fields,' «shack lands,' “intermixed lands,' &c. When in grass, they are often known as “lot meadows,' or lammas lands. It is very
usual for the common fields' to be divided by green turf-baulks into three long strips. The several properties consisted of subdivisions of these strips, the principle of division being that each owner has his plot in each of the three strips. The purpose
of this division was that the common fields might not be tilled at the discretion of individual owners of parcels, but that the whole might be worked on the principle of the old three-field husbandry-each strip, for instance, bearing wheat one year, oats or beans the next, and lying fallow the third. In a general way, it may be said that individual ownership in such commonable lands only extends from seed-time to harvest, the whole body of owners, and sometimes other persons, having the right of pasture on the whole of one strip during its fallow year, and on the green baulks dividing the three fields (which often afforded a surface of many acres), as well as the right of shack' or pasturage over the stubbles of the two tilled strips, after the
have been got in. It seems seldom that the shares in the arable fields shift yearly from one owner to another, but this is more frequent in the meadows, which may be distributed by lot, or in rotation, among those entitled to appropriate and inclose them, the inclosures being generally removed after hay-harvest-sometimes on Old Lammas Day (August 13), by a kind of popular tumultuary assembly. It is needless to state minute details or exceptions as to these remarkable customs. But it must not be supposed that the examples of them are few and local, representing no general principle. Marshall, an eminent writer on agriculture about 1800, gives a general account of common-field township in England, and goes so far as to assert that a few centuries ago nearly the whole of the lands of England lay in an open, and, more or less, in a commonable state. Till comparatively recent years, such statements might still be made as that half Berkshire, Huntingdonshire, and Wiltshire were still in the state of commonable meadows, commons, and common fields. •One of the largest of the common fields,' says Sir Henry Maine, was found in the immediate neighbourhood of Oxford ; and the grassy baulks which anciently separated the three fields are still conspicuous from the branch of the Great Northern Railway which leads to Cambridge.' Looking at the history of the mark or township in Germany, Scandinavia, and our own country, it seems in great measure established that in England such commonable lands are remains of early township-lands, in the intermediate stage between common and individual property, while a great part at least of the waste land which has been inclosed during past centuries, or still lies as open common, was originally the out-mark of the village-community. Tracing the course of social history back through the feudal system, it appears that in England, as elsewhere, there was a time when the land was still owned by the proprietary group which cultivated it, a community whose social characteristics may still be studied, in forms more or less modified, in less advanced regions of the world.
baulks paper years,
If the whole problem of the history of these proprietary groups were that of following and accounting for the gradual ascendancy gained by the principle of individual ownership over that of community, the considerations involved in it would be comparatively simple. But in the actual course of events this is found intricately involved with another problem, one of the most complex as it is one of the most important of history, the process of feudalization, the subjection of the community to a chief or lord, and the transformation of the commoner into the lord's tenant. In most of the districts where society is, or has been, organized on a large scale on the system of village-communities, some more or less advanced stage of the feudalizing process has been reached. It is one of Sir Henry Maine's especial objects to show the importance of the study of the native tenures of British India as throwing light on this problem. The Indian village-community, at once an organized patriarchal society and an assemblage of co-proprietors, is the real unit of social and political organization. For various reasons this fact was for many years of our rule not sufficiently understood and acted on. The system was strange to our early administrators, who happened also to begin their work in Bengal, a district where the old village-system had fallen into decay. And as in England the tendency of legal commentators, steeped in feudal tradition, was to ignore, and by ignoring to aid in suppressing the remains of the old township-organization, so in India the Brahminical code of Manu, in which the two leading ideas are the performance of religious rites and the maintenance of caste, threw into the background the native village-law, of which the constitution must be learnt by oral inquiry. The subject is not yet, despite of vigorous labour, thoroughly worked out, but an instructive paper on it by Mr. George Campbell, now Lieutenant-Governor of Bengal, will be found in the volume of Systems of LandTenure' already referred to. Looking only to the essential constitution of our Indian villages, it appears that they mainly correspond with the mark of old Germany or England. There is the arable land divided into household-lots, but cultivated on a plan which all must conform to, there are sometimes the reserve-meadows, there is the village waste, the undivided pasture-ground of the community. In hundreds of cases there is nothing to prevent our accepting the view that a single family went out ages ago into the jungle and founded a settlement which grew by mere throwing off of young households into such an organized village as this; into which were also taken up aliens, whether of the founder's race or of other stocks even ethnologically different, so that an Indian community may include men of several castes, higher and lower. Nor is it a mere cooperative farm, with its weavers, and potters, and smiths to make it complete and self-dependent, but an organized political society, with its functionaries to regulate the levying of taxes and the administration of justice and police. Tradition, real or fictitious, of founders and ancestors, constitutes the theoretical bond which holds these communities together. In that the village consists of households, each ruled absolutely by its patriarch, and so far as the council of village elders settle disputes by reference to ancient custom, the guiding rule of Indian life, so far we seem to see the village-community in its primeval form. But the process of feudalization has had more or less part in shaping the actual constitution of the Indian villages. Sir Henry Maine has not found a single community under the unmodified collective government of the heads of households, but there is a headman, whose office is under various conditions hereditary within some particular family or families. Let a powerful central Government like ours recognize such privileged families as, even in a limited sense, owners of their villages, and let these be settled with as the class bound to collect the taxes and pay them to the treasury, this is one of the various courses of events which increase the tendency to feudalization. And while neither extreme of the feudalizing process, neither the primitive democratic community, nor the medieval feudal manor with its lord, can be seen in India, yet in complex varieties of the intermediate stages the transition from the village-system to the manorialsystem is to be studied as matter of modern history.
Turning from Asia to Europe, in the Slavonic districts which on the whole represent the most backward state of European civilization, and taking no notice of changes within the last few years, we find in a social system of which the village is the basis, at once instructive illustrations of the primitive cultivating group, and of the feudalization which has more or less transformed its nature. Perhaps the most striking known examples in the world, of communistic agriculture as an ancient political institution, are the villages of Servia, Croatia, and Austrian Slavonia, brotherhoods of persons who are at once co-owners, and, at least in theory, kinsmen. These communities not only hold their land in common, but they actually cultivate it by the combined labour of all the households, among whom the produce is divided yearly, sometimes according to their supposed wants, sometimes according to rules which give fixed shares to particular persons. This extreme socialistic scheme, in which the land is not even theoretically divisible, may be contrasted in this respect with the Russian agricultural village. · Here the common arable land is parcelled out among the households, but only for a term of years, sometimes only three, after which it is thrown together and re-apportioned. In certain villages we find that social adjustments of this kind are practically inade by the village council of elders, and in general it may be said that the ancient organization has maintained itself through the great political change, made within historical times, which assigned the village to a noble proprietor, whose serfs, working in corvée for his benefit, the freemen became. The assertion is even current that serfdom was introduced in order to prevent the peasants from breaking up the co-operative village system, on which depended the ancient order of the land.*
Far different from this has been the historical fate of the village-system in Western Europe. The growth of the feudalsystem so changed its ancient constitution, that, to take the phrase now accepted as the rough expression of this social revolution, the mark became transformed into the manor. Among the varied and complex causes of this vast change must be counted the development of that germ of aristocracy which was recognized in the old German as in the modern Indian nities, the existence of certain families within the community whose descent tradition traced from the primitive ancestor, and from whom was chosen the chief, general in war and governor in peace; this tendency to form a nobility headed by a King being naturally accompanied by the practice of assigning lands, especially lands carved from the territory of conquered tribes, to become the King's spoil and the warrior's reward. It would be vain to take up as in a parenthesis the huge and intricate problem
Maine, · Ancient Law,' p. 267. See the works of Haxthausen, Tengoborski, and Le Play.