Page:EB1911 - Volume 28.djvu/87

Rh heavy ploughs, drawn by eight oxen, also produced sometimes the shifting in the possession of strips between the coparceners of the undertaking. But, as a rule, the arable was held in severalty by the different members of the township.

On the other hand, meadows were constantly owned by entire townships and distributed between the tenements entitled to shares from year to year either by lot or according to a definite order. These practices are in full vigour in some places even at the present day. Any person living in Oxford may witness the distribution by lot on Lammas day (1st of August) of the Lammas meadows, that is, the meadows inclosed for the sake of raising hay-grass in the village of Yarnton, some three miles to the north of Oxford.

Let us, however, return for a moment to the arable. Although held in severalty by different owners it was subjected to all sorts of interference on the part of the village union as represented in later ages by the manorial court framing by-laws and settling the course of cultivation. It might also happen that in consequence of encroachments, disputes and general uncertainty as to possession and boundaries, the whole distribution of the strips of arable in the various fields had to be gone over and regulated anew. In an interesting case reported from a Cartulary of Dunstable in Bedfordshire, all the possessions of the villagers in a place called Segenhoe were thrown together in the 12th century and redivided according to an award of experts chosen by a meeting of the villagers from among the oldest and wisest inhabitants.

Exactly as in the Danish examples quoted before, the strips were apportioned, not to the single owners, but to the normal holdings, the hides, and the actual owners had to take them in proportion to their several rights in the hides. This point is very important. It gives the English village community its peculiar stamp. It is a community not between single members or casual households, but between determined holdings constructed on a proportional scale. Although there was no provision for the admeasurement and equalization of the claims of Smith and of Brown, each hide or plough land of a township took as much as every other hide, each virgate or yardland as every other yardland, each bovate or oxgang as every other oxgang. Now the proportions themselves, although varying in respect of the number of acres included in each of these units in different places, were constant in their relation to each other. The yardland was almost everywhere one-fourth of the hide or plough land, and corresponded to the share of two oxen in an eight-oxen plough; the oxgang was reckoned at one-half of the yardland, and corresponded to the share of one ox in the same unit of work. The constant repetition of these fractions and units proves that we have to do in this case with phenomena arising not from artificial devices but from the very nature of the case. Nor can there be a doubt that both the unit and the fractions were produced by the application to land of the chief factor of working strength in agrarian husbandry, the power of the plough team for tillage.

The natural composition of the holdings has its counterpart, as in Schleswig-Holstein and as in the rest of Germany, in the customs of united succession. The English peasantry worked out customary rules of primogeniture or of so-called Borough English or claim of the youngest to the land held by his father. The German examples adduced in the beginning of this article teach us that the device is not suggested primarily by the interest of the landlord. Unified succession takes the place of the equal rights of sons, because it is the better method for preserving the economic efficiency of the household and of the tenement corresponding to it. There are exceptions, the most notorious being that of Kentish gavelkind, but in agricultural districts the holding remains undivided as long as possible, and if it gets divided, the division follows the lines not of the casual number of coheirs, but of the organic elements of the plough lands. Fourths and eighths arise in connexion with natural fractions of the plough team of eight oxen.

One more feature of the situation remains to be noticed, and it is the one which is still before our eyes in all parts of

the country, that is, the commons which have survived the wholesale process of inclosure. They were an integral part of the ancient village community from the first, not only because the whole ground of a township could not be taken up by arable and meadows, at a time when population was scanty, but because there existed the most intimate connexion between the agricultural and pastoral part of husbandry in the time of the open-field system. Pasture was not treated as a commodity by itself but was mostly considered as an adjunct, as appendant to the arable, and so was the use of woods and of turf. This fact was duly emphasized, e.g. in an Elizabethan case reported by Coke—Tyrringham's case. The problem of admeasurement of pasture was regulated in the same way as that of the apportionment of arable strips, by a reference to the proportional holdings, the hides, yardlands and oxgangs of the township, and the only question to be decided was how many heads of cattle and how many sheep each hide and yardland had the right to send to the common pasturage grounds.

When in course of time the open-field system and the tenure of arable according to holdings were given up, the right of freeholders and copy holders of the old manors in which the ancient townships were, as it were, encased, still held good, but it became much more difficult to estimate and to apportion such rights.

In connexion with the individualistic policy of inclosure the old writ of admeasurement of commons was abolished in 1837 (3 & 4 Will. IV.) The ordinary expedient is to make out how much commonable cattle could be kept by the tenements claiming commons through the winter. It is very characteristic and important that in the leading modern case on sufficiency of commons—in Robertson v. Hartopp—it was admitted by the Court of Appeal that the sufficiency has to be construed as a right of turning out a certain number of beasts on the common, quite apart from the number which had been actually turned out at any given time. Now a vested right has to be construed from the point of view of the time when it came into existence. The standards used to estimate such rights ought not to be drawn from modern practice, which might help to dispense altogether with commons of pasture by stable feeding, substitutes for grass, &c., but ought to correspond to the ordinary usages established at a time when the open-field system was in full vigour. The legal view stands thus at present, but we cannot conceal from ourselves that after all the inroads achieved, by individual appropriation it is by no means certain that the reference to the rights and rules of a previous period win continue to be recognized. However this may be, in the present commons we have certainly a system which draws its roots from customs, as to the origin of which legal memory does not run.

We may, in conclusion, summarize very briefly the principal results of our inquiry as to the history of European village communities. It seems that they may be stated under the following heads: (1) Primitive stages of civilization disclose in human society a strong tendency towards mutual support in economic matters as well as for the sake of defence. (2) The most natural form assumed by such unions for defence and co-operation is that of kinship, (3) In epochs of pastoral husbandry and of the beginnings of agriculture land is mainly owned by tribes, kindreds and enlarged households, while individuals enjoy only rights of usage and possession, (4) In course of time unions of neighbours are substituted for unions of kinsmen. (5) In Germanic societies the community of the township rests on the foundation of efficient holdings—bóls, hides, hufen—kept together as far as possible by rules of united or single succession. (6) The open-field system, which prevailed in the whole of Northern Europe for nearly a thousand years, was closely dependent on the customs of tribal and neighbourly unions. (7) Even now the treatment of commons represents the last manifestations of ancient communal arrangements, and it can only be reasonably and justly interpreted by reference to the law and practice of former times.

—Sir H. S. Maine, Village Communities in the East and West (1872); E. de Laveleye, Das Ureigenthum, übers. von