THE GERMANIC MARK.
Village-communities with periodical division of the lands, such as are still met with in Russia and Java, existed likewise in ancient Germany. The economic condition of the German tribes and the agricultural process employed by them afford a perfect explanation of these institutions so anomalous at first sight.
In primitive times, men lived solely by the chase, as the Indians of North America do at the present time; when game failed, under the pressure of hunger they sought sustenance in the flesh of their conquered enemies. The savage is a cannibal from the same motive which incites shipwrecked sailors on a raft to become so, namely hunger. Human bones of the stone age, discovered by Professor Schmerling in the grottoes of Engihoul, near Liége, still bear the mark of human teeth, which had broken them to extract the marrow. Hunting tribes are warrior tribes; they can only live with their arms in their hands, and the limits of their hunting-ground are a constant source of bloody contests. Aristotle has caught this feature of early societies. "The art of war," he says, "is a means of natural acquisition, for the chase is a part of this art. Thus war is a species of chase after men born to obey, who refuse to submit to slavery."
When, at a later period, man has succeeded in taming certain animals suitable for his sustenance, a great change takes place in his lot; he has no longer any fears for the morrow, having the means of subsistence always at hand. The quantity of food produced on the same space being larger, the social group can become more numerous: and so the tribe is formed. Man has ceased to be the carnivorous, cannibal animal of prey, whose only thought was to kill and eat.
More peaceable and affectionate sentiments have come to life; for, in order to the multiplication of the flocks, there is need of forethought, care for their sustenance, attachment to them, even a sort of love for them. The pastoral system is not therefore incompatible with a certain stage of civilization. Although the use of arms is not excluded, there is not the perpetual struggle, the combats, the ambuscades and daily massacres, characteristic of the preceding, period. The cultivation of certain alimentary plants is also compatible with the nomadic life. Thus the Tartars cultivate the cereal bearing their name, the polygonum tartaricum, or buckwheat. They burn the vegetation on the surface; sow and reap the harvest in two or three months, and then betake themselves elsewhere. The Indians cultivate a kind of wild rice in the same way. Such is agriculture in its earliest stage. Men do not leave the pastoral system for the agricultural from choice, the conditions of the latter being infinitely harder; they only do so compelled by necessity. When the population increases, agriculture is the only means by which it can obtain sustenance. In his excellent work on Russia, Mr Mackenzie Wallace seizes the passage from the pastoral to the agricultural life among the Bashkir and Kirghiz tribes while in actual process, and he shews how periodic partition of the cultivable land was originally introduced among the Cossacks. We thus see in actual development the successive stages which mankind has traversed.(1)
The Germans, when the Romans first came into contact with them, were a pastoral people, retaining the warlike habits of the primitive hunters, and bordering on the agricultural system. It seems generally admitted that the tribes of the Ayran race, before their dispersion, had no knowledge of agriculture, for the terms designating farming implements and culture of the land differ in the different branches of the Aryan languages, while words relating to the management of flocks are similar. The Germans, the last race to enter Europe, had not yet increased in numbers sufficiently to require any large portion of their support from the rude labour demanded for tillage and harvest. Except under the pressure of necessity, man never devotes himself to long and arduous labour.
Certain German writers have maintained that the Germans, in the time of Tacitus, practised the triennial rotation of crops, reserving a third part of the arable land for winter grain, and another third for summer grain, while the remaining third lay fallow. M. Roscher has proved this opinion to be erroneous.(2) Agriculture, at this period, was on the contrary in the highest degree "extensive." The phrase of Tacitus describes this method of cultivation very faithfully,nec enim cum ubertate et amptitudine soli labors contendunt, "they do not attempt by their labour to vie with the fertility and extent of the soil." Caesar before him had remarked that the Germans applied themselves very little to agriculture, agriculturae minime student, and that they never cultivated the same land two years together. The magistrates, who annually allot to the several families the share which comes to them, make them pass from one part of the territory to another. Tacitus tells us the same thing: Arva per annos mutant et superest ager, they cultivate fresh lands each year, and there always remains a portion undisposed of.
To understand these passages, often incorrectly translated, we must take into consideration an agricultural practice, still m force in our day, in certain villages possessing large tracts of common land, as in the Ardennes in Belgium. Part of the heath is divided among the inhabitants, who obtain from it a crop of rye by the process of "essartage" or "écobuage."(3) The following year, another part of the common land is parcelled out and cultivated in the same manner. The portion so worked is afterwards abandoned to the natural vegetation; and it becomes common pasture again for eighteen or twenty years, after which period it is again subjected to "essartage." Suppose the population so small as to allow of the annual allotment of a hectare(4) (about 2½ acres) to each inhabitant, and the village will be able to subsist by means of this primitive method of cultivation, which was exactly that of the Germans. It will not be necessary to manure the soil or to expend capital on it; its extent will serve instead; spatia praestant, as Tacitus says. In the southern parts of Siberia, the land is cultivated in this way. Barbarous as it may appear, it is the most rational and economical method of cultivation, for it is the one which yields the largest net profit. So long as space suffices, there can be no object in concentrating capital and labour on a small surface. It is the rule, that a second application of capital to the soil produces relatively smaller profit than the first. It is only density of population that can render "intensive" cultivation necessary or profitable. Under a system of temporary cultivation, where the same land is only tilled once in twenty years, and which occupies different portions of the territory in succession, the annual partition of the soil is obviously a natural, and almost a necessary, result. The labours of cultivation are so simple that this redivision can work no manner of harm to. any one. The mode of tenure is in accordance with the mode of cultivation. The Germans cultivated, for the most part, the cereal which occupies the soil for the shortest time, and is best suited to newly cleared lands, namely oats. As it is sufficient to sow it in spring, it escapes the severity of the winter, and was, there- fore, especially suitable to the severe climate of Germany. Pliny tells us that the tribes of this country lived exclusively on oatmeal, which was also formerly the principal food of the Scotch, and is so at the present time in the Highlands. The Germans also cultivated summer barley, to make a fermented liquor, Tacitus tells us, somewhat resembling wine, that is to say, beer. The observation of Pliny is correct as regards the cereals grown by them; but they looked to animal food for the greatest part of their sustenance. "They eat wild fruit, game and curds," says Tacitus: while Caesar tells us "They live for the most part on milk, cheese and flesh." Agriculturae non student, major que pars victus corum in lacte, caseo et came consistit.(5) They were, therefore, still hunters and shepherds rather than agriculturalists. Their numerous herds, ill-fed and of poor quality, constituted their chief wealth.
For the chase, they had the depths of the common forest, where, besides the stag and deer, there was then abundance of larger animals, since disappeared, the reindeer, the elk, and the wild ox: while for the maintenance of their cattle they trusted to the common pasturage, which consisted of permanent meadows in the valleys, and of waste or fallow land, eighteen or nineteen times as extensive as the land under temporary cultivation. Not only was all the territory the undivided property of the clan, but their collective enjoyment extended over nearly the whole of it. Only a small portion was subject to private occupation for a year. The tenure characteristic of the pastoral system still embraced almost the whole land. Hereditary ownership was only applicable to the house and enclosure belonging to it, as in Java or Russia. Suam quisque domum spatio circumdat, says Tacitus. This was the salic soil, terra salica, (6) which was transmitted by succession to male children and relations, but could not be inherited by females. The inclosure, surrounded by a quickset hedge, could not be entered by any one without the consent of its owner. In this sacred domain he was sovereign. In his own house, as our proverb says, every one is king.
The common territory of the clan bore the name of Mark or Allmend, Almennings Maurk(7) among the Scandinavians, Folc-land among the Anglo-Saxons. Sometimes, too, it is denoted by the name of gau, from the same root as , . The marken were called geraiden in Alsace, or hundechaften or huntari among the Alamanni. They included cultivated land, pasturage, wood and water. Originally they were of vast extent, and embraced whole valleys, as in Switzerland and the Tyrol, and elsewhere immense countries, where states such as Austria, Bavaria, Carinthia, Carniola and Brandenburg have subsequently grown up. Each family was entitled to a temporary enjoyment of a portion in each division of the mark; but no one could exercise any permanent or hereditary Tight over it. It is what Caesar(8) and Tacitus(9) tell us of the Germans. Grimm asserts that in the ancient German language he has found no word rendering the idea of property. The word Eigenthum is of recent origin. It springs from the epithet eigen, proprium, that which is peculiar to the individual. Individual dominion only appears in the allod (from od, goods, and all, complete) of the Saxons. Merum proprium odit; there is no mention of ownership till after the Germans have entered into relation with the Romans. The names Sondergut and Sondereigen, given to private property, indicates that it arises by separation (sonder) from common property. The portion of the mark occupied by one of the groups of com- mon origin, called by Caesar cognationes, and by Tacitus propinquitates,(10) was designated by the name of geburscip, vicinium, the vicus of the Romans, the voysiné or visnet of the middle ages in France, the vinâve at Liège up to the present; day. We possess an edict of Chilperic of 581, which proves that at this date hereditary ownership was but just introducing itself among the Franks. This edict declares that sons and daughters, brothers and sisters, are to inherit the goods of the deceased in preference to the other inhabitants of the village, vicini.(11)
At the time of the Salic law private property in land seems scarcely to have been developed. This law nowhere mentions any action relating to property in the soil: it does not recognize seizure of lands; execution only applies to moveable goods, which constitute the alodis.(12) If the moveables of the debtor are insufficient, the creditor loses all his remedy; as he cannot seize land. When the payment of the Wehrgeld, which admits of no abatement, is in question, the insolvent debtor may be compelled to alienate, by the formality of Chrenecruda, his rights in the collective domain to his nearest relative, who is then obliged to pay for him.
Even when arable land had been gradually converted into private property, the forest and pasturage remained common property. In documents of the middle ages there is constant reference to rights of enjoyment in forest or pasturage. "Manses" are bequeathed or sold cum terris cultis et incultis et silvis communibus. The campus communis, referred to in the law of the Burgundians, Tit. 31, is preserved in Germany, England, and France, under the names of allmend, common, and communaux respectively.
The Mark, like the ancient Gens, had its altars and its sacrifices; and, in later days, after the introduction of Christianity, its church and common patron-saint. It had a tribunal which took cognizance of moral offences, and even, in the early times, of crimes committed within its territory.
The families, forming the community, had only a right of enjoyment, the ownership of the soil resting in the community itself.(13) In course of time, however, portions of the common land were granted for a term more or less long, either gratuitously, or in consideration of a rent. Grants of this kind are met with everywhere, of the Folcland in England, of the Hammerka in Frisia, of the Almanniger in Sweden and Norway, and of the Allmend in Germany, just as of the ager publicus and terrae vectigales at Rome. Such is the origin of the portions granted out for enjoyment for life or years, which we still meet with in different countries, as in the Allmendgaerten of Uri and Gersau, the Gmeinmerkgüter of Lucerne and Schwyz, the Gemeinfelder (Campi communes) of the Trèves district, the Gemeinen Loosgüter of Peitingau in Bavaria, the Markfelder of Westphalia, the Geraidengüter of Alsace and the Palatinate, the Hubbmannschaften of Hundsrück, and the Rollttheile in Eichsfeld. It is these parcels of common which have, by gradual usurpa- tions, given birth to Sondereigen, or private property.
We have few details as to the manner in which the allotment of the soil was effected in early times. Caesar tells us: "No one has fields marked out or land as his own property. But the magistrates and chiefs assign lands every year to the clans, or gentes, and to the families living in association." These families, living in association and cultivating the land in common, are the exact picture of the patriarchal families, which are to be found at the present day among the Russians and Southern Slays, and which in the middle ages existed throughout Europe, and especially in France and Italy. It is the primitive group of the pastoral period, whose existence has been perpetuated from the days of the Aryans in Asia up to our own. To understand properly what is said by Roman historians on this subject, we must never lose sight of the institutions of nations whose economic condition resembles that of ancient Germany. According to Caesar, the chiefs effect the partition, as they think fit. In the distribution, regard is paid, according to Tacitus, to the number of cultivators: pro numero cultorum; and to the rank of the co-partners: secundum dignationem partiuntur. Of these two features one represents itself in Russia, where the division is made by tiaglos, that is, by units of labour, according to the number of adult labourers; while the other reappears in Java, where the chief of the dessa, the loerah, the elders and other officers of the commune actually have a portion of land proportionate to their rank. Horace, too, depicts in the following terms the annual division of lands, as practised in his time among the tribes dwelling on the banks of the Danube: Et rigidi Getae
Immetata quibus jugera liberas
Fruges at cererem ferunt;
Nec cultura placet longior annna;
Aequali recreat sorte vicarius.
He is here rather speaking of the division of labour between two groups of inhabitants, which alternately cultivate the soil for the entire tribe. Caesar tells us exactly the same thing of the Suevi, the most warlike and powerful of the Teutonic tribes.(14) "Those who remain in the country cultivate the soil for themselves and for the absent members, and in their turn take arms the next year, while the others remain at home. But none amongst them can possess the land in severalty as his own, and none may occupy for more than a year the same land for cultivation. They consume little corn; but live chiefly on milk and the flesh of their herds, and devote themselves to the chase." These are the habitual features characteristic of the economic condition of the German tribes. The chase and the rearing of their herds provide the greatest part of their food; agriculture takes but the third place. The soil is only cultivated for a year: landed property is unknown: and the arable land is divided among the inhabitants for mere temporary enjoyment. There was the custom, apparently peculiar to the Getae and Suevi, which leads one to suppose that the produce of the soil was originally gathered in mass to be subsequently divided; each half of the inhabitants worked alternately for the other. Community here, then, is more intimate than among the other German tribes, and belongs to a more primitive system, such as we cannot meet with in the wildest forests of Russia, or the most remote districts of Bosnia.
Aristotle seems to have recognized two forms of community. "Thus," he says in The Politics, lib. II. c. 3, "the fields would be private property, while the harvest would belong to all. This practice exists among some nations. The land, on the other hand, might be common, but the harvest would be divided among all for private ownership. This kind of community is to be found among certain barbarian tribes." In fact, Diodorus of Sicily and Strabo bear witness to the existence of this custom in several passages, which will be found in Chapter x. The periodical partition of the land must have been a very general custom in the ancient world, to have been noted in so many different quarters, among nations so different in race, in origin and in ways of thought.
In Germany, every inhabitant was entitled to a portion of land large enough to supply the wants of his family. Except for the chiefs, who obtained a larger share, this portion was the same for all;(15) and to insure complete equality, each part of the arable land was divided into as many parcels as there were co-partners, and lots were then drawn for these parcels. The measurement was made with a cord, per funiculum, called in German Reeb, or Reepmate.(16) This word gives the name to the Reebnings procedur, a custom which lasted for a very long time in the north, and particularly in Denmark, even after the periodical partition had fallen into disuse. The equality of the portions seemed so essential, that, when, in course of time, the portions had become unequal (pro inaequalitate mansorum), any one who had a smaller portion than his neighbours, could demand a new measurement, reebning, that the primitive equality might be restored. In the law of the Burgundians we find a passage which refers to the same practice: "The claim of co-partners to have the lots in the common land made equal cannot be refused."(17) It seemed so necessary for every free man to hold property, that even in later times, when the sale of land was introduced after the conquest, every one was forbidden to sell his lot who did not possess others elsewhere. The law of the Burgundians, Tit. 84, c. 1, runs:Quia cognovimus Burgundiones sortes suas nimia facilitate distrahere, hoc praesenti lege credidimus statuendum, ut nulli vendere terram suam liceat, nisi illi qui alio loco sortem aut possessiones habet.
The arable land was at first divided into separate fields (ager) called in German Wang, Kamp, Gewanne, or Esch. This field was surrounded by a wooden fence or by a ditch, in the construction of which all were bound to assist. The chief of the village summoned all the inhabitants for this purpose, at certain fixed periods, and the work was the occasion for a public holiday. This practice has been preserved almost up to our own days in the Dutch province of Drenthe and in Westphalia. There we find the Eschen distinctly marked out in the midst of the heath; as masses of litter are being constantly brought from the stables to manure it, the earth is raised several yards. When the triennial rotation of crops was introduced into Germany,which must have taken place before the time of Charlemagne, as it appears in the Capitularies as completely established,the winter, summer, and fallow fields were distinguished by different names: Winterfeld, Sommerfeld, and Brachfeld, or campus apertus. Each of these fields was in turn sown with rye, then with oats, and finally left to lie for a year. It was divided into long strips all bordering, on one side, on the road left for agricultural purposes. These parcels were called deel, schiften, in the North; in England, oxgang and shifting severalties; elsewhere, loos, lus or lots. Traces of the system are still visible on all sides in Germany. We have but to cross the country, and see the long strips of cultivated land, stretching parallel and side by side with one another, often arranged round a circle. The parcels in each field had to be tilled at the same time, devoted to the same crops, and abandoned to common pasture at the same period, according to the rule of Flurzwang, or compulsory rotation. The inhabitants assembled to deliberate on all that concerned the cultivation, and to determine the order and time of the various agricultural operations. This custom, which is general in those provinces of Russia where village communities exist. was, until quite recently, in practice in certain districts of Westphalia, Hanover, and Holland.
Some writers have refused to allow that there were lots cast for the parcels to be distributed; but there are numerous evidences of the fact.(18) In the first place, the parcels were in German called Loosgut, for which the Latin translation is sors. In the Burgundian law, the terms sors and terra are used synonymously. Possessors of portions in the same village community were called consortes, some, in many cases, being Germans, and the others Romans. The law of the Vizigoths x. t. 1, c. 2, 1 speaks of sortes Gothicae and sortes Romance. From this practice of drawing lots our word lot is derived, which at the present day merely denotes a portion of land. The German conquerors, however, probably soon abandoned the periodical partition, which was an institution little in harmony with the condition of the Roman society in the midst of which they established themselves.
Of this there seems to be no doubt, that periodical partition by lot remained in practice, from the most remote ages down to our own time, in certain villages of Germany, and in some localities in Scotland. In the villages of Saarholzbach, Wadern, Beschweiler, Zerf, Kell, Paschel, Lampaden, Franzenheim, Pluwig, and others, in the district of Trèves, the houses, with the gardens adjoining them, were alone subject to private ownership.(19) Arable land of all kinds was periodically divided by lot. This system was kept up in Saarholsbach until 1863. In the other communes private property was introduced between 1811 and 1834, by means of the operation of registration. In the majority of communes in the valley of the Moselle and the Saar, partition by lot ceased about the end of the last century to be applied to arable land: but was still practised for the meadow and woods.
Many of the communes of Eifel, a cold and elevated district, lying between the Rhine and Belgian Ardennes, divide the large wastes belonging to them in the same way. Each lot is put in cultivation for a year and then returns into the common pasture land. In the district of Siegen, the communes possess splendid oak coppices, which are cut every twenty years, and supply fuel, and hark for tan. When the underwood is carried away, the surface is burned, and so yields without further manuring a good harvest of rye. The portion of these woods to be cut each year is divided into parcels, which are distributed by lot among the inhabitants.
In the villages of the Saar and the Moselle the partition was effected at first every three years, then every six, and finally every twelve or eighteen. The periods of re-distribution thus constantly tending to grow longer, the custom of individual ownership began to establish itself, and insensibly took the place of the ancient community. The custom of partition was however so deeply rooted, that it was resorted to from time to time after long intervals. Thus in the village of Losheim no division was effected from 1655 to 1724: but in the latter year the commune determined to re-establish the division of the land, "seeing that, in consequence of deaths and marriages, the parcels have become so small that even the richest inhabitants cannot properly manure and improve their portions of land, by reason of their being so small and scattered." M. A. Meitzen has given, in his great work Le Sol de la culture en Prusse, a plan of partition in the commune of Saarholzbach, in which the method of division is clearly shewn. The arable land is divided into rectangular fields, each of which is subdivided into parcels. A lot is formed by uniting several of these parcels. In 1862, the commune counted 98 co-partners, and its 104 hectares (or 260 acres) of arable land were divided into 1,916 parcels. But every holding was not necessarily of the same extent one was 23 morgen, another 5½, and another only 2½. It also possessed forest and a great extent of waste land: these were divided every year. In Nassau the commune of Frichofen possessed several common tracts, which were divided every year among the inhabitants by lot.(20) The same custom was maintained, until our own times, in several communes of Hundsrück and of the districts of Ohtteiler and of Saarlouis, between the Saar and the Moselle. The same custom is also found in the Bavarian Palatinate.
The division of land by lot was still so generally practised in Germany in the middle ages, that Silesian documents of the thirteenth century, quoted by M. Meitzen, call this custom mos theutonicus. The collection of Danish laws, compiled about the middle of the same century, speaks of the partition of lands by lot as a custom generally followed. In many English villages meadows are still found divided into parts, which are annually assigned by lot among the co-partners.(21) They are called lot meadows and lammas land. In Friesland and in Over-Yssel in Holland, meadows are also found, in which the various parcels are mown by the different co-proprietors in succession. More rarely portions of the amble land pass from one to the other in succession, and for this reason are called shifting severalties in England. It is not uncommon for a group of cultivators to rent land, of which they occupy each part in turn: this is the custom known by the name of run-ring. Sometimes the apportionment is not effected by lot, but according to a rotation determined once for all. When the hay is cut and carried, the rights of the common pasture revive, and all the inhabitants come and throw down the inclosures which have been erected. It is an occasion of holiday and public rejoicing, called lammas day. According to M. Dareste de La Chavanne, tradition of the equal division of certain portions of the soil was constantly preserved in France. Thus, whenever a new agricultural colony was formed in the middle ages, we find the ancient communal system. There is a curious example of this fact in a grant made by the Abbey of Saint Claude to the inhabitants of Longchaumois: experts, elected for the purpose, were to divide among the younger members the lands to which they were entitled.
Sir H. Maine quotes, from a document submitted to parliament, an example of rural organization, which exactly reproduces the characteristics of the ancient village communities of primitive periods. The borough of Lauder in Scotland possesses common land of about 1,700 acres. There are also within its limits 105 portions of land, called burgess acres. Whoever owns one of these portions is entitled to the enjoyment of a one-hundred-and-fifth part; of the common land. A seventh part of the cultivable area is submitted each year to the plough, and for this purpose divided among the owners of the 105 burgess acres. The portion of land to be tilled is first decided on: it is then divided into parcels which are assigned by lot among the persons entitled. The common council, having improved the upper lands by means of roads and draining, impose a special tax on them and direct their cultivation. The portion of common land which is not in cultivation becomes pasture, on which each burgess has the right of sending two cows and fifteen sheep. As Sir H. Maine remarks, we have here an archaic type of a village community, in which cultivation is transferred from one portion of the land to another, and the shares are decided by lot. Before the Scotch villages sold their common property this rural organization was frequently met with. To make a portion of the soil, their collective property, pass successively into the hands of each family, must have been a very general custom in England as late as the sixteenth century: for the Puritan emigrants on the other side of the Atlantic carried it there with them. Permanent grants were made of the land intended for arable: but the meadows remained common property, and were divided again each year, like the lot meadows and lammas land of the mother country.(22)
Sir Walter Scott, visiting the Orkney and Shetland isles with the light-house commissioners, was struck with the form of property called udal tenure, which he observed there. He speaks of it in his notes and in his novel of The Pirate. All the domain of the townships was the common property of the inhabitants: the arable was divided among them: the heath and moor were left as common pasture for the cattle. In The Monastery, the great Scotch novelist describes the rural organization of the small communes of his country as they existed anciently, resembling, he tells us, those of the Shetland isles. The inhabitants always rendered one another mutual aid and protection. They possessed the soil in common; but to cultivate it they divided it into lots, which were occupied temporarily as private property. The whole corporation took part equally in agricultural labours, and the produce was divided, after the harvest, according to the respective rights of each. The more distant lands were cultivated in succession, and then left until vegetation grew again. The flocks of the inhabitants were driven to the common pasture by a shepherd, who was an officer of the commune at the service of all its members.
In the eyes of the Germans, as of all primitive nations, property in land, or rather the right to occupy a portion of it, was an indispensable attribute of freedom. Several economists have propounded the same idea. Without property there is no real freedom, says M. Michel Chevalier. The free man should be able to subsist on the fruits of his labour; and, as the only labour which can procure him the means of living is the cultivation of the land, a portion of land should be assigned to him. To allow him to lose this portion, or to refuse it to a newly-formed family, would be to take away their means of existence, and to condemn them to sell themselves into slavery. The only plan, then, of ensuring a constant means of existence and independence to all the families of the tribe, was to effect a new division of land among them from time to time; and, as all had an equal right, the only mode of assigning to each his portion was by lot.
Freedom, and, as a consequence, the ownership of an undivided share of the common property, to which the head of every family in the clan was equally entitled, were, then, in the German village originally essential rights, inherent, so to say, in one's personality. This system of absolute equality impressed a remarkable character on the individual, which explains how small bands of barbarians made themselves masters of the Roman empire, in spite of its skilful administration, its perfect centralization, and its civil law, which has received the name of written reason. How great is the difference between a member of one of these village communities and the German peasant, who occupies his place to-day! The former lived on animal food, venison, mutton, beef milk and cheese; while the latter lives on rye-bread and potatoes; meat being too dear, he only eats it very rarely, on great holidays. The former made his body hardy and his limbs supple by continual exercise; he swam rivers, chased the wild ox the whole day through in the vast forests, and trained himself in the management of arms. He considers himself the equal of all, and recognizes no authority above him. He chooses his chiefs as he will, and takes part in the administration of the interest of the community; as juror he decides the differences, the quarrels, and the crimes of his fellows; as warrior, he never lays aside his arms, and by the clash of them signalizes the adoption of any important resolution. His mode of life is barbarous in the sense, that he never thinks of providing for the refined wants begotten by civilization; but he brings into active use, and so develops all the faculties of man; strength of body first, then will, foresight, reflection. The modem peasant is lazy; he is overwhelmed by the powerful hierarchies, political, judicial, administrative, and ecclesiastical, which tower above him; he is not his own master, he is an appanage of society, which disposes of him as of its other property. He is seized by the state for its brigades; he trembles before his pastor, or the rural guard; on all sides are authorities, which command him and which he must obey, seeing that they arrange all the strength of the nation so as to enforce his obedience. Modern societies possess a collective power incomparably greater than that of primitive societies; but in the latter, when they escaped conquest, the individual was endowed with far superior energy.
The dwelling-house of the freeman is called in the Latin of ancient documents curtis, hoba, mansus, and in the German dialects hof, hube, tompt, bool. The undivided portion of amble land appendant to it was commonly designated by the term pflug, or plough, being the extent that could be tilled with a single plough. As this portion was destined to supply the wants of a family, it was larger in extent according as the land was less fertile. Thus in the region of the Rhine and the Lahn, it was 30 morgen (the morgen being rather more than half, or about six-tenths of an acre); in the neighbourhood of Trèves 15 morgen, in Odenwald 40, and in Eifel 160. The whole parcel was also called mannwerk, or that which a man tills for his support.
The passage in which Tacitus says of the Germans, colunt discreti ac diversi ut fons, ut campus, ut nemus placuit, led to the belief that they dwelt in isolated houses in the midst of fields belonging to them, whereas in the Roman empire the inhabitants arranged their dwellings side by side, in villages. At the present day, however, it is generally allowed that the Germans also grouped their houses together, but surrounded each with an orchard or garden.(23) Isolated farms are hardly to be met with in Germany, except in the north-west, and there they are of recent origin. Everywhere else the houses are collected in a group occupying the centre of the domain. The village, called boel, by in the north, dorf, torf in the centre and the south, was surrounded by an inclosure, often a quickset hedge, with self-closing, gates, such as one commonly sees on the upper pastures of Switzerland. The Saxon villages of Transylvania maintain the same arrangement to the present day.
In Germany, as in Russia or India, the village community was based on family relations due to a common origin. Like the Scotch clan, or Roman gens, the inhabitants of the dorf preserved the tradition of descent from a common ancestor. In northern Scandinavia, where Danish savants have found so many traces of primitive agrarian organization, the land was originally cultivated by groups, the name of which indicates the most intimate relation: they are called skulldalid and frandalid, associations of friends. Members of the mark community bear the name of Markgenossen, Cummarchani, or Beerbten; this last name is significant, it means those who take part in the inheritance. The free citizen was never disinherited; he had an indestructible right to a proportional part of the common patrimony. The ancient family group, which constituted the social unit among nomadic nations, was preserved after the tribe had settled on the soil to devote itself to agriculture. As a result, the community exercised a right of eminent domain, even over what was private property. No one could sell his property to a stranger without the consent of his associates, who always had a right of preemption.(24) The portion of the common land reserved for the pasturage of cattle was the mark or marke, marca in the Latin of the middle ages. As pasture composed far the greater part of the territory, this term was applied also to the whole mass of amble land, waste or forest. When a tribe occupied a valley, it was the whole of this that constituted the mark. Countries, too, where colonies were formed, on the berders of the German territory, were also called marken. Thus Austria and Carinthia were marken. This is the origin of the title marquis, the markgraf or chief of the mark. The word gau had nearly the same import as mark; it is found as a termination in the names of a great number of districts, whose chiefs were Gaugrafen, or counts of the gau.
The limits of the mark were indicated by stones, stakes or trees planted with great ceremony. According to a strange custom, still maintained in Bavaria and the Palatinate, children were brought as witnesses, and were beaten, that the recollection of this act impressing itself upon their minds in a lasting manner, they might at a later time be able to give evidence of it.(25) Once or twice in the year the inhabitants of the mark, or markgenossen (commarchani), assemble and solemnly visit the boundaries of the mark, and restore them when they have been removed or displaced. This visit, made on horseback, assumed in later days a religious character. A procession went round the fields, which were blessed by the priest; altars were erected near the boundary-stones; the monstrance was placed upon them, and mass said. The ancient custom of a heathen age survived, but assumed an entirely different form. The fate of many mythological traditions was the same.
Among the Germans, as among the Hindoos, juridical and economic relations were very scanty. Testamentary disposition was unknown in Germany, as in India before the English con- quest. Succession only applied to the dwelling-house, with the appendant inclosure, and this passed to the eldest. The brothers in many cases remained with him, thus forming a patriarchal family dwelling under the same roof. Sometimes they constructed separate habitations in the same inclosure for the brothers who married. The women had no right of succession. M. Hanssen, who was one of the first to throw light on this subject, asserts that in Denmark five or six families often lived together on the same farm. It is the same family group which we find in France in the middle ages, in Mexico in times past, and in Lombardy even at the present day.
Originally at Rome, as well as in Germany and India, the paterfamilias could not dispose of the family property by testament. The clans dwelt in houses grouped together into a village: this was the vicus or pagus. The aggregation of clans formed the nation (populus), and the state (civitas), which had in its centre a fortified place or citadel, nearly always situated on an eminence. In Greece a very similar organization is met with. The method in which the institutions of legislators and the treatises of philosophers deal with property, shifting it and dividing it again without scruple, shews that the recollection of a periodical partition of land had not been effaced. In Crete, according to Aristotle, all the families lived by means of public meals, on the produce of the land cultivated by serfs or perioeci. There was, in fact, the system of common ownership applied to the land.(26)
During the middle ages the right to a share in the collective domain gradually ceased to be a personal right, and became a real right, a mere dependence on habitation. Only the owner of an entire farmstead (Hube, Hoffstatt) had a whole share in the mark; he was a volhufner, vollmeier. Side by side with this class, we find "half-tenants" (halbhufner, halbmeier), who consequently had only a half or quarter of an entire share in the enjoyment of the communal property. Then there were the hintersassen, or settlers, who had been allowed on sufferance to stay on the collective territory, or else on private domains, and had no right of enjoyment except by paying an indemnity (holzgeld, viehgeld). The descendants of houseless members of the mark became like the hintersassen, mere proletarians, with neither lands of their own, nor rights over any. The right of enjoyment in the fields, wood, meadow and water, was sold as an appendage of the hube. Hoba cum omnibus utilitatibus ad eamdem hobam rite attinentibus id est marca, silva, sagina, acquis, pascuis.(27) In this way the German commune gradually lost its character of democratic equality, but traces of the old principle of the land being the common property of all, appear in the custom by which the alienation of land could only take place in the assembly of the people,(28) like the quiritary sale by mancipatio at Rome. Throughout the middle ages the sale could only be effected by the intervention of the communal magistrates: the seller surrendered to them the property, which they subsequently transferred to the purchaser.(29) This was in recognition of the eminent right of the commune over its territory.
1. Mackenzie Wallace, Russia, Vol. II. c. xxi. p. 45.
2. Ansichten der Volkewirthschaft: Ueber die Landwirthschaft der ältesten Deutschen.A French translation of thin work has recently appeared bearing the title "Recherches sur divers sujets d'économie politique, by M. W. Roscher." The entire passage in Tacitus in as follows: Agri pro numero cultorum ab universis per vices occupantur, quos mox inter se secundum dignationem partiuntur; fccilitatem partietidi camporum spatia praestant. Arva per annos mutant et superest ager; nec enim cum ubertate et amplitudine soli labore contendunt, ut pomaria conserant et prata aeparent et kortos rigent: sola terrae seges imperatur.
3. Essartage or essartement in a method of cultivating forest land, still employed in some districts of the north-east of France. It is performed by digging up all the vegetation on the surface, and then submitting the soil to écobuage. The soil in afterwards cultivated for two or three yearn, and then left for fresh essartage after fifteen or eighteen years.
Ecobuage is an operation which consists in raining the surface layer of soil, and burning the organic matter contained in it. Littré, Diet.]
4. Allowing 10 hectolitres of corn as the produce of a hectare, a village of 200 inhabitants would require 200 hectares a year; which demands a cultivable territory of 4,000 hectares for a rotation of twenty years. The Germans had a relatively large number of cattle, and one must, therefore, add another 1,000 hectares of pasturage and 1,000 hectares of forest. The density of the population would be reduced to three or four inhabitants to the square kilometre, or hundred hectares. On thin computation, Germany would have contained two millions of inhabitants.
[Adopting English measures:on the supposition that an acre would yield 11 bushels of corn, 200 inhabitants would require 500 acres a year. And the whole cultivable land would have to be 10,000 acres, with an additional 2,500 acres of pasturage and the same amount of forest. The population would, therefore, be about one to every 150 acres.]
5. De Bell. Gal. 1. vi. c. 22.
6. Advertendum in hoc temporum antiquitate Germanos habuisse domum quam vocabant Sal; Circe domum fuisse Salbuck seu curtim, gallicè courtil, spetiumve terrae domui circumdatum et saepe cinctum spatium, illud cum domo est seliland, seu terra salica quae ad solos filios pertinebat; nec immerito, quam filiae in aliam domum terramque salicam transirent. Brotier, sur Tacite, quoted by M. J. Simonnet, Histoire de la Saisine, p. 54.
7. In Sweden the term Lands almanningar distinguished the common domain of the whole nation from that of the communes Bys almanningar.
8. Neque quisquam modum certum aut fines habet proprios, sed magistrates ac principes in annos singulos gentibus cognationibusque hominum, qui una coierunt quantum et quo loco visum est agri ettribuunt; atque anno post alio transire cogunt (De Bel. Gal. 1. vi. a. 29).
9. Non casus nec fortuita conglobatia turmam aut cuneum facit sed familiae et propinquitates (Germ. c. vii.). This propinquitas was alike the military and economic unit.
10. The Greek , and the Roman gens, equally with the village of Java or India, and the Russian mir or Slav gmind, were only patriarchal groups founded on common descent.
11. Pertz, Leg. ix. 10, art. 3.
12. See Sohm, Altdeutscke Reichs- und Gerichtsverfassung.
13. This appears clearly in texts of the middle ages. For example: In hac silva nullus nostrum privatim habebat aliquid, sed communiter pertinebat ad omnes villae nostrae incolas. Dipl. of 1173. Bodmann I p. 453, quoted by Von Maurer. The association of inhabitants was called commenitas or communio. LEX Burg. Add. L Tit. 1, c. vi. Sylvarum, montium et pascuorum communionem. DIPLOME of 1284, quoted by v. Maurer, Einleiteng, etc., p. 144, communionem qua vulga Almenda vacater. Dipl. of 1291. Id. In communitate villa Merle, quae Alirnend vulgariter appellatur.
14. Com. IV. 1, 3.
15. It seems, however, that, either in certain districts or at a later period, the portion of land depended on the importance of. the house, for Grimm quotes a curious maxim of ancient German law: "The habitation, tompt, in the mother of the field; it determines the portion of arable, the portion of arable determines that of pasture, the portion of pasture that of forest, the portion of forest that of rushes to thatch the roof, the portion of rushes divides the water in the streams."
16. M von Maurer, whose profound researches have thrown so much light on this subject, quotes some curious texts in his book Einleitung zur Geschichte der Mark- Hof. Dorf- und Stadtverfassung. Thus: Einleitung, p. 278, "In divisionem mansorum more theutonico exerritui zeugitenam vel proconselesrem provinciam funiculo hereditetis divisit." Victor Vitensis, Hist. persec. Vandalicae. Lib. I .c. iv."Henricus comes de Racesbung adduxit multitudinem popeloremn de Westfalia ut incolerent terram Polaborum et divisit eis terrain in funicelo distriubutionis." Helmod, Chronic. Slav. Lib. I c. xxxi.
17. Lex Burgond., Add. i. Tit. 1, c. v. Agri communis nullis terminis limiteti exae quationem inter consortes nullo tempore denegandam. Sec also Von Maurer. Einleitung, p. 278: Saxones eam terrain sorte dividentes.
18. M. Fustel de Coulanges recently wrote in the Revue des Deux Mondes of 15 May, 1872: "The word sors was applied to all land that passed by descent. The idea of casting lots was not implied in it." Undoubtedly, at a more recent period, the word sors, or sortes, implied neither casting of lots, nor periodical partition, any more than does the phrase lot of land in the present day; but the terms obviously originated in the drawing of lots, customary in early times. All the land of Gaul was not confiscated and distributed by lot; here M. Fustel is certainly correct. But there is no doubt, that after the conquest it was by means of lots that the land taken from the vanquished was apportioned. See Von Maurer, Einleiteng, p. 82. M. Fustel de Coulanges, in an excellent article in the Revue des Deux Mondes, 15 May. 1873, himself quotes several facts which prove that in ancient times the apportionment of the soil was effected by means of lots. "Sors patrimonium significat, says Festus the grammarian, compare Livy I. 84. This sense of the word sors was a very ancient one in the Latin language; it was the same with the Greeks, who from a very remote period attributed to the word the double sense of decision by lot and of patrimony. It is clear that the word says, which we meet with in the Merovingian period, had originally the sense of decision by lot." "Decision by lot was an old custom, which the population of Greece and Italy had always made use of in the apportionment of the soil, without which it does not appear how private property could have been established."
It is an undoubted fact, that the word sors at a certain period denoted hereditary property; but if there had been any apportionment by lot, the soil must evidently have been originally common property; for a division by lot is not resorted to except to pass out of communism. Originally the portion to be occupied for temporary enjoyment was assigned by periodical drawing. Subsequently, portions so obtained were transmitted by descent; private property sprang up in fact from the last apportionment by lot.
19. The accurate description of these curious customs is due to M. Haussen. See Die Gehörschaften im Regierungebezirk Trier. M. A. Meitzen, in his great work Der Boden des preussischen Staates, has completed the study of them.
20. See Cramer, Wetzlar Nebenst, pp. 854, 864.
21. Mr Blamire, who, in his capacity of commissioner for the commutation of tithes, had a perfect knowledge of the rural condition of the country, mentioned these peculiarities at the time of the enquiry, in 1844, on the subject of the partition of commons. Report of the Select Committee on Commone inclosure together with the minutes of evidence (1844). The customs regulating the allotment of common pasture varied from village to village, but they can be reduced to two main systems. 1. Where they are divided into as many lots as there are inhabitants entitled, which are then assigned by lot. 2. Where the allotment is permanent, and each person entitled, occupies, by means of a regular system of rotation, all the parcels successively one after another, to gather in the hay. These two classes are called respectively lot meadows and rotation meadows. According to Mr Blamire, the same system was also applied to arable land, with this difference, that the usufructuary occupied the same lot during the three successive years of the triennial rotation of crops, and not merely for one year.
22. "When the English Puritans colonized New England, the courts of the infant settlement assigned lands for cultivation and permanent possession, and apportioned from year to year the common meadow-ground for mowing." Palfrey, History of New England, Vol. I p. 343.
23. Tacitus, in fact, in the same passage, mentions villages, vici; he could not, then, have been alluding to dwellings scattered over the country. The entire passage is; Colunt discreti ac diversi, ut fons, ut campus, ut nemus placuit, vicos locant non in nostrum morem, connexis et cohaerenti edificiis; suam quis que donum spatia circumdat. Germ. c.XVI
24. Von Maurer quotes a curious text, which shews that in conquered Gaul Germans and Gallo-Romans formed an agrarian community, resulting from common possession of undivided land, in which the Gallo-Roman had a right of preference. Terram quam Burgondio venelem hebet, nullus extraneus Romano hospiti praeponatur, nec extraneo per quodlibet argumentum terrain liceat comparare. Lex Burg. tit. 84, c. 2.
25. The same is the practice in Russia; see Mackenzie Wallace, Russia, v. ii. The reader will recognize this custom as identical with the practice in English parishes of "Beating the Boundaries," which phrase correctly expresses the form the custom has assumed with us. For, instead of being themselves the victims, the children are armed with wands, with which they belabour the parish boundary marks.
26. See Mommsen, Roemische Geschickte, Vol.. I. p. 183.
27. Mone, Zeits für Gesch. des Oberrheins, Vol. I. p. 391, and Von Maurer, Gesch. der Dorfverfassung, and Gesch. der Markenverfassung, passim.
28. The law of the Ripuarian Franks (sixth century) runs: c. 59, § 1: Si quis citeri aliquid vendiderit et emptor testamentum (i.e. instrumentum) veneditionis accipere voluit, in mallo hoc facere debet.
29. As the representative of the members, who formerly granted them their parcels, the mayor, on a transfer of property, received and re-granted the land, as represented by the branch and clod, ramo et cespite. See Vanderkindere, Notice sur l'origine des magistrats communaux, p. 40, and the chapter in this volume on Common Lands in Belgium.