GIFT OF SEELEY W. MUDD and GEORGE I. COCHR.VN MEYER ELSASSER DR. JOHN R. HAYNES WILLIAM L. HONNOLD JAMES R. MARTIN MRS. JOSEPH F.SARTORl to the UNIVERSITY OF CALIFORNIA SOUTHERN BRANCH ?=P^ This book is DUE on the last date stamped below University of California At Los Angeles The Library Form L I \\^ THE EARLY HISTORY OF LAND-HOLDING AMONG THE GERMANS. BY DENMAN W. ROSS, Pn.D. L'idee formulee par les faita represente la science. Claude Bernard. BOSTON: SOULE AND BUGBEE. 1883. 93390 Copyright, 1SS3, By Denman W. Eoss. University Press: John Wilson and Son, Cambridge. .>i PREFACE. This volume is the result of an investigation into the early history of land-holding among the Germans. The investigation was begun in the year 1875, and it has been continued, with occasional interruptions, since then. The collections of early records were, most of them, read through. Passages bearing upon the subject of the investigation were noted. They were then care- fully classified ; passages establishing certain ficts be- i'q ing grouped together. A general theory was then ' ' formed, to bring the facts thus collected into a natural order and relationship. This theory is now offered to readers and students for their consideration. In order to reach a just judgment of the theory, three inquiries should be made : — 1. Are the passages of the records, which are described or referred to, cor- rectly interpreted ? 2. Have any passages in the records been overlooked, which are inconsistent with the theory offered ? 3. Are the flicts which have been ascertained well arranged and fully described ? IV PREFACE, Althougli much labor has been spent, during a long period of time, in order to reach a truthful, consistent, and lucid statement, the result is still unsatisfactory to the writer, in many respects. It will be unsatisfac- tory to the reader also, without doubt. An entirely satisfactory statement still remains to be made. Per- haps it may never be made. The records are in many cases inconsistent; and in regard to certain points we have no records whatever; nor is there much chance of any being discovered. Nevertheless, we believe that it will always be pos- sible to advance in the knowledge and understanding of our subject. Perhaps the time may come when we shall no longer be able to gather new facts, though such a time must still be far off; but the time will never come when we can make an exhaustive general state- ment, which will involve no error of any kind. It will always be possible to make a more simple, a more lucid, a more truthful statement. It must be remembered that we advance in science not so much by presenting new views as by correcting old ones. In other words, we advance not so much by establishing our theories as by modifying them. Absolute truth is far away from us, and unattainable. The most we can do is to ap- proximate towards it ; and we do this by giving up the statement of to-day for another, which will bring facts a little more nearly into their true and natural relation- ship. We advance in this way very slowly, but surely; PREFACE. V having always something new to say involving the best of what has been said. Consistently with this idea, we hope, after some years, to rewrite this book, or to write another book upon the same subject; to exclude all that has been said amiss, to include all that has been rightly said, and many things besides which ought to have been said. Instead of creating many things, we will perfect one if we can. As Balzac tells us in one of his letters, " II faut refaire, recorriger, mettre tout a I'etat monu- mental." Cambridge, June, 1883. CONTENTS. Theory 1-109 Sources of Information 111-122 Notes and References 122-252 Literature of the Subject 252-264 Index 205-274 THE EARLY HISTORY OF LAND-HOLDING AMONG THE GERMANS. The life of the early Germans, considered from Pastoral life an economic f)oii^t of view, was pastoral rather than ao;ricultural. Ao;ricultm^e was resorted to more or less ; at first from time to time, and after- wards regularly ; but the wealth of the people, and their chief means of subsistence, consisted of live-stock, and the land was used, most of it, as pasture-ground for flocks and herds (^). The freemen settled neither in villages nor isolated in towns, but apart from one another in iso- lated farmsteads, — Eimelhofe, the Germans call them (^). The extent of pasture ground which the free- Pasture man occupied round about his farmstead was'' determined by the number of his flocks and herds. As among the Latins, the pccuniosiis was also locupks (^). If a man owned much stock, he occupied a great deal of land. If he owned a little stock, a small amount of land was enough for him. There was plenty of land ; so every man occupied as much as he wanted. The ani- 2 EARLY HISTORY OF LAND-HOLDING mals grazed in herds, under the care of herdsmen, who drove them out from the farmstead and brought them back again (*). Grass land. While most of the land was occupied as pasture- ground, a part of it had to be reserved for its grass crop. The climate of Germany is cold. Snow lies upon the ground, in most places, during many months of the year. At that time there is no green herbage anywhere. It follows that, if flocks and herds are to be maintained, grass must be cut and stored away for winter. Every man re- quired, therefore, besides his pasture ground, a certain extent of grass land. The amount of grass land which the freeman occupied was de- termined by the number of animals he had to maintain throuQ-h the winter. Agriculture. Although the early life of the Germans was pastoral rather than agricultural, agriculture was resorted to more or less. In Ctcsar's time, among the Suevi, it was resorted to by everyljody in turns. While some of the people went to war, the rest engaged in agriculture. Thus, we are told, neither war nor agriculture was neglected. This seems to have been the custom, also, in the time of Tacitus ; not particularly among the Suevi, but among the Germans generally (^). Slaves as The cultivators were, as a rule, slaves. The freemen seldom engaged in agricultural labor, unless thoy were obliged to do so. They spent most of their time, when not at war, in hunting ; AMONG THE GERMANS. 3 tlie rest in idleness, eating, drinking, or sleeping, at entertainments or assemblies (°). In early soci- ety, people do not willingly resort to agriculture, until they have servants whom they can oblige to do the work for them. The work is too hard, and takes too much time. Stock-raising affords an easier means of subsistence. The transition from the pastoral to the agricultural life has almost always been effected by means of slavery. This was certainly the case among the Germans. Who- ever reads through the early laws, formulae, and documents, will be convinced of this C). At the same time a class of dependent freemen Dependent or clients was coming into existence almost ev- erywhere, — a sort of plebeian order, interme- diate between the class of independent freemen and the class of slaves. It consisted of men livino; under patronage or over-lordship. It consisted of men who, having been freed from bondage, were unable to escape from dependence, because they had no arms, no stock, no land ; of men who, having been separated from their kindred, and the protection which the family or clan rela- tionship afforded, w^ere afraid to live alone, to hold their own against the world ; or of men who thought that they were more prosperous as de- pendants than as free-lords. It was a fortuitous assemblage of persons of divers descent, nation- ality, race. Being freemen, they could leave their respective patrons and lords when they 4 EARLY HISTORY OF LAND-HOLDING pleased ; but before doing so they were obliged to pay back all that they had received, or an equivalent thereof. This they were seldom able Dependants to do. So, although tlicy Were politically free, tree, eco- they Were economically unfree. They were then uufiee! ^ debtors, bound in servitude to their respective Dependent lords and patrons. In this position they were often freemen as,,.-, cultivators, obliged to take lots oi land, to cultivate these lots with their own hands, and to pay to their lords a part of the produce of their labor. Their condition was often little better than that of the slaves. It appears to have grown worse and worse as time went on ; until, at last, the two classes, the class of slaves and the class of laboring freemen, were very nearly merged together. We may describe them together, as The class of One class, — the class of serfs. It comprised the bulk of the population of Western Eurojoe during the early and middle ages (®). The amount of land which the freeman occu- pied for tillage depended upon the number of cultivators, or serfs, he had at his farmstead, or in houses of their own near by. As Tacitus Theafjri, tells US, arable lots were occupied according or 3.riljlG lots. to the number of cultivators, — a(/n pro nimiero One lot as- ciiUoriim .... occupantur. A certain measure of signed to . i • i eachcuiti- land, what Tacitus calls an ager^ — what is known in later times as a liida^ mansiis, huba, or coloiiica, — was assigned to each cultivator. Two agri were assigned to two cultivators ; ten agn to ten culti- AMONG THE GERMANS. 5 vators ; twenty agri to twenty cultivators ; and so on (^). AVhen the agri marked off were equally fertile, The agri , T i •! J 1 1 1 • distributed they were distributed among the cultivators ; one by lot. to each man, usually by lot : but it seldom happened that the agri were equally fertile. The land upon which they had been marked off was apt to be more or less diversified in sur- face, and the soil was better in some places than in others. The agri were then of unequal value, and quar- Thea^nnot - . . 1,1 A 1 always of rels were apt to arise m regard to them. As each equal value. of the cultivators paid a portion of the produce of his lot to his lord, and all those who were of the same rank or consideration paid the same portion, as a rule ("^), inequalities between the lots were a just cause of dispute, and they had to be corrected. The only way in which the lots could be equal- The agH ized in value, without being made unequal in tributed in extent, was by a redistribution in sections. The land upon which the lots had been marked o£E was, therefore, divided into sections, — what Ta- citus calls spatia camporum (^^), — approximately The ,<;;)«//« rectangular, we may suppose, and, so far as possible, equally fertile in every part. Each sec- tion was then divided into as many shares as there were lot-holders in the land, and each man received one share of each section, as many shares as there were sections. Thus an almost 6 EARLY HISTORY OF LAXD-HOLDING perfect equality was secured. The original lots, being intermixed, were obliterated. Acre lots. There was still another way in which the original lots were distributed. The cultivators met together and marked off on the ground a number of acres (small agri), one for each man. These were then distributed by lot and ploughed up, each man ploughing his own acre. Then, presumably the next day, for the acre was The morgcn, regarded and described as a day's work [morgen ni the German, lunialis m the Latm) [^^), another set of acres was marked off, distributed, and ploughed up ; then another, and another ; and so on, until the original lots were all redistributed in acres. These lots, being intermixed, were Intermixed obliterated. Their boundaries were lost. Nullus ccrtls tcrminis, scd iiigera iacent ad iugerihus ; quia iugera altrinseciis copulata adiacent ; singidls iuge- ribus mixiim in commiini riire hue illucque disper- sis. These are some of the phrases by which this arranscement of lands is described in the records Q"^). Existing Vcstigcs of arable lots redistributed in this way anci^Tin- havc bccn found in almost every country occupied hoWiugi I^J the Germans. The traveller in England, in France, or in Germany, cannot fail to notice that the arable land is still quite commonly cut up in very small pieces, usually narrow strips ; and if he makes inquiry regarding the distribution of property, he will find that it is, and has been, AMONG THE GERMANS. 7 from the remotest time, scattered and intermixed in the manner described. The sections {spatia) in which the lots were originally redistributed often remain ('*). When an acre lot extended along a slope of Terraced ground, the ploughman j^loughed one furrow after another down the slope. In so doing he brought earth from the upper side of the lot to the lower side, so as to level it. After several ploughings the acre had the appearance of a terraced border. If there were several acres side by side, there was a series of terraces down the slope. Such ter- raced acres may be seen in many places in Eng- land and Germany (^^). Some narrow, far-stretch- ing terraces may be seen at Deisenhofen, between Munich and Holzkirchen. They are crossed by a The Rava- Roman road, which must, it is said, have been acker. built before A. d. 201. They differ, however, in many respects, from those we are here describ- ing (i«). When the same lots — agri pro mimcro culi o?imi ^hmmg occupati — had been repeatedly cultivated, the soil lie fields. became exhausted, and new lots had to be sub- stituted for them. From time to time new lots were cultivated, and the old ones vrere allowed to lie fallow. This fact is recorded by Tacitus in the words, arva ]>cr annos mntant d mpcrcst arjcr. That the arable lots were sliiftcd about over the meadow and pasture lands is known, not only from this statement of Tacitus, but from the testimony 8 EARLY HISTORY OF LAND-HOLDIXG of later records. For example, in one of the St. Gall documents, a certain inheritance is described as embracing two tenements {colonicas), with the arable lots cultivated in successive years [analies ten-is), besides meadow, pasture, and other lands (pmfis, ^JCtsciiis, etc.) (^'). The field- Tliis is the field-grass system of tillage, — Feld- tem. graswirthschaft, the Germans call it. There was, in the first place, an indefinite tract of meadow and pasture land. Upon this land arable lots were marked off, ten, fifteen, twenty, more or , not so many, according to the number of cultiva- tors. Then these lots were shifted about from one position to another; every other year, or from time to time in the course of years, — ^;^r annos, as Tacitus says. Ploughs and Each cultivator received from his lord a plough, lauds. besides a yoke of oxen ; hence the arable lots were called j^lough-lands, — terrae aratrormn or car- rucatae (^'^). They were called plough-lands whether they were intermixed or not. Each of the culti- vators ploughed his land himself, with the aid of other members of his family; except in certain Co-operative cascs, wlicu the ploughing was done co-opera- pougung. ^-^gi^^ jj-^ g^^|-^ cases the cultivators were not all provided with ploughs. One plough was as- signed to several cultivators. Then each man brought out his yoke of oxen, and all the yokes of oxen were hitched to the one plough, and the lots of the associate cultivators were ploughed in AMONG THE GERMANS. 9 turn (") ; unless the plough was used in turn, which plan may have been preferred. In the early time, and in some places long The grass afterwards, the meadow land was not separated at all from the pasture land. We suppose, there- fore, that the free-lord, or his people, cut the grass in certain places, here or there, and the herdsmen kept the animals away from these places until it had been cut ("°). "When there was plenty of Enjoyment ^ ad libitum. grass, every man cut as much as he wanted ; but when the amount of grass was limited, an allow- Enjoyment ance was made to each man. He was allowed to cut and carry off one, two, or more loads. Grass land Avas regularly estimated, according to the number of loads of hay (carradae feni) it was capa- ble of producing (^^). At a later time, the grass Grass land divided into land was divided into lots, one lot for each tenant, lots. Then most of what has been said regarding the arable land may be said of the grass land. When the grass produced upon the various lots was nearly equal in quantity and quality, one lot was assigned to each tenant ; but when the lots were of unequal value, they were redistributed by sections, and so scattered and intermixed ("). AVhen the lots of grass land were permanently The rotation located, they were often taken by the cultiva- tors in rotation; the holder of lot 1, one year, taking lot 2 the next; the holder of lot 2 tak- ing lot 3 ; and so on. Sometimes, when the lots were redistributed in sections, the shares 10 EARLY HISTORY OF LAND-HOLDING in each section were taken in rotation, in the same way (^). Arable lots So, in Certain cases, when the arable lots had been located permanently, when the field grass sj^stem had been given up, and a system of permanent fields had taken its place, the shares were taken in rotation (-*). The rotation system was preferred to redistributions by lot, because of its perfect justice and equality. It was a com- promise which the inequality of the lots made necessary. The pasture In regard to the pasture land, so long as there was plenty of it, the enjoyment was ad libitum. Enjoyment Evcry man turned out as many animals as he regulated ; had : but wlicn the pasture ground was limited, afterwards cacli man w^as allow^ed to turn out a certain num- ber of animals ; five or ten, more or not so many. Pasture lands were quite regularly estimated ac- cording to the number of animals, of one kind or another, that could be maintained upon them. We have pastures for fifty, ,a hundred, more or not so many, cows, or sheep, or swine, to be shared between the free-lord and his tenants (^^). The forest The cnjoymcut of the forest land was usually Enjoyment unrcgulatcd in the early time of which we are unregu a e . gpgj^]^Jj-,g_ ^\^q fj.gg ]qj.^ alloWcd llis tcuauts tO cut all the wood that they wanted for building purposes, for the erection of enclosures, or for fuel, and he had all that he wanted for himself besides (^^). AMONG THE GERMANS. 11 Sometimes the free-lords took lots of the arable Domain lots. land with their tenants. Then we have domain lots {huhue indominicatae) as distinguished from lots in tenure (''). The free-lords seldom cultivated these domain lots however. They obliged their The domain tenants to do this for them. Hence the agricul-cuitivatudby , . T • 1 1 1 • 1 the tenants. tural services upon domain land which were exacted almost everywhere during the early and middle ages. The ploughing upon the domain land was Agricultural SGrvic(?s on done by the tenants. They sowed the seed in it, domain land. gathered the harvest from it, and stored this in the lord's barns. They cut grass for the lord, and stored it. They cut wood in the forest, and brouo-lit it to where it was needed for buildinc; or for fuel. They went on errands, and performed other services, as ordered : all this in addition to cultivating their own lands and paying to the lord a portion of the produce thereof These manifold dues and services were -at first imposed Dues and sci*viccs tk by the lord according to his will ; but he always uiated by found it difficult to increase them afterwards. The tenants were constantly referring to pre- cedent, and were discontented, and sometimes riotous, if it was not adhered to. The precedent worked in both ways, however ; for when the tenant called for a reduction of his dues and services, the lord referred to the precedent, and usually persisted in adhering to it. The dues and services became, in this way, fixed by 12 EARLY HISTORY OF LAND-HOLDINa precedent, in other words by custom. There were different customs, of course, in different places, according to different precedents referred to (2«). ihemansi When the tenants of the houses and lots of ft^y/^" hand which we have been describing (the mansi cum huhis) died, and were not replaced by others, we have empty houses and unoccupied lots [mansi ahsi and huhae ahsae). The freeman, in describing his possessions, said he had a certain number of occupied tenements [mansi vestiti, or jjosscssi), and a certain number of unoccupied tenements [mansi ahsi). The unoccupied tenements were filled up as soon as possible (^^). Terms used Thc tenants are variously described as familice, to describe , .. the tenants, manemcs, 7nansionaru, mansorcs, casam, cassah, scrvi, mancipia, trihutarii, parscalchi, ccnsuaks, accolae, ciil- tores, colonic villani, rustici, rusiicani, Uii, inquilini, homines (^°). Nobounda- There were no boundaries between the lands riGS DGtWCGll the isolated occupicd by ouc frcc-lord and another, in the early period ; in the time of Caesar, for example. He says of the Germans, that no man had any definite amount of land, or any boundaries to what he occupied, — nccqiie qidsqiiam agri modum cerium aut fines hahct lyroprios (^^). There were, probably, no boundaries between tlie holdings of the free-lords, in the time of Tacitus ; for even after the wanderings, when settlements were per- manent, and the population was increasing and AMONG THE GERMANS. 13 spreading, the forest or waste "svas commonly re- garded as a sufficient boundary. It was called the confinium silvarum, the marca de silva, or marca The marca dlvaiica (^-). Then gradually it became custom- ary to define boundaries more precise!}', and the How boun- free-lord would go out, in company with his neigh- first laid bors and friends as witnesses, and make a cir- cuit of his domain, noting as he went, by means of marks on trees or stones, mounds of earth, or other signs, the limits to his property ('"). When this had been done, and he had occasion to refer to his estate, he usually mentioned the fact that boundaries had been marked, and he often described them briefly (•^^). Beyond the land which the free-lord occupied at first, — when he had built a house for himself, and houses for his people, when he had assigned arable lots to the cultivators, when he had cleared a sufficient tract of meadow and pasture land for the live-stock of his colon v, — there was often a good deal of land still unoccupied, which he could appropriate, as he had occasion Appropria- or need ; and from time to time he extended his cipicd land. possessions in one direction or another ("'). When the free-lord described his possessions, he said Unoccupied 1 1 1 1 1 • n 1 • \^vi^ re- tliat he had besides his own house (the mansiis gaided as . 7'',\ .• 1 1 / .. . undivided inaomimcatus) certain otlier houses [mansi ingcnm- property. leSy Males, seniles) C"), a corresponding number of arable lots (hubae) (^''), and an indefinite extent of meadow, pasture, and forest land round about 14 EARLY HISTORY OF LAND-HOLDING (praiiSj pascids, silvis, etc.) (•'^) ; and he often added that he had also lands not yet occupied or appropriated, to be occupied or appropriated whenever occasion or need should arise, — terras exdr pandas, inquircndas, incuUas, inqidsitas (^^). In a Middle-Rhine document a certain man alienates : de proprisa diva jornales odo, et aliam commiinem silvam non j^roprisam. In a document of the Re- gensburg collection : has iiaque res, are alienated ; et quicquid in postermii' silvariim extupatione omniqiie alia cultura amplificetiir. In another document of the same collection a certain man named Papo {iirhis p)Tacfecins) alienates what he calls a prae- diiim silvaticum, which, inasmuch as it lay within sight of his estate of Steninga, he appropriated, in Sfjlva communi Nordivald ("'). Establish- If tlic frcc-lord had so many cultivators that ant colonies, hc could uot find lots for tlicm all near his resi- dence, he sent off a colony or colonies to distant places, where there was plenty of land (*^). The leadership of such colonies was intrusted to a member of the family, or else to a faithful ser- vant and agent, — a preposittis, actor, major, or villiciis (^). It was the business of the agent to superintend the division of the land, and its cultivation; to collect the dues, and to keep the peace among the colonists. Sometimes the free-lord had in his possession several, or a great many such colo- nies {'^). AMONG THE GERMANS. 15 It "was in order to make room for colonies that Conquered the freemen endeavored to enlarge the border served for land around their original settlements, as much as nies. possible in every direction. It was thought very desirable that the state should have a wide border land. This was the object of many expeditions. Caesar says of the Suevi, that they had extended their border land in one direction six hundred miles (^). Upon such a tract of country a great many colonies might be planted, with dwelling- houses for the colonists, with arable lots, with clearings of meadow and pasture land, with the forest and waste, or mark-land, as it w\as called, spreading round about and in among them, as a boundary for each one and for all. The freeman usually gave some name to his Names given , . . . , . ^ to the I'arm- farmstead or colony, to distniguish it from others, steads and Names ending in the syllables -hack, -feld, -ivaJd, are very common in the early documents. They illustrate very well what Tacitus says of the Ger- mans : colunt discreti ac diversi id fans id campus lit nemits placuit. The names given to farmsteads or colonies often refer to peculiarities of the soil or situation ; its mountainous, hilly, rocky, flat, or swampy character. Sometimes they refer to cer- tain kinds of trees growing in the neighborhood, — oaks, elms, lindens, pines ; or to animals or birds, — wolves, bears, eagles, falcons (*^). The most in- teresting names, however, are the personal names. Personal . names of The freemen were very apt to name their larm- places. IG EARLY HISTORY OF LAND-HOLDING steads or colonies after themselves. Widerliolt, for example, in one of the Fukla records, alien- ates his villa named Widerholtesleba, — villam sui nominis Widerholtslcha, In another record of the same collection, a certain man alienates a villam sui nominis Bechcndorf. In one of the St. Gall rec- ords we have a roncale, mco niincupatum nomine (^^). Local names of a personal or patronymic char- acter abound in the records. They are probably more numerous than any other class ; and they help to establish the fact, that in the earliest time individuals and fomilies settled apart from one another, and not together in groups, — in isolated farmsteads, and not in villages. The isolated The holding of the freeman consisted, in the scribed. first placo, of liis homestead. Then there were houses of dependants, freedmen, or slaves. There were also outbuildings, — sheds for the animals, barns, and storehouses (^"). Around all these build- ings there was, usually, an enclosure, — a fence, hedge, ditch, rampart, or wall (*^). Beyond this enclosure were the lots of arable land, — the agri pro numcro cuUontm occupaii. Beyond and around the lots of arable land spread the open meadow and pasture. The mark of forest and waste land enclosed and surrounded the settlement (*^). Absoiutp in- FroHi an economic point of view, the freeman dependence . i • /» or the free- was Completely mdcpcndent. He had at his farm- man on his T^iii 11 • ^ ^ domain. stead, and ni the lands round about it, belonging to it, every means of living comfortably. From AMONG THE GERMANS. 17 the wood of the forest he built his house, houses for his people, sheds for the animals, barns and storehouses. The wood of the forest served also for fuel. From the live-stock came meat, milk, and cheese. From the hides of the animals, warm clothing was made. There w\as pasture ground, upon which the animals grazed in summer, and grass land, which provided them with winter fod- der. There was also land to plough, upon Avliich the grain was planted. From this a supply of bread, and beer, which was brewed from barley or some other grain, was obtained. Out of flax or hemp, cloth was made by the women. Thus the freeman had at his farmstead, and round about it, every necessary means of subsistence. This inde- pendence of the house-father [Sclhstdndigkcit des einzelncn Hausvaters) in early German society, is a fact of great interest (^^). It is often argued, that because there were no No evidence lixed hmits, no boundaries, to nidividual holdmgs, ty of land the land must have been owned collectively or communistically. It is said that the statements of Caesar go to prove the existence of commu- nity of land ; Fcldgcmeinschaff, the Germans call it. The argument is inconclusive. The absence of fixed limits and boundaries proves simply that the land was undivided property ; it does not prove that it was common property. From what Ca3sar says it remains an open question whether the land was regarded as common property or not. Nor 18 EARLY HISTORY OF LAND-HOLDING Nocviiioncp do Avc f>:ather anythinfi: from Tacitus in regard ty of land to tliG owncrsliip 01 tliG land, — whether it was tus. vested in the freemen collectively or distribn- tively. We know from the statement colunt discreti ac divcrsi, that there w\as no association between the freemen in their stock farming and agricidture ; no tvirlhscJiaftUchcr Vcrhand, as the Germans say. We know this, but w^e know nothing more. The question wdiether the own- ership of the land w'as vested in the freemen collectively or distributively, remains to be settled by the testimony of the later records. No equality It lias bccn argued from the passage of Ccesar, of holdin<=r . ..... . . ill Casar's quum siicis qiiisque opes cmn potcnhsstmis acqiian vi- deat [''^), that the holdings of land were all equal ; and it has been argued, that this goes to prove the existence of community of land. It is not at all likety, however, that Caesar meant to imply, by the words cited, that the holdings of the freemen were equal. If every man could appro- priate as much land as he wanted, it could very well be said that there Avas an equality of rights in regard to the land. Cresar can hardly have meant anything more than that. The existence of potcntissimi, as distinguished from Jmmiliores and plehes, points clearly to the existence of unequal holdings. If no man held more land than another, it is not likely, unless some men held a great deal more than they could use, that there would have been any poto?/?s5w?ze. time. AMONG THE GERMANS. 19 Then we must remember that equal holdings imply precise limits or boundaries; and Caesar says that there were none, — ncque qidsquani agri modum ccrtum ant fines habet proprios : so if he meant to say in one passage that the holdings of the freemen were all equal, he gives us to un- derstand in another that they were not equal. He contradicts himself, and w^e may believe what we please. According to the testimony of Tacitus the No equality 11T r> ^ c iTTii of holdillEf liokhngs 01 the ireemen were unequal. He tells in Tadtus's us that tlie freemen had slaves, who cultivated the land for them in the manner of Roman coloni. Then he tells us that the amount of land brought under cultivation at any time depend- ed u})on the number of cultivators. The amount of land whicli the freeman brought under cul- tivation depended, therefore, either upon the number of able-bodied persons in his ftimily, or upon the number of his slaves, or both together. It was determined by the number of agricultural laborers he had in his household, or attached to it in houses of their own, near by or in distant colonies. The number was variable in every case. The holdings of the freemen were there- fore unequal ('-). Let us suppose, however, for the sake of argu- rommunity ment, that the holdmgs oi the Ireemen were to Loin- equal. Would that prove the existence of com- .unaiity of munity of land among them, — collective or'" ^^'^'" 20 EARLY HISTORY OF LAXD-IIOLDING coTiiinunistic ownership of it ? Ten men go out ^vitll ca net to catch fish, and catch some, and on their return divide tlieni equally. Should we say that the iish were common prof)erty after they had been thus divided ? Surely not. So in regard to land : when a body of men miite to- gether and occupy, by appropriation or by con- quest, a tract of land, and then divide it into equal shares, that is no evidence of collective ownership. This must be proved upon other grounds. Equality is found where there is col- lective ownership. It is also found where there is no collective ownership. In itself, therefore, equality is no evidence of collective ownership. It was only for the sake of argument, how- ever, that we allowed that the holdino-s of the freemen may have been equal. The statements of Ciesar and Tacitus, taken together, prove quite conclusively that no such equality existed. The concurrent testimony of the later records might be adduced if it were necessary. Thcquos- The question whether the ownership of the tion as to the , . ownership of land was vcstcd in the freemen collectively or the land . . must be 10- distributively, still remains. I here is nothing ferred to lat- . . . n m r rr\ • l er records, in tlic Statements eitiier or Caesar or or lacitus to enable us to answer it. We shall have to turn to the laws, formulae, and documents of later times. From these we shall be able to reach a conclusion, without doubt. In the law of the Bavarians ("^), the holder AMONG THE GERMANS. 21 of a piece of land declares that he has witnesses The right of ,,„,,, ,, ^_ . possession to tell 01 the labor lie has expended upon it ; secured by 1 1 • (• 1 1 /• 1 • • • ^ • , 1 force, among how his lather kdt him m possession ot it; how the Bavari- therefore it must be his. If, however, the claim- ant declared that this was not so, that the land helonged to him, there was no appeal except to the issue of battle. The litigants met and fouu'ht, and he who won the battle took the land. So in the Saxon law ("*) : when a man found Among the his land occupied by another, he collected wit- nesses to say that the land was his. Neverthe- less, if he who had possession of the land refused to accept this testimony, the matter was settled by battle, — si occujKilor contradlxerit camj)0 dijudi- cehir. So also in the Ripuarian law (^^) : if any one Among the wished to fight for his inheritance, he first brought witnesses to say that it was his inheritance ; then, unless the claimant withdrew, the matter was settled by a combat, before the king, — cum armis suis se def ensure studeat ante regem. We find the Among the , 1 , . , T 1 1 Alaraanni, same custom among the Alamanni, the Lombards, Lombards, , ,, ^ 1 /-c\ aii'l other and other (merman peoples ("""j. nations. If a man trespassed upon the land which a neighbor regarded as his, and persisted in do- ing so, and his neighbor persisted in resistance, they fought it out between themselves, and he who won took possession. There was no appeal except to the issue of battle. So when two or 22 EARLY IIISTOliY OF LAXD-HOLDINa Thisistrae morc gToups of men, groups of kinsmen, co-heirs of I'ainilies, i • ^ ^ as well as of and neigliDors, fell to quarrelling in regard to indiviiluals ; . r» i • ofcian.s, as the cxtcut 01 tlieu* rcspectivc possessions, they well as of J. • 1 - ii 1 • • famUies. met HI battle, or else, apponitmg representative champions, allowed the matter to be settled by a duel. This we know from a passage of the Alamannic law ('). When the Germans told Ca3sar (^^) that they were afraid, if they settled anywhere perma- nently, the powerful would drive the weak from their possessions (posscssioncs), and so make great estates {^atos fines) for themselves, they must have had this lawless condition of laud holding in their minds. Possession The word meaning 2^ossesswn, which occurs in in the early i • i i • • i i i i time. media3val records, (/ctvere, is without doubt the same word as givcrra or iverra, the French guerre, our tvar ; which leads us to believe that a taking possession in early times amounted to a decla- ration of war against all possible claimants (^^}. The word seisin in our modern law should be remembered in this connection. When a man brought suit for the recovery and possession of landed property he declared war, giverra or tverra ; invasionem fecit, in the Latin [^^). The fact is recorded in certain quite early documents. Seizures and Landed posscssious are constantly described con(|iicstsV)y individuals, as scizurcs or couqucsts, — comprchensiones, p'oprisa, clans. ^ ' conqiicsta, capturae (^^). The phrase of the early formula, ego ct progenitores mei earn \yillani\ potes- A^IONG THE GERMANS. 23 tative possedimus {^~), illustrates the same idea. The conclusion is, that the jiossession of land was, in the earl}^ time, secured by appropriation and maintained by force. Land, being appropri- ated or conquered by the nation, was subject to appropriation or conquest by the clans. The land appropriated or conquered by the clan was subject to appropriation or conquest by the family. The land appropriated by the family was subject to appropriation by the individual. These conquests or appropriations were usually made in an orderly and peaceable manner. So long as there was plenty of land, it was not worth As long as tliGrc Wcis while to quarrel about it. The clans separated plenty of from one another, under their respective leaders, was very and each clan took a territory for itself Then n.iiiii'rabout the families in each clan separated from one ^*" another, in the same wiiy, and each family took a tract of land for itself Within these family appropriations the individual established himself in the manner already described. He built a house wherever he pleased, and houses for his people. Arable lots were marked off for the cultivators. Some land was reserved for a hay crop, and some more was given over to the herds of animals, as pasture ground {^^'^). There were no precise boundaries between the Absence of possessions of one free-lo]'d and another. There daiies. was no need for any. The free-lords settled apart from one another, and there was more 24 EARLY HISTORY OF LAND-HOLDING than enough land for everybody, in the early thne of ^Yllicll we are speaking. Terms used Possessions of land are very commonly de- to desciibo •! i possessions scribed as occujmtioncs, posscssioiics, conj)arata, ela- horata, collaborcUa, cxaria, stirjn, stirpationes, cxtirpa- iioneSy novalia, mastunc/a, nmcaks, cinciadae, ambita, circuiti, circuitiones, scpti, comjjrehcnsiones, ])roprisa, Ufangay conquesta, conquisiiiones, capturae, concapta, dominationes (*^*). The formula prcdia proprio la- hore meo libera manu acquisita is not nncommon. We meet with the villavc mm propriis manibus acqumta. The formula carpere d possidere hcre- ditatem occurs (*^''). The nature In vicw of tliis WO are not surprised to learn itance in that the carlicst idea in the word crbe, an in- thues/^'^ heritance, is of something worked out or elabo- rated. It is arU in the Gothic ; crU^ in the Old High German ; and these words have the same root as arbeit^ a piece of w^ork (°'^). The inher- itance, according to the prhnitive German idea, was something which a man acquired for himself, by his own labor. The people spread over the country. They took possession of tracts of land, made clearings, built houses, and in that way established inher- itances for themselves. They were no inherit- ances properly speaking, but as they came to be inheritances whenever settlements were per- manent, they may be correctly enough described as inheritances (*^"). AMONG THE GERMANS. 25 In a clociiment of the Chartularium Wertlii- a easo in „ . T ^ 1 • • illustration. nense (""), a certain man alienates his appropria- tion and inheritance, describing it by the words, j)articulam hacreditatis et proprii laboris mei ; id est totam comprcJicnsionem in sylva que dieiiur Hoisd. It is not necessary to suppose that any di- Xo division 1 1 1 1 <^f inlierit- visions or land among descendants were tlionght ancesinthe of at first. They hved on in the father's or grandfather's house, and held their property in common. Grandsons and even great-grandsons often continued to dw^ell together in this way upon one inheritance, as a house community. The time came after a while, however, in How migra- ^ . . tions were most cases, when the heirs were too numerous made, and , . . , , i 1 I iiew inherit- to live in one house together, as a house com- ances estab- munity. The pasture and grass lands were in- sufficient to maintain all the live-stock ; or else the number of slaves or serfs Had increased so much that lots (Jiuhae) could not be found for them all. It was then necessary to migrate to a larger territory. The live-stock and slaves were divided, presumably in equal shares, and a new settlement was made. Each man appro- priated in the new territory an inheritance for himself and his descendants. He made a clear- ing, and built a house for himself, houses for his people, and sheds for tlie animals. Arable lots were marked off for the cultivators, and the animals were turned out to pasture, as already described. We have many inheritances then instead of one. 26 EARLY HISTORY OF LAND-HOLDIXG- Multiplica- tion of in- heritances. Ancient houses. Sometimes the original settlement was perma- nent, and other settlements arose round about it, as offshoots from it. One heir remained in the original settlement. This was, perhaps, the eldest son, or the eldest male of the eldest line in the family. The other heirs went off with their movable property, their shares of live-stock and slaves, and established themselves here and there in the surrounding countr}^ Thus out of one household others arose, from these still others, and the population spread away from the original settlement farther and farther. In this way in- dividuals became families, families became clans, and clans became nations. The original appro- priations and inheritances, instead of being divided and subdivided, were multiplied. It was only at a later time, when there was a lack of land, that inheritances were subdivided. In the early time they were multiplied, according to the increase of the population. The original households, as the sources and centres of national life, were probably regarded with a certain veneration. The heads of these households were probably looked upon as repre- sentatives of the original stock of the nation, — the stock from which all its families and clans had been derived. They were consequently re- garded as chiefs or kings of the clan or nation ; and the heads of the other households were subordinate chiefs or kings, or noblemen, or sim- AMONG THE GERMANS. 27 ply freemen, according to the antiquity of their respective households. We have no evidence to offer in support of this theory, however. At this time divisions of the land among descendants were very rare. Stock and slaves were divided, not the land. The people spread freely, taking their stock and slaves with them, and settling wherever they pleased. As soon, however, as the land became thickly populated The origin of clau vil- everywhere, so that there was little or no room lages. for new inheritances, the heirs in those already established were obliged to continue living to- gether. It seldom happened, however, that the heirs could remain under one roof. New houses were built, in which the members of the family distributed themselves. Thus villages arose in The mnzei- ,, 1 f, ■, •!.• T i.1 1 /iq/" becomes the place ot house communities. In the place a GcUfer- of the Einzclhof yYQ, have a Gchofcrschaft {^^). When the time for cultivating the land ar- Arable lots rived, arable lots were marked off for the slaves, cording to IP T i -1 J 1 ji • the imniber as before, distributed among them, one apiece, of cuitiva- ploughed up, and cultivated. The lots were no longer, however, embraced within one inher- itance ; they were distributed among several or many inheritances. Each householder in the village regarded the lots which were held by his slaves as his. As new lots were brought under cultivation {per annos), the householders in the village took, always, each one as many lots as he had slaves. If then the householder was 28 EARLY HISTORY OF LAND-HOLDING The inherit- askecl to describc his inheritance, he said, he ance in the -, •, i • i i • t i . cianviihige. ownccl a liouse which he occupied himself, and two or three, or more, other houses, occupied by dependants or slaves, a corresponding num- ber of arable lots, and an indefinite amount of meadow, pasture, and forest land beyond. How the im- The meadow, pasture, and forest land, being diviJtd laud ^ . . , was regard- subjcct to appropriation, was regarded as undi- vided property. It is so described in the early Enkrge- rccords (""). If a householder in the village ac- nieut of in- . heritances quircd SO iiiaiiy slavcs that he had no place for bv appropri- , • i -n -i ationsof tliem 111 tlic Village proper, he sent them out laud. upon the undivided land. There they made a clearing, marked off arable lots, and built houses for themselves. The householder in the village counted these houses and arable lots with his other possessions, as part of his inheritance. A case in In a Lowcr Ehine record of Lacomblet's Col- lection, Hembald the son of Heribald alienates an appropriation which he has made upon the common land of his kindred, — in commiinione pi^ox- imorum siiorwn, — and he calls it a comprchensio in propria herediiatc. Many similar examples might be adduced (^^). The shares As time wcnt on, however, the question arose, vidediamr liow mucli of tlic Undivided land (the commnnio proximormn) one man should have, — what was his rightfid inheritance thereof In answer to this question it was decided that, inasmuch as inher- itances in the village, and of the arable land. are defined. AMONG THE GERMANS. 29 were already defined, the inheritances of the undivided land onght to be determined accord- ingly. It was decided that every householder in the village should have as many shares of the undivided land as he had houses {mansi) in the village or outside of it, or arable lots [huhae); and if the land remained undivided, rights of enjoyment were to be proportioned to rights of property. We read in the Burgundian law that forest, Passages mountain, and pasture lands were to be enjoj-ed Bmgundian pro rata : sylvarum, montium, et jiasciioriim, imicidque pro rata siijipdit esse communionem. At the same time they might be divided among the share- holders, if any one wished to have his share separated from other shares : agri quoque commims, nulUs terminis limitaii, exaeqiiaiionem inter consortcs nullo tempore dcnegandam. Then we read how the division, when it took place, was to be made with reference to the extent of land, or lots of land, held in severalty : secundum terrarum modum vel possessionis suae rat am (""). Through the early time, live-stock and slaves inhoritnncos , ^. . ^ ^ . T /^ 1 of stock and alone were divided, ihe heirs spread freely slaves undivided or part of it, remanied undivided lor a genera- for a genera- p tion or two. tion or two ; in certain cases, lor many gen- erations. We read in the Lombard law about property of dillercnt kinds [de rebus sen cle caais vel de term) not yet divided among the heirs {i)iter fratres vel inter parentes). Reference is also made to property wdiich has been divided among grandsons [qucie divisae fuerint inter fratres sett ncpotes) C^^). In a document of the Lower Ehine, ^ve have The coheirs 1 / 7 ,.,,., in an uiuli- a grant or hereditary land [agrum hereclitaru) by vided iniier- a body of coheirs and kinsmen {coheredes et con- participes et consarigidnei). In another document of the same region we have a number of kins- men descril^ed as coheirs and shareholders in an undivided inheritance [coJieredihiis et conpartici- pihus in uno pcdrimonio) (^^). In the year 855, a dispute arose between the Abbot of St. Gall and a group of heirs in regard to the right of ownership in certain lands. Inter nos et Rihivinwn et coheredes ejus \_frcdribiis necnon ceteris coheredibus~\ fxdt contentio. The parties came to an agreement, and boundaries were fixed ; and Rihwinus and his associates held their inheritances distinct from the property of St. Gall, liihwinus et coheredes ejus snas portiones per se habeant, cxcepto id pascua commimia in agris habeamus. It is an interesting 32 EARLY HISTORY OF LAND-HOLDING case (®°). In a document of Freising the mem- bers of the ducal family, the Agilofingi, joined together and alienated a tract of uncultivated and waste land, which was their undivided in- heritance. They are described as heredes, parti- cipes, and comortcs in it. The members of another family, the genialoyia Fagana, did likewise (^^). In a Westfalian document the shareholders in an undivided inheritance are described as suc- cessores alodii. In a document of the Middle Rhine they are called alodioncs (^^). The heiv Tlic licir was always entitled, however, if he for his share was of agc, to Call for a division of the inher- itance at any itxince. He could have his portion divided off and given to him at any time. This we know from the passage of the Burgundian law already cited, — ag7'i quoqiie communis, nuUis termuiis UmitaU, exaequcdioncm inter consortcs nullo tempore dcnegan- dam (®^). Even a minor, provided his kinsmen had no objection, could have his portion of the common inheritance divided off and given to him. This we know from a passage of the Lom- *" bard law, beginning with the words, si infans, dum intra aetaiem est, res cum fratrihus aut cum pfarerdihus suis dtvidcre voluerit (^*). Divisions Sucli a division is described in the early for- ainong CO- t • • 7 1' • ^ i i heirs. mula as a divisio vet exaequatio inter consortes cle alode (^■''). We have a reference in a Middle Pthine document to such a division in the words, quantumcunquc mihl ohvenit de genitore meo Pippino, AMONG THE GERMANS. 33 qiiod contra aUodiones mcos recejn {^^). In the Codex S. Galli we meet with an hereditatem, quam in Liidoltesivilare in meam portlonem a coheredihus ac- cej)i (^^). In the early time, whenever a division of the inheritances • 1 • n 1 i» -i 111 divided inheritance was called tor, it was, probably, among the divided into equal shares, according to the num- capUa,Zt ber of heirs, one share being assigned to each "'^ ' of them. The division of the inheritance was per capita. But when the rule of equal di vis- afterwards ion among sons had been generally adopted, it was naturally argued that a division in equal shares among grandsons or great-grandsons was not lawful, unless the sons and grandsons left the same number of heirs respectively and in- dividually. The result was the institution of per stirpes divisions, instead of the per capita divisions. When an inheritance continued un- divided for several generations, but came at last to be divided, the division was made according to descent and the law of inheritance prescribing equal division among sons. It was only when the knowledge of genealogical relationships was lost, or a subject of dispute, that the division was made jjer capita. The evidence of this lies The passage XT Tim r>i T OT T\ 77- -^^^ (''lodis of m the Herold lext oi the Lex fealica: De alodis, LexS^Uca, in the clause, tiM inter nepotes aid pronepotes, p)ost the Herold . • Text longum tempus, de alode terrae contentio suscitatury non per stirpes sed per cajnta dividaniur (^^). The distribution of an inheritance, whether 34 EARLY HISTORY OF LAND-HOLDING- Distriini- made i^cr capita or per stirpes, was usually made stirpes v,-Qre hj lot. It is sometimes assumed that a distri- byiot. bution 2^cr stirpes, according to descent and the law of inheritance prescribing equal division among sons, would not bo a distribution by lot. The assumption is erroneous. The fact that there was a distribution by lot is no evidence to show that the distribution was not made per stirpes. Suppose A, the progenitor of a family, has five sons, B, C, D, E, F ; and B has three sons, G, H, I ; and G has four sons, J, K, L, M ; and J has two sons, N, 0. O's share of the family land would be, according to descent and the law of equal division among sons, one half of one fourth of one third of one fifth of the whole ; that is, one one-hundred-and-twentieth of the whole (if we may assume that his brother and descendants of his uncles and great-uncles remain to take their shares). The division would be made by lot, in the following manner. The fiimily land, all of it, or a section of it at a time, would be divided into five equal parts, which would be assigned, by lot, to the descendants of B, C, D, E, F, respectively. The descendants of B Avould divide their portion, thus received, into three equal parts, which would be assigned by lot to the descendants of G, II, I, respectively. The de- scendants of G would divide their land, one fifteenth of the family land, to be assigned by lot to the descendants of J, K, L, M, respectively. AMONG THE GERMANS. 35 Then the sons of J would divide their share, one sixtieth of the family land, into two parts, and take one apiece, by lot (^^). Inheritances thus acquired were very properly SorspcUri. described as lots, sorics. Already among the Lat- mji^"^ ^^ ins the w^ord sors had come to signify an inher- itance, rather than an allotment simply. The reader will remember, perhajDs, the definition of Festus : sors patrimonium signijicat. The word is constantly used in this sense in our early and mediaeval records (^°). The word sors, and the German word alod, sig- The sors and . „ . , , . , 'it • ' the alod. nifymg an mheritance, interchange meanmgs ni the records. In the formula already cited, which dates before the end of the seventh century, we have the dicido vcl exaeqiiatio inter consortes de alode. The word consortes is regularly used for the word coheredes, the word alodlones, or the phrase siic- ccssores alodii In one of the St. Gall records a certain man alienates his inheritance (^hcrcditas) with the exception of a certain part not yet divided between himself and the other heirs, — quod cum consorttbus meis adhuc in commune visa sum possidcrc. Among the Burgundians, Visigoths, and Lombards, an inheritance of land was quite regularly described as a sors, or terra sortis titulo acquisita (^^). In dividing an inheritance it was quite cus- tomary to divide the house lots and arable lots, the mansi cum hnhis, and to leave the shares of 36 EARLY HISTORY OF LAND-HOLDING subject to division or appropria- tion. Undivided the meaclow, pasture, and forest undivided, to in meadow, be held in common. We have then p-ata com- pasture, and • /92\ • m-\\ i v forest land, mwua (""j, pascua commiinia ( "*), and a silva com- munis (^*). Although the undivided land was thus described as common land, property rights in it were very exactly defined. He who owned an eighth part of the arable land of the vil- lage owned an eighth part of every other kind of land that there was, and he could have his Undivided eighth part divided off and assigned to him at any time ; or, if he pleased, he could help him- self to it. If he did this, however, he had to be very careftd not to take any more than his rightful share. We know this from a passage of the Lex Ripuaria : si quis consortem simm qiian- iulumcunqiie superpriserit, cum qidndecim solidis resti- tuat (^5). Rights of Rights of enjoyment in the undivided and enjoyment i i xi j in the undi- commou lauds, the prata commuma, pascua com- vided land. . ., . . , , - 7mima, silva commimis, were either unregulated, or else they were defined with reference to rights of property. They are described as com- munes nsns cum aliis, commuma, and eommiiniones (^^). So long as the right of enjoyment in the com- mon land was unregulated, every man cut as much grass as he wanted for his animals, and wood for building or fuel, and he turned all the animals that he had into the village pasture. Such an unlimited enjoyment of the undivided land lasted, however, only so long as there was Rights of enjoyment at first un- regulated, unstinted. AMONG THE GERMANS. 37 more than enough grass, wood, and pasture for Such rights everybody. We have seen how every man could dtiined, have his share of the undivided hind marked off time went and given to him at any time. When, therefore, °"" disputes arose in regard to rights of enjoyment, the land was divided, or eLse the rights were defined. This was easily done. If there was grass land enough to produce eighty loads of hay, he who owned an eighth part of the land stinted was allowed, he or his servants, to cut and carry off ten loads, and no more. In a document of Wirtemberg we meet with a pratum carronmi quinque, quod cum consortibus mcis adhuc in commune visa sum possiderc (^^). If there was pasture land stinted enough for one hundred and sixty animals, he who owned an eighth part of it was allowed to turn out twenty, — no more. In a Weissenburg record, for example, we meet with a pasture right for fifty hogs, — pasturam ad L porcos. In an early English record we have an lxx porcis saginam in commone silvatica (^^). The shares of the silva communis, being proper- The sUva tioned to shares of land held in severalty, could of the eady be determined at any time. He who owned an ^'^^^ eighth part of the arable land owned an eighth part of the silva communis. Inheritances of ara- ble land being divided and subdivided, inherit- ances of the silva communis were divided and sub- divided also ; and when inheritances of arable land came to be alienated, a ^;ro rata share of the 93390 38 EARLY HISTORY OF LAND-HOLDING silva communis went with every one. It is a great mistake, therefore, to speak of the silva communis of the early records as land owned collectively or commimistically. The silca communis was simply undivided property, regidarly an undivided in- itwasowned lieritancc. The ownership of it was not vested ly, not col- in the shareholders, the heirs, collectively, but nwcommu- distributively. This is evident, not only from the lusticu y. pj^ggr^gQs Qf i\^Q Burgundian law cited above, but from many passages in the documents. There Cases in is a good example in the Lauresham Codex, "vvhere we hnd an undivided share of the silva communis described in the following^ terms : de ilia silva communis quantum jure hereditario ad me per- tinere videtur. So in the Codex S. Galli, a certain man alienates de communi silva, quantum ad por- tioncm nostram pertinet. In a Westfalian document we meet with a certain estate described as con- sisting of mansos duos cum terris cultis ct incuUis, et silvis communibus ad cosdcm mansos pertinentihus (^^). It is clear that the silva communis did not belong to the community. It belonged to the members of the community. They owned it in undivided shares; and these shares were hereditary and then alienable. Alienation Very often the land-owner did not know how the^iVw^" much of the common forest belonged to him. equivSeSs It was uot always easy to make the calculation. He knew, however, that a certain share was his, and at his disposal. In several of the Freising beinr2/;», they some- times appropriated pieces of land out of the Appropria- public roads or by-ways. We read, in the Bur- rlmas'aur gundian law, that the possession or ownership ^^'''^^' of the roads in which wagons and carts were wont to pass could be lost or acquired by oc- cupation during two years (^°*). This condition of things did not, however. 42 EARLY HISTORY OF LAND-HOLDING How the endure long. The .appropriation of the public roads and ,.,,.,, ways became ways by individiials was an annoyance to every- of theToui-^ body, and the question was raised whether it munity. gi^ould be allowed or not ; and in answer to this question it was decided, that he who appropri- ated the roadways and closed them up should withdraw at once and take away his enclosures. Fines were imposed as a penalty for the offence. If the land appropriated lay upon the highway, the fine was heavy. If it lay upon neighbor- hood roads, the fine was light (^°^). Thus the ownership of the roads and ways was taken away from individuals, and vested in the various communities of which they were members. Rights to AYhat has been said in regard to public roads aquisaqua- aud ways is truc also of water, whether still or T'tLTIX'VC cLC' cursibus. in running streams. Rights to water were not distributed by the community to its members, but passed with the land from father to sons, — pe?' stirpes ct jure hereditario. They were alien- ated with the land. With every inheritance or acquisition of land came a jwo rata right of en- joyment in aquis aquarumve decursilms. The phrase occurs regularly in descriptions of property. When there was plenty of water, the right of enjoyment was unregulated ; but in certain cases, especially where the water was needed for irrigation, the supply must have been limited. An agreement was probably made in such cases, according to which the associate owners of the AMONG THE GERMANS. 43 water took the flow of it during certain periods of time, determined by their respective rights of property. This is a practice not unknown in our own time (^'^*^). We read in the Burgundian law Q^"^), that the Ownership , . ^ . lit of a running ownership oi a running stream couki be ac- stream ac- quired by an exckisive enjoyment during two prescription. years, so that the previous owner would have no further rici-ht in it. A well was owned either in severalty or in AVeiis. common. When it was owned in severalty and was polluted, he who had polluted it had to pay a fine to the proprietor, besides clearing the well and making it clean and pure as before. When the well was owned in common (rsi aidem flu- rimorum in vicinia pidens fiieril) and it was j)olluted, he who polluted it had to make it clean and pure again, and pay the fine ; and this fine was divid- ed among the owners of the well, each one re- ceiving his share [compositionem inter se mvUcntiir). The well was owned in common, but not com- munistically. The ownership was vested distribu- tively, not collectively {^^^). We have searched in vain through the early records for a refer- ence to water rights being held by the com- munity to be distributed among the members in usufruct. If a pond of water, a stream, or a well was not owned in severalty, it was owned in un- divided shares, which were regarded as private property, and were hereditary and alienable. 44 EARLY HISTORY OF LAND-HOLDING Houses owned in shares. Mills owned in shares. Many indivisible things were held in this way, in shares. Dwelling-houses were constantly held in shares, and the shares were alienable. In one of the Lauresham records, for example, we have alienated a third part of a house : teriia imrte de ilia curticclla, quicquid nostra pari to ihklcm habere videamur. Many other examples might be adduced (^*^^). The same thing is true of mills : they could not be divided without being destroyed, so they were owned in shares, which were transmissi- ble and divisible by inheritance, and alienable. In one of the Salem records we meet with a The commw- commimitas vol patrimonium in molendlno. It is very nitasvelpa- . . -t ^ ^ i trimonium. mtcrcstmg to obscrvc here how the words communitas and patrimonium interchange mean- ings (11^). So it was with churches, as soon as churches were built. They could not be divided among the descendants of the founder, so they were held in undivided shares, — 2^^'"' ^i^i'P^^ et jure he- reditaria, — and the shares were alienable. In one of the Fulda records half of a church is alien- ated, — diniidiam partem ecclesiae quae mihi ibidem in heredilafcm convcnit. In a document of Freising the coheirs in a certain church fell to quarrelling in regard to their several rights of property, — coheredes conteniionem inter se p)ro ipsam ecclesiani lia- huerunt. In the Capitulary of Worms, of the year 829, we have a passage entitled, Dc ccclesiis inter coheredes dicisis ("■^). Churches owned in shares. AMONG THE GERMANS. 45 When two or more persons inherited a slave, a slave 1 Ti 1 111- iT'-i 1 owned in the J did not always sell linn and divide the shares. proceeds. They often kept him and held him in undivided shares, the shares being transmitted to descendants and alienable, as long as he lived. The owners had his services during periods of time proportionate with their several rights of property, or else they shared the proceeds of his labor (•'^-). The right to hunt in the undivided and com- Hunting. mon forest was an hereditary right. It was divisible hy inheritance, and alienable in fractions. We read in the Breves Notitios Salsburtrenses that Madelhelm, a certain nobleman, alienated his portion of the hunting at Albina, which he held in common w^ith his kinsmen and coheirs, — poriio veimtionis communis cum cohacrcdlhus {^^^). The right to fish, the lyhcaiio or piscatura, was heredi- Fishing. tary in the same way, and alienable in fractions. In a Lauresham record, for example, we have an undivided share of the fishing in Edingero marca given to the church of St. Nazarius, — poriio nostra de piscatura i}^^). Rights to hunt and fish were through the early period unregulated. Every- body hunted and fished ad lihitum. But as the hunters and fishermen increased in numbers, and game or fish became scarce, quarrels arose, and it became necessary to define every man's right, How rights 1 L ^• • L i-\ PI ;•' ^ I- ^• to hunt and or else to liinit the season oi hunting and lislimg. iish were Various rules were adopted by which conflicting'""''' rights were reconciled. We remember a case in 46 EARLY HISTORY OF LAND-HOLDING Avhich a certain man was permitted to fish at a certain place for two weeks at Christmas ("^). It might have been four weeks at Easter. In this way the right of the individual could be de- lined and limited, and inequalities maintained. The German family and the clan which grew out of it was not, properly speaking, a land- Tho family owuiiig corporatiou. It was simply a group of fined. heirs, with a partly divided, partly undivided in- heritance in the land and the things on the land C^'). The iamily or clan village is commonly described as a riiia ; but this word is used to describe the isolated farmstead and the colony of serfs as well. The family or clan village is described specifically by the word genealogia. A man was The vicnH ct Said to livo in a certain genealogia, — in vico et genealogia nhi rivolus ille intrat in ilium fliimen, for examjole (""). Looking over the modern map of England, we find many hundred names of places containing the syllable ing, — Basing in Hants, Cocking in Sussex, Dorking in Surrey, Gilling in Yorkshire, Eeading in Berks, for examples. Most of these Evidpiices of places must have been, in early times, family or ofiainiiy and clan Villages ; for the syllable lug in the early ill Engiai?(L^ Euglisli language is patronymical, and signifies the son of, the descendant of, the issue of, the stock of Thus the name Elfimj^as refers us to the sons or descendants of Elf, and the name AMONG THE GERMANS. 47 Totingas refers us to the sons or descendants of Tot, whoever he was. A village was called Elfmgas because the Elfings, the descendants of Patronym- T n 1 m • 1 ''^'^' names Elf, lived in it. It was called Totingas because of i-iaccs. the Totings, the descendants of Tot, lived in it. A great many such local names have been col- lected out of the early charters ("^). Many of these family or clan villages are further de- scribed as hams, i. e. homes, or tuns, i. e. enclosed The /^aww ^ ... , aiid/ims,iso- larmsteads, afterwards villages, then towns, — ktedfarm- Buckingham in Bucks, for example, and Abington r„st, then in Cambridgeshire. Buckingham was probably, '^'^"^^ ''^*'^' in its orig:in, the home of the descendants of Buck, and Abington must have been the enclosed farmstead, then the village, then the town of the progeny of Ab. In regard to single examples it is easy to fill into error ; but in general the ar- gument is sound. We have mentioned, in the laws of Ethelbert, a man's ham. If his name was Aes, and he left sons, they would be de- scribed as Aesingas, and their residence would be Aesingham. In the same laws we have men- tioned a man's tun ("^). If the man's name was Aes, again, his sons would be Aesingas, and their place of residence would be Aesingtun or Aesing- ton. The names of first proprietors were in this way perpetuated. We have first the isolated farmstead, and then the family or clan village growing out of it. Many vestiges of these early settlements — first 48 EARLY HISTORY OF LAXD-HOLDING Similar ovi- isolated farmsteads, then family or clan villages — dence for the i r i • r^ • t -i -i existence of may bc loimd HI Contmental records and on Con- claii villages ,. ,1 x tioi ui)ou the tmentai maps. Long lists of the names of places containing the patronymical syllable iiir/, or w?^«, have been collected from these sources (^-°). A good deal of surprise has been expressed that the same patronymical name should be found in different places ; as if, so it has been argued, branches of the same family were established in different places. It should be remembered, how- ever, that the names to which the patronymical syllable is affixed are personal names, — names like John, James, and Henry ; they are not fam- ily names : so we have no more right to argue that the Bassings of Bassingbourn, Bassingfield, Bassingham, Bassingthorpe, Bassington, were one family scattered in various localities, than we have to argue that the sons of men named John are all related to one another as a large and widely scattered family (^-^). Theso-caiied Amoug the Franks, from the time of the Lex icimug . gj^j-^^ until the end of the sixth century, if a man died without sons, his land passed to his neighbors. The fact may be inferred from a passage of the edict of Chilperic, which dates between the j-ears 573 and 575. According to this edict, the right of inheritance in land was conceded, — 1st, to sons {siciit et Lex Salica hahet) ; 2d, to daughters ; 3d, to brothers ; 4th, to sis- ters ; to the express exclusion of the neighbors, AMONG THE GERilAXS. 49 vieini i^~). That is to say, Avlien there were nowhontLere , !• 1 ^ A^ '11 /•••\ iii were no oth- other heirs at law, the neiglibors [vicim) took the er heirs, the . , . neij^libors inheritance. took the m- The question arises, liow did they take it, — col- lectively, as a body corporate, or distributively. Did tiiey . . tal^^^^ .... UBCfie cid quhilam r/enerationem patcrna (jeneraiio siiccedat (^^"). As among the Angli and Tiie Loin- Werini, so among the Lombards the neighbors succeeded only when they were also kinsmen, and they succeeded by classes, ^j<;'r cjradum et pa- reiMam (^"'^). Though we may not know precisely what is meant by this phrase, it indicates, of course, a classification of collateral heirs. When The niie of a man died without sons, the neighbors, as such, ion among had no longcr any right of inheritance from nearest kins- him. Only tliosc pcrsous wlio wcrc kinsmen had wore no ^'^^^ this right ; and these kinsmen no longer took the sons. inheritance one and all indiscriminately. They were distributed in classes, and took the inherit- ance in order, one class after another, according to proximity. If there were no rej)resentatives of the first class, the inheritance passed to the second ; if there were no representatives of the second, it passed to the third ; and so on. Alienations In tliis councction it is interesting to note the lequircd, at « , ,, , , . , . , , .,■■ first, the lact, that, when a proprietor m the clan village kinsmen and proposed to alicnatc liis land to an outsider, he ueigi ois. ^^^^ obliged, until the right of alienation was established by general consent, to obtain the approval, not only of his sons, who were his direct heirs, but that of his kinsmen and neigh- AMONG THE GERMANS. 55 bors also, •who were only potential heirs, so to speak. In one of the Freising documents a cor- Exampios in tain man named Wolfer comes to alienate his of tins. homestead and lands, with a crowd of his rela- tives, cum iiroxhnorwn iunna. In another docu- ment the proximi ei vicini appear. In another, the conmar\cani\ ei coheredes. In one of the rec- ords of the monastery of Scheftlar the grantor is asked, in the presence of all the kinsmen, coram omnibus coheredibus ; si cdiquis eonim coniradi- cere voluissct. As no one objected, the grant was made, — joarentibus enim ixiri dcvotione consentient ibus. Other examples might be adduced (^^^). It is often argued that, inasmuch as alienations re- Tho custom quired, in this way, the consent of the neigh- deiue for , 1 ^ ' ,^ , ^ i community bors and kinsmen, there must have been com- of kud. munity of land among them. This does not follow. The neighbors and kinsmen were heirs ; that is the reason why their consent was required. They were not in any sense owners of the land The consent alienated, when they were asked to give their wasie.^uired, consent to the alienation. They were only po- w^e potent tential owners. It was as potential owners, not ofVic'iand. as joint owners, that they were referred to. After the right of alienation had been estab- Estahiish- lished Ijy general consent, or by law, it was cus- ii■ i nity was the munity had no rights, ihe community did not individual exist as a land-owiiing corporation. The land of the community was the land of its individual members (^^*). Disputes re- Disputcs in regard to the possession and owner- settied°Ly sliip of land wcrc commonly settled by battle between the litigants, not by the community of which they were members, — which would cer- tainly have been the case had the ownership of the land been vested in the community rather than in the members (^^). ^Yhen fighting for land was given up, disputes in regard to rights of property were referred nei- ther to local assemblies nor to local magistrates, Afterwards but to the cluef or king, or an agent of the chief they were settled by or king. One of the earliest of our Irankish the chief or . . , t j ■ j king, or his formulag IS entitled, Dc relatione dwecta inter regem " * et pagcnscs. When neighbors fell to quarrelling in regard to their respective rights of property, and could not agree, the chief or king sent his agent, or 7m-ssi(s, to settle the matter, — to divide the property and to give each man his rightful share (dcbita portio). This we know from the for- mula entitled, Dc divisione nl)i rcge accederit missus. When fighting for land had been given up, dis- putes in regard to it were settled by the chief or king, or an agent of the chief or king (^^^). The land to be divided is described in the formula just cited by the word cdod, which re- AMONG THE GERMANS. 59 minds us of the fact, that the kind was every- Land every- where held, from the time of the Folk-laws on, according to according to descent and laws of inheritance, heritauce. The laws of inheritance may be read, and it can be seen, by reference to formulas and docu- ments, that they governed the distribution of land, as well as of movable property (^^"). In so far as neighbors were kinsmen, descend- ants of a common progenitor, the ownership ofiiieowner- the land, whether divided or undivided, would, wL, ther"- according to the law of inheritance, be vested uted among distributively, and not collectively (^^^). Undivided lands were undivided inheritances. This is true This follows, — 1st, from the existence of the laws ed, as weii as of inheritance ; 2d, from the fact that the indi- kud. vidua] was allowed to appropriate his share of the undivided land, or could have his share di- vided off and assigned to him at any time ; 3d, from the fact that shares in the undivided land were regularly proportioned to inheritances held in severalty ; the lands held in severalty being divided by inheritance, the shares in the undi- vided land were divided also ; 4th, from the fact that, when severalty lands were alienated, ^;ro rata shares of the undivided land were alienated with them ; 5th, from the fact that shares of the undivided land are repeatedly described as inher- itances (^'^•'). Now we must bring forth a fact whicli we have not yet considered, — the fact that any 60 EARLY HISTORY OF LAND-HOLDING How the man could, if he pleased, separate himself from individual ,.,. , • ^ ^ ,,..,. could with- nis kmsmen and neighbors, and his inheritance his kinsmen, from their inheritances, so that they had no longer with his in- • i . p • i • . p i • ^ heiitauce. finj riglit ol inheritance irom him nor he any from them. This fact is contained in the pas- sage of the Lex Salica, De cinn qui sc de paycntilla T\\e hoarmg ioUcre vult {^^). It is a o-reat ara;ument of the of this fact ... . in regard to advocatcs of a primitive communism, that, if a the vicini , . . , . right. man had no sons, his inheritance passed to the kinsmen and neighbors, — " back to the com- munity," we are told, " from which it was origi- nally received." Inasmuch, however, as it lay in the power of the individual to cut off his nei«;hbors and kinsmen from this riprht of sue- cession, the argument is worthless. The vicini Tlic mcrc fact that when a man died without right is no i • -i i i i • ' ^ ^ i i • evidence for sons his land passcd to his neighbors and kinsmen, community . , • . ii • i of land. IS uo argument, m any case, to prove the exist- ence of community of land ; because it remains an open question whether the land w\as received by the kinsmen and neighbors collectively or dis- tributively. If they received it distributively, so that any one of them could, whenever he pleased, have his portion given to him as a permanent severalty (for himself and his descendants), com- munity of land is out of the question. That the neighbors and kinsmen received the land distrib- utively, in this way, has been established conclu- sively by testimony of the records (^"). In view of all this, the student will certainly AMONG THE GERMANS. CI hesitate before he accepts the theory of a prim- itive communism; miless he prefers authority to facts. The chief error of the advocates of a primi- The advo- tive communism is, that they argue community piimitive /.-111 ,1 r 1 T'1111 communism of land Avherever they nnd undivided land, or have de- land held in undivided shares. The argument is dTvid^ed "and surely inconclusive. The silm communis of the \l^^^^^ early records, for example, which was simply undivided property, subject to appropriation or division among the owners, at any time, has been regularly described as their common property. It was not their common property, it was sim- ply their undivided property. Given a case of undivided land, the following questions should be Questions to asked. Is it subject to appropriation or divis- regard to a n -rn i • -i • • i ' iii- case of undi- 1011 : 11 not, is it a joint possession held m un- vidcd land. divided shares ? If so, how is the shareholding governed ? Are the shares regarded as private property ? Are they transmissible by inheritance ? Are they divisible ? Are they alienable ? Perhaps the holding is communistic. If so, why ? Are there any redistributions of the same land among the same persons, or their representatives ? Upon what principle are the redistributions made ? Are they made po' stirpes, according to descent and the law of inheritance ? If so, the ownership would not be communistic. Are the redistribu- tions made according to rights of property vested in individuals? If so, the ownership would not 62 EARLY HISTORY OF LAND-HOLDINa be communistic. Are the redistributions made according to the judgment of the community, or that of magistrates representing the communi- ty? In that case only would the ownership of the property be correctly described as conimu- what the nistic. The advocates of the communism theory a priniiiive arc, therefore, bound to adduce from the early coiumunism -, . i • i ^ i it* i have to records cases m which the same land is sub- ject to redistribution among the same persons, or their representatives, according to the judg- ment of the community, or of magistrates repre- senting the community, irrespective of any claim or claims on the part of individuals. Can the advocates of a primitive communism do this ? We think not. They will find a great many cases of undivided property, of property held in undivided shares, in the early records. They will hardly find a single case of communistic property. Suppose a Supposc, howcvcr, they were to find, here or communism tlicrc, a fcw cascs ; w^ould that be a sufficient basis uce . ^^^ ^^^ theory, that the holding of land among No general the early Germans was generally communistic? could be' Surely not. The conclusion would be, that, al- them.' '"'" though the principle of individual property in land was generally recognized, communistic hold- ing was not altogether unknown. The cases of communism would be exceptions to the general rule. They would be explained as the result of peculiar conditions or circumstances. AMONG THE GERMANS. Go The first reason why the advocates of tlie cora- munisra theory are in error is, that they have regularly mistaken undivided propertj^ for com- mon property, holding in common for communis- tic holding. Another reason is, that they have The advo- ignored the distinction between proprietorship pdmidve T , -ri- T c • ,- . communism and tenancy, rmdmg cases oi communistic ten- i,ave ignored ancy, they have brought them forward to prove tilln iletwc^en the existence of communistic proprietorship ; for- Eamr get'ting all the time, that wdth every case of^*^'"'"'^'^" tenancy there is a case of proprietorship con- comitant with it, embracing it. When the case of tenancy is adduced to prove the existence of a primitive communism, it remains for those who How they , ,. . , . , , 1 Ifiy them- do not believe m such communism to adduce the scivi-.s open ^ . , . , 1-11 t>^^ attack, case 01 proprietorship under which the case ot in citing a tenancy is included, to prove the existence ofmunistic , , tenancy. private property. It will be well to illustrate this wdtli an ex- ample. The following passage occurs in the records : — In Jiac silva niiUiis nostrum privatum ha- Case in hchat aliqidd, communiter pertinehat ad omnes villac nostrae incolas. This passage Q'^) has been cited very frequently to show that forest land belonged originally to the community, that the individual members had only a usufruct. It should be observed, in the first place, that the document dates from the year 1173, so that it is too late to prove anything in regard to the condition of things in primitive times. Then 64 EAELY HISTORY OF LAXD-IIOLDINa it should be noted, that the land-holders are ten- ants under landlordship. They are nosiri incolac in villa nostra. They are not the owners of the land. The owner of the land is outside of the com- munity. There exists a proprietorship or land- lordship outside of the community, embracing it. The passage is therefore no evidence for a primi- tive communism, because it proves primitive land- is the ton- lordship as well. It is an open question whether ancy, or the •,! - i- ^ /»ii' laiidioiiiship we have in the communistic tenancy oi land in eliYiei 'form tlic villa, or in the landlordship over it, the earlier property ? form of landed property. Is it an open question ? The land- Hardly ; for in the natural course of events land- presumably, lordship or proprietorship antedates all forms of tenancy existing under it ("■'^). The conimu- It may be urged against the advocates of the reversed hy^ commuiiism thcoiy, that the theory is reversed by ogy d'^tbe tlic chroiiology of the evidence. It is said, that evidence. p^^yQ^te property has arisen from the disentangle- ment of individual from collective rights ; but the evidence adduced to prove the existence of col- lective rights is, all of it (the statements of Caesar not being regarded as such evidence), very much later in date than that which is adduced to prove the early existence of private property. It will be found upon examination, that the theory of individual property rests upon testimony dating from the time of Tacitus. Then it will be found that the theory of communism rests en- tirely upon records of later mediaeval and mod- AMONG THE GERMANS. 65 ern times. The advocates of the communism the- ory have adduced, we beUeve, no unquestionuljle cases of communism of earher date than the twelfth or thirteenth century. AVe are war- ranted, therefore, in concluding that the advo- cates of the conununism theory have disregarded tilifchiw^i^ the chronology of the evidence. This being con- eSence"^ sidered, the conclusion must be, not that there fialvJuai was communism before there was individual in-op- Foperty be- i I- lore there erty, but that there was individual property be-''^'^-^''^"^ *' ' I L J commu- fore there was communism (^^^). "i*"^- Lastly, it may be urged against the advocates The advo- f*n,tGS of tlio of the communism theory that they have put conimunisra too much faith in the accuracy and judgment deferred too of certain eminent writers. A professes to have S,ority? ^^' established certain facts ; B, pleased with them, has accepted them, upon A's authority. C has accepted them upon the authority of A and B. D has accepted them upon the authority of A, B, and C ; and so on. The result is a con- sensus of opinion based upon the judgment of one man, — an opinion of questionable value in many cases. What we want in science is a consensus of opinion based upon the results of independent investigations. This will not be disputed. We have answered the arguments of the advo- cates of a primitive communism, so far as this was possible without entering into any direct personal controversy. It will be well now to state once GG EARLY HISTORY OF LAXD-HOLDING more the conclusion to which Ave have ourselves A brief state- been led. We conclude, that the German clan ment of the , , . , . , conclusion sjstem was based upon kni.ship, upon tiie prin- to which we . , o • t • t i , i ,^ have been ciplc 01 individual property, and upon the prin- ciple of inheritance. All lands held in severalty, even for a very short time, were regarded as inheritances, and all undivided lands were undi- vided inheritances, to be appropriated or divided among the heirs at any time. The clans were associations of heirs with partly divided, partly undivided inheritances of the land and the prop- erty placed upon it. Now, having described the clan system of the Germans ; having shown how it was based upon kinship, the principle of individual property, and the principle of inheritance ; having shown that it was in no respect based upon community of property or communism ; we may go on to de- scribe the causes which led to the breaking up of the system, — to a dispersion of those groups of heirs with partly divided, partly undivided inheritances, which have been described. Causes The causcs w^ere, — 1st. The admission of daugh- thi^i.reaking tcrs to the right of inheritance in clan land, when clan systm. there wcrc no sons ; daughters who might marry men of alien clans. 2d. The custom of adopting strangers into rights of property and inheritance in the clan land. 3d. The custom of alienating clan land to strangers by gift or by sale. And 4th. The custom of admitting strangers to a pre- AMONG THE GERMANS. G7 scriptive title in clan land. There were, without doubt, other causes which might be mentioned ; but these were the principal causes, and we will confine our attention to them. The German woman was not obliged, like a Oerman ,,,, .,., women not daughter oi Zelophehad, to marry withni the oMigej to tribe of her father (^*^) ; so, when she received in' the la- an inheritance of the land, she often took this inheritance from the inheritance of her father's tribe and put it into the inheritance of the tribe of her husband. In other words, inheritances were removed from one tribe, or clan, to another. The inheritances of different clans became inter- mixed, and the clansmen with them. Amonof the Anorli and Werini, the rii2:ht of in- The admis- heritance was conceded to daughters only when women to there were no males left in the clan. The clan heiitance in consisted of the male descendants of live sue- among the cessive generations. When no male was left wSl'ni'"' within this limit, the clan was, properly speak- when there ing, extinct. The clan land might then go to males left in .1 'f l^ 1 -ji j_i the clan, the the women ii there w^ere any, and with them women took into the clans wdierein they were received as wives {^^^'). Among the Franks we have, instead of the ^^ow was it ... among the descendants of five successive generations, sim- Franks, , when there ply the l':insmen and neighljors. The kinsmen were no 1-11 T 'n -I 1 viciiu? and neighbors were not classmed as they were among the Angli and Werini ; so when a man died without sons, his inheritance passed to all 08 EARLY HISTORY OF LAND-HOLDING of them, instead of to classes of them (^^^). Here we have probably a primitive condition of things. We do not know, however, whether, when there were no kinsmen, no neighbors, the women of the clan took the clan land or not. The law does not contemplate such a contin- gency. For some time, probably, there was no thought of women holding land -, but we read Rule of the in the Lex Salica : De terra vcro nulla in miiliere Lex Salica. hercditas ; so also in the Lex Ripuaria : Fcmina in Rule of the hcrcdltatcm avialicam non siicccdat ("^) ; and it is Lex Kipua- ria. evident, from the existence of such laws, that the question whether women should be allowed to hold land or not was comini? under consid- Riseofasen- eration. Wc see in some of the early formulae tiniriit and opinion in that tlicro was, ill certain quarters, a sentiment favor of the , . . , ^ t • c ^ ^ rights of and opniion opposed to the doctrine oi the law- The exclusion of women from the right of in- heriting land is described in one of these early formulas as an impious custom : Dhdurna sed ini- pia inter nos consnetudo ieneiur, id dc terra patcrna sorores cnm fratrihus portionem non haheant. This is the readimz; of the Paris MSS. In the Vati- can MS. a direct reference is made to the Lex Salica by the words secundum Legem Salicam (^*^). It was proposed that daughters should succeed to equal shares with their brothers. This was Dauf^hters ■"■ allowed to the radical as opposed to the conservative view. take the land ^ ^ when there Tlic rcsult was a compromisc. Daughters were were no • i • i i sons. allowed to take the inheritance when there were AMONG THE GERMANS. 69 no sons, no brothers. This rule was adopted amon i .of the adop- gers were adopted mto rights or property m tionofstran- family or clan land, they came into the flxmily ffgh4"of or clan villages, and were the founders of new ciaTlS.'^ families, new clans, therein. In this way the vil- lages came to have a heterogeneous population. In some branches of the German race the Early alien- right to alienate land was, without doubt, exer-i^nd!^" cised in prehistoric time. The Franks alienated their lands in the time of Lex Salica, as we have seen. The right of alienation is described in a Frankisli formula as a lex el consiieiudo lon- ginqua {^^'^). We read in documents of the eighth centurj^ that the laws and customs of the Franks permitted a man to do what he j^leascd with his property : Leges et jura sinuni el convenicntia Fran- corum est, id de facidtaiil)iis sins qidsque quod facere voluerit liberam haheat potestatem. In a document of the year 855 a certain man named Folker alienates his inheritance, consisting of houses, Right of lands, and slaves : coram testibvs ei nobdium viro- accorded by rum praesentia, secundum Legem Ripuariam et Sail- cam (^^). 74 EARLY HISTORY OF LAND-HOLDINa Limitations Certain limitations were usually attached to to the right , • i i /> t (.faiiuna- the Tight ol alicuation, either by custom or by law ; such, for example, as that which we find in the Lex Saxonum, where a man may alienate A man must bis land provided he does not, in so doins;, dis- not ihsin- . . . . . , heritiiis inherit his children. A similar rule obtained children. among the Lombards : nulii lied sine certa culpa jUimn mum cxhcredare, ncc quod ei dehetur per legem alii thhigare (^■'^). Alienations of inheritances re- quired, therefore, in many cases, the consent of the heirs. Their consent is often referred to in HenTOstnotthe documcnts (^*^'*). In some cases the consent (lisinlierit phii- auyofhis of all tlic hcii's, Collateral as well as descendant, had to be obtained before an alienation could be made Q'^'"). He must not A limitation imposed upon the right of alien- ofiiisiund. ation among the Burgundians was that a man could not alienate all of his land. He must re- serve some of it for his descendants {^^^). An- other limitation, which obtained among the Bur- After divid- gundians, and among the Bavarians also, was whh his that a man could not give away his land until might alien- he had sharcd it equally with his sons. After ''^^^^^' dividing the land equally with his sons, he could do what he pleased with his share (^*^"). Although The claim of the principle of individual property was very heirsmustbe r> ^^ -iji ^ • c ^ • ^ respected. ^^^^^J rccognizcd, tlic claiiiis 01 licirs were ad- mitted to be valid. Another limitation to the right of alienation, the last of which we need here to sj)eak, was AMONG THE GERMANS. 75 imposed in many places during the middle ages. This was that a man should, before selling his land to a stranger, offer it to his neighbors {^^). A man was free to sell his land if he pleased, a prior light but he must olier it to his neighbors beiore concded to offering it to any stranger. Properly speaking, this was no limitation to the riij-ht of alienation. o The neighbors clahned a prior right of purchase, and this rioht was conceded to them. This is a better way of stating the case. Strangers behig admitted to the flimily and clan villages, as gran- The cUm , p 1 1 n ^ n svstembrok- tees or purchasers oi land, were founders oi new en up by families, new clans, therein. The villages lost tions. their original character in this way. They might be described as vici. They could no longer be described as gcnealogice. There was another mode by wdiicli a stranger Prescription ... . I among the gamed access to land and an inheritance m the Germans. clan village ; that was by undisputed occupation or prescription. A prescriiDtive title to land was admitted a presciip- among the Franks at the time of Lex Salica. mittcd by K, . , J^ ^ • r Lex Salica. a stranger, migrans, settled on a piece oi land in the clan village [super altcrwn), and no objection was made, either by the owner of the land or any of his neighbors [imus vcl aliciii de ipsis qui in villa consistuni), during the period of twelve months, the stranger acquired a right of property and inheritance in the land he had appropriated, and became a regular inhabitant of 7G EARLY HISTORY OF LAXD-HOLDING the village, — sccurus sicut ct alii vicini Q'^'^). It will be remembered how, among the early Lat- ins, the ownership of land was acquired by pos- session during two years instead of one (^''^). It Aprescrip- was agreed among the Bur^i-undians that the tive title in . ° the Lex right of property in land lying in byways, as Burguudi- ,.. • ^ t o ^ ^ • ^ •! onuni. clistmguisned Irom the highwaj's, might be ac- quired by two years' occupation Q'^). We may infer from this, perhaps, that the right of prop- erty in other lands could be acquired in a year, or less than a year. The ioro;- Very soou after this we meet with the prce- gintaanno- scripUo trujhita amiorum of the Roman law. "We the Burgun- find it amoug the Burgundians at the time of vSgoTi'is. their permanent settlement in Gaul; also among the Visigoths. Saepe proprium jus alterius longinqua possessio in jus transmittit alierius. Nam quod xxx. quisqiie annis expleiis absque temporis interrupiione pos- sidet, ncquaquam nUerius .... amittere potest (^'^). A five years' A prescriptivc title was admitted among the prescription tit-i* pt7--t->i among the Lombards m the time of King Kothar. \Ve read, in his edict, that after five j'ears the holder of a piece of land is not obliged to fight for it; provided he brings witnesses to say that he has had possession of the land during that time. In Grimoald's law, which comes after that of Rothar, we read that if any one possesses his house, slaves, introduc- and land, — casam, famiUam, vel terras, — during thirty yealrs' thirty ycars, and the fact is generally known, he prescnptiou. ^^^^ j^qj- flgj^t in Order to maintain possession AMOXG THE GER}*L\NS. VT of them, — ad imgnam non 'pervcniat i^'"^). It is interesting to observe here how the German cus- tom of battle and the Roman prescription come in contact with one another. Among the Germans generally, in the early No prescrip- . 1.1 • 1 i r» • • tive title ad- period, the right oi possession w\as m no way mitted strengthened by the lapse of time. If the right Gemlans^'^ was questioned, no matter when, it was referred ^^°^^ ^' to the issue of battle (^'^). As a rule, the stranger was admitted to a strangers right of property in clan land only by a grant tS bj-^grant from the clansmen who were the owners of the by prescrip- land. A grant of this kind being made, the ^°"' grantee took possession of the land and was per- mitted to enjoy it undisturbedly. His title was based upon the grant he had received, rather than upon any term of possession. Whether the stranger acquired the right of The result of J • 1 1 1 1 , /^ 1 1 admitting property in clan land by grant ot the clans- strangers to men or by prescription, he became, in virtue ofp^pityin this right of property, a member of the village. When he died his descendants were members of the village too, in virtue of the rights of prop- erty which they inherited severally. So we have a new family, a new clan, introduced into the village. Others were introduced in the same way. The village was no longer, after that, the home of one family, of one clan, descendants and heirs of an original proprietor. It was the home of several clans. It was no longer a group of 78 EARLY HISTORY OF LAND-HOLDING heirs with a partly divided, partly undivided in- Thccian vii- heritance. It was simply a group of proprietors lagu becoinus piit t-tii simply a With Severalties of the land, or undivided shares grouj) of ,„ 1.101)1 ietors. thercol ("°). Now having considered the clan system of the Germans, and the institution of the clan village, the vicus et gencalogia^ w^e will go on to consider The institu- the institution of free colonies. We have already tion of free colonies. spokcii of the colouics of dependants and slaves, which existed in the earliest time ; we have now to describe the origin, in a later period, of colo- nies of free proprietors. Village life Pcoplc wdio havc Icamcd to live together in the life in villages, who are accustomed to daily association farmsteads, with their fcllows, do not, as a rule, care to give up this association in order to settle in isolated farmsteads. This was the case with the men who came out from the clan villages we have been describing, to seek new homes. As the popula- tion of these villages increased, and individual inheritances became small, the people went forth to seek new inheritances in the outside world. They did not, however, as a rule, settle in iso- lated farmsteads, each man by himself with his family, his dependants, slaves, and cattle, — like their ancestors in more primitive times. A life The coio- in villages was generally preferred. The colonists nists niostlv , , i i i c ^ poor men. ' wcrc mostly poor men, who had no means oi cul- tivating extensive domains. They were usually satisfied with thirty acres of arable land, and a AMONG THE GERMANS. 79 moderate amount of meadow, pasture, and forest. The colonists had only a few slaves and a lim- ited amount of stock, as a rule. Those persons who had many slaves, and large flocks and herds, The rich contniued to estabhsh themselves ni the old way, settled in in isolated farmsteads. We are not speaking of farmsteads. this class of persons here, but of a poorer class, — the class of emigrants who were driven out of the clan villages by the pressure of the popu- lation, and the lack of land. These men looked The emi- . . grants from about and found others to joni them; and they the clan vii- went forth in companies, ten, fifteen, twenty, or in^ompa- more, together. When they had found a place where there was sufficient good land for them, they built houses in a row or cluster together, institution and then proceeded to divide the land among lages, — .1 , /-. 11 • 1 J i 1 associations themselves. One man had no more right than of proprie- another, of course, in the land which all had united to appropriate. The colonists had equal rights in the land. It was accordingly divided The^- take . ,11 n 1 X equal shares mto equal shares, one tor each man. In some of the land, cases, when the colonists brought slaves with them, shares of the land were assigned according xotaivays, to the number of householders, so that he who had five housed slaves, servi cassafi, in the vil- lage received, in addition to one share of the land for himself, five other shares for his slaves. Thus he received six shares. Some of the pro- prietors may have received more, some not so many {^'^'). We will suppose, however, that the 80 EARLY HISTORY OF LAXD-IIOLDING colonists had no cassafi, that the lands of the col- ony were divided into equal shares, one for each proprietor. In this way we may legitimately sim- plify om' argument. The division If the land was level and nearly equally good was made in . i • i r> i t • the same m cvcry part, which often happened m valleys colonies of bctwecn the hills, and in generally flat country, each man took one long, narrow strip of the land stretching from one side of the village territory to the other, or radiating away from the village in Why strips onc direction or another. Strips of land were pre- of land were preiem-d to fcrrcd to squarcs, because it was more convenient squares. i i r. i r« i i to plough a lew long furrows than many short ones. The ploughs of the period were heavy and awkward, and not easily turned. Then again, if the lots assigned to the different proprietors had been equilateral in form, it would have been diffi- cult to place them all at an equal and convenient distance from the village. When the lots con- sisted of long strips of land, they could be dis- posed so as to radiate from the village, and every proprietor had some of his land near the village. Division of and the rest at a distance (^"). If the land was sections. ^ diversified and unequally fertile in different parts, however, such land as was fit for tillage was divided mto spaces or sections, and the colo- nists took equal shares in every section. Or else Acre lots, they marked off upon the ground certain acre strips, one for each man, and repeated this process until as much arable land was marked off as was AMONG THE GERMANS. 81 needed. These modes of division had been pre- viously adopted in the colonies of dependants and slaves (the colonies of serfs), as \ve have seen. Indeed, the system of colonization Avhich we are describing originated in the first place among the serfs who were distributed in village communities upon the domains of the ancient free lords. Then when clan villages arose and the freemen went out of these villages to found The colony colonies for themselves, the colonies of depend- model W^ ants and slaves served them as models for imi- coLny! tation (I'S). In the earliest time, the portions of land which The land he- were marked off for distribution among the pro- into equal prietors of the colony were probably distributed shares' were by appropriation. There is a tradition in Eng- aiuonVthe land, and in certain parts of Germany also, that l^^^^ in early times, when a piece of land had been marked off into equal portions according to the number of shareholders, each man appropriated Distribu- 1 • n ^ tions hv .ap- his portion. When the portions were of equal propriatiou. value, this was done without difficulty. There was no ground for preference, no cause for dis- pute. When the portions were of unequal value, however, disputes were inevitable. According to the tradition, the strong man of the crowd took the portion he preferred, and if any one else wanted that portion, he had to fight for it (^'^). Although this is merely a tradition, it agrees per- fectly with all that we know regarding the hold- G 82 EARLY HISTORY OF LAND-HOLDING ing of land in the early times. We have already cited many passages of the records to show that primitive property was simply possession main- tained, when necessary, by force (^^^). Distribu- In Order to prevent the disputes and the fight- y . .^^ -which we have described, the distributions were often made by lot. In this way every proprietor had a chance of getting some of the best lands. It often happened, however, that disputes arose after the distribution by lot had been made. It was urged by those who had received the poorer lands, that the best lands ought not to be held by the same persons all Redistribu- the time. A redistribution w^as called for after a while; and, unless the holders of the best lands were able to resist the importunity of their neighbors, a redistribution was made. This was a precedent for others; and redistributions came to be made, every year, or from time to time Community in the coursc of years. They have been re- of land not ,, ., ^ •i/^iiTi to be in- garded as evidence of community ol hmd. It redititrihu'" ii^ •'^aid that the land was owned by the commu- tionsbyiot. ^^j^^^^ that it was distributed by the community among its members, for temporary occupation, by lot. This was not the case. The land was owned in equal shares by proprietors. At the same time the land could not be divided into equal shares. The result was a redistribution of the shares every year, or from time to time in the course of years. By these redistributions, A3I0XG THE GERMANS. 83 the claims of the ditferent proprietors were recon- ciled and satisfied (^^^). Another expedient suggested itself, which served the same purpose. The different lots of land were Tho rotation , . . mi • 111 system. taken m rotation, iiiis custom has also been re- garded as evidence of communism, — erroneously. It was only an expedient to prevent disputes and fighting. The object w^as to reconcile rights to The system equal shares with shares which could not be equal- ized. The only way in which this object could l)e accomplished, satisfactorily, w'as by a rotation sys- tem ; accordins; to v^diich the holders of the rio-hts 7 CD O took the shares in turn. Far from being evidence Commimism of communism, it shows how completely the ferred from ., „.,..,, 1 ^ T 1 ^ the rotation principle ot individual property was established, system. Every proprietor had a certain right of property. Then, where the rights of the different proprietors came into conflict, they were so adjusted that no single right was at all diminished, but each one was preserved in its integrity (^^^). The fields which were held in rotation or redistributed by lot were regarded as individual property. They have been very correctly described as ^' shifting several- ties " and " movable fee-simples " (^^^). The arable land of the colony being divided, the Tin- grass question arose whether the grass land should be free coiouy. divided also, or held in common. Every man could, in the early time, have his share of the grass land divided off and assigned to him, if he pleased ; but the colonists usually preferred to hold the land in common. 84 EARLY HISTORY OF LAND-HOLDINa Stinted meadows. Lot mead- ows. Common enclosures. When the grass was in a condition to be cut, the viHagers, or their servants, went out and cut, each man as much as he wanted, unless the amount of the grass was Hmited. In that case each man took off a certain number of loads, one, two, three, or more (^^). When the grass was better in some places than in others, the land was cut up into sections, and a portion of each section was assigned to each proprietor. The portions of the sections were usually assigned by lot. Such a division was not necessarily permanent. In many cases there w^ere redistributions. We have then what have been described as " lot meadows." Before the grass was cut, the proprietors met together and there was a drawing of lots, by which means the portions of land in the different sections of the meadow were assigned to different persons {^^). AYhen the grass land was enclosed, the enclosure was built by the proprietors in equal shares, each man being responsible for the portion put up by him. The arable land was enclosed in the same way, unless the proprietors enclosed their portions severally (^^^). As soon as the crop either of grass or ccrain had been removed, the enclosures were usually thrown down, and the animals cauie in upon the close-cut turf or stubble, from the com- mon pasture (^^"). Most of what has been said of the grass land may be said also of the pasture and forest lands. Every proprietor could, in the early time at least, AMONG THE GERMANS. 85 have his share divided off and assigned to him ; but it was quite customary to leave the lands undi- The pasture and I'orest vided, to be held m common. When there was usually held in common. plenty of pasture, every man turned out as many animals as he had ; but when the pasture was lim- ited in extent, and there was not quite enough of it for all the animals in the village, the number which each man might turn out was limited. He stinted 11 pastures. could turn out uve, ten, or twenty, a number de- termined by his right of property in the pasture. When the rights were all equal, every man turned out the same number (^®^). The enjoyment of the undivided forest was The com- usually unregulated. Every man cut what w^ood he wanted, and had hunting and fishing ad lihl- ium (^s^). It is important, in this connection, to note the fact that in the clan villages, as well as in the colonies which were derived from them, the meadow, forest, and pasture lands were fre- Severalties . 1 • 1 , "fteu held quently divided into severalties, which, though in conimon, 1 • 11 1 1 1 ^y being they were severalties, were nevertlieless held uueuciosed. in common, from the fict of being unenclosed. Boundaries were fixed by corner stones, or marked trees ; but they did not prevent, and were not intended to prevent, trespassing. Men and animals ranged freely over lands so divided ; except over grass lands during the time before the grass was cut, — in Irmpore, or ad tcnipu.'i, as they used to say (^^). Even in the time of Lex 86 EARLY HISTORY OF LAND-HOLDING Grasslands Salica, the grass lands were often divided into severalties Severalties. This may be inferred from the in the time . . it v of Lex Sa- passage, SI qms pmto alicno secavent opera sua p 1 mi f;ui shed from Clearly distinguished Irom one another. Though propvietor- they be cast in the same mould, they are very""^' different things. In regard to every holding of land the question should be asked : Is it a case 96 EARLY HISTORY OF LAND-HOLDING of proprietorship, or is it a case of tenancy ? If Casesof ten- it is a casc of tenancy, it must not be used to ancy not to i i • bo used to illustrate the history of proprietorship. If it is illustrate the » • i i • • history of a casc 01 proprietorship, it must not be used to propne oi j]|^^^^,j^^g ^j^^ liistory of tenancy. Many writers have been led into error by not observing this rule (^"). We do not deny that landlordship was sometimes converted into tenancy, and tenancy into landlordship ; but that is no reason why they should not be distinguished from one an- other. From the fact that one institution may be converted into another, we cannot argue identity between them. iiow propri- Tlicrc are many cases, in the records, of land- converted ^^ lordship being converted into tenancy. By war ancy.^" ^^^ conquest whole populations were made sub- ject and tributary, and the land, with the owners By conquest, upoii it, was divided into estates for the conquer- ors. The owners of the land became tenants, the conquerors became owners ("^^). This was one way in which landlordship was converted into By will of tenancy. There was another way This was by the proprie- . p i i n i tors, i.e. by a voluutary action on the part ot the landlords. a voluntary ^ , . i j • f i surrender of It Dccame customary m very early times lor the ship. ^'^ ^^ allodial proprietors to surrender their lands to the king, the church, or one of the great lords, upon condition of receiving them again as ten- ures, to be held by them and their descendants, upon condition of a regular annual payment of certain dues (-^^). The origin of this custom must be explained. AMONG THE GERMANS. 97 In the early time, tlie land-owners were quite The institu- ^ mi 1 1 T 1 • • ^^°" °^ state free irom taxes, lliey held then- property ni- taxes. dependently, and paid no dues of any kind on account of holding it. The property of the free- No such taxes in man was alodiaUter immuuis, as the phrase was (^^*). early times. In the course of time, however, when governments were established, and when the authority of the people was intrusted to a chief or king, and a council of great men, and the kings and the great men could govern with the consent of the Taxes im- people taken for granted, the allodial proprietors IhrpeopiT found themselves taxed for one purj)ose or an- i great"°^ other ; at first moderately, but more and more ™^°* heavily as time went on. The chief, with the consent of the great men, a consent which was easily obtained by means of the special grants of immunity to be described presently, laid divers imposts and taxes upon the allodial proprietors, which, in most cases, they felt obliged to pay. The rule was adopted that every man should hold his property who paid his taxes, — lit sccurus quicumqiie proprieiatem suam possideus debUa tributa 80lV(d (215). In the early time it was customary for the Voluntary allodial lords to make offerings of food, of cattle, the chuffs and of grain, to their chiefs. The fict is re- gatoiyMy^ ' corded by Tacitus, He is careful to tell us, '^"^ *^"^' however, that these offerings, though customary, were voluntary; — mos est civitatibus idtro ac viri- tim confcrrc princlpibus vol armentorum vcl frugumi^^^). 7 98 EAELY HISTORY OF LAND-HOLDING The offerings were volimtary. Still the}^ were customary, and it is probable that a refusal to observe the custom was unusual. The minds of the people were by this means prepared for the imposition of a regular tax, and it is not likely that much objection was made to it when it was imposed, unless it happened to be particularly heavy or burdensome. There was a regular tax levied upon the pro- Taxation in duce of' the fields and upon the increase of stock the time of . . • / 7 • \ • ^i / • ciiiothari. {(igj'ana, jxiscucu'ia, vcl dccimas iwrcorum) in the time ri", in^h^*^ of Chlotliar I. The same tax was probably levied sixth can- |^^ Cliaribcrt : jtrommt ut leges consiietudinesqiie novas populo lion infllgeret. We read of new and burden- some taxes [dcscripiiones novas et graves) in the time of Chilperic. They were levied upon lands and ■ slaves ; — functiones wfligehaniur midtae^ iam de terris quam de mancipiis. Among other taxes was that of an amphora of wine upon every acre; — ^inam amphoram vini per aripennem ("^'). State taxes were instituted and maintained generally during the Merovingian and Carolingian period. The grants While thcsc taxcs wcrc being levied on the date"Jro'm ' pcoplc at largc, thc chiefs and kings conferred LexSaTica. g^auts of immunity upon the great men among their followers, laymen and ecclesiastics. Refer- ence is made by Chlothar I., in a capitulary of the year 560, to the persons who had received grants of immunity from his grandfather, his father, and his brother. This , takes the grant AMONG THE GERMANS. 99 of immunity back to the time of the Lex SaUca. Many early formulae for grants of immunity have been preserved. In other cases we may read the grants tliemselves. A great many of them have been preserved from the seventh and eighth centuries. By these grants, allodial property of the ancient type [alodiaUler immimis) was, as it were, re-created (^^^). Sometimes the allodial land-owners who had immuuities . . 1 1 i were, in been made subject to taxation purchased grants some cases, of imnuuiity. Erfker, for example, in one of ^^^'' our records, sets aside eight acres of land with which to purchase an immunity, — 2^^'^ redemftione census, qiiem de prefaia hereditate redere amiis singulis dcbui. In another case, a group of land-owners, apparently a clan village, unite to make up a sum of nine plenos 7nansos cum mancijnis .... ut se- curi essent de illo censu, quod illorum antecessores nos- tris antecessorihus \_Tlludovici Regis'] persolverunt (^^^). The effect of the immunity grants was very Tiie effect of remarkable. On the one hand, there were cer- tyVraX."' tain great lords paying no tax upon their lands. On the other hand, there was the mass of the people paying an annual and often very burden- some tax. The result was that the estates held The estates under immunity grants sw^allowed up all the rest, iniinunity The property of the people at large was gath- foi"d up'aii ered into the hands of a few men. The hold- ^^'^ ^''''^' ers of the immunity grants said to those who held them not, to those who had to pay taxes to 100 EARLY HISTORY OF LAND-HOLDING This was ac- the kliig ov to the state: "Give us your lands, complished , -n • ji i i bysubstitut- and we will give them back to you, and you n-nt'fora sliall pay for them a fixed rent, which shall be "^'^ '^■^' less than the state tax, and unchangeable." The argument was unanswerable. By it the mass of the people were led to convert their allodial estates into tenures, themselves into tenants. In this way the allodial landlordship, which through the early time had been distributed among the people at large, was gathered into the hands of a few great lords (^°). The class of In readiuo- the monastic records, the student small propn- ° ' etorsdisap- should obsorve how throuo-h the eio-hth and ninth pears. ^ ... centuries the number of acquisitions from private persons is very large, while after the beginning of the tenth century the kings and great nobles seem to l)e the only benefactors of the Church. The explanation of this is, that the class of small pro- prietors had almost entirely disappeared. They had become tenants under the great lords. They were no longer free proprietors. They had no longer any lands to give away. When the allodial proprietors gave up their inheritances, they gave them up, as a rule, upon condition that they should continue to hold the land, and their descendants after them, for a certain annual rent. The amount of this rent was determined for all time in the terms of the original contract. Let us take an example. In one of the St. Gall documents a man named The origin of the free tenures. AMONG THE GERMANS. 101 Wolverat alienates his estate in the mark of Aniiiustra- tivc C«1S6 Chezzinwilare, upon condition that he, and his sons legitimately born of his wife Engilsinda, and all their descendants [Icgitima procreatio) shall hold the land for a rent of one denarius every year. In case the heirs became incom- petent to hold the inheritance (si aidem emmol- lierint heredes mci, ut proprietatem siiam continen non possird), they were to be decently lodged, fed, and clothed, and the land reverted to the mon- astery (-^). Almost any number of similar cases might be cited. In this way a class of free tenants came into existence. They were distin- guished, on the one hand, from the class of free proprietors, the allodial lords, and on the other The free r. o ^ • tenants to hand from the mass ot serts and common agri- be distin- cultural laborers. The rents wdiich the free ten- 1^^ the free , . T • • ii T)roprietors ants paid were in many cases, as in the case Ld from the •, J 1 • 1 mass of cited, merely nominal. serfs. As soon as the allodial estates had been con- verted into hereditary tenures, in the manner de- scribed, and the first tenants died, and the heirs began to multiply upon the tenures, we have house communities and then clan villages com- ing into existence. They are house communi- ties and clan villages of free tenants, to be dis- House com- tinguished from those of free proprietors and and clan vii- those of serfs. Free tenancy must be distin- tenants. ' guished from free proprietorship, and also from servile tenancy (^"^). 102 EARLY HISTORY OF LAND-HOLDING Summing We liavG Seen now how allodial landlordsliip up of the argumeut. was gathered away from the people at large into the hands of a few great lords, laymen and eccle- siastics, — in the course of wars and conquests, and in consequence of the distribution of im- munity grants, which put the great lords into a position from which they could draw the mass of small proprietors into dependence under their over-lordship. We have now to consider, briefly, the manner in which the further distribution of such landlordsliip as remained to be distributed Adoption of was prevented. We will speak of the adoption the princi- ^ ^ • • ^ i t ^^ -i ^ • pie that of the prmciple that landlordship must not be landlord- ,^,... „ , „ ship must divided, and oi the institution or a new rule oi vided. inheritance in accordance with this principle. The division and subdivision of allodial property, and consequent impoverishment of the proprietors, — results of the law of inheritance which pre- scribed divisions among heirs, — were prevented in very early times by a practice which, in spite of its inconsistency with the common law, spread One heir morc or Icss everywhere. According to this prac- takesthein- . . i i r> -i i i • i heritance to ticc, ouc licir tooK the lamily homestead with sionof the lands attached to it, while the other heirs, if there were any, sought their fortunes else- where, or were maintained as dependants. The practice seems to have obtained among the This was the Tencteri in Tacitus's time. We read, in the Ger- theTencten mania, that among these people the household time. {^joiatcs) and the inheritance, including depend- AMOXa THE GERMANS. 103 ants and slaves (the familia), went to the boldest and best son, — fcrox hello ci mcllor (--■'^). This curious exception to the general rule of inher- itance {heredes tamen successoresque sui cuique lihcri) established itself, probably, very much as a sim- ilar custom has established itself recently in the mountain country of Auvergne. Although ac- a modern . , instance. cordino: to the 2:eneral law ni France a man s land passes to all his children, it has come to be considered very undesirable, in the mountain region of Auvergne, that the farms should be divided. The result is, that one child usually takes the land, while the others go off to seek their fortunes in the cities, or else enter the Church. The heir who is best fitted for country life and farmino; is the one to whom the other heirs resign, voluntarily, their shares of the in- heritance (^-^). So it was, probably, among the Tencteri ; only the special fitness was not so much a fitness for farming as for fighting. Among the Germans, the farming was regularly intrusted . to serfs. We can imagine how, in many cases, it was disputes ^ , . among the difficult to decide which of a number of heirs heirs. should take the inheritance. They might all be equally competent to hold it, and they might all desire to do so. In such cases it is probable that the rule of equal division was reverted to until some other rule — the rule of primoii-eni- I'lstitution '■ '^ ol jiriino- ture, for example — was introduced. According ^'>"itiuc. 104 EARLY HISTORY OF LAND-HOLDING to the rule of primogeniture, the eldest son took the inheritance, unless there was some very good reason for not giving it to him. Primogeni- We may infer from the words, cxcipit films, non citus's time, ut ccto'ci maximus natu, scd prout fcrox hello ct melior, in the Germania, that the rule of primogeniture had already been adopted in some of the Ger- man clans, in the time of Tacitus (~^). The rule of primogeniture was introduced in most cases by family compacts, wdiat the Ger- 'Yh^Haus. mans call Ilaiisgcsetze. The German nobles per- QCSCtZC* ceived, at an early time, that, unless some ar- rangement was made by which their estates and lordships would remain undivided, the power and influence of their families would depart. Agreements were therefore made among the heirs in the different households, that the fam- ily estates should not be divided. Various rules were then adopted to settle the question of suc- Primogeni- ccssiou. Among them the rule of primogeniture uitimogeni- was generally preferred. The right of inherit- ^^' ance was in some cases conceded to the young- est son, in which cases we have, instead of pri- mogeniture, what has been called ultimogeniture, what is commonly called, in our law, Borough Primogeni- English ; but the rule of primogeniture was gen- ture general- i /9or\ ly adopted, erally adopted {^'^). The eldest son was, usually, the best fitted to exercise the paternal authority. His brothers were commonly men of less experience, or young AMONG THE GERMANS. 105 boys, and tlioy did not oljject very mneli to re- signing their inheritances; especially as they -were promised a maintenance in honor and plenty nnder their brother's care. As they grew up, Disinherited liGirs receive they often received grants of land in the place of benefices. their inheritances. These grants took the form of beneficiary holdings. Thus again allodial landlordship vs;^as gathered The effect of . in ])rimogeni- away from the many, and given over to the few. tme. The number of persons disinherited by the rule of primogeniture is of course enormous. We must remember that by disinheriting one man and one woman we may disinherit a family, a clan, and even a nation of descendants; and when several persons and all their descendants are disinherited in every generation, in every family, the aggregate of disinherited persons be- comes, in the long run, inconceivably large. They are thrust down into dependence, and even into servitude. It is not at all surprising that nearly the whole The chief " , . , causes which population of Western Lurope was, durmg the brought the Middle Ages, reduced to a condition of depend- large into ence or serfdom. It was reduced to this con- Lurservi- dition in the course of wars and conquests, in consequence of the introduction of general taxes, and special grants of immunity, concurrently with them ; and in consequence of the adop- tion of the rule that property must not be di- vided. The holders of immunity grants were 106 EARLY HISTORY OF LAND-HOLDING Tho people distributed into three classes, — benelicia- able to induce the people at large to convert their inheritances into tenures, by lowering rents below state taxes ; and when the principle that property must not bo divided was adopted, mul- titudes of people were cut off from the inher- itances which they would otherwise have ac- quired. AVhile allodial landlordship became in this w^ay concentrated in a few hands, the mass of the people sank into positions of dependence, riGs frcG tenants, and either as bencficiaries, free tenants, or serfs (^^). These were the chief classes of tenants. The highest class was that of the beneficiaries. The beneficiary tenures were commonly held to be hereditary, according to the ancient law prescribing division among heirs, through the early period (^^^). By the division and subdi- vision of the tenures, however, the power of the tenants was very rapidly reduced, until it was evident that their importance and influence in the state could be maintained only by the adop- tion of the principle that a benefice was an indivisible estate, to be held by a succession of individuals. The rule of primogeniture was then introduced among the higher class of tenants, in the same way as it had been introduced among the allodial lords (^^^). Where it was not intro- duced, where the old rule prescribing division among heirs w\as in force, the beneficiaries sank down to a position of insignificance C^^). The clan system tends naturally to pass into a Priniogcni- tiire intro- duced among the beneficia- ries. AMONG THE GERMANS. 107 feudal system. The disadvantages of an indefi- How the nite subdivision of inheritances and the authority L'^supj^iant- passing with them, and the evils of insubordina- dai sySem." tion in the community, lead inevitably to a sur- Need of sub- . . 1 1 1 1 • • ordination render of inheritances and lordships to certain in the com- individuals, and to a substitution of beneficiary i„troduc- tenures (for military service) in their place. Then ['"'\°^ \ J / i. benehciary the beneficiaries, in order to preserve the power iiouimgs. and influence of their families, adopt the principle The struggle that their benefices must not be divided. Then bc'tJe^n the the chief of the state, the person in Avhom the andT/f'^ sovereignty is vested, adopts the principle that^'^^^^^' this sovereignty must not be divided. Unless he The sover- adopts this principle, the sovereignty is frittered "fSe^fU-^ away through the branches of the sovereign family, while the vassals remain rich and power- ful upon their undivided estates. The process is often reversed. The chief of the state adopts the principle that the sovereignty must not be divided, hoping in this way, inasmuch as the estates of his vassals are divisible, to secure a predominance for his family. While the sover- eignty remains undivided, the benefices are di- vided and subdivided, and the beneficiaries lose their wealth and their influence. Then the bene- ficiaries, to prevent this, have to adopt the rule The bene- that the benefice must not be divided. It is be divided. easy to see, that, if the sovereignty of the state remains indivisible, while the beneficiary holdings are divided, the beneficiaries soon sink down into 108 EAIILY HISTORY OF LAND-HOLDINa the class of agricultural laborers or serfs. The Conclusion, feudal sjstem grows out of the clan system in con- sequence of a need of subordination and govern- ment, which leads the mass of free-lords to ffive up their independence ; and in consequence of the desire on the part of the remaining free-lords to preserve their wealth, power, and influence. This desire leads them to adopt the rule that their free- lordships must not be divided. Secondly, the feudal system grows out of a desire on the part of the vassal lords to prevent the free-lords from acquiring an undue predominance. This desire leads the vassal lords to adoj^t the principle of indivisibility of fiefs. The sovereign lordshijD of the state and the benefices under it pass then to successions of individuals. The persons who are disinherited in successive generations sink down into a third or fourth order of tenants. If among these tenants inheritances continue to be divided, according to the primitive rule, the result is pau- perism and servitude (~'^^). It is not our purpose, however, in this essay, to enter into the history of the feudal system, nor into the history of the agricultural communities which did not flourish under it. Having consid- ered the primitive clan system of the Germans, its growth and its decay, and having learned how this system was based upon the principle of private property and the princij)le of inheritance, rather than upon any principle of collectivity or AMONa THE GERMANS. 109 communism, we may properly bring our essay to an end. The history of land-holding under the feudal system is a very large and a very difficult subject, into which we will not now enter. NOTES AND REFERENCES. Convinci nemo potest judicio sine tcstibus aut scriptura. Capitulakia, Lib. YII. 204. We give here a list of the original sources from which the conclusions presented in the preceding essay have been de- rived. The abbreviated titles are those which will be used in the notes which follow. They are arranged alphabetically, so that they may be easily referred to. The list does not pretend to be a list of all possible sources of information. There are many records bearing more or less upon the subject of our inquiry which are not included under the titles given. The Danish, Norwegian, and Icelandic records, for example, are not at all referred to. The list, though incomplete, will be found serviceable, and it may be regarded as a nucleus for something better. AiiixGDOX Chron. — Chronicon Monasterii de Abingdon. 2 vols. London, 1858. 8°. Record Commission. Acta Murens. — Acta Fundationis Murensis IMonastorii Vindicata. Opera P. F. Kopp. Typis Monasterii, 1750. 4°. AiSTULPH. — Aistulphi Leges. Lombard law of the 8th Cent. In Corp. Jur. Germ, and M. G. H. Leg. IV. Alfred. —The Laws of King Alfred. A. D. 871-901. In Thorpe and in Schmid. Alsat. Dipl. — Alsatia Diplomatica. J. D. Schocpflin, editor. 2 vols. 1772. Folio. 112 EARLY HISTORY OF LAND-HOLDING. Ampl. Coll. — Martcnc et Uurand : Vctcnim Scriptorum et Monu- mentorum .... Amplissima Collectio. 9 vols. Paris, 1724- 1733. Folio. Angl.-Sax. Ciikox, — The Anglo-Saxon Chronicle. A. D. 1-1154. In M. II. B. Thorpe's edition is perhaps the best. Vol. I. Texts; Vol. II. Translation. London, 18G1. 8°. Record Commission. Arnsb. Urkb. — Urkundenbuch des Klosters Arnsburg in der Wet- terau. Ludwig Baur, editor. Darmstadt, 1851. 8°. Athelstan. — The Laws of King Athelstan. 10th Cent. In Thorpe and in Schmid. Baed. — Ilistoriae Ecclesiasticae Gentis Anglornm. Aiitore Vene- rabili Baeda. A. I). G72-735. In M. H. B. For the An- glo-Saxon version, see Smith's edition. Cambridge, 1722. Folio. The Miscellaneous Works were edited by Dr. Giles. 6 vols. London, 1843. 8°. Beter Urkb. — Urkundenbuch zur Geschichte der Mittelrheini- schen Territorien. II. Beyer, editor. 3 vols. Coblenz, 1860-1874. 8°. BoDMANN. — Bodmann : Eheingauische Alterthumcr. Mainz, 1819. 4°. BoLDON Book. — Boldon Book. A Survey of the Palatinate of Durham. A. D. 1183. In Domesday, IV. Bracton. — Ilenrici de Bracton De Legibus et Consuetudinibus Angliae Libri Quinque. Edited by Sir Travers Twiss. 5 vols. London, 1878-1882. 8°. Brev. Not. Salzb. — Breves Notitiae Salzburgenses. F. Keinz, editor. 8°. 1869. In the Juvavia also. Brev. Rer. Fisc. — Breviarium Rerum Fiscalium. A. D. 800? In Corp. Jur. Germ. (11. p. 141). In M. G. H. Leg. (L p. 176). Brev. Urolfi. — Breviarium Urolfi Abbatis de Altaha. A. D. 800? In M. B. XL Brittox. — Britton : A. D. 1291? The French Text carefully revised, with an English translation, introduction, and notes. By F. M. Nichols. 2 vols. Oxford, 1865. 8°. Caesar. — Caesaris Commentarii de Bello Gallico. B. C. 50. NOTES AXD REFERENCES. 113 Capit. de Villis. — Capitulare de Villis. A. D. 800? Among the C'apitularia. Sec, however, the edition with notes by Guerard. Paris, 1853. 8°. Capitulauia. — C'apitularia Rcgiim Fraucorum. In Baluzius. In tlie Corp. Jur. Germ, and in M. G. II. Leg. I. Cart. Gloucest. — Ilistoria et Cartularium Monasterii Sancti Petri Gloucestriae. 3 vols. London, 1863-1867. 8°. Record Commission. Cassiodorus. — M. Aurel. Cassiodori Senatoris Opera. Gth Cent. The old edition of Nivellius is perhaps as good as any. Paris, 1579. Folio. Chart. Sitiiiexse. — Cartulaire de 1' Abbaye de Saint-Bertin. M. Guerard, editor. Paris, 1841. 4°. Chart. "Werth. — Chartularium Wcrthinensc. In Leibnitz Scrip. I. p. 101. Cf. also Lacomblct Urkb. I. Chkon. Bexedictob. — Meichelbeck ; Chronicou Benedictobura- num. Sumptibus Monasterii, 1753. Folio. Chrox. Petrob. — Chronicon Petroburgense. Curante Thoma Stapleton. London, 1849. 8°. By the Camden Society. Cnut. — The Laws of King Cnut. 11th Cent. In Thorpe and in Schmid. Cod. Dipl. Lubec. — Codex Diplomaticus Lubecensis. I. Urkuu- denbuchderStadtLiibeck. Liibeck, 1843. 4°. II. Urkunden- buch des Bisthums Liibeck. Oldenburg, 1856. 4°. Cod. Dipl. Morav. — Codex Diplomaticus Moraviae. A. Boczek, first editor. 10 vols. Olomuch and Brunn, 1836-1878. 4°. Cod. Dipl. Ratisb. — Codex Diplomaticus Ratisbonensis. In Pez Thesaurus, I. Part III. Cf. Ried Cod. Dipl. ; also the Liber Probationum. Ratisbon, 1752. 8°. Cod. Dipl. Siles. — Codex Diplomaticus Silesiac. 10 vols. Bres- lau, 1857-1881. 4°. See especially Vol. IV.: Urkunden Schlesischer Dorfer. Dr. August Meitzen, editoi*. 1863. Cod. Patav. — Codices Traditionum Ecclesiae Pataviensis (Passau) olim Laureacensis. In M. B. XXVIII., XXIX. Cod. Quedlixb. — Erath: Codex Diplomaticus Quedlinburgeusis. Frankfurt, 1764. Folio. Cod. S. Galli. — Urkundenbuch der Abtei Sanct Gallon. Dr. Hermann Wartmann, editor. 3 vols. Ziirich, 1863-1882. 4"^. G 114 EARLY HISTORY OF LAND-HOLDING. Cod. Tkad. Lunaelac. — Codex Traditionum Monastcrii Lunaela- censis. In Pcz Thesaurus, VI. p. 10; also iu ^'oL I. of the Uikb. Land o. d. Enns. Cod. Trad. Reiciiersberg. — Codex Traditionum Monasterii Rei- chersbergensis. In ^'ol. I. of tlie Urkb. Land o. d. Enns. Cod. Trad. S. Emmeram. — Codex Traditionum Sanct. Emmeram- mensium. In Fez Thesaurus, I. Part III. Cod. Trad. Westph. — Codex Traditionum Westphalicarum. I. Die Ileberegister des Klosters Frenckenhorst. E. Fried- lander, editor. Miinster, 1872. 8°. CoRB. Trad. — Traditiones Corbeienses. Paul Wigand, editor. Leipzig, 1843. 8°. Cf. also the edition of Falke, Leipzig, 1752. Corp. Jdr. Germ. — Ferd. Walter: Corpus Juris Germanici Anti- qui. 3 vols. Berlin, 1824. 8°. This is a vcr}- good and cheap edition of the early laws and formulic. CouTUM. de Nivernais. — Gu}^ Coquille : La Couturae de Niver- nais. Edited by Dupin. Paris, 18G4. 8°. CouTDM. Gen. — Nouveau Coutumier General. Coutumes Gene- rales et Particulieres de France. C. A. Bourdot de Riche- bourg, editor. 4 vols. Paris, 1724. Folio. DiPLOMATA. — Diplomata e Stirpe Merowingica. Dipl. e Stirpe Arnulforum. Dipl. Spuria. In M. G. H. Dipl. Hannover, 1872. Folio. Domesday, — Tlie Inquisitio Tcrrarum, or Survey of England, made In-order of AVilliam tlie Conqueror. A. D. 1086. 4 vols. London, 1783. Folio. Domesd. S. Paul. — The Domesday of Saint Pauls. A. D. 1222. Archdeacon Hale, editor. Published bj- the Camden Soc. London, 1858. 8°. Du Canoe. — Glossarium Mediae et Infimac Latinitatis. Du Cange, editor. The best edition is that of Ilenschcl. 7 vols. Paris, 1840-1850. 4°. A new edition is now being published. DuGDALE MoNAST. — Mouasticon Anglicanum. Sir "William Dug- dale, editor. New edition. 8 vols. 1817-1830. Folio. Edgar. — The Laws of King Edgar. A. D. 959-975. In Thorpe and in Schmid. NOTES AND REFERENCES. 115 Edwakd. — The Laws of King Edward the Elder, A. D. 1)01-924. In Thorpe and in Schniid. Edw. Coxf. — Laws of King Edward the Confessor. 11th Cent. In Thorpe and in Schmid. Ethelbert. — The Laws of King Ethelbert. Early 7th Cent. ? In Thorpe and in Schoiid. ExoN. Domesday. — Exon. Domesda^y. A Survey of the Counties of Wilts, Dorset, Somerset, Devon, and Cornwall. A. D. 108G ? In Domesda}', IV. Font. Rek. Austr. — Pontes Rerum Austriaearuni. Oesterrei- chische Geschichts-Quellen. 42 vols. Wien, 18-35. 8°. Font. Rer. Bern. — Fontes Rerum Bernensium. Berns Geschichts- Quellen. 3 vols. Bern, 1877-1880. 4*". Fleta. — Fleta : Commentarius Juris Anglicani sub Edw. T. A. D. 1272-1307. John Selden's edition is as good as any. Lou- don, 1G47. 8''. Again m 1G85. Formulae. — E. de Roziere : Recueil General des Formules usitees dans I'Empire des Francs du V*^ au X*^ Siecle. 3 vols. Paris, 1859-1871. 8°. Cf. M. G. H. Leg. V. : Formulae Merowin- gici et Karolini. Ed. K. Zeumer. 1882. But our references are to the Roziere Collection. Fredegar. — Fredegarius Scholasticus : Greg. Turon. Hist. Epito- mata. 7th Cent. Edited together with the Works of Greg. Turon. by Ruinart. Paris, 1699. Folio. FuLDA Cod. — Codex Diplomaticus Fuldensis. E. F. J. Dronke, editor. Cassel, 1850. 4°. FuLDA Trad. — Traditiones Fuldenses. Di'onkc, editor. Fulda, 1844. 4^ Glanvill. — Ranulfus de Glanvill : Tractatus dc Legibus et Con- suetudinibus Regni Angliae Tempore Regis Henrici Secundi. Edition of John Rayner. London, 1780. 12°. There is a Translation by J. Beames. London, 1812. 8°. Greg. Turon. — Grcgorii Episcopi Turonensis Opera Omnia. 6th Cent. The edition of Ruinart is a very gooil one. Paris, 1699. Folio. See also the edition of the Societe do I'llistoire de France, with French translation. 4 vols. Paris, 183G- 1838. 8°. 116 EARLY HISTORY OF LAND-HOLDIXG. Grimm Rechtsalt. — Recbtsaltertliiiraer. Jacob Grimm, editor. Gottingen, 1828. 8°. A second edition in 1854. GniMM Weisth. — Weisthumcr. Jacob Grimm, editor. 6 vols. Gottingen, 1840. 8°. Grimoald. — Grimoaldi Leges : Lombard Law of the 8th Cent. In Corp. Jur. Germ, and M. G. IL Leg. IV. GuDENus Cod. Dipl. — Codex Diplomaticus Anecdotorum. V. F. de Gudenus, editor. 5 vols. Gottingen and Frankfurt, 1743- 17G8. 4°. GuNTHER Cod. Dipl. — Codex Diplomaticus Rheno-MoscUanus. W. Giinther, editor. 5 vols. Coblenz, 1822-1826. 8°. Hardt Weistii. — Luxemburger Weistliiimer als naclilese zu Jacob Grimm's Weisthiimern. Von Hardt, Regierungsarchivar in Luxemburg. Luxemburg, 1870. 8°. Henneb. Urkb. — Hennebergisches Urkundenbuch. Karl Schop- pach, first editor. 7 vols. Meiniugen, 1842-1877. 4°. Herren-Alb. Urk. — Urkunden Archiv des Klosters Herren-Alb. 12th and 13th Cent. Mono Zeits. L Hist. Frising. — Meichelbeck : Ilistoria Frisingensis. 2 vols. Augsburg, 1724. Folio. Hist. Fuld. — Schannat : Ilistoria Fuldcnsis. "With Codex Proba- tionum. 2 vols. Frankfurt, 1729. Folio. Hist. Trev. — Hontheim : Ilistoria Trevirensis Diplomatica et Pragmatica. 3 vols. Augsburg, 1750. Folio. Hist. Wormat. — Schannat : Ilistoria Episcopatus Wormaticnsis. 2 vols. Frankfurt, 1734. Indic. Arnon. — Indiculus Arnonis (Bp. of Salzburg). 8th Cent. F. Keinz, editor. MUnchcn, 1869. 8°. Also in the Ju- vavia. Ine. — The Laws of King Ine. 7th Cent. ? In Thorpe and in Schmid. Inquis. Eli. — Inquisitio Eliensis. A. D. 1086? In Domesdaj-, IV. loRDANis. — lordanis de Gctarum sive Gothorum Originc et Rebus Gestis. The edition of Closs is good. Stuttgart, 1861. 8°. JuvAViA. — Nachrichten vom Zustande der Gegenden und Stadt Juvavia, heutige Salzburg. Salzburg, 1784. Folio. NOTES AXD REFERENCES. 117 Kelso Iveg. — Liber S. Marie do Calchou : Rcfristrum Cartnrum Abbacie Tironensis de Kelso. A. 1). 1113-1.3G7. Published by the Bannatyne Club. 2 vols. 1846. Kemble's Codex. — Codex Diplomaticus Aevi Saxonici. J. INI. Kemble, editor. G vols. London, 183'J-1848. 8°. Kent Custum. — The Custumal of Kent. Charles Sand3"s, editor. London, 185L 8^. KiXDLixcrER IIouiGK. — KindUngcr's Geschichte der deutschcn Ilcirigkeit insbcsondere der sogeuannteu Leibeigeuschaft. Mit Urkunden. Berlin, 1819. 8°. Lacomblet Arciiiv. — Archiv fiir die Geschichte dcs Niederrheins. T. J. Lacorablet, editor. 7 vols. DUsseldorf, 1832-1870. 8°. Lacomblet Urkb. — Urkundenbuch fiir die Geschichte des Nie- derrheins. T. J. Lacomblet, editor. 4 vols. Uiisseldorf, 1840-1858. 4°. Laukesham Cod. — Codex Laureshamensis Diplomaticus. 3 vols. Mannheim, 1768-1770. 8°. Leibxitz Scrip. — Scriptores Rerum Brunsvicensium. Leibnitz, editor. 3 vols. Hannover, 1707-1711. Folio. Lex Alam. — Lex Alamannorum. 7tli Cent, In Corp. Jur. Germ, and M. G. H. Leg. III. Also in the Font. Rer. Bern. I. Lex. Axgl. Wkrix. — Lex Angliorum et "Werinorum, hoc est Thuringorum. 7th Cent. In Corp. Jur. Germ. Separate editions, by Gaupp (1834), and Merkel (1851). Lex Baiw. — Lex Baiwariorum. 7th Cent. In Corp. Jur. Germ, and M. G. IL Leg. III. Lex Buro. — Lex Burgundionum. 6th Cent. In Corp. Jur. Germ., M. G. II. Leg. III., and in the Font. Rer. Bern. I. Lex Fris. — Lex Frisonum. 7th Cent. In Corp. Jur. Germ, and M. G. IL.Leg. III. Lex Rip. — Lex Ripuaria. 6th Cent. In Corp. Jur. Germ. Lex Sal. — Lex Salica. A. D. 500? In Corp. Jur. Germ. In separate editions of Pardessus (Paris, 1843), Merkel (Berlin, 1850), Bchrend (Berlin, 1874), Ilessels and Kern (London, 1880), and Holder (Leipzig, 1879). Lex. Sax. — Lex Saxonum. 8th Cent. In Corp. Jur. Germ. In separate editions of Gaupp (1837) and Merkel (1853). 118 EARLY HISTORY OF LAND-HOLDING. Lex AVisig. — Lex "Wisigotborum. otli to 7lh Cent. lu Corp. Jur. Germ. Lib. DE IIyi). — Liber Monastcrii dc Ilyda. — Loudon, 18GG, 8°. liecord Commissiou. Liber Eli. — Liber Eliensis ad Fidem Codicum Variorum, edited b}- D. J. Stewart. Onl}' oue vol. publislied. Loudon, 1848. 8°. Compare Gale, Scriptores XV. p. 403. London, 1G91. 4°. Liscii. Urk. — Meckleuburgische Urkunden. G. C. F. Liseli, edi- tor. 3 vols. Schwerin, 1837-1841. 8°. Littleton. — Sir Thomas Littleton : Treatise of Tenures in French and English. To which are added the Ancient Treatise of the Old Tenures and Customs of Kent. By T. E. Tomlins. Lon- don, 1841. 8.° LiuxruAND. — Liutprandi Leges. Lombard Law of the 8th Cent, lu Corp. Jur. Germ, and M. G. II. Leg. IV. Mauri. Chart. — Charta Bonorum Maurimonasterii. A. D. 1120? In Alsat. Dipl. I. p. 197. Cf. Pohp. Irmiuon. Introd. p. 930. M. B. — Mouumeuta Boica. A Collection of Records for the His- tory of Bavarian Lands. 51 vols. Munchcn, 1703-1877. 8'' "'and 4°. Meklknb. Urkb. — Mccklcnburgisches Urkundeubuch. 11 vols. Schwerin, 1803-1878. 4°. Melsa Chron. — Chronica Monastcrii de Mclsa. A. D. 1396. 3 vols. London, 1800. 8'^. Kecord Commission. M. G. II. — Monumeuta Germaniae Historica. Edidit G. H. Pertz. Scriptores (Scrip.). Leges (Leg.). Diplomata (Dipl.). The publication was begun in 1820. M. II. B. — Monumeuta Historica Britannica ; or Materials for the History of Britain. Only one vol. published. Loudon, 1848. Folio. MoHR Cod. — Codex Diplomaticus. Urkunden zur Geschichte Cur- Raticns und Granbunden. Th. von Mohr, editor. 3 vols. Chur, 1848-1852. 8°. MoNE Zeits.— Zeitschrift fur die Geschichte des Oberrheins. L. J. Mone, first editor. 30 vols. 1850-1878. 8°. MoN. Nideralt, — Monumeuta Nideraltaccnsia. In M. B. XI. MoN. SciiEFTL. — Monumenta Scheftlariensia. In M. B. VIII. MoN. ScHLEHDORF. — Monumcuta Schlehdorfeusia. In M. B. IX. NOTES AXD REFERENCES. 119 MoN. Tegerxs. — Monumcntca Tegernseensia. — In M. B. VI. Mox. Weihekstepii. — Monumcnta Weihenstephanensia. In M. B. IX. MosER. — Familien-Staatsrecht der deutschen Reichsstaiide. By J. J. Moscr. 2 vols. Frankfurt, 1775. 4°. See also his Pcrsonliches Staatsrecht, and Deutsches Staatsrecht, for earl}- Hausgcsetze. MuNST. Beitr. — Kindliuger's Miinsterische Beitriige zur Ge- schichte Deutschlands, hauptsiichlich Westfalens. 3 vols. Munster, 1787-1793. 8°. Neugart Cod. — Codex Diplomaticus Aleraanniae ct Burgundiac- Transjuranae. P. T. Neugart, editor. Typis San-Blasianis, 1791. NiEDERSACiis. Urkb. — Urkundcnbucli dos Historiscben Vereins fiir Niedersaehsen. 11 vols. Hannover, 18-1G-187.5. 8°. Oaths. — Oaths of the Early English Law. In Thorpe and in Schmid. Oesterreicii. Weistii. — Oesterreichisehe 'WeisthiiinGr. I, Die Salz- burgischen Taidinge. II., III., IV. Die Tirolischen Weisthii- mer. 4 vols. Wien, 1870-1880. 8°. Orig. Nassoic. — Origines Nassoicae. With Codex Diplomaticus. J. M. Kremer, editor. Wiesbaden, 1779. 4°. OsNAiiUK. Gescii. — J. Moser : Osnabriickische Geschichte. 3 vols. Berlin and Stettin, 1780-1824. 8°. Pardessus. — .1. M. Pardessus : Diplomata, Chartac, Epistolae, Leges, etc., ad Res Gallo-Francicas Spectantia. 2 vols. Paris, 1843-1849. Folio. Perari). — llccuoil do plusienrs Pieces curieuses servant a I'llis- toire de Bourgogne. Par Esticnne Pcrard. Paris, 10(14. Folio. Pez Thesaurus. — Pez : Thesaurus Anecdotorum Novissimus. G vols. Augsburg, 1721. Folio. PoLYPT. Irminon. — Polyptique de I'Abbd Irminon. Driiombre- ment des Manses, &c. de I'Abbaye de Saint-Gcrmain-des- Pres, sous le Regno de Charlemagne. Guerard, editor. 2 vols. Paris, 1844. 4°. PoLYPT. DE S. Remi. — Poh'ptique de I'Abba^-o de Saint- Remi de Reims. Guerard, editor. Paris, 1853. 4°. 120 EARLY HISTORY OF LAND-HOLDING. Procopius. — Procopkis ex rccensionc Guilielmi Dindorfii. Greek and Latin. 3 vols. Bonn, 1«33-1838. 8°. This is a good edition. Eachis. — Kacliis Leges. Lombard Law of the 8th Cent. In Corp. Jur. Germ, and M. G. IL Leg. IV. Ranks. — Ranks in Earl}' English Society. In Thorpe and in Schmid. Rect. Sing. Person. — Rectitudines Singularum Personarum. Angl-Sax. and Lat. In Thorpe and in Schmid. In a sepa- rate edition by II. Leo. Halle, 1842. 8°. Recueil. — Ilecueil des Ilistoricns dcs Gaulos et de la France. Rerum (lallicarum et Francicarnm Scriptores. 19 vols. Paris, 1869-1880. Folio. Reg. Wigorn. — Registrum Prioratus Beate Mariae "Wigorniensis. A. D. 1240. By the Camden Society. London, 18G5. 8°. Reg. Hist. "Westf. — Regesta Ilistoriae Westfaliae. Accedit Co- dex Diplomaticus. II. A. Erhard and Roger Wilraans, editors, 4 vols. Miinster, 1847-1880. 4°. Reg. Prum. — Registrum Prumiense. A. D. 893. With the Glossae Caesarii Ileisterbacensis. A. D. 1222. In Beyer Urkb. and in the Hist. Trev. CCCCLIX. RiED Cod. Dipl. — Codex Chronologico Diplomaticus Episcopatus Ratisbonensis. Studio Thomae Ried. 2 vols. Ratisbou, 181G. 8°. RiTZ Urk. — Urkundcn und Abhandlungen zur Geschichte des Niederrheins und der Niedermaas. By Wilhelm Ritz. Aachen, 1824. 8°. RoTiiAR. — Edictum Rotharis. Lombard Law of the 7th Cent. In Corp. Jur. Germ, and M. G. II. Leg. TV. RoTUL. HuNDKED. — Rotuli Ilundredorum. Temp. Hen. III. et Edw. I. 1812. 2 vols. Folio. Sachs. Geschiciitsq. — Geschichtsquellen der Prov. Sachscn und angi'cnzender Gebiete. Halle. 8°. Sachsenspiegel. — Der Sachscnspiegel. Edited by Dr. C. G. IIo- meyer. Erstcr Theil (3d ed.) : Berlin, ISGl. Zweiter Theil : Berlin, 1842, 1844. 3 vols. 8". Salem Reg. — Der Aelteste Giiterbesitz dcs chemaligen Reichs- stiftes Salem. In Mone Zeits. I. NOTES AND REFERENCES. 121 Salomo Foum. — Formelljueli ties Bishops Salomo III. von Con- stanz. 9th Cent. Ernst Diimmler, editor. Leipzig, 1857. S'^. ScHMiD. — Die Gesetze cler Angelsachsen, mit Uebersetzung, Glossar, etc. Dr. Reiuhokl Schmid, editor. Leipzig, 1858. 8°. ScHTLZE. — Ilausgesetze der regievenden dentsehcn Fiirstenhiiuser. Hermann Sehulze, editor. Jena, 18G2. 8^. Spelman Gloss. — Glossarium Archaeologicura. Authore Henrico Spehnano. 3d edition. London, 1687. Folio. Stenzel Urkb. — Tzschoppe und Stenzel : Urkundensammlung zur Geshiclite des Ursprungs der .Stiidte in Schlesien und Ober- Lansitz. Hamburg, 1832. 4*^. Tacitus. — Tacitus : De Origine, Situ, Moribus, ac Populis Ger- maniae (Germ.); Annales (An.). A. D. 100. Theodoric. — Edictum Theodorici : Ostrogothic Law of tlie 6th Cent. In Corp. Jur. Germ. Also in Nivellius's edition of Cassiodorus. Thorpe. — Ancient Laws and Institutes of England. Benjamin Thorpe, editor. London, 1840. Folio, or 2 vols. 8°. Trad. AViz. — Traditiones Possessionesque Wizenburgenses. C. Zeuss, editor. Spier, 1842. 4°. Urkb. Land. o. d. Enns. — Urkundenbuch des Landes ob. der Enns. 7 vols. Wien, 1852-1876. 8°. Vaissette. — Vaissette et de Vic : Ilistoire General de Languedoc. 5 vols. 1730-1745. Folio. Another edition. 10 vols. 1840. 8°. New edition. 14 vols. Toulouse, 1872-1876. 4°. Victor ViTENSis. — IlistoriaPersecutionis Vandalicae in Duas Partes. Prior Complectitur Libros Quinque Victoria Vitensis Episcopi. Ruinart, editor. Venice, 1732. 4°. New edition in Vol. VII. of the Corp. Script. Eccles. Lat. Wien, 1881. Wenck. — Wcnck's Ilessische Landes-Geschichte, mit Urkunden. 3 vols. Frankfurt, 1785-1803. Wergilds. — Earlj' English Wergilds. In Thorpe and in Schmid. Westf. Urkb. — Urkundenbuch zur Landes und Rcchtsgeschichte des Ilerzogthums Westfalen. J. S. Seibertz, editor. 3 vols. Arnsberg, 1839-1854. 8°. 122 EARLY HISTORY OF LAND-HOLDING. Whitby Cart. — Cartularium Abbatiae de Whiteb}-. Fund. An. JMLXXVIII. Christopher Atkinson, editor. PubUshed by the Surtees Society. London, 1881. 8°. WiNSLOw Manor. — Extracta Rotulorum de IlaHmotis tcntis apud Manirum de AYynselovve, Tempore Edwardi Tertii a Con- questu. MS. in the University Librar}-, Cambridge, England. "WiNTON Domesday. — Winton Domesday. A. D. 1107-1128. In Domesday IV. WiRTEMB. Urkb. — Wirtembergischcs Urkundenbuch. 3 vols. Stuttgart, 1849-1871. 4°. Wm. Conq. — Laws of William the Conqueror. 11th Cent. In Thorpe and in Schmid. Zahn Urkb. — Urkundenbuch des Herzogthums Steiermark. J. Zahn, editor. 2 vols. Gratz, 1875. 8°. The following notes are arranged according to the numbers given in the text. In referring to sources of information, we shall use the abbreviated titles in the preceding list. Note 1. — Page 1, Caesar VI. 22 : Agriculturae non student ; majorque pars victus eorum in lacte, caseo, carne, consistit. Cf. IV. 1 : neque multum frumento sed maximam partem lacte atque pecore vivunt, mul- tumque sunt in venationibus. In the first passage Caesar speaks of the Germans in general ; in the second passage he is speaking of the Suevi. Then read Germ. 5 : ne armentis quidcm suus honor aut gloria frontis ; numero gaudent, eaeque solae et gratissimae opes sunt. This is said of the Germans in general. Cf. Cap. 27. Then read Cap. 15, 21, 12. The chiefs received presents of live-stock. It was used for the pacification of feuds, and for the payment of fines. It served various purposes instead of money. See Lex Rip. XXXVI. 11, and Lex Sax. XIX ; also Kemble's Codex, CXLVII : ager hoc praitio emptus est ; c oucs, xxx boues et vaccas, xxx equos indomitos dedit. NOTES AND REFERENCES. 123 We find descriptious of stock owned by iudividutds in tlic documents. Vid. Cod. S. Galli 13, 352, 701 ; Lauresham Cod. MMMDCCXXXllI ; Fulda Cod. 110, 202, 240, oOG, 301), 3jy, 384, 473, 508, 520, 539, 540, 612; Hist. Frising. I. p. 120, and Num. CCXCV ; also Xum. DCLXXVII ; Trad. Wiz. LIV ; Wirtemb. Urkb. I. Xum. XCIV ; Cod. Patav. XIV. Vid. also the FormuhB CCXXVI, CCXXXV, CCXXXVIII, CCXXXJX, CCXLIII, and CCCLXVII. The passages of the Folk-Laws regarding live-stock should be read. See, for example. Lex. Sal. II, de furtis porcorum ; 111, de furtis animalium ; IV, de furtis ovium ; V, de furtis caprarum. Lex Rip. XVIII, de sonesti. Also XLVII. Lex Alam. LXXII : de eo qui in troppo de jumentis ductricem involaverit. Also LXXIII, LXXIV, LXXV : de eo qui taurum, gregen regentem, involaverit aut Occident. LXXVIII : de preccio bovis. LXXIX : de eo qui pastores [porcorum vel ovium] occiderit. XCVII : silva tam porcorum quam pecorum. XCVIII : de eo qui gregeii anima- lium in pignus tulerit. XCIX : de eo qui bisontem vel cetera ani- malia aut furaverit aut occiderit. CIII : de jumento quod hominem occidit. Lex Baiw. III. 10 : de porcis dispersis [de sono ubi sep- tuaginta fuerint porci]. VIII. 3: si majorem pecuniam furaverit . . . aut equum totidem pretii, vel mancipium, et negare voluerit, cum duodecim sacramentalibus juret de lite sua, vel duo campiones propter hoc pugnent. Ibid. 8 : aurum, argentum, jumenta, vel pecora. Ibid. 11 ; XII. 4, 5; XIII. Lex Burg. XLIX : de ani- malibus damnum facientibus in clausura missis. Add. I. 2, 18, 20. Lex Fris. IV : de servo aut jumento alieno occiso . . . equi et boves, oves, cuprae, porci, et quicquid mobile in animalibus ad usum hominum pertinet, usque ad canem. Many more references might be given. From the time of the Folk-Laws on, however, the life of the people was agricultural rather than pastoral ; that is to say, they depended rather upon the produce of the fields than upon the in- crease of stock for their means of subsistence. A great di^al of the land was then brought under cultivation. But this was not the case during the migrations. 124 EARLY HISTORY OF LAND-HOLDINa. Note 2. — Page 1. Tacitus Germ. 16 : Nullas Germanorum populis urbes habitari satis notuin est, ne pati quidem inter se iunctas secies : eoluut dis- creti ac divcrsi, ut foiis, ut campus, ut nemus placuit, vicos locant uoii in nostrum morem conexis et coliaerentibus aedificiis ; suam quisque domum spatio cii'cumdat, sive adversus casus ignis reme- dium sive inscitia aedifieandi. There seems to be a contradiction here. The people settled apart from one another, and 3-et they had villages. Compare, however. Germ. 25 : Ceteris servis uon in nostrum morem dcscriptis per familiam miuisteriis utuntur : suam quisque sedem, suos penates regit, frumenti modum domiuus aut pecoris aut vestis ut colono iuiungit, et servus hactenus paret. Tlie vici locati of Germ. IG must have been manorial villages, or villages of dependants and slaves ; such, for example, as Clirodinus founded and gave to the Church. Vid. Greg. Turon. VI. 20 : nam saepe a novo fundans villas, aedificans domos, culturas erigens . . . ipsas domos, cum cultoribus et culturis, benignc distribuebat. Cf. Chart. Sithiense Folq. Lib. I. xxix : onines villas meas cum adjaccntiis. Lib. II. lxv : Hildincurtem cum villulis ad eandem pertiueutibus. Lacomblct Urkb. 105: curtem dominieatam cum quadquaginta sex mansis. 1G9 : curtim cum omni integritate man- sorum. Fulda Trad. Cap. 4. 85 : xxx villas et mancipia sine numero. Cap. 41. 4: Odiltag et uxor tradid. bona sua in page Liergewe, XX vilMis. Trad. AViz. XVII : villas juris nostri. Orig. Nassoic. VII: villam juris nostri, habcntem plus minus mansos decem et septem. Indie Arnon I. 7 : villulam cum mansos x. Kemble's Codex CXL : dabo terram septies quinos tributariorura Jugcra continentem. Est autera rus prefatum in nii villulis separa- tum . . . quartus viculus, hoc est Nordtun, x manentium. Ibid. CLI : omnes villulas et possessiones. CCCXXXVI : fundum cum suo hundredo, habens centum cassatos. CCCXLVIII : terram v cassatorum, id est vicus qui nominatur Eatun. Here we have the vicns locahis of Tacitus, with (Germ. 2G) agri pro quinqiie cultoribus. We shall see, as we go on in our argument, how in the earl}' time property consisted regularly of isolated farmsteads with vil- lao-es of serfs attached to them. It could very well be said of the NOTES AND REFERENCES. 125 freemen that they lived ai)avt fi'om one another and founded villages. The villages A\hich tliey founded were villages of dependants and slaves, or serfs. Note o. — Page 1. Cicero, De Republica II. 9 : quod turn erat res in pecore et loco- rum possessionibus, ex quo pecuniosi et loeuplctes voeabautur. Note 4. — Page 2. Rothar CXXXVI : De illis vero pastoribus dicimus qui ad libe- ros homines servierunt et de sala propria exeunt. Lex Alam. LXXIX : pastores porcorum vel ovium. XCVIII : gregem auima- liura. Lex Sal. Septem Causas, 11 (Merkel, p. 95) : peeora qui pastore non habent. Beyer. Urkb. I. 32, 34 : greges cum pastori- bus. Trad. Wiz. LIV : vaccas et illo pastore, porcos cum pas- tore, berbices cum pastore. Formulae CCXXXVIII, CCXXXIX, CCXLIII : gregem agnorum, gregem armentorum, gregem porco- rum, gregem ovium. Wirtemb. Urkb. XVIII: gregis cinn pastori- bus. So in XIX and XXIII. Hist. Trev. XLVII : pastoribus, gregis pecudum. Rothar CXXIX Form. : porcarius, pecorarius, caprarius, armentarius. Cf. Dipl. Spuria 5G : pastoribus, vac- cariis, porcariis, bervicariis, cum gregibus vel omni peculio promis- cuo. Land was occupied, in the first place, by the flocks and herds. One tract of land was occupied b}' A's animals ; another tract was occupied by B's animals. The position of a man's home was then determined In' the position of his pasture ground. Each man settled himself among his flocks and herds, in the midst of the land which they occupied. A settlement in isolated Hirmsteads is an almost inevitable fea- ture of the pastoral life. "We see how it is in our own country. In the cattle-breeding regions of the West we have isolated farms or ranches, instead of villages and towns. Note f). — Page 2. Caesar IV. 1 : Sueborum gens est longe maxima et bellicosis- sima Germanorum omnium. Hi centum pagos habere dicuntur, ex quibus quotannis singula milia armatorum l)ellandi causa ex finibus 126 EARLY HISTORY OF LAND-HOLDING. educunt ; rcliqui qui doiiil nianserint so atque illos aliint. Hi nir- sus invicc'in anno post in armis sunt illi douii reuianent. Sic neque agrieiiltiira, nee ratio atque usus belli intermittitur. Tueitus Germ. 26: Agri pro nuuiero eultoruni ab universis in vices [or invicem] occupantur. Tlien Germ. 27 : llacc in com- mune de omnium Germanoruni origine ac moribus accepimus. We read in tlie Angl. Sax. Chron., at tlie 3ear 894, that King Alfred had his forces so divided that half of his men were at home while the other half were in the field. Note G. — Page 3. Tacitus Germ. 4, 11, 13 : Nihil autem neque publicae neque prl- vatae rei nisi armati agunt. 14, 15 : delegata domus et penatium et agrorum cura feminis senilusque et infirmissimo cuique ex faniilia. By the word cura, management, administration, or superintend- ence is meant. The actual work in the fields was done by slaves. Read also Germ. 17, 21, 22, 24. Agriculture was seldom resorted to, unless tliere were slaves to do the work. Even as late as the year 789 agricultural labor was regarded as servile labor. See the description of the opera servilia in the Capitulare Aquisgranense, LXXTX (Corp. Jur. Germ. II. p. 97) ; and in Lex Baiw. VI. Cap. II. Note 7. — Page 3. Slaves are first mentioned by Tacitus, Germ. 20, 24, 25, 38, 44. References to them are common in the earl}' laws. See, for ex- ample, Lex Sal. X, XII, XXV, XXVI, XXVII, XXXV, XXXIX, XL, XLVII. Lex Rip. VIII. Slaves are referred to in all the fourteen sections XVII-XXX, in LVIII, LXI, LXII, and LXXIV. Lex Alam. Ill, V, VII, VIII, XX, XXI, XXII, XXXVII, XXXVIII, XXXIX, LXXXV, LXXXVI, CV. Lex Baiw. I, II, III, V, VI, VII, VIIL IX, XI, XII, XV, XVII. Lex Burg. II, III, IV, V, VI, VII, X, XV, XVI, XVII, XX, XXI, XXVI, XXVII, XXXII, XXXIII, XXXV, XXXVIII, XXXIX, XL; XLVII, L, LIV, LVI, LXIII, LXX, LXXIII, LXXVII ; Add. (I), IV, V, VII, VIII, XII ; Add. (II), I, II, III, IV, VIII. Lex Fris. I, II, III, IV, IX, XII, XVIII, XX ; Add. VIII, IX. Lex Angl. AVerin. I, VI, IX, X. Lex Sax. II, XI, NOTES AXD REFERENCES. 127 XV. So in the other Folk-Laws. Slavery and dependence upon slave labor were universal. In order, however, to be completely convinced of this, the stu- dent should turn over the volumes of formula3 and documents to see how, in almost every grant of land, slaves are included as cultivators of it. The regular formula is : cum domibus, a?dificiis, accolabus, mancipiis, campis, pratis, pascuis, aquis, aquarumve decursibus. Slaves were regarded, like cattle, as a regular and proper means of subsistence. In the course of wars and conquests the}' were accumulated in vast numbers ; so that the members of victorious nations, clans, and families were, as a rule, well provided with them. AVith plenty of slaves the freemen had ho occasion to work in the fields. "We shall see, as we go on in our argument, how property consisted regularl}^ of houses occupied b}' slaves, and lands cultivated by slaves. Vid. Formula CXVIII : mansis cum mancipiis corama- nentibus. The number of slaves owned b}^ the free-lords was often ver^' large. Gerard and his wife, in Ritz Urk. 12, owned as many as three hundred and sixty. This is not an isolated case. One tract of land was cultivated by A's slaves. Another tract was cultivated by B's slaves. The position of a man's home was de- termined b}^ the position of his colony or colonies of slaves. The free-lords lived as a rule among their slaves, in the midst of the land which they cultivated. Cf. Germ. 20 : Dominum ac servura nullis educationis deliciis dignoscas ; inter eadem pecora, in eadem humo degunt, donee aetas separat ingenuos, virtus adgnoscat. The settlement in isolated farmsteads was almost inevitable. We know how it has been in our own countr}'. A system of isolated farms obtained in Marj'land, Virginia, and other Southern States, up to the time of the Civil War, because agricultural labor was performed by colonies of slaves. The township sj'stem was almost unknown at the South. Villages of small proprietors existed mostl}' in the North, where the land was cultivated by freemen. Whenever men have great herds of cattle, or herds of slaves, they settle, as a rule, apart from one another upon isolated farms, — Einzelhofe. 128 EARLY HISTORY OF LAXD-HOLDING. Note 8. — Page 4. Frecdmcn, as distinguished from slaves, are mentioned in Taci- tus Germ. 25. Their condition was not much better than tliat of slaves. Cf. Rothar CCXXIX. They were doubtless emploj'ed in agricultural labor, as in later times. In the later records the^' are called liti. Cf. Reg. Hist. Westf. XXVIII : de litis quani de in- genuis hominibus terram ejus incolentibus. In descriptions of landed property free tenants are frequentl3' mentioned, as in the case just cited. If the land was alienated the free tenants were alienated with it, unless they gave up their tenures. Vid. Cod. 8. Galli 42 : Ego Duto dono quidquid in Chisincas habeo, hoc est casa curtile et terra salica, ct servos tuos . . . ingenui tuo cumnianent terram illam, et si vultuui mauire post obitum meum, qualum servicium mihi fecerunt, talem faciant vobis. Cf. Capi- tularia, A. D. 812, I. Cap. 1 : liber homo qui mansos vestitos de alicujus beneficio habet. Alsat. Dipl. XCVIII : ingenuos com- manentes in villa E. The}' are alienated to Lucerne monaster}'. Formula LII : qui se in servitio alterius obnoxiat. Vid. Lex Baiw. VI. Cap. Ill : liberi, qui justis legibus deserviunt. Hist. Frising. I. p. 52 : mancipias, servos, liberos tributales. We find these various classes of tenants settled upon the inheritance of Suarzoth at Toolpach. They are given with the land to the church at Frising. Vid. Ibid. Num. XII : quicquid nobis in portionem evenerat tam liberis quam colonis et servibus. ludic. Arnonis VII. 8 : similiter tradidit tributaries Romanos. Ibid. 10 : mansos inter servos et liberos. Cod. Trad. Lunaelac. XIII: liberos ad ipsum locum detentos. Diplomata Merow. 15 : ingenuis in eorum agris commancntibus. Vid. also Ibid. 58, 62, 95. Dipl. Arnulf. 23 : pro susceptione pauperum et peregrinorum ipsas [res] roddi- dimus. Dij)!. Spuria 1, 22. Cf. Raed IV. 13: terram octoginta septem familiarum, ubi suos homines qui exules vagabantur recipere posset. The freemen who were in the position of dependants were often obliged to engage in agricultural labor. In the Reg. Baden. 3, for example, we have mentioned the tributa ac servitia, quae liberi homines persolvant. Cf. Hist. Frising. CDLXXXI : isti sunt liberi homines . . . arant dies iii, tribus temporibus in anno, et NOTES AND REFERENCES. 129 secant trcs dies, illud eollegunt et duciint iu horrca ct rcddaiit modios XV . . . llrodfiid arat pleniter sicut alii servi. The position of the dependent freeman was often little better than that of a slave. Onl}' he could leave his lord, if he pleased. Vid. Lex "Wisig. V. Tit. III. 1 : habeat licentiam cui se voluerit commen- dare. Quoniani ingenuo liomini non potest prohiberi, quia in sua potestate consistit. Cf. Aistulph XIV, Then Rothar CLXXX'II. Before leaving his lord, however, as we see in this passage of Rothar's edict, the freeman had to pa}- back to him, or to his heirs, all that he had received: res ad donatorem, vel lieredem ejus revertantur. So in Lex "Wisig. V. Tit. III. 1 ; cf. also Ibid. 2, 3, 4. According to a Frankish Capitulary (A. D. 813, II. Cap. 16), the vassal could not leave his lord after he had received the equivalent of one solidus : excepto si cum vult occidere, aut cum baculo caedere, vel uxorem aut filiam maculare, sen hereditatem ei toUere. According to Alsut. Dipl. LXXXII, the dependants were distributed into tlu'ce classes, — familia tota, sive militaris sive cen- sualis vel et servilis. The members of the first class, the familia militarise did no servile work. It was all left to the members of the other classes. The familia censnalis consisted mainly- of free tenants The familia servilis consisted mainly of slaves. In the course of time, the condition of the slaves being raised, and the condition of the free tenants being lowered, the two classes came to be nearly or completely merged into one class, — the class of serfs, as we have said. The class of free tenants will be con- sidered more particularly in another connection. Note 9, — PaCxE 5. Germ. 20 : Agri pro numero cultorum ab universis in vices [or invicem] occupantur, quos mox inter se secundum dignationeni partiuntur ; facilitatem partiendi camporum spatia praebcnt, arva per annos mutant, et supcrest agcr, nee enira cum ubcrtate et amplitudine soli labore contendunt, ut pomaria conserant et prata so[)arent et hortos rigent : sola terrae seges imperatur. The arjri were small arable farms. One was assigned to each cultivator, in the time of Tacitus, as in later times. Ilist. Frising. DCCXIX : mancipia et xii agros. Mon, Weihensteph, p, 487: duos agros terre arato. Trad, Wiz. CXXVII : agros non modi- 9 130 EARLY HISTORY OF LAXD-nOLDIXG. cos ad arandum. Reg. Hist, Wostf. XXXIV: agris, farailiis. Osnabrk. Gesch. LI: agros x in Tlirele ; x in Bist, impari qui- dein magiiitudine. Cf. also LXXXII, LXXXX. Stenzel Urkb. XXXVII: omnibus autem, qui in agris habitant extirpatis . . . liii vero qui agros occupant extirpandos. This illustrates what Tacitus says ver\' well. The cif/ri o( Germ. 2G are the niansi or hnh(e of the later records. Cf. Cod. Dipl. Lubec II. clx (p. 155) : in B. non sunt agri sive mansi distinctemensurati, undo ignoramus quot sint ibi mansi . . . fecimus agros mensurari, et inventi sunt [x?] mansi. Ibid, cccvit : agri A'ille cum colonis ibidem commorantibus . . . agri sicut nunc mensurali. Tliese are the (tgri pro numero cultoruni occupati of Tacitus, without doubt. See Cod. Trad. Reichersberg III : prediis [agri?] eidem curti appendiciis usque ad xxx, ut dicitur mansos. Also CXXII (p. 341) : agris ad sedecim mansos et medietatem unius mansi. Henneb. Urkb. LXIII : sex agros in campis ville [^agros in arvis in Tacitus?]. Cf. CXXIII : sex mansus cum dimidio, sitos in campis Viselbreche. Be3'er Urkb. 135, Glossa 1 (p. 14-1) : mansis indominicatis qui sunt agri curie. The mansus is often described as a colonia or coluuica. The agri of Germ. 26 are the coloniae of the later records. See Mone Zeits. I. p. 395 : tres coloniae sen agri. Cf. Lex Burg. XXXVIII. 7 : in agro vel colonica. In the English records we have, instead of the mansus, the hida. The words have the same signification. Vid. Kemble's Codex CCCXCVIII : bis denas mansas, quod Anglice dicitur twcntig hida. So also in DCXXI. King Wulfher gave to St. Chad fifty hides of land at Barrow (?). Baed describes these hides as the land of fifty families : terram quin- quaginta familiarum. This would be, in the phrase of Tacitus : agri pro quinquaginta cultoribns occupati. Vid. I list. Eccl. IV. 3. The English estimated their lands according to the number of fami- lies (i. e. cultores) that could be set out upon it. Vid. Bacd I. 25 : Tanatos insula non modica, id est, magnitudinis juxta consuetudi- nem aestimationis Anglorum familiarum sexcentarum. So in II. 9 ; III. 4 ; and other passages. The land-owners divided the land into fixmily allotments, whicli they distributed among their depend- ants and slaves, or serfs. This was the case among the Germans generally, from the time of Tacitus on. The family allotments are described as agri by Tacitus, and In- NOTES AND REFERENCES. 131 some of the later writers, as we have seen. The}' are called hides by the English. Vid. the Anglo-Saxon version of Baed's History, in which the Latin terra famiUue is rendered b}' the Anglo-Saxon hida. Vid. also Angl. Sax. Chron. A. D. 565 and G48. Kemble's Codex CCXXX, CCXCVII, CCCCXLII : terrae meae portionem XX videlicet hidas secundum aestimationem. Ine 24, 32, 54, 04, G5, Q(j, 70. Wergilds 7, 8, 9. Ranks 2, 3. Lib. Eli. (Gale's edition) II. Cap. 40. Ibid. (Stewart's edition) II. Cap. 4, 7, 8 : xii hydas, scilicet manerium quod Lindune dicitur. Cap. 11 (p. 129) : hydani per sexies xx acras. Ibid. (p. 130) : hidas integras. Cap. 14, 17, 23 : collectis terris inventae sunt hidae sexaginta. Cap. 31, 32, 33. The hides appear to have consisted quite regularly' of a hundred and twenty acres ; not always, however ; and the acre may have varied in different places. It is quite useless to tr}' to arrive at equiva- lents in modern measures. The acre was in many cases a small field simply, i. e. an ager ; and a hundred and twenty small fields were called a hide. A standard acre was hardly established until the thirteenth centnr}'. Vid. Statutum de Admensuratione Terre. Statutes of the Realm, I. p. 20G. The extent of the acre was at first defined as the amount of land which one man could plough in one day. Under this definition there was I'oom for considerable variations, and it was a long time before standards were instituted. The word cussatns is often used instead of the word hida. Vid. Kemble's Codex XIX, XLVIII, LXXXIX, XC, CV, CXXXVIII, CXLIII, CCXXXII, CCCXXXV, CCCXLVIII, DCXXII : v cas- satos . . . fif hida. So in Abingdon Chron. I. pp. 29, 30 : xii cas- satorum . . . xii hida. Cf. p. 192. There are many other similar records. The word mansns is also common. Vid. Abingdon Chron. I. p. 201 : xx mansos . . . xx hida. Cf. pp. 205, 232-233, 240, 304. The word mansns is the word most commonly used upon the Continent to describe the family allotment. The word huba occurs very frequentl}-, however. We shall consider the mansi and hiibae more particuhul}' in notes to come. We must now describe the manner in wliich the lots wore measured off. According to certain traditions the}' were measured olfwith a cord ukkIc from the hidt; of an ox or some other animal. Tlie hide was cut u\) in slender strips. These were then fastened together, and the cord thus made was used as a diameter for the Icngih and l)rcadth of the alhjtment. This is, perhaps, the reason why the allotment was called a /tide. 132 EARLY HISTORY OF LAND-HOLDINa. See Grimm Rechtsaltertlmmer, 2d ed., pp. 89-91. We know from the records that a cord of some sort was used in iiu'asuring off tlie allotments. It is described by the Latin word /'laiis, ov funiculus ; aiul by the Ciernuin words /lofslac/t, rcptnate^ scliedcmate. See Cod. Dipl. Lubec. II. cccxix : trium mansorum debitam mensuram per distributimis funiculam, quod vulgo dicitur hofslacli. Then Lisch. Urlib. II. p. 102: dimensionem funiculi [repmate efte schcdeniate]. Cf. also Ibid. p. 143. I'rof. Ilanssen cites the following passage from A. Suneson's Schonisches Gesetzbuch (IV. 1) : cujus (funiculi) dimensione tota villa in aequales redigitur portiones, quas materna lingua vulgaritur Boll appellant et nos in latino sermone mansos possumus appellare, carum fundis inter se praediisque inter se fundis ipsis adjacentibus adaequandis. See Ilanssen's Abhandlungen, p. 8. The length of ih^faniculas was in later times determined by the landlords. It was not necessarily made from a hide, and its length could be varied indefinitely. It dilfered in different localities, ac- cording to different standards which were introduced. Sometimes, when a landlord had more tenants than land, he would shorten the funiculns, and make a redistribution of lots. In that wa}', he could sometimes increase the number of lots. Cod. Dipl. Lubec II. cxcviii : quicquid super sedecim mansos, pro quibus nunctem[)oris villa ja- cet per funiculum dimensionis excreverit. Then read Ibid, clx (p. 154) : hujus ville mansi et termini quando capitulo placuerit pos- sunt mensurari : hereditas enim est ecclesie. One or two extra lots were sometimes eked out. As no reduction of dues and services was made in consequence of this reduction of the lots, complaints arose. So it became customar}" for the landlords to promise that the lots should not be measured again, or that, if measured again, the diameter-cord should not be altered. Lisch Bd. I. xcv. : ex- emptam et liberam ab omni mensuracionis et funiculacionis genere pro quatuor mansis perpetuo donavimus et posuimus. Cf. also Bd. II. VIII, XXII, XXIV, XXV, XXVI, xxvii, xliv, xlix ; Bd. III. xviii. "When the Vandals came into Africa, in the fifth centuiy, the funiculus was used in dividing the land. A'id. Victor Vitensis I. 4. Dudo tells us that the lands of Normandy were divided at first bj' the funiculus. Vid. passage cited by Lappen- berg, in his " E^ngland under the Norman Kings" (Thorpe's trans- lation, p. 18, note). Cf also Ilelmold Chron. Slav. I. 91 (M. G. NOTES AXD REFERENCES. 133 H. Scrip. XXI. p. 83), and Mon. Xideralt, p. 33; ut maximiis campus per fuuiculos mensuraretur, et cuilibet bube xii. jugera deputarentur. The fit )ii cuius was given up after a time for the rod, vi?-ga or per- tica. Different rods were used in different places (vid. Du Cange sub. voc. pertica) , \\v\t\\ standards were established by authority. Cf. Cai)italaria, A. D. 803, III. Cap. 8 : De meusuris ut secundum jussionem nostram aequales fiaut. After a while we meet with the virga teutonicalis. Wd. Stenzel Urkb. XXIX : mensuram Teutonicalem, videlicet duccntas et sep- tuaginta virgas Teutonicales. AVas this mensura Teutonicalis the regular diameter for the mansi or huhae ? "When rods were used in measuring out the arable lots (the agrl), a certain number were taken for the length, a certain number for the breadth, of each lot. When the agri had been measured off, they were distributed by lot. Cf. Stenzel Urkb. VII : divisio mansorum per sortem, more Theutonico. The mansi were often called sortes, from this fact. Capitula ad Leg. Sal. LXXXVIII. (Merkel, p. 40) : mansionem aut sortom. Lauresham Codex CCCCXLI : manso et sorte. So in DXXXVII, DCCCXII, DCCCCXLVII, MMDCCLX, MMMDLIX, MMMDCLXII, MMMDCLXXXIV. Beyer Urkb. 134: sortes ingenuiles. Alsat. Dipl. LXXXIX. Trad. AViz. CC. Munst. Beitr. II. Urkb. p. 24 : in villa O. sortes xxx. Note 10. — Page 5. The first step towards the payment of rent was probably' taken by the tenant. It was understood that he was to bring to his lord some of the produce of his labor ; but the amount was not neces- sarily described. The tenant came with a certain ])ortion of his produce, and o.Tered it to his lord. If the lord accepted it and was satisfied, and did not ask for anything more, a precedent was established. The tenants brought no more produce to the lord than he had received in the first place, and the lord was not satis- fied with less, if less was offered. The rent was in this way fixed by precedent. But it was argued that the slaves ought to pay more rent than the freemen ; and this thej^ were obliged to do. The freemen paid rent according to one precedent ; the slaves paid it according to another. New precedents were then introduced for 134 EARLY HISTORY OF LAXD-IIOLDING. every class of tenants, and new classes of tenants were formed b}' the institution of new precedents ; until at last there were almost as many precedents as there were tenants. "When this stage was reached, rents were fixed bj^ contract rather than by precedent. The introduction of written documents, whereb}^ the contracts made witli individuals could be recorded, helped ver^- much to bring about this result. When agriculture ceased to be the sole occupation of the laboring classes, when new occupations arose, these occupations served as a basis for the classilication of society. Some men were fighters ; some were farmers ; others were artisans, mechanics, or tradesmen. The old classification according to dues and services was given up as soon as dues and services came to be fixed b}' contracts between individuals. The classification accord- ing to occupation was then introduced. AVherc the occupations became hereditarj', a system of castes arose. This system has never been rigid in Western Europe, however, as it has been in India 5 and other countries of the East. Note 11. — Page 5. This interpretation will perhaps surprise the reader. It has not, so far as we know, been offered before. That, however, can be no ground of ol)jection to it. The words used by Tacitus bear the interpretation ; and it is consistent with the testimony of the later records, and with all tliat wc know regarding the divisions and dis- tributions of land in later times. The spatia camporum of Germ. 2G are, accordinglj', the quarentenae, furlam/s, wannen or gewannen, wanden or gewendeyi, of the open-field system. The quarentenae were, properlj' speaking, lengths of forty rods, as in Kemble's Codex CCXIII and CCXXI (see also Spelman sub. voc. quaren- tena) ; but the spaces or sections in which the original lots were redistributed being quite regularly' forty rods long or wide, these spaces or sections came to be called quarentenae. The quarentenn is of course the YLngYvsh. furlong (the furrow-long). This word was used to describe the acre because it was always a furrow long. See Lib. de Hyd. p. 81 : tres acrae quod lingua Anglorum dicitur tiny furlang. Cf. Lacoml)l(>t Urkb. 48 : dedit Clcrfridus xx furlangas. See also Corb. Trad. 341 . The word furlong was used in the same way to describe any piece of land which was a furrow long. In NOTES AND REFERENCES. 135 this way fields containing many acres came to he called furlongs. 80, in the Winslow Manor Rolls, a MS. in the library of Cambridge, England. See the passage citi'd in Mr. Seebohm's book (pp. 27- 29) : h aci-c in Clayforlong, h acre in Brereforlong. There were several or manj- half-acres in each forlong. The German words which are used to describe the spaces or sections in which tlie origi- nal lots were redistributed, — the words gewannen or gewenden^ — refer us, not to the length of the furrow, but to the turning of the plough at the end of it. The spaces or sections were called gewan- nen or gewenden, because the ploughs turned back and forth within them. The nature of the farlanga or gewannen may be studied upon the maps of old villages. Mr. Seebohm publishes a map of Hitchin fields, in Herts. See others in Prof. Meit;ien's Introduc- tion to Cod. Dipl. Siles. Bd. IV. See also his other work, Der Boden des Preussischeu Staates, Bd. I. pp. 353, 3G2, 363 ; and the article entitled " Die Ansbreitung der Deutschen in Dcutsch- land," in the Jahrbiicher fiir Nationalokonomie und Statistik, Jahrg. XYII. Bd. I. The plan of Saarhoelzbach, in the district of Merzig on the Saar, a typical example, is given in another arti- cle in the same periodical. Neue Folge, 2 Bd. 1 Ileft, p. 38. It is possible that the agri fro numero cnltorum occupati were re- distributed in gewannen among the Suevi, in the time of Caesar. lie says, IV. 1 : privati ac separati agri apud cos nihil est. Cf. Kemble's Codex DCXLVIII : cassatos segetibus mixtis. Note 12. — Pa(;e G. See Diplomata Spuria Arnulf. G : terris aratoriis ad dies plus minus 22 et quartariis 2. Tlien Fulda Trad. Cap. 42, No. 104 : XX diiu-nales, hoc est quod tot diebus arari poterit. We meet with the Tagwerch (a day's work) as a measure of land at ]M. ?>. XXXIV. 2, p. 376, and also in Hist. Frising. Bd. II. Instr. CCCXVIII, CCCXCII, CCCCXXIII. The German word com- monly used is Morgen. Note 13. — Page G. Kenil)le's Codex DXIII : quinqne cassatos . . . nuUus certis terminis sed jugera jaccnt ad jiigeriljus. Aljingdon Chron. T. p. 13G EARLY HISTORY OF LAND-HOLDING. 38-1 : ruris paiticiilam, v videlicet cassatos . . . rus naiuquc prae- taxatum uianitestis undique terminis minus dividitur, quia jugera altiinsecus C()i)iilata adjacent. Kemble's Codex Dili : tres cassa- tos, singulis jiiyeribus mixtim in communi rure hue illucque dispersis. Cr. DCXLVIII : XVII cassatos segetibus mixtis. The cassati were hides. Vid. DCXXII : V cassatos . . . fifhida. Tlie phrase oeccr under aecer, which occurs several times in the Abingdon Chron. (vid. I. pp. 248, 330, 350, 353), seems to be the equivalent of the jugera adjugeribus in Kemble's Codex DXIII. The mansi or cas- sati were redistributed in acre lots. In the Codex, CXXVIII, we have mentioned the acres of a mansus : mansionis jugera. Vid. Abingdon Chron. I. p. 283 : unam mansam cum xii agrorum quantitate. The agri here were acres. Vid. p. 285. So in the Codex CCLXIV : dimidium agrum . . . healve aker. In its origin the acre was simply- a field to plough. The size of it varied indefinitel}- ; but it was usualh- oblong, and approximately rectangular. The furrows being of the same length, and side by side, made it rectangular ; and it was oblong for convenience' sake, — to avoid turning the plough too frequently. The furrows were long, and there were few of them as a rule. Cf. Lex Baiw. XII. G. It is probable that the length of the acres was at first determined hy a coi'd, and the width b}- rods ; but a certain number of rods was afterwards substituted for the cord as the measure of length. See Mon. Nideralt. p. 33 : ut maximus campus per funiculos men- suraretur, et cuilibet hube xii jugera dcputarentur. The length of the acre (i. e. the length of its furrows) was determined b}' the cord. If the acre was less in width than in length, tlie cord, if used for the length, would not serve for the width. Something else must have been used. That was without doubt the rod. The acre of Lex Baiw. I. xiv is forty rods long b}' four wide. Our English acre is similarly- proportioned. See Statutes of the Realm, I. p. 206. The Bavarian rod, however, is ten feet long, while the English rod is sixteen and a half feet long. The acre of the Bava- rian law is therefore smaller than the English acre. NOTES AND REFERENCES. 137 Note 14. — Page 7. See Prof. Ilansscn's writings, — his " Ahhandlungen," and the recent essa3's in the Zeitschrift fiir Gcsammtc Staatswissen- schaft; 3 Heft, 1880; 3, 1 Heft, 1882. These writings are the most valuable we have upon the remains of the open-field system in German}-. Prof. Meitzen's writings are also of great value. See titles in Note 11. See also Dr. Achenbach's essa}- on the " Haubergs-Genossensehaften " (Bonn, 1863, 8°). The Reports from her Majest^-'s representatives on the Tenure of Land in the several countries of Europe, presented to the Houses of Parliament in 18G9-70, contain some interesting matter ujron the open-field system. For England, see the Report on the Agriculture in the several Counties of England, published b}^ the Board of Agricul- ture, or the Reviews of these Reports by Mr. Marshall (York, 1815-17). The Report on Commons' Inclosure (ordered by the House of Commons to be printed, August 5, 1844) is of great interest. Prof. Nasse's book upon the Agricultural Communit}- of the Middle Ages, translated for the Cobden Club in 1871, is well known. ]Mr. Seebohm's book, which has just been published, or will l)e published ver}' soon, contains a detailed account of the open fields in England. Other references might be given, but these will be found suflleient. In consequence of the Inclosure Acts in England, the Vcrkoppehmgen in Germany, the vestiges of the open- field system are fast disappearing. Note 15. — Page 7. Very good examples ma}- be seen in the neighborhood of Ilitchin, in Herts, and of Luton, in Bedford. Mr. Seebohm describes them in his " English Village Community," Chap. I. Similar acres may be seen in many parts of Germany, and in the Austrian dominions. They may be seen also in Eugadiuc. Note 1(5. — Page 7. There is quite a little literature upon this subject. See jMcitzcn's article entitled, " Der alteste Aubau der Deutschen," in the Jahrb. fiir Nationalokonomie uud Statistik, Neuc Folge, 2 Bd. 1 llcft, pp. 138 EARLY HISTORY OF LAND-HOLDING. 31, 32. It will not be worth our while to go into the subject ; but it should be observed that it is by no means certain that these Hochacher were the work of Germans. They may have been made by the Kelts, who lived in the Bavarian IlighUinds before the Germans, The}- may have been the work of the Romans. Nor is it to be inferred that they were tilled b}" freemen. It must not be inferred that they were the common fields of a free village commu- nity-. They may have been the fields of a manorial village, a vil- lage of tenants, serfs, or slaves. The question as to the ownership of land in earl}- times, the question as to whether the land was first private property or common property, cannot possibl}- be solved by reference to the Hochdcker. Note 17. — Page 8. See Germania 26, and the Codex S. Galli 214: trado quicquid genitor mens W. genetrice mea K. ad dodidem egisset, id sunt ii calonicas, Gerboldo et Ilcilboldo, et analies terris, mancipiis, pra- tis, pascuis, etc. In Abingdon Chron. I. p. 304, we have nine hides lying in among other partible lands, meadows in common, and other lands in common : thas nigon hida lieggead on gemang othran gedallande feldlacs gemane, and maeda gemane, and yrthland gemaene. Cf. Ine 42. During the migrations the arable lots were shifted from place to place, and the number of them varied according to the number of cul- tivators. Afterwards, when the people settled down permanently, the lots belonging to the free-lord were shifted from one position to another round about his farmstead. The number of them was increased or diminished, as he had more or not so man}- cultiva- tors at the farmstead, or attached to it in houses of their own. The land upon which the arable lots were tlius shifted about was called the partible or common land, as in the passages above cited from Abingdon Chron. and Ine. During the jMiddle Ages the word ahncnd came into use. It was used to describe the land which was not under the plough, which served to supply the animals with grass and winter fodder. The word appears to be derived from the Keltic al, meaning fodder, and mrmi, maine^ an estate, property, or min^ meaning land, a field or lilain. The original meaning of the word was therefore ybc?(/er-/rtnc?, NOTES AND REFERENCES. 139 not common land, as has been supposed. But, as the word was used constantl}' to describe undivided and common lauds, it is natural that it should acquire a new signilication. See Mone Zeits. I. p. 385 et seq. In the 3'ear 1270 Count Otto v. Eberstein alludes to his fodder-lands as almendis nostris per totum dominium nostrum constitutis. Ibid. p. 371. From Count Otto's point of view the almendae w^ere private property. The tenants, however, regarded them as common lands. In the course of the Middle Ages the tenant's point of view prevailed over that of the landlord, and the almend was regarded simpl}' as the common land. With this idea of it, it is not surprising that the etymologists have been trying to connect the word almend with the word allgemein (i. e. universal, general, common) , making the etymology conform with the mean- ing. They forget that words often change their meanings by getting new ones. Note 18. — Page 8. The hide and the plough-land are the same thing. See Hen. Hunt. Hist. Angl., at the 3-ear 1008 (M. II. B. p. 7.")o) : hida autem Anglice vocatur terra unius aratri culturae sufficiens per annum. The hides here mentioned are called cassati in Flor. Wig. Chron. (M. II. B. p. 585). Plough lands are fretjuently mentioned in the records. See Kemble's Cod. XXVII, XLIII, LXXVII, LXXXV : partem terrae, id est decem aratrorum, CXIV, CXXI, CXXXTT, CXXXV, CLII, CLIII, CLVII, CLX : terram juris mei decern aratrorum, CLXXIX, CLXXXVII, CXC, CXCIX. The plough- land was called a suhmg in Kent. See Domesday for that county. The word carrucata is used frequently in Domesday to describe the plongh-land, the plough being described by the word cnrmca. It is doubtful whether the carrucata is mentioned before the Conquest. It occurs in Kemble's Codex CCXIII ; but the document is of doubtful authenticity. In Diplomata Spuria 82, we have the terra unius carrucae. See Fulda Trad. Cap. 40. 4 : ccxl jugera ad iiii aratra ; and Fulda Codex 744 : territorio duobus aratris sufficiente. Fez Thesaurus VI. Part III, p. 63 : quatuor araturae. Vid. also Cod. Morav. CXXX : unam .araturara cum sorvientc. So in CLXII and CXCIV : terram unius aratri cuiii iniiiisteriali. CXCVII : aratra cum rusticis. So in CXCVIII, CCX : terram 140 EARLY HISTORY OF LAND-HOLDING. ad duo aratra, CCXIX : terram ad duo aratra cum cultore arante. Cf. C'C'XXXI and CCLIII. The word ploiujli occurs in Rothar CCXCIII : plouuni aut aratrura. The German word pjiug is used to describe the plough-laud as well as the plough. Note 19. — Page 9. At Alvertunc, for example, in Yorkshire, the land was estimated at forty-four plough-lands, but thirty ploughs were found to be suf- ficient for the work. At Walesgrif the land was estimated at fifteen plough-lauds, but eight ploughs were found to be suflflcient for the work. See Domesday I. p. 299. Any number of similar examples might be given. It follows that the holders of the plough-lands must have done the ploughing co-operatively, unless they used the ploughs in turn. At Walesgrif five tenants used two ploughs. At Picheringa (also on p. 299) the land was estimated at thirty-seven plough-lands ; but the work could be done Avith twenty ploughs. Twent}- of the tenants used six ploughs. An^' number of similar examples might be given. It should bo remembered that at this time the jjlough-lands were usually divided into fractions, and there were often several tenants on each })lough-lan(l. It appears to have been quite customar}- to put four tenants on each plough-land. The quarter-plough-lands were called yard-lands, or virgates. The holder of the virgate had one rod (virga) in the width of each acre, and the width of the acre was four rods. Compare Chron. Petrob. (Liber Niger) p. 157 : ct de istis x hidis tenant xl villani xl virgas terrae. It will be remembered that the plough-land and hide are the same thing. Vid. Hen. Hunt. Hist. Angl. A. D. 1008 : hida Anglice vocatur terra unius aratri. Hen. Hunt, wrote this about the year 1135. The date of Liber Niger is between the years 1125 and 1128. The fact that there were often not so many ploughs as plough- lands led to confusion. Sometimes we hear of plough-lands con- sisting of plough-lands. We have seen how the word sulung was used in Kent to describe the plough-land ; and yet Coke tells us that seven solins were equal to scA'cntecn plough-lands. He cites a passage from Domesday, which we have not been able to verify : septem solina terrae sunt 17 carucat. Coke Litt. 5 a. The expla- nation of the ditriculty is that there were seven ploughs used upon NOTES AND REFERENCES. 141 seventeen plough-lands ; there were plough-lands within plougli- lands. See Domesda}- S. Paul, p. 58 : vi hidis trium solandoruin. Here there were three ploughs to six plough-lands. The hide was the plough-land, yet it contained plough-lands ! Note 20. — Page 9. Capit. de Vil. XXXVII : prata nostra ad tempus custodiant. Compare Lex "Wisig. Lib. VIII. Tit. III. 12 : qui in pratum eo tempore quo defenditur pecora niiscrit. Note 21. — Page 9. Ritz Urkb. 15 : prata ad fenum colligendum carradas lx. Alsat. Dipl. XXXVII : de prata unde potest secare de feno carradas centum triginta. Wirtemb. Urkb. CXX : de pratis carradas c. Mon. Nideralt. p. 108 : de pratis ubi possunt colligi de feno carrade quadringente. Trad. Wiz. II, V : prato ubi potest annis singulis plus minus v carra de feno colligere. Cf. also XXI, XXV, XLII, and Fulda Cod. 42, 96. Hist. Frising. CCCXIV : xii carradas de pratis. Ibid. CCCXLVIII : de pratis carradas l. So in CDLX, DLXII, DCCXXXI : de pratis carradas ccc. Read also DCCXXXIX, DCCXLI, DCCCLXXVI. So elsewhere. It is useless to multiply examples. In certain cases the grass land was estimated according to the number of animals that could be main- tained by the fodder produced upon it. See, for example, Fulda Trad. Cap. 7. 51 ; terram videlicet pascualem pecoribus xvi, idem tantum prati quantum sufficiat xv bubus, vel xv animalibus, per hiemem cum feno pasci ; quod potest computari ad xv carradas. This supports the statements made on the second page of our text ; that the amount of grass land that the freeman occupied depended upon the number of animals he had to maintain through the winter. It is possil)le that the tenants were sometimes allowed to take from the land as much grass as could be cut in one or more days. The measure of the meadow land was in certain places the day's work, TiKjwerch.. References were given in Note 12. The word Tcuj- werch may, however refer to the work of measuring off tlie ground, and not to that of cutting the grass. See Fulda Trad. Cap 7. 91 : pratorum quantum una die a x viris meti poterit. 142 EARLY HISTORY OF LAND-HOLDINa. Note 22. — Page 9. We read of ceorls with common or partible meadows in Ine 42. We do not know, however, how these meadows were divided. We have to come down to quite recent times to get an}- information upon this point. The records take little note of the internal affairs of the tenant communities. The modes of dividing and distribut- ing the land are, therefore, known to us only in cases where old customs have been preserved to modern times. Fortunatclv these cases are quite numerous, and they have been described more or less satisfactorily by modern writers. See references in Note 14. The following passage from Giles's "History of Bampton " gives us a very good account of a lot-meadow. AVe give the passage at second hand, from Mr. Charles Elton's Observations on the Com- mons Bill, 187G (London, Wildy and Sons). " The common meadow is laid out hx boundar}' stones into tliix'- teen large divisions technicall}- called layings-out; these alwa3-s remain the same, and each is divided into four sets. As the meadow is not equally fertile in ever}- part, it is desirable to adopt some mode of giving all an equal chance of obtaining the best cuts for their cattle. From time immemorial there have been sixteen marks established in the village, each of which corresponds with four yard-lands (allotments in the lands of the village). A certain number of the tenants consequently have the same mark, which they alwaj's keep, the use of these marks enabling the tenants ever}' year to draw lots for their portions of the meadow. When the grass is fit to cut, the grass stewards and sixteens summon the tenants to a general meeting, and the following ceremony takes place. Four of the tenants come forward, each bearing his mark cut on a piece of wood, — as the frying-[)an, the hern's foot, «S:c. The first drawn entitles its owner to have his portion in Set 1, the second in Set 2, and so on ; and thus four tenants having obtained their allotments, four others came forward, and the process is re- peated. AVhen the lots are all drawn, each man cuts out his mark upon his piece of ground, which in many cases is so narrow a strip that he has not width enough for a full sweep of the scythe . . . and another peculiarity of the system is that a single farmer may have to cut his portion of the grass from twenty different places." NOTES AXD REFERENCES. 143 See also Joshua "Williams's Eights of Common and other Prescrip- tive Rights (London, 1880, 8*^). Some drawings of the " marks" are given in this work, facing p. 90. B}- the kindness of Mr. Wil- liams the writer was permitted to see some of the originals, — little notched sticks about two inches long. Similar marks were used in Germany. See Otto Beck, Beschreibung des Regicrungsbezirks Trier (3 vols., 18G8-1871, 4°), Vol. I. p. 426, and the Appendix. A great man}- drawings of marks are given. Compare Germ. 10 : sortium consuetudo simplex, virgam frugiferae aibori decisam in surculos amputant, eosque notis quibusdam discretos super caudi- dam vestem temere ac fortuito spargunt. Note 23. — Page 10. The rotation system was adopted to prevent quarrelling in re- gard to the distribution of lots. The lots were seldom efjual in value, so those who got the poorer ones were apt to complain. Redistributions were called for ; but the redistributions served merel}' to substitute one bod}- of discontents for another. Then it was suggested that the lots might be taken in turn, in rotation. By this means all reasonable cause of dispute was removed. Note 24. — Page 10. See references under Note 14. It is not our purpose to enter much into the internal histor}- of the tenant communities of the Middle Ages. It is a subject which stands apart, by itself. Our object is to explain how these communities came into existence. It is their origin and place in history which we are here consider- ing. For this reason, we shall not take up the open-field system in its details ; nor shall we describe at all the various systems of tillage which were adopted or introduced in different places. The histor}' of the three-field s3-stem, the system which was so generally introduced during the Middle Ages, is an extremel}' interesting sub- ject, but it lies beyond the limits of our investigation. It was not introduced much before the tenth century. It is nowhere re- ferred to before the eighth. 144 EAELY HISTORY OF LAND-HOLDING. Note 25. — Page 10. Miinst. Beitr. II. No. Ill : terra xxx animalium. Fulda Trad. Cap 7. 14: pasciia xiiii pcciuluin. Ibid. 18: terrain paseualem quatuor bouin. Ibid. 20 : x pecudum pascua. Cf. also 22, 40, 52,53, GO, Gl, 72, 110, 113, 121, etc. Trad. Wizenb. IV: silva mihi aspicientera ad poreos crassare plus minus xv. Sec also CXLVI, CCLXXII. Lacomblet Urkb. Gl : terrain xx animalium et dimidiam unius. Also Ibid. 5G : x porcorum pascuam. These few examples may be sufficient to show that property in pasture land was quite commonly estimated according to the number of animals of one kind or another that could be supported upon it. When the free-lord had a pasture for a large number of animals, he allowed his tenants to turn out each a certain small number, five or ten, more or not so man}'. In the Lauresham Cod. XXXIII, Ansfrid has a pasture for a thousand hogs. Three free tenants turn out ten apiece, while the slaves turn out five apiece : unusquis- que autem de scrvis i])sis de sua huba debet mittcre in sylvam poreos V. The tenants had what are called in the English law "rights of common," that is to say, rights to enjoy the product of land not their own. 1'heir rights were stinted, as the phrase is, because their enjoyment of the land was defined and limited. The free tenant, for example, had only so much of the herbage, nuts, and so on, as ten hogs could consume during the 3'ear. Where there was plenty of land, more than enough for all the animals, the rights of common were usually unstinted. Mr. Charles Elton's Law of Commons and Waste Lands (Loudon, 1868, 8°) will be found instructive in this connection. Note 2G. — Page 10. We know that the tenants required wood for building purposes and for fuel ; and inasmuch as we have no records, of earl}' date, to show that the amount which one man could take was limited, we ma}' infer that, in early times, the wood was cut ad libitum. There was probably plenty of forest land, and no occasion, therefore, to limit rights of enjoyment in it. In later times, when boundaries were fixed, and forest lands came to be held in severalties, no man could cut wood except upon his own land ; and the tenants, of course, could not cut wood beyond the territory of their lord. NOTES AND REFERENCES. 145 Sometimes the tenants received severalties of forest land. Sec Fulda Trad. Cap. 41. IG : xxx jugera et unum lidum nomine Cuteo, et silvam, sicut alii lidi habere videntnr, xl jugerum. In such cases, of course, the tenants could not cut an}* wood outside the limits of their respective allotments. As a rule, however, the ten- ants had no allotments, but siniplv rights of common in the forest of their lord. These rights of common {common of estovers^ as it is called in the English law% in Braeton IV. 41) were usually un- stinted, in the earl}- time of which we are speaking. Note 27. — Page 11. Fnlda Trad. Cap. 42. 30') : hubam unara dominicalc, scrvi- les vero hubas xiiii. So in Laureshani Cod. XXXIV. See also XXXVII, LXXXIII, CXII, MMDCXXI, MMDCXXII, MMDCLXXXII, MMMDCLI. Alsat. Dipl. XCV : hobas sep- tem excepto terra dominicata. Cod. S. Galli 38 and 143 : hobas V, excepto ea que in usus proprios collere videtur quod dicitur hoba siliga [salica]. Cf. Beyer Urkb. II. Add. 21 and 40 : dominicalem terram, legali verbo selegut. Lauresham Cod. MMCCLVII : selhul)en. Cod. S. Galli 331: unum agrum sali- cam. 372 : casa salica cum terra sua salica. Munst. Beitr. II. Num. V: selihova. Num. VIII: dominicatos mansos quod vulgo dicitur selehouva. Num. Ill : niansus dominicales. Giinther Cod. Dipl. I. Num. 20 : mansum indominicatum cum aliis mansis sen'ili- bus. Trad. Corb. 237. Ritz Urk. IT) : mansum indominicatum cum aliis mansis xi. See also Ibid. 12. Reg. Wcstfal. XV and XXIII : casas dominicatas cum territorio dominicali, necnon et mansos triginta. So in XXV. Hist. Trev. LXXVIII, CXXXIX, CLI : mansum indominicatum et alios mansos. AlsoCLII, CLIII, CLXVII : mansum indominicatum cum xi subjugalibus. See the Registrum I'ruraiense, especially the first of the Caesarius-Glossae where the mansi indominicnti are defined as agri curiae. See also Beyer Urkb. Nos. 173, 273: casa dominicali cum xii mansis in- genuilibus et xx servilibus. Then Cod. S. Galli 3r)7 : mansum dominicatum cum aliis exterius inde pertinentibus. The domain land is called in-land in the English records ; and the land occu- pied by the tenants is called gesettes-land. The distinction between lord's land and tenant's land is clearl}' drawn in Domesday and in the Chartularies. 10 146 EARLY HISTORY OF LAND-HOLDING. Note 28. — Page 12. The student who desires to go into the subject of rents, dues, and services, will lind the following list of references useful, and approx- imatel}' complete. The subject is one of great interest. See Germ. 25. Lex Alam. XXII, XXIII. Lex Baiw. I. Cap. 14 ; VI. Cap. 2. Capitulare Aquisgranense A. D. 789, LXXIX ; Capit. de Villis ; Brev. Iter. Fisc. Alsat. Dipl. CCXLIX (Mauri. Chart.). For- mula CL. Wirtemb. Urkb. VHI, XXVI, XXXIV, LXXIX. Polyp. Irniinon. Tol}}). S. Remi. Chart. Silhiense, pp. G7 and 97 to lOG. Keg. Prumiense. Beyer Urkb. 120, 250, 332, 343, 400, 462. Nachtrag I. 34; Nachtrag II. 10, 11, 13, 14, 15, 16. Lauresham Codex CXL, DCCCLXVIII, DCCCCXXXVI, MDCCCCLXXVII, and M:\IMDCLI-MMMDCLXXXIII inclusive. Trad. Wiz. p. 269 et seq. Cod. S. Galli 24, 39, 63, 89, 91, 93, 113, 117, 128. Mohr Cod. Dipl. 193. Hist. Frising. I. Part L p. 126. Also Num. CDLXXXI. M. B. III. p. 454. M. B. XXII, p. 15, and p. 131 et seq. Lacomblet Urkb. 88, 290, 341, 351 ; also Xachlese (Bd. 4) 608. . Lacomblet Archiv I. p. 309 et seq. Fulda Trad. Cap. 4. 133; Cap. 6. 99; Cap. 7. 31 et seq. Read also chapters 13, 36, 37, 43, 44 (Nos. 26, 37, 50), 45, 65. Fulda Codex 225, 364, 754, 804, 839. Giinther Cod. Dipl. 44 and 76. Miinster Beitr. II. Num. I, III, XIX, XX, XXXVI, XXXVII. Osnabrk. Gesch. Num. LXXXX. Lisch Urkb. II. Num. CLXXVIII et seq. Arnsb. Urkb. 43. Henneb. Urkb. CVIII, CXX, CXL. Reg. Westf. XXVI. Reg. Bad. 5, 6, 15. M. B. XXVIII, p. 158 et seq. ; also p. 455 et seq. M.B. XXIX (2), p. 214 et seq, and p. 381 et seq. M. B. XXXIV (2), p. 348 et seq. M. B. XXXVI. Ennen : Quellen zur Geschichte der Stadt Koln, Bd. II. Num. 201. Dipl. Merow. 54, 96. Ine 67. Rect. Sing. Pers. (Thorpe, p. 431 et se(|.). Domesday. Abingdon Chron. (II. App. III.) Chron. Petrob., the Liber Niger in the Appendix. Cart. Gloucest. (the Extenta in Vol. III.) Then Domesday S. Paul. Passages of interest may be found in the other Cartularies. The Rotul. Hun- dred, is also one of the most important sources of information regarding rents, dues, and services ; and there are passages in Fleta upon this subject. NOTES AND REFERENCES. 147 Note 29. — Page 12. Registrum Prumiense, Glossa 1 : mansi absi sunt qui non habeut cultores, sed dominus eos habet in sua potcstate. See examples in tlie Reg. I'luui. See Hist. Trcv. CLI : mansos ix absolutes absque uUo hominc. Also Indie. Arnonis I : mansos x inter vestitos et absos. Hist. Prising. CCVI : mansos vestitos vim, cum terrio cultum et incultum. "Westf. Urkb. 8 : hobas X possessas. Fulda Cod. 80G : mancipiis hubas possidentibus et incolentibus. Cod. S. Galli 372 : hobas tres vestitas. Ried Cod. Dipl. Ratisb. LXXV : hobas duas absas. Ibid. LXXVI and CXX : hobas possessas. Note 80. — Page 12. The tenants are described as famiUae in Baed I. 2.5 ; II. 9 ; III. 4, 24, 25; IV. 3, 13, 16, 23; V. 19. So in Trad. Corb. I, 2, 3, 4, G, 30, 45, 65, 93, 114, 133, 147, 350, 414, 438: inter omnia sint familie xii cum territoriis [id est fundos. See Lacom- blet Urkb. Bd. 1, No. 170]. This would be, according to Germ. 26, agri pro xii cultoribus. The tenants are described as familiae in Fulda Trad. Cap. 3. 196; in Brev. Not. Salzb. XVII. 2; in Wirtemb. Urkb. VIII, Reg. Westf. XIX, and in man}- other places. See, lastly, Osnabrk. Gesch. XXI : septem familias id est septem hobas. That would be ayri pro vii cultoribus. The tenants are described as manentes in Kemble's Codex XIX, XXXV, CHI, CXIX : terram duarum manentium juris mei. Many other exam- ples might be cited. In DCLV the land of five manentes is de- scribed as five hides. That would be ogri pro v cultoribus occupati. Manentes are mentioned in Fulda Codex 188. Brev. Not. Salzb. II. 9 ; IX. 2, 4 ; XI and XII ; in Hist. Trev. LXVI ; and in many other passages. For mansionarii see Wirtemb. Urkb. VIII ; Ried Cod. Dipl. Ratisb. No. CIII. In CVII we have a mansum cum mansore. Tlien see Du Cange sub. voc. casarii. Cassati are referred to very frequenth' in Kemble's Codex. The passage DCXXII : V cassatos . . . fif hida, has been already cited. This would be agri pro v cultoribus occupati. Cf. also Dipl. Arnulf. 13 ; Fulda Codex 113: servi cassati ; and 364 : cassatum servum cuui ehvbo- ratu. References for sarvi and niaucipia were given in Note 7. 148 EARLY HISTORY OF LAXD-HOLDIXG. Trihutarii are often referred to in Kenihle's Codex. See XXXVI, C'XVIII. CXL, for examples. See also Mon. Scheftl., Tradi- tiones HI, VI, VII, IX. Also Ried Cod. Dipl. Ratisb. CXX : hobas possessas cum parscalv/ds vel trihutariis. In Reg. Bad. 12 we have censales homines nice familUie ; in 43 : viri censuales. Rus- ticani are mentioned in Rotliar CCLXXXV, villani also. The lat- ter word occurs all through Domesda}-. Rustici are referred to in Stenzel Urkb. X ; and in Cod. Morav. CCCLXXVIII. Accolae are repeatedly referred to in the formula accolabus manci'piis, in aliena- tions. Coloni are mentioned in iuiuimerable records. See, for examples, Mohr Cod. Dipl. 9 ; Keg. Westf. XXXV : colonos et uuinsos XVI. Hist. Trev. LXIII. Westf. Urkb. 4. Cod. Dipl. Lubec. II. DXLiv. Stenzel Urkb. XLVII, CXIX. Lastly, Cod. Dipl. Siles. Bd. IV. XXVII. p. 21. Inquilini also are mentioned in this passage. Liti ai'e mentioned in most of the Folk-Laws, and in many of the documents. Reg. AVestf. XXIV. Lauresham Codex ^NOIMDCLXXVIII : hubae lidorum. Fulda Trad. Cap. 43 : lidi pleni . . . lidi dimidii. The student should observe, in verifving these examples, how the great mass of the people were settled as tenants upon comparatively few lai'ge estates, and he should observe too how these great estates consisted regularly of tenant allotments ; i. e. agri pro numcro cultorum occupati. The student will find that this phrase of Tacitus has an almost uni- versal ai)plicalion. Note 31. — Page 12. Caesar VT, 22. It is usually' assumed that, according to Caisar, nobody liad an}' land which he called his own. The assumption is not legitimate. There were no boundaries between one man's land and another's, so no man could sa}- where his possessions came to an end. or where his neighbor's possessions had their beginning. In spite of that, however, there was a great deal of land which the free-lords regarded as their private and exclusive property, — the home lots, the arable lots which were cultivated by the serfs, the grass land which was reserved for a ha^' crop, and the land occu- pied by tlic animals as pasture ground. Bej'ond the grass lands and pasture lands lay the waste and forest land. There one man's estate was confounded with another's. So it could very well be NOTES AND REFERENCES. 149 sakl. that noliddy held any (Infinite amount of land. — that no1)0(ly had any boundaries to bis possessions. Still be bad possessions, as Caesar himself tells us. See the words ne latos Jines parare studeant potenlioresque JiuuiiUores possessionibus expellant. The persons whose estates extended one into another were called co-marcani. Tboy were men who had a boundary in common. The common boundary was called a co-marca. We should describe it as a confine. See Miinst. Beitr. II. Num. Ill : termini commu- nes. Arnsb. Frkb. 27 : conmiuni marchia. Dipl. Ariuilf. 3 : com- munis terminatio. Fulda Codex o!»2 : in raarca illarum villarum. "When a dispute arose between neighbors in regard to the border land between their respective possessions, and the}- could not come to an agreement, the matter was usually settled by battle. See Lex. Baiw. XI. Cap. v : quotiens de commarchanis contentio nasci- tur . . . The passage will be cited in full in Note 53. The nature of the co-marca appears clearly in some of the Regensburg rec- ords. See Ricd. Cod. Dipl. Ratisb. XV, XX. See also Beyer Urkb. 108. Note 32.— Page 13. See Cod. S. Galli G31 : conflnia silvarum. Cf. Hist. Frising. DCI. jVIon. Schlebdorf. Dipl. XIII. Ried Cod. Dipl. XXXVI : confinia de venatione ct piscatione. Salem Reg. p. 320 : per con- finium terrarura ecclesiae. Lauresham Codex DCCCCXLVI : illam marcam de silva. Trad. Wiz. LXIX: marca silvatica. Cod. S. Galli 57G : silvatieis marchis. Lauresham Codex XXXII : walt- marca. Fulda Trad. Cap. G. 67 : holzmarcbam. So in Cap. 38. 201. Fulda Codex 317: in ambitu id est in holzmarcu. Giinther Cod. Dipl. 13 : confinium nemorum. Dipl. Aruulf. 3 : termina- tiones silvue. Note 33.— Page 13. Sec Kemble's Codex LXXXIII : terminos ab antiquis pos- scssoribus constitntos. Abingdon Chron. I. p. 321 : rus sibi pertineus snis giratum terminis. Wirtemb. Urkb. CXLIII : vcs- ter minister et vestri servi, et nos ipsi et nostri servi de ambos partes finein feccrnni de ilios arbores. Ricd Cod. Dipl. CXIX : circumeundo pracdium in silva communi captivaverat. "Wirtemb. 150 EARLY HISTORY OF LAND-HOLDING. Urkb. CXIX : coneaptum logitiniisque socuiiirum adnotatioiiibus liuboo cireuindatuui. Cf. Ilist. Frisiiig. DXL : Memmo et filius ejus circuruduxerunt missos Episcopi oinnem rem. So in DXXV'lll, DLXXXVII, and DCCCCLXXXI. In later times boundaries were fixed by the chief men and the common people assembled together. Cf. Formula C'CCCll : factus est convcntus principum et vulgarium ad dividendam marcham inter fiseum regis et populares possessio- nes in illo et in illo pago. We have a case in illustration in Cod. Trad. Lunaelac LXII. Compare Lex. Wisig. X. Tit. I. 3 : si plures fucrint in divisione consortes, quod a multis vel a melioribus juste constitutumest a paucis vel deterioribus non convenit aliquan- tcnus iunnutari. Then Ibid. I. 1 : valeat semcl facta divisio justa, ut nulla in postmodum immutandi admittatur occasio. Then Ibid. I. 8 : sed quod a parentibus vel vicinis divisura est posteritas iramu- tare non tentet. The result is we have, Ibid. Tit. III. 1 : antiquos terminos et limites ; and Ibid. 3 : signa antiquitus constituta. Cf. Rothar CCXL et seq. Lex. Baiw. Tit. XI : de terminis. Also Lex Eip. LX. 5 : quod si extra marcham in sortem alterius fuerit inoressus . . . The word marcha here is evidently used instead of the word termination which occurs in the preceding passage, LX. 4 : infra terminationem. Boundaries were designated by marks on trees. Lex. Baiw. XI. Cap. III. 2 : in arboribus notas quas decoreas [decorticatas] vocant. So in Lex. Wisig. X. Tit. III. 3. Here w^e have also lapides sculptos, and aggeres terrae^ sive areas. Compare Lisch. Urkb. I. Num. VII: tres lapides terre allixos . . . arbores cruce notatas . . . per cruce signatas arbores. But upon this subject the reader may be referred to Grimm Rechtsalt. p. 541 et seq. Note 34. —Page 13. The boundaries are often given. The student will find a great quantity of them in Kemble's Codex. Some good examples are translated into English in Appendix D. of the Lib. de llyd. For a few other examples, see Diplomata Merowig. 2. Lauresham X. Lisch Urkb. I. Nos. VII, X, XVI. Orig. Nassoic. LXXVIII. The student will easily find other examples if he wishes them. NOTES AND REFERENCES. 151 Note 35. — Page 13. Lex Baiw. IX. 12: ainplicandura secundum morem antiquum. TVirtemb. Urkb. CVII : quidquid in eonfinio conprehensura vel elaboratum habuit. Ried Cod. Dipl. XXXIX : quod circumca- piebat. Cod. S. Galli 643 : silvulam circa ipsum locum sitam ab aliorum potestate segregatam. Hist. Frising. DCI : quicquid ad colendum conpreheusum habuissent. DCXVIII : quicquid deinceps elaborare potuissem. Lauresham Codex CCCCX : oc- cupatioucm ad decern hubas \_agri pro x cultonbus occupati']. DCXXVIII : proprisum quern pater meus proprisit. DCCCCXCVI : quicquid in ipsa marca laboratum habeo. Fulda Cod. 501 : elabo- ratum in pago. Trad. Wiz. LXXVI : quicquid ibidem laboratum habeo aut inccps laborare potuero. Cod. S. Galli 25 : quod ego adquesivi vel laboravi. Lacomblet Urkb. 27 : quicquid habuimus per conprehensionem. Cod. S. Galli 547 : quicquid in illo saltu conpreheusum habuit. Then read Lex Baiw. XVI. 2 : ego habeo testes qui hoc sciunt, quod labores de isto campo semper tuli, ne- mine contradicente exartavi, mundavi, possedi usque liodic . . . Note 36. — Page 13. Vid. Reg. Prum. Gloss. 1. Mansi irigenuiles are mentioned in Lauresham Cod. MMMDCLXXV ; in Beyer Urkb. 273, 274; Hist. Trev. CLII ; and elsewhere, but not very frequently. Mansi lilales or ledilia are mentioned in Beyer Urkb. 135 ; Nachlesc, 23 ; Miinst. Boitr. II. Num. Ill : litus noster habet niansum ; XIX ; XXX : mansi et dimidius possess! a latis Teutonieis ; Keg. Westf. XXIV; and elsewhere. They are not very common. Mcmsi sprviles are mentioned in Lauresham Cod. CLXXXXIX ; Wirtemb. Urkb. LXXXV : mansos xx cum servis super cos habitantibus \_agri pro ii.K cultoribus occupati]; Beyer Urkb. 58, 173, 273; Indie. Aiuion. VI ; Brev. Not. Snlzb. IV. 8 ; and elsewhere. Tlie mansi which are not i)aiticularly described may be regarded as mansi scrviles. When, for example, we read, in Formula CXL : mansum domini- cum et alios mansos lx ad eum pertinentibus, we may assume that the latter were mansi serviles. Tlic phrase cnm mancipiis is frequently introduced, or else the phrase et mancipia super comma- 152 EARLY HISTORY OF LAND-HOLDIXG. nentes. The mansi are regularl}- mami serviles. If they are mansi indominicati, mansi ingenuiles, or mansi litalcs, they are described as such. Note 37. — Page 13. Beyer Urkb. 139 : hobas xcvii inter ingenuiles et serviles [agri pro XCVII ciihorihus occitpati\ Cod. 8. Galli 57G : v Iiobas de terra arabili ; G43 : hobas legitime dimensas. Lauresham Cod. MMMDCLXXXI: hubas plcnae lidorum. Hist. Frisiiig. I. p. 214 : decern houbas censuales quae vulgariter parscalhes-hoba dieuntur. Num. DLXII : hobas scrvorum plenas vi \_agri pro vi cultorihus occupati']. DCCCXLIX : de terra arabili hobas iiii. Alsat. Dipl. XCV: hobas octo excepto terra dominicata. Formula CCCLXVII : hobis possessis. Fulda Trad. Cap. 3. 12 : homines XII cum hubis suis \_agri cum cultorihus'] ; Cap. 7. 24 : terram x hu- barum ; Cap. 42. 305 : hubam unam dominicale, serviles vero hu- bas xiiii. Osnabrk. Gesch. XXI : septem familias, id est septera hobas possessas ac censum solventes. Wirtcmb. Urkb. CXXXII : hobas pleniter emensas. Lauresham Cod. XXXVII : hubas ser- viles vestitas x. These examples might be multiplied indefi- nitely'. Note 38. — Page 14. Instead of describing the meadow, pasture, and forest lands in detail, the owner used this formula. It occurs in almost all the documents in which land is alienated and described. It may be observed that severalties of meadow and forest land existed, even in the time of Lex Salica, everywhere, so it cannot be maintained that the fonnula has reference to rights of enjoyment in common lands, rights in lands belonging to the communit}-. In many cases, ■without doul)t, it is used to describe lands held in common (un- divided property, or property held in undivided shares) ; but that is another matter. That severalties of meadow and forest land existed in the time of Lex Salica is proved hy Lex Sal. XXVII. 10 : prato alieno ; and Ibid. 18 : silva aliena. Compare also the Capitulary of A. D. Gl a : sylvas Ecclesiarum aut privatorum. Some more references will be siven in other connections. NOTES AND EEFERENCES. 153 Note 39. — Page 14. Cod. S. Gain 674 : quacsitis et inquirendis, cultis et incultis. Ibid. 7G6 : silvam quantum mihi necesse est cxtirpanda. Hist. Frising. DCLVI : terras aratorias extirpatas sive extirpandas, res quesitas et inquesitas. Wirtemb. Urkb. LXVIII : cultis et incul- tis, sen omne quod adquirere debco, vel adquirens augere potuero. Ibid. CX : quesitis vel adhuc inquisitis. So in Reg. Hist. Westf. XXXVI. Mon. AYeihenstcpli. p. 467 : predium quesitura et in- quisituin, cultum et incultum tradidit. Ilenneb. Urkb. I : quaesitis et inquirendis, omnibusque appeudiciis et adjaccntiis. Osnabrk. Gesch. XXVI : saltibus cultis et incultis, acquisitis et acquireudis. The records abound in examples. Note 40. — Page 14. Beyer Urkb. 63. Ried Cod. Dip]. CXIII and CXIX. Compare Cod. Moray. XL VI : proprietatem in omnibus marchis. So in Fulda Trad. Cap. 6. 98 : bona sua et marca silve. See also Fulda Cod. 21 : marcas vel fines. They are alienated as belonging to a certain estate. Then read Beyer Urkb. 108 : in comarca ipsius ville bifangum unum ubi possunt edificari mansa centum necnon in- saginari porci mille. The word bifang is used to describe appro- priations. The Latin equivalent is captura or novalis. Cf. Beyer 465 (1)) : terram novalium circumjacentium ad xx raansos vel amplius. Ibid. 513 : novalia de nemore. Other examples will be given in other connections. The freemen were constantly extend- ing their possessions by appropriating unoccupied lands. No fact is more fully illustrated in the records than this. Note 41. — Page 14. Greg. Tiiron. VI, 20. See tlie passage cited in Note 2. Cliro- dinus founded a great many villages, and put tenants into them to cultivate the land. Tiie case of Clirodinus was not an isohited case. All the rich lords were founding villages and putliiig tlicir dependants and slaves into them. It was very profitable ; for the tenants paid rents and dues for their lands. The more tenants a man had, the richer he became. Captives in war were divided, and 154 EARLY HISTORY OF LAND-HOLDING. then distributed in tenant colonics over tlie land. Tlie owners of the colonists were the owners of the lands which the>- cultivated. In some cases man}' villages were under one lord. In Beyer Urkb. 19, Egid gives to the Abbey Priim thirty or more villages: cum omni integritate, tam terris, domibus, edificiis, accolabus, nianci- piis, vineis, silvis, campis, pratis, pascuis, aquis aquarumque decursibus, farinariis, cum pastoribus, gregis pecundum utriusque sexus, mobilibus et inmobilibus. These villages were probabh' founded b}- Egid, or by his ancestors. Of course very few persons in private life were so wealthy as Egid ; still tlie number of persons who owned two or three villages was large, as may be seen by an}' one who will read through some of the collections of earl}' docu- ments. The villages are often described, as in Hist. Trev. XXIX: villa nuncnpata Waderlo ... id est tarn terras aratorias, campis, pratis, pascuis, aquis aquarumque decursibus, mobilibus et immo- bilibus, et silvam ad cundem locum pei'tinentem, et viii casatas cum hominibus et mancipiis et cum omni peculio suo. Compare Formula CLIX : aliquam rem meam, in pago illo ; hoc est mansos tantos cum hominibus ibidem commanentibus vel aspicientibus, cum terris arabilibus, silvis, campis, pratis, pascuis, vel quicquid in ipso loco mea fuit possessio vel dominatio. This is a common for- mula. (T. CLXXII, CC, CCXXVIII, CCLI, CCC. We have a slightly different formula in CCXII : villam juris mei nuncupatara illam, sitam in pago illo cum terris aedificiis, accolabus, mancipiis, libertis, vineis, silvis, pratis, pascuis, aquis, aquarumve decursibus, mobilibus et inmobilibus ; cum omnibus appendiciis suisque adiecen- tiis, sicut a me prescnti tempore videtur esse possessum ; totum et ad integrum. CT. the passage cited above from Hist. Trev. We see, in Formula CXXIV, that it was assumed that an inheritance consisted of villages of this character. The heirs are supposed to take one or two apiece : Accepit itaque illc villas nuncupatas illas, sitas ibi, cum mancipia tanta ilia. Similiter et ille accepit e contra [contra germanum suum] in conpensatione alias villas, nuncu- pantes illas, sitas ibi, cum mancipia tanta ilia. Property consisted quite regularly of villages of serfs, or portions of villages, for when a man died, and the "sum of his villages was not a multii)le of the number of his heirs, one or more of the villages were divided. Also when tlie villages were of unequal size they were usually divided. Then we have, instead of whole villages, shares or por- NOTES AND REFERENCES. 155 tions of villages: portiones in villis. So iu Formula CC'XIII. The villa was regularly a village of serfs, that is to say, a colony of dependauts or slaves. It is evident from the records that the free- man was supposed to own one or more such colonies. See Lex Kip. LX : si quis villam aut vineam, vol quamlibct possessiunculam ab alio comparavit , . . See also Lex Baiw. I. Cap. 1 : et quid- quid donaverit, villas, terram, mancipia, vel aliquam pceuniam. These villae of the free-lords appear to be the vici locati of Germ. 16. See Note 2, and the citations there given. It will be remem- bered how in India, among the Hindus, and in Russia, among the vSlaves, landed property has consisted (luite regularl}' of village communities, — villages occupied by tenants or serfs, and owned b}' the members of an aristocracy'. That this was the case iu Western Europe during the INIiddle Ages is well known. It is our object to show that it was the case also in the earliest period of recorded history, — even in the time of Tacitus. Read once more Germ. IG, 2o, and 26. Note 42. — Page 14. Athelstan II (Thorpe I. p. 217) : si tunc sit aliquis qui tot homines lial)cat quod non sulliciat omncs custodirc, pracponat sibi singulis villis pracpositum unum, qui crcdibilis sitei, et qui concrodat hominibus. The villae here are the vici locati of Germ. 16. Why not? The praepositi are often described as villici, i. e. head-men of villages. See Lacomblet Urkb. 186: si villicus vel de edKiciis vel de agricultura plaeituni ibidem habuerit . . . Cf. Beyer Urkb. 343. The duties of villici are described in Capitularia A. D. 813, II. 19. In Cap. de Villis the villici are called 7 wc/m-s, and their duties are clearly set forth. Then read Alsat. Dipl. XXVI II: i[)sos qui dicuntur schoffele aut villici, aut mansorum possessores qui dicun- tur luibere. Lex Burg. L. 3 : actor patrimonii nostri, vel cujusli- bet alterius. He is sometimes called nuijor^ as in Cod. S. Galli 13. Cf. Greg. Turon. IX. 36. Rothar CCLXXVI : gastaldius aut actor. Sec also CCCLXXVII : sculdasium aut actorcm. Sec Wirtenil). Urkb. VIII : magister triliutariorum. Stenzel LTrkb. XLVIII : schultotus. Tliis is a very interesting document, and others might l)c cited from the same collection. There arc otlier passages l)caring \\[)o\\ the position and duties of the srliu/te- 156 EARLY HISTORY OF LAND-HOLDING. tiis (Schuld/ieiss) in Cod. Dipl. Silcs. IV. See Index. Lastly, read what Fleta says (Lib. II) about tlae offlccrs of tlie manor, and tlieir duties. Note 43. — Page 14. The evidence of this has been already given. See Notes 2, 41, 42. Property consisted regularh- of lands occupied and cultivated by serfs, and as a rule the serfs were distributed in villages. We find that this was the case among the Germans generally at the time of the Folk-Laws, and the inference is that it was the case also in the time of Tacitus and Ctesar. It will be urged that in the time of Tacitus and Ciiesar the life of the people was unsettled, nomadic ; that the modes of life must have changed in man}' re- spects as soon as the migrations were over and settlements were permanent. This is true without doubt. The objection does not, however, touch our argument. Dependants and slaves were accu- mulated quite as easily during the migratory- life as during that which was settled, — more easily, perhaps. Then whenever settle- ments were made the dependants and slaves were distributed in villages. The dwelling-places of the free-lords were surrounded by these villages. This was the case whether settlements were perma- nent or merely temporary. In other words, the conditions of the migratory life were not inconsistent with the growth and develop- ment of the manorial S3'stem. Perhaps, indeed, they were favor- able to it. If this was not the case, how are we to explain the fact, that immediately after the migrations we have a fully developed manorial system, — free-lords dwelling apart from one another, with bands of dependants and slaves settled in villages round about them, rendering dues and services to them, or to their agents, villici or pr\1 : in ainl)itu id est in holzniarcu. Lauresliam 160 EARLY HISTORY OF LAND-HOLDING. Codex VI : villa cum omnibus adjacentiis vol appenditiis cum omnibus termiuis ct marchis. Ibid. XII : in fine vel marcha. DCCCCXLVl : maream dc silva ad illos mansos pertinentem. Codex S. Gain o76 : silvaticis marchis ad hobas pertinentibus. The mark was at first the enclosure of uncultivated land. Then the word was used to describe the lands within this enclosure. The villa was described by the word marca. Trad. Wiz. XXIV : in villa vel in marca. The words villa and marca interchange meanings. Fulda Trad. Cap. 38. 201 : tradidit holzmarcham ad X hubas. Read also Fulda Cod. 84 : locum nuncupatum Biber- bah, cujus marca sunt xxx hube. This was a mark of land con- taining thirt}' arable lots. "We should describe the tenants of these lots as a Markgenossenschaft. The lord of the mark was Warinus. If, instead of giving his mark to Saint Boniface of Fulda, he had kept it, it would have passed to his descendants, to be divided and subdivided among them. As they multiplied upon the mark, we should have had another Markgenossenschaft coming into existence, a Markgenossenschaft of landlords, as distinguished from the Mark- genossenschaft of the tenants. There were two kinds of Markgenos- senschaft, one the association of tenants, the other the association of landlords. They must be very carefully distinguished the one from the other. Wc hear of common marks in the earliest time. They were boundaries common to the estattss of two or more persons. The free-lords whose estates touched one another were called associate mark-men, comarcani. Vid. Lex Baiw. XI. 5 : quotiens de com- marchanis contentis nascitur, ubi evidentia signa non apparent in arboribus, aut in montibus nee in fluminibus . . . We shall give the whole passage in Xote 53. Cf. the passage cited above from Lex. Rip. The tenants of the hubae in the passage cited from Fulda Codex would be called comarcani. They lived together within a common boundary : and if Warinus had left these hubae to his descendants, they too would have been called comarcani. Again, it often happened that a group of free-lords settled in iso- lated ftirms or villas, which, inasmuch as they were isolated from other settlements, hnd a common mark. These lords would be described as comarcani, land-owners witliin a common mark, con- sorf.es in marca. Accordingly we have marks in which there are several villas. See Fulda Codex 392 : in villa Urdorpf et Chizicha NOTES AND REFERENCES. IGl et Adalfridcsluison ot in iiuirca illurum villarum. So also in Ibid. 429. The landowners in these villas would be called consortes in marca or comarcani. The same terms might be used to describe their dependants and slaves. The existence of two classes of vicini is referred to in the first Capitulary added to Lex Salica. Sec Cap. 9 (Behrend, p. 91) : viciniilli . . . qui meliores sunt . . . minoflidis vero. Cf. Capitula Add. ad Leg. Alam. 22, 39. All this Avill be elucidated more full}', as we go on in our argument. The point to be considered here is, that the mark was in the early time simply a Ijoundar}- of uncultivated land separating one settlement from another. The comarcani were those persons who held this boundary in common. They were neighbors, vicini. The co- marcani were separated one from another by marks, and groups of comarcani were separated from one another by marks. Wc have the villa cum marca and the marca villarum. Note 50. — Page 17. We hear a great deal of talk about liouse communities in which the holding of property' was communistic. The holding of prop- erty in the Teutonic house communities was certainl}- not commu- nistic. The head of the household was the lord of the land, and owner of all the live-stock and slaves set out upon it. When the head of the household died, his sons stepped into his place ; when the sons died, the grandsons stepped into it ; so it often happened that several persons were lords of the land and owners of the stock and slaves set out upon it. But we must not assume that the hold- ing of the propert}' was communistic. The evidence goes to show, as we shall see as we go on in our argument, that, although there was unity of possession, there was diversity of title. The title vested in the founder of the community was distributed among his descendants from generation to generation : so that each one could, if he pleased, appropriate some of the land, and some of the stock and slaves. When the individual was thought to have taken more than his share, a systematic division of the propert}- was called for, a division in equal shares, an exaeqnatio. Then the unity of posses- sion was broken up, and instead of one household we have several or many. The heads of these new households stood quite inde- pendent one of another, like their progenitor, the founder of the 11 162 EARLY HISTORY OF LAND-HOLDIXa. family and first lord of the land. The new households became house communities in the same yvsiy. The heirs increased in each one. They held their lands, stock, and slaves in common for a while ; but -with this unity of possession there was diversity of title, which led after a while to a division of the property among the heirs. The property being divided, the heirs distributed them- selves in new households. The process went on indefinitely. We do not den}' that there were house communities among the early Germans ; but we do not beheve that their constitution was in any respect communistic. The evidence goes to show that the principle of individual property was dominant everywhere. Sometimes one son took the household, the stock, slaves, and land, — the boldest and best son, or the eldest. Cf. Germ. 32: inter familiam et penates et jura successionum cqui traduntur : excipit filius, non ut cetera, maximus natu, sed prout ferox bello et melior. This is said of the Tencteri. In such cases the disinher- ited sons were maintained as dependants, or went off to seek their fortunes in other places. When they remained at home, they were vassals in the house of their father, vassals of their brother. In this condition of things we have the germ of a feudal sj'stem. All this, however, will be brought out more clearly as we go on through our argument. Note 51. — Page 18. Caesar VI. 22 : Agriculturae non student ; majorquc pars victus eorum in lacte, caseo, carne consistit : neque quisquam agri modum certum ant fines habet proprios ; sed magistratus ac principes in annos singulos gcntibus cognationibusque hominum, qui una coie- runt, quantum et quo loco visum est agri attribuunt, atque anno post alio transire cogunt. Ejus rei multas affcrunt causas, ne assidua consuetudine capti studium belli gerendi agricultura commutent ; ne latos fines parare studeant, potentioresque humiliorcs posses- sionibus expellant, ne accuratius ad frigora atque aestus vitandos aedificent ; ne qua oriatur pecuniae cupiditas, qua ex re factiones dissensionesque nascuntur : ut animi aequitate plebcm contineant, cum suas quisque opes cum potcntissimis aequari vidcat. NOTES AND REFERENCES. 1G3 Note 52. — Page 19. Tacitus Germ. 25 (given in Note 2). Ibid. 26 (given in Note 9). Note 53. —Page 20. Lex Baiw. X^^. Cap. I. 1 : Si quis homo pratum vel agrum vel exartum alterius contra legem malo ordiue invaserit, et dicit suum esse, propter praesumptionem, cum sex solidis compouat, et exeat. 2. Si autem suum voluerit ^indicare ilium agrum aut pratum vel exartum, vel unde ilia contentio est, taliter viudicet. Juret cum sex sacramentalibus, et dicat : Ego in tua opera priore non invasi contra legem, nee cum sex solidis componcre debeo, nee exire, quia mea opera et labor prior hie est quam tuus. Tunc dicat ille qui quaerit : Ego habeo testes qui hoc sciunt, quod labores de isto campo semper ego tuli, nemiue contradicente exartavi, muudavi, posscdi usque hodie, et pater mens rcliquit mihi in possessione sua. Ille homo qui hoc testificare voluerit, commarchanus eius debet esse, et debet habere sex solidorum pecuniam et similem agrum. Tunc ille testis iuret taliter : Quia ego hoc meis auribus audivi et oculis meis vidi, quod istius hominis prior opera fuit in isto agro quum tua, et labores fructuum ille tulit. Post sacramentum reddat agrum. Tunc ille defensor, si sperat quod institia de illo agro suo fuisset, et hoc in praesenti populo fiat, ne per invidiam aliquis pe- reat, dicat ad ilium testem : Mendacium iurasti contra me. Sponde mihi pugnam duorum, et manifestet Dens si mendacium an verita- tem iurasti contra me ; et componere debes cum duodecim solidis, et illam terram reddere quam mendacitur abstulisti. Si vicerit ille qui quaerit, compouat cum duodecim solidis, et illam terram reddat. Et si illam terram non potuerit donare, donet aliam in proximo quantum iactus est de sccuri saiga volente : Et si in proximo non liabet, nee comparare potest, iuret secundum pretium agri ut ipsum agrum cum pretio valente nee cum duplo nee cum triplo conquirere non potuisset, et donet ubi habet : et ipsum agrum qui donet iuret quod talis sit qualis suus fuerat. Lex Baiw. XVII. Cap. II : De his qui propriam alodem vendunt vel quascunque res, et ab emptore alter ab.strahere voluerit et sibi sociare in patrimoniuni, tuuc dicat em[)tor ad vcnditoreui : Trrrani, 164 EAELY HISTORY OF LAND-HOLDING. aut quaocunque fiicrit res, abstrahcrc niihi vult vicinus mens, dicens quod sua fuerit. Et istc resi)ondet : Ego quod tibi donavi, cum lege integra et verbis testilicatione finnare volo. Super septem noctes fiat constitutum. Si dicit, cum utrisque utraeque partes conveniunt : Cur invadere conaris tcrritorium quod ego iustc iure bercditatis donavi. lUc alius contra : Cur meum donare dcbuisti, quod antecessores mei antea tcnuerunt ? Iste vero dicit : Non ita, scd mei antecessores tenuerunt, et niilii in alodem relinquerunt, et vestita est illius manus cui tradidi, et firniare volo cum lege. Si statim voluerit, liberam habeat potestatem. Sin autem, postea super tres dies aut quinquc aut certe septem ea ratione firmet. Per quatuor angulos campi, aut designatis terminis, per baec verba tollat de ipsa terra vel aratrum circumducat, vel de lierbis, aut ramis, silva si fuerit : Ego tibi tradidi, et legitime firmabo per ternas vices. Dicat haec verba, et cum dextera manu tradat ; cum sinistra vero porrigat wadium huic qui de ipsa terra eum mallat, per haec verba : Ecce wadium tibi do quod terram tuam alteri non do, legem faci- endo. Tunc ille alter suscipiat wadium et donet ilium vicessoribus istius ad legem faciendam. Si causa fuerit inter illos pugnae, dicat ille qui wadium suscepit : Iniuste tcrritorium meum alteri firmasti, id est, farsvirotos. Ipsum milii debes reddere, et cum duodecira solidis componcre. Tunc spondeant pugnam duorum, et ad Dei pertineat indicium. Sin autem, cum sacramento se defendat, id est, cum duodecim, quod suam terram iniuste non firmaret alteri, nee suae ditioni restituere deberet, nee cum duodecim solidis com- poncre. Lex Baiw. XI. Cap. V : Quotiens de commarcbanis contentio nascitur, ubi evidentia signa non ai)parent in arl3oril)us, aut in montibus nee in flnniinibus, et istc dicit : llucusque antecessores mei tenuerunt, et in alodem mihi rcliquerunt, et ostendit secundum proprium arbitrium locum ; alter vero nihilominus in istius partem ingreditur, alium ostendit locum, secundum prioris verba suum et suorum antecessorum semper fuisse usque in praesens asserit. Et si alia probatio nusquam inveniri dinoscitur, nee utriusque inva- sionem compensare voluerint, tunc spondeant invicem wehadinc quod dicimus, et in campiones non sortiantur, scd cui Deus fortiam dederit et victoriam, ad ipsius partem designata pars, ut quaerit, pertineat. NOTES AND REFERENCES. 165 Note 54. — Page 21. Lex Sax. XVI: Dc terra aliena invasa. 1. Qui terram suam occupatam ab altero dixerit, adbibitis idoneis testibus, probet earn suam fuisse ; si occupator contradixerit, campo diiiidicetur. 2. Si occupator sibi concrediderit, rcddat hoc quod oecupavit, uon am- plius. Note 55. — Page 21. Lex Rip. LXVII. 5 : Si quis pro hereditate vel pro ingenuitate certare coeperit post malo ordine cum sex in Ecclesia coniuret, et cum duodecim ad stappulum Regis in circulo et in hasla hoc est in ramo, cum verborum conteniplatione coniurare studeat. Si non adimpleverit, cum legis beueficio restituat. Aut si quis eum contra prendere voluerit, aut cum armis suis se defensare studeat ante Regem, aut omnem repetitionem cum legis beneficio restituat. The Utigants did not alwa3-s fight themselves, in person. It became customar}- to appoint representative champions. The fighting was tlien done by proxy. There is a case in illusti-ation of this in Ritz Urk. 41 (p. 56) : Nulla melior visa est senteutia diffinitio quam per juditiarium campum super hoc fieret examinatio sic deinde statuto die et collata utrimque magna populorum affluen- tia nobis et ipsis presentibus advocatis duo ex utraque parte homi- nes ad hoc preelecti ut fieri solet agressi sunt singulariter et noster homo propitiante deo et sancto Remaclo victor factus est et ecclesia nostra sua possessio ut ante a nostris premonstrata et preambulata fuerat jure adjudicata et per legem restituta est hinc ipsi homini qui est Gisleberto nomine qui posuit quasi in mortem aniinam suam pro nostra fidelitate dt'legavimus imo dedimus quartariam terre et cortilium jacens in dominicatu . . . Note 56. — Page 21. Lex Alam, LXXXIV : De his qui de terra sua inter se conten- dunt. Si qua contentio orta fuerit inter duas genealogias de ter- mino terrae corum, et unus dicit : Hie est noster terminus, alius revadit in alium locum, et dicit : Ilic est noster terminus, ibi prae- sens sit Comes de plebe ilia, et ponat signum ubi iste voluerit, et ubi ille alius voluerit terminum, et girent ipsam contentionem. 166 EARLY HISTORY OF LAXD-HOLDING. Postquam girata fucrit veniant in mediiun, et praesente Comite tollaut de ipsa terra, quod Alainaiiui curlludi dicunt, et ramos de ipsis arboribus iuflgant in ipsam terram quam tollunt, et illae genealogiae quae coutendunt levent illam terram praesente Comite, et commendent in sua manu : ille involvat in fanone, et ponat sigil- lum, c't commendet fideli manu usque ad statutum placitum. Tunc spondeant inter se pugnam duorum. Quaudo parati sunt ad pug- nam, tunc ponant ipsam terram in medio, et tangant ipsam cum spatis suis, cum quibus puguare debent, et tcstificentur Dcum crea- torom ut cuius sit iustitia, ipsius sit et victoria ; et pugnent. Qualis de ipsis vicerit, ipse possideat illam contentionem ; et illi alii praesumptiosi, quia proprietatem contradixerunt, duodecim soli- dos coniponunt. Rotluir CCXXXI : Si quis alium de re mobile aut immobile pul- saverit dicendo, quod malo ordine possideat, et possessor negaverit, ita prospeximus : quod si per annos quinque fucrit possessor, tunc ipse qui possedit, aut per sacramentum debeat negare, aut per pug- nam se defendere, si potuerit. Grimoald lY : Si quis per xxx annos posscderit casam, fami- liam vcl terras, et cognitum fuerit, quod eius possessio fuit per xxx annorum curricula, ad pugnam non pcrvcniat : nisi ipse, qui posse- dit secundum qualitatcm pecuniae cum sacramento suo defeudat: nam per pugnam, ut supra diximus, non fatigetur. Whether the custom of fighting for land obtained in England before the Conquest is doubtful. After the Conquest it obtained generally, except in regard to lands in Kent held according to the custom of Gavelkind. Cf. Kent Custum. XXI : Of the tene- ments which are holden in Gauelkinde, there shall no battail be joined, nor graund assise taken by xii Knights, as it is used in other places of the realme. Then read the account of a judicial combat in Melsa Chron. II. pp. 97-102. The date of the combat is between A. D. 1249 and 12 G9. The last case of battle for land before English judges was, we believe, that which took place in Tothill-fields, AVestminster, in the reign of Elizabeth, A. D. 1571. Spelman, who was present on the occasion, describes the procedures in his Glossar}-, sub. voc. campus. Fighting for land was lawful, however, until the year 1819, when an Act was passed (59 Geo. III., c. 46) abolishing " Wager of Battel, or joining Issue and Trial bv Battel in Writs of Right." See Kent Custum. p. 278. NOTES AXD REFERENCES. 1G7 Note 57. — Page 22. Lex Alam. LXXXIV : Si qua coutentio orta fuerit inter duas genealogias . . . Sec Note 5G, where tlie passage is given in full. The procedure was the same whether tlic dispute was between in- dividuals or between clans. The title of the passage is : De his qui de terra sua inter sc contendunt. Note 58. — Page 22. Caesar VI. 22. The passage is given in Note 51. Note 59. — Page 22. See Du Cange sub voc. guerra. It is perhaps going too far to Ba}- that '■'■ gewere is without doubt the same word as gwerra." In my own mind there is httle or no doubt upon this point. The passages of Fulda Cod. (447, 448) which are cited to prove tliat the gewen'da -fxas the vestitio do not prove this. Cf. 447 : testes qui vestitioncm viderunt ; and 448 : testes qui hoc audierunt, et viderunt giweridam. The vestitio has reference to the giving over of the land, the transfer of it to the grantee ; the gewerida has reference to the taking possession of the land b}- the grantee, and, perhaps, to a demonstration b}- him of his newly acquired dominion over it. The alienation on the one liand, and the taking possession on the other, were, in tliis early period, two distinct procedures. Cf. Lex Sal. XL VI : De affatomie. The reader will find the passage cited in Note 153. The fundamental idea of the word gewere seems to have been a demonstration or exertion of force to secure posses- sion. "We may be wrong, however, in this matter. The student should read Andreas Ileusler's book entitled, Die Gewere ("Weimar, 1872, 8°). It contains a valuable bibliography. See also Grimm Rechtsalt. pp. 555, 556. Note GO. — Page 22. Ilenneb. Urkb. XL : discordia sive gwerra. INIon. TVeihonsteph. p. 407 : prodiolum hereditario jure dicens sibi dcbere succedere, werram fratribus intulit, que ita decisa est. Cf. Wirtcuib. Urkb. 168 EARLY HISTORY OF LAXD-HOLDING. CLIII : hercditatora injuste invasam, quasi hereditario jure sibi vindicavit. Note the words non invasi contra legem in Lex Baiw. XYI. 2. The passage is given in Note 53. Cf. Hist. Frising. Num. DCCII : Odalschalc Triente Episcopus per nialorum suasio- nom ad Puuzanam viiiearum Saucte Marie iuvasiouem fecit injuste. Note G1. — Page 22. Cod. S. Galli 1G4: conquesitura nostrum, quam eonquesivimus adque conlaboraviuuis. Ibid. 181 : oonquesitio in villa. Ibid. 186 : conquesitum meum cum orani marca sua (cf. Tacitus Germ. 16: colunt discrcti ac diversi ut fons ut campus ut nemus placuit.) Ibid. 190 : quicquid ibidem pater mens conquesivit et mihi in he- reditatem dimisit . . . conquesitionem patris. Ibid. 198 : con- qucstum mourn. Bc3er Urkb. 119: proprisum. Fulda Codex 472 : capturam in terminis villac comprehensam. Ibid. 479: comprehensio. See also Nos. 513, 515, 520, 532: decern capturas ; 631: captam capturam. Lauresham Codex CCXLIX : unum proprisum cum acdificio, et mansis, campis, pratis, etc. (cf. again Germ. 16). Ibid. CCLII : proprisum qui jacet in illo angulo ubi Suarzaha intrat in fluvium "Wisscoz. Fulda Cod. 311: capturam in silvis. Ibid. 313: quartam par- tem unius capturae. See also 377, 391,412,462, 465: captu- ram in silva Bochonia comprehensam. Cod. S. Galli 547 : quic- quid in illo saltu conprehensum habuit. Hist. Frising. Num. DXVIII : liercditatem meam cum omui conquestu meo (cf. Note 35). Ibid. DXXXIV: conquesto atque conlaborato. Cf DCT : quicquid ad colendum comprehensum habuissent. Lauresham Cod. MMCCLXXXV : capturas. Ibid. CCCXIII : meum proprisum. So in DCXX\T;II : proprisum quem pater raeus proprisit. Cod. S. Galli 325 : conquestum meum. Ibid. 360 : meam conquisitio- nem. See also 373 : conquestu meo. References to Capturae abound in Fulda Trad. See for examples Cap. 42, Nos. 16, 18, 102, 104, 105, 120, 139, 143, 158, 195, 196, 204, 219, 221, 222, 286, 310, and so on. The student will easily find as many exam- ples as he wishes, by simpl}' glancing over the pages. NOTES AND REFERENCES. 1G9 Note G2.— Page 23. Formula CCCXIII (Roziere I. p. 373). Cf. Mon. Wcibensteph. p. 3Gt : prcdium quale tuuc in potestate habuit. AVirtemb. Urkb. XC : res in potestate. Ibid. CXIX : potestativa clominatione in- tegriter habere. Ibid. CXLVIII : proprias res potestative possi- dere. Trad. Wiz. CLXXVIII : habere etdorainare. So in CI and CXIII. Chart. Sithiense, p. 22 : possedere vel dominare. Cod. IS. Galli 219 : sicut in hac die potestativa manu videar habere. Ibid. 619 : potestativa manu possiderc. llist. Frising. CCCLXV : jure dominationis habere. Allodial property- is constantly described as a possessto vel dominatio. See Formula CXVIII : quantumcunique in ipso loco mea videtur esse possessio vel dominatio. So also in CXXX, CLXXII, CXCIV, and in any number of others. Also in the documents Chart. Sithiense, p. 49, and p. 70 ; Wirtemb. Urkb. LXII ; Cod. Trad. Lunaelac. XIX, XLIX, LXIV, LXX, XCVIII ; Hist. Frising. Num. CCCIX. It is a common formula. Innumerable examples might be adduced. It is worth while to observe that the phrase possessio vel dominatio is applied to all kinds of land, — meadows, pastures, and forests, as well as house lots and arable lots. The landlordship, the dominion, of the allo- dial proprietor, was not limited to house lots and aral)le lots, as some writers have told us. It extended over meadows, pastures, and forests as well : campis, pratis, pascuis, silvis ; and even over the communiis ; that is to say, over lands held in common, or in un- divided shares. See, for example. Formula CXVIII ; and Mohr Cod. Dipl. 35 (Cod. S. Galli G80) : talem usum habuimus, qualem unus quisque liber homo de sua proprietate }i.\stQ et legaliter decet habere, in campis, pascuis, silvis, lignorumquc suceisionil)us, atquo porcorum pastu, pratis, viis, agnis, aquarumque decursibus, pisca- tionibus, exitibus et reditibus. The existence of private rights in common land will, however, be considered at length in another connection. Note O-S. — Page 23. As time went on, the chiefs and the kings assumed the right to distribute the land as they i)leased. Certain tracts of land were assigned to certain persons by formal grants, usually in writing, 170 EARLY HISTORY OF LAND-HOLDING. and authenticated by the signatures or names of witnesses. The written grant is described in tlie Lex Rip. as a tcstamentum Regis. See Tit. LX. It is described as a hoc by the EngHsh. Hence boc- land, i. e. land held by a document from the chief or king. See Alfred 42 ; and the Laws of Henry I. LXX. 21 (Thorpe, p. 575). See also Cnut 13 and 78. The folc-land appears to have been the land occupied by the mass of the people, in which titles were based ui)on priorit}- of possession. The title to boc-land was based upon the possession of a hoc, or written grant. Many men had property botli in folc-land and boc-land. See Edward, § 2. The kings held property- in fulc-land. We meet with cyniges folc-land in Kemble's Codex CCLXXXI. There is a famous passage upon the folc-land in Baed's letter to Archbishop Ecgbirht. See Smith's edition of Baed, p. 309. Among the Ostrogoths the word pictallum was used to describe the written grant. Cassiodorus Varia I. 18 : si Romani praedium sine delegatoris cujusquam pictatio presumptor barbarus occupa- vit, cum priori domino submota dilatione restituat. Tlie reading pctitione for pictatio is senseless. The word pictatium occurs again in Varia III. 35 : presenti jussione ceusemus, ut quicquid ex nostra ordinatione patritium Libcrium tibi matrique tuae per pictatium constiterit deputasse, in suo robore debeat permanere. The word occurs also in Theoderic's Edict. The possession of written documents gave to the land-owners a great sense of security. They were everywhere sought for, and generally obtained. A whole chapter in the history- of land-holding is contained in the following few lines of one of the Fulda records. Fulda Cod. 261 : proprisit sibi Amalungus partem quendam de silva quae vocatur Bocehonia, quam moriens dcreliquit filio suo Bennit, qui ad nostram accedens clementiam postulavit celsitudini nostrae auctoritatis pracceptum circa cum confirmare deberemus, quatenus ipse quoad veniret absque uUius prejudicio tcnere et pos- sidere quicto ordine deboret . . . Precipientes ergo jubemus ut nullus fidelium nostrorum presentium scilicet et futurorum prefa- tum Bennit vol heredes illius de hoc propriso quod in lingua eorum dicitur biuanc expoliare aut inquietare ullo modo prcsumatis sed liceat sicut diximus ei per hoc nostrum preceptum ipsam terrara quanturacunque pater illius proprisit et ei in hereditate demisit tenere atque possedere ut prescriptum est : et ut hec auctoritas NOTES AND REFERENCES. 17 1 firmior habeatiir vel per tempora melius conseruetur dc anulo nos- tro subter sigillare jussimus. The date of this document is A. D. 811, Dec. 1st. By means of these documents, testamenta or "praecepta (cf. Lex Sal, XIV. 4), a direct relationship was created between the chief or king and the provincial land-owners. Cf. the formula CCCCXII : Relatione Pagensium ad Rege Dirccta. AVhen a man held his lands by a document or documents from the king, he was thereby brought into a direct personal relationship with him. It would not, perhaps, be too much to say, that the consolidation of the Merovin- gian and Carolingian Empire was chieflj- due to the introduction of title deeds held from the head of the Empire. The consolitlation of England was in the same way chiefly due to the conversion of folk-land into hoc-land. Note 64. — Page 24. Before the introduction of written documents and title deeds, the people spread over the country and settled wherever they pleased, more or less under the direction of their chiefs and kings. Cf. Caesar VI. 22 : magistratus ac principes in annos singulos gentibus cognationibusque hominum, qui una coierunt, quantum et quo loco visum est, agri attribuunt . . . The chiefs appear to have had nothing to do, at this time, with the settlement of the individual members of the gens or cognatio. "We infer from the colunt discreti ac diversi utjbns ut netnus ut campus placiit of Ger- mania 16, that the individual settled wherever he pleased, wherever he found a pleasant place, and room enough for his slaves and his cattle. This inference is more than conlirmed by the testimony of tlie later records. See references to comprehensiones, proprisa, con- questa, and cnpturae in Note Gl. To these references we may add those which follow. Lex Baiw. XVL 2 : Ego in tua opera priore non invasi contra legem, quia mea opera et labor prior hie est quam tuns. (See Note 53 for the rest.) Cod. S. Galli 25 : quod ego adquesivi vel laboravi. Il)id. 202 : novalc ad S.^galpah ; 239 : roncale meo nuneupatum nomine ; 3;M : novnle Adalrauimiswilarc, quantum il)idem genitor Adalram excolere videbatur ; 337: unam runcalem ; 352 : novales iii ; 439 : locum, qualiter tunc per denotata signa segregatus est securiter nos haberemus, nee ullus incidcndi 172 EARLY HISTORY OF LA^'D-HOLDING. vel extirpandi infra denotata signa habeat potestatem ; 447: runca- leni, I hobam et amplius continontem ; 514 : potestatem quam lia- buernnt in Goldahiin marclia ; G43 : silvulam ab aliorum potestate segregatam cum legituuis marchis. Hist. Frising. Num. CCLXII : exaratum ; DCl : quicquid in ipso die habere vidcrentur culti vel in- culti, vel ad colendum conprehensum habuissent ; DCXXXIII : cinctadam unam. Trad. Wiz. LXXVI : quicquid ibidem laboratum habeo aut inccps laborare potuero ; CLXXXVI : duas stirpis ad slirpand. Lever Urkb. 108 : bil'angum unum ubi possunt edificari mansa centum [^ap-i pro c cidtoribus^ nccnon insaginari prorci mille ; 512 : terram novalium ad viginti mansos vel amplius. Lauresham Codex CLXXXXIX : bifangos in ; CCXVII : bifangum qui dieitur Geroldeshufa . . . bifango Engillielmi ; CCXI : quicquid in silva adjacent! conlal)orare, aut stirparc, vel aedificare sou attrahere potuero ; CCXLIV : rem nostram in Basiuheimcr marcha, ilium bilangiun, stirpatum, et pro[}risum ad stirpandum ; CCXLV : bifangum vel mastunga ; CCLXII : terram factam et adhuc in silva faciendam ad x jurnales ; CCCLXIV : collaboratum meum quern modo habeo, et quidquid videtur esse mea possessio. For possessiones and duminaliones see Note G'l. Lauresham Cod. CCCLXXVII : stirpo, habente in longitudine perticas xxx in latitudine xx ; CCCX : occupationem ad decern hubas \_agri pro x cuUorihus] ; DCCCCXCVl : laboratum ; MMCCCLXXXIII : stirpum in marca ; MMDCCCXXXV: bivangum. Fulda Cod. 88: hereditatem a parentibus et a nobis elaboratum aut exquisitum ; 9!) : septum id est bifang ; 223 : unum ambitum quern nos bifang appellamus ; 300 : in illo septo duas hobas unam in silva alteram in terra ; 323 : bi- fangis et novalibus quae capta et possessa sunt ex his duabus forcstis . . . de territoriis, de novalibus, vel devillis ; 395: bifang in marcu villarum ; 413 : unam bizumam cujus longitudo xxx virga- rum est, latitudo vcro xv ; 4 GO: bifang; 465: ambitus capturae ; 501 : elaboratum meum in pago ; 542 : unum ambitum in marcu ; 757 : biuanc. Lisch, Urkb. 11. No. VII : incultam silvam a nova- libus extirpaverint. Cod. Morav. CXXXVT : circuitum meum in Prahensi provincia, has villas cum hominibus et terris, silvis et pratis continentem. Cf. also CXXXVII, CXLVI, CXLXIX, CCXXTII; CXCI: villam et circuitioncm silvc ; CCLXXV (CCXCII?) : cum omnibus circuitionibus silvarum, sivc rivulorura aut agrorum. Cf. Zahn Urkb. 8 : res proprietatis nostre, id est NOTES AND REFERENCES. 173 teiTa exartata, parata scilicet ad arandiira, mansos intcgros viii {_agn pro viii cultoribus], id est ad unamquamque coloniam [i. e. mansum] jugera xc, et de silva undique, iu gyrum scilicet ac per omnes partes, miliariimi unuiu cum terris, pratis, pascuis, etc. Here we have almost the type of the primitive settlement ; only in the earliest time the breadth of the mark, or border land, was not defined. As Caisar says : neque qiiisquam agri modum certum aut fines habet proprios. The free-lord ditl not know how far his do- main extended. Cf. Cod. Morav. XXXV : in banc partem silve sine termini conclusione ; and Ibid. XLVI : hereditas et proprietas in omnibus marchis. The mark was defined, at first roughl}', as in the case above cited, then more and more exacth'. See Notes 32, 33, 34. Even after estates came to be defined by exact boundaries, the free-lords extended their possessions b}' appropriating unoccu- pied or uncultivated lands. See Notes 35—41. Note 65. — Page 24. See Orig. Nassoic. LXXIII. Cod. S. Galli 117. Mon. Nideralt. Dipl. XIV (p. 121) : Avus noster Carolus licentiam tribuit suis fidelibus in augmentatione rerum Ecclesiarum Dei in Pannonia carpere et possidcre hereditatem. The document is printed also in Cod. Dip. Morav. I. pp. 30, 31. Note 6G. — Page 24. This etymolog}' has been questioned, but no good reasons have, so far as we know, been raised against it. See the AVorterbucher of Grimm, Fick, and then that of Kluge. The root from which both erbe and arheit appear to be derived is rahh, or rab^ meaning to seize, to lay hold of, to take eagerly or vehementl}'. See, in Skeat's Etymological Dictionarj' of the English Language, the list of Ar3'an Roots. The erbc would be, accordingl}', first a seizure or ai)pro- priation, a "take" of land; then, when it was transmitted from father to sons, from sons to grandsons, it would be regarded as an inheritance. The original meaning of the word would become obsolete. This is our theorj', and it is supported by testimony of peculiar interest. In the first place, we have the passage in the Lex Baiw. (XVI. 2) to show that he who first cultivated a piece of 174 EARLY HISTORY OF LAND-HOLDING. land was regarded as the owner of it. In vindicating liis right to it he says : niea opera et laljor prior hie est quani tuus. We should expect, therefore, to lind some word used to describe landed prop- erty, in whicli the idea of prior occupation and labor would be expressed. Searcliing in our records we find the very word. We find property- in land described as a vorwei-c. I)u Cange cites a passage from the Life of 8t. Mainworc : ut unum vorwerc cum xx lidis et XII aratris ei concederetur. See the Glossarium sub voc. vorwerc. Then we find, in Cod. Dipl. Lubec. II. viii, the follow- ing gloss : allodium melius dixisset, nam vorwerc latinum non est, sed vulgare. So the word vorwerc was used by the common peo- ple instead of tlie word allodium. How beautil'ully our theory about the history of the word erbe is illustrated in this fact ! And the historj' of the word alod is elucidated. The word appears to have signified, originalh', a farmstead and land held from most ancient times ; therefore an inheritance or patrimon}'. See Skeat's Dictionary sub voc. allodial. Cf. Lex Baiw. XVI. 2 : habeo testes qui hoc sciunt, quod labores de isto campo semper ego tuli, nemine contradicente exartavi, mundavi, possedi uscjue hodie, ct pater mens reli(iuit mihi in possessione sua. Tlie alod was primarily a " take " of land ; then, as it was held from generation to genera- tion and no longer "taken," it came to be simply an inheritance. It was an inheritance secured I)}' appropriation or conquest, and then maintained, when necessary, l)y force. At a later time we have (dlodia held, not in virtue of prior occupation, but in virtue of grants from prior occupants. They are then property in a modern sense of the term. Note G7. — Page 24. "What is said in the preceding note about the arheit and erhe, the voriocrc and allodium^ is further illustrated in tlie following passages from early records. Chart. Wcrth. 23 (Lacomblet IJrkb. 19) : pro luiereditate couipreliendi a rivulo qui dicitur Burgbeki usque ad ilhun rivuhim (jui in occidentali parte Widubcrgi decursit, cum onuii integritate us(|ue ad ripam Rurae, excepta ilia particula, quam Folcbertus in proximo angulo inter Iluram et AVidubergam olim slirpare inclioavit. Fulda Cod. 88 : hercditates a parentibus et a nobis elal)orutum aut exquisitum. Ibid. 117, 118, 119. It NOTES A^iD REFERENCES. 175 appears in these documents that a certain man named Swidmot made an appropriation or "take" of land : caj)tura circa fluvium Elraaha. Wlien he died this "take" was an inheritance for his sons. Each one received a share : quicquid in eadem captura ad meam proprietatem ex paterna hercditate pertinere dinoscitur. These shares were afterwards ahenated by their respective owners to St. Boniface at Fukla. A whole chapter in the history of property in land might be written upon the text of these three documents. Man}' others of a similar nature might be cited. See Notes 61 and 64, and consider how all the occupationes, capfiirae, conquesfa, would, had they not been given to the Church b^' the occupiers, captors, and conquerors, have passed to sons and grand- sons, as inheritances. Note 68. — Page 25. Chart. Wcrth. 5, or Lacomblet Urkb. No. 6. Cf. again Ibid. 19 : tradidi comprehensionem illam quam ego in propria hercditate comprehendi. Also 27 : quicquid ibi habuimus aut per jus heredi- tatis aut per conprehensionem. "\Ye find in our note-books a great quantity of such references ; but these will be sufficient. The stu- dent can easily find others for himself. Note 09. —Page 27. The word Einzclhof means an isolated farmstead. The word Gehoferschaft means a number of farmsteads clustered together. The Gehljfcrschift was an outgrowth or extension of the Einzel- hof. The heirs in the Einzclhof became too numerous to live in one house. New houses had to l)e buillt. Then we have several houses where there was originally one, a Gehoferschaft. The num- ber of houses in the Gehoferschaft increased witli the mimber of heirs. The Gehoferschaft is described as an Erbschaft. The in- habitants are described as an Erhgenossenschaft. It is sometimes argued, that the GehUferscJiaft or Erhrjenossen- schafl is, as an institution, antecedent to the Einzelhof The argu- ment is inconclusive. It assumes that the association of heirs, the Erhgenossenschaft ^ existed before any inheritance, Eric^ existed for them. This seems to us an illegitimate assumption. "We meet 176 EARLY HISTORY OF LAXD-HOLDINa. with gentes and cognationes hominum m Caesar VI. 22 : but have we any right to assume that these associatious were not previously formed by the multiplication of heirs upon isolated domains ? Caesar says that the people were constantl}- migrating. But have we any right to assume that they had been always migrating? It is quite possible, if not probable, that a period of permanent settlement preceded the migrations of Caesar's time. At the time of the Folk-Laws we find that associations of kins- men were formed by the multiplication of heirs upon isolated domains. AVhy assume that they were formed in a different way in earlier times ? We hear a good deal of talk about a tribal system which existed among the Germans up to the time of Caesar and Tacitus. It may be that a tribal system did exist up to that time : but what do we know about it? Nothing, of course. Why talk about it then ? We are told that the tribal system of the Germans closely resem- bled that of the ancient Irish : but why should it? Differences are as common in history as coincidences. Different people have different ideas, different ways of doing things, different modes of life, different institutions. How many different departures are made from the famil}-, the elementary group, according to variable conditions and circum- stances ! Give the family bows, arrows, and fish-hooks, and no other means of support, it will at once seek some good ground for hunting and fishing. If the game and fish arc plontifnl, the family maj' remain united for man}' generations ; but if game and fish are scarce, the members of the family luive to separate in order to live. Given large flocks and herds, and plenty of pasture ground, the family ma}' continue united for a while ; but when the pasture ground is limited, the stock has to be divided, and then the family is scattered. Given large numbers of slaves, the famil}^ may remain united, and the slaves may be established in village communities round about the residence of the famil}'. We have, then, a village of lords surrounded by villages of serfs. Or if the slaves are divided, the lords establish themselves in isolated farmsteads, with communities of serfs imder their over-lordship. In other words, the course of history is not pre- determined. It is divergent according to variable conditions. Starting with the family, we see that many dilferent departures NOTES AND REFERENCES. 177 may be made from it. DifTerent departures mean different rcsnlts. In some places we may have a tribal organization ; in other places, a system of village communities ; in other places we may have a system of isolated farms, or a manorial system. Taking any one of these various modes of life, and varying condi- tions and circumstances, many new departures will be made, which will have very different issues. Coincidences are, nevertheless, very common. The reason of this is that the family, the elementar}- group from which the others are directl}' or indirecth' derived, is always preserved. It is a pliysiological, if not a sociological fact, in all forms of society. The family can be isolated at any time, and then the processes of differentiation begin again. The simpler forms of sociological de- velopment are naturally reproduced, — the life in isolated farm- steads, the manorial system, the house community', and the village community'. Note 70. — Page 28. The fact that the common land was subject to appropriation by individuals (see Notes 61, 64, 65, 66, 67, 68) is evidence to show that the common land was simplj' undivided land. But it will be urged. Suppose the amount of the common land was limited, and objections were made to appropriations ; what was done then ? We find an answer to this question in the Appendix to the Bur- gundian Law. Lex Burg. Add. I. Tit. I. 5 : agri quoque com- munis nuUis terminis limitati exaequationem inter consortcs nuUo tempore donegandam. If objection was made to ad lih'dum appro- priations, the land was divided among the heads of the different households. It was not always easy to make these divisions. Disputes arose. Among the Visigoths it was decided that the best men, or a ma- jority, should decide matters of dispute. See Lex Wisig. X. Tit. I. 1, 3, 8, cited in Note 33. Among the Franks, however, these disputes were referred to the king or his missus. See Formula CXXVII : De divisionc ubi rege accederit missus. The passage will be cited in Note 74. The division of a common mark into a number of private estates (inter Jiscum regis et popidares pcssessiones) is described in Formula CCCCII (No. XI, in Salonio Form.). 12 178 EARLY HISTORY OF LAND-HOLDING. "When disputes arose in regard to rights of enjoyment in common land, the land was usually divided. It was regarded, therefore, as undivided land, in which ever}- man had a share that he could have assigned to him, if he pleased. That it was so regarded appears elearlv in a multitude of documents. In one of the Laureshara records (Cod. MCCXXXVI), for example, a man alienates his inheritance in the common forest : quantum jure hereditario ad me pei-tinere videtur de ilia silva communi. Other references will be given in other conuectious. See, especiall}-, Notes 92-95, 99, and 100. Note 71. — Page 28. Lacomblct Urkb. 21 : Dum omnibus vicinis suis non habetur incognitum qualiter Hembaldus filius Heribaldi tradidit suam cora- prehensionem illam quara ipse Hembaldus in propria hereditate et in communione proximorum proprio labore et adjutorio amicorum suorum legiV)us comprolu'udit et stirpavit. The communio proximo' rum is described in Font. Ker. Austr. XXXI, p. 20 (A. D. 8G1) as the confininm coheredum. Cf. Hist. Frising. DXVIII : hereditatem meam cum omni conquestu meo. Lacomblet Urkb. 27 : quicquid habuimus aut per jus hereditatis aut per conprehensionem. Cod. S. Galli 373 : quicquid ibidem de paternica portione sive de con- questu meo, seu de conquestu Irminhardi fratris mei sit. Beyer Urkb. 108 : in commarca ipsius ville bifangum unum ubi possunt cdificari mansa centum. Ibid. 465 (b) : novalia ad xx mansos vel amplius. In this way inheritances were indefinitely enlarged. If a man had no room for his people in the Gehoferschaft, he sent them out into the forest or waste. There they settled down ; houses were built ; arable lots (Jtuhae) were assigned ; and the animals were turned out to pasture. Around the GeJiiJferschaft^ several, and sometimes a great many, subject communities were thus established, — Hubengemeinden . The lord of the Huhen- gemeinde was an heir in the Gehofcrschaft. But the Hubenge- meinde was an inheritance for the heirs of the founder. The Hubengemeinde became in most cases an Erbschafl, the heirs in the Hubengemeinde forming an Erbgenossenschdft. In many cases the distinction between the Hubengemeinden and the Gehoferschaften was obliterated. This happened when the lands of the Gehofer- NOTES AND REFERENCES. 179 schaft were distributed in huhae, i. e. in tenant allotments. In the course of the early and middle ages the Huhengemeindea and Ge- liofcrschaflen became quite confounded. Note 72. — Page 29. Lex Burg. Add. I. Tit. T. G : Sylvarum, montium, et pascuorum unicuique pro rata sui)petit esse comuiunionem. Ibid. 5 : Agri quoque communis nuUis terminis limitati exaequationem inter con- sortes nullo tempore doncgandam. Ibid. LXVII : De 83lvis hoc observandum. Quicunque agrum aut colonicas tencnt. secundum terrarum modum vel possessionis suae ratam, sic sylvam inter se noverint dividendam : Romano tamen de sylvis medietate ex ex- artis servata. Cf. Add. II. 11 : De Romanis vero hoc ordinavimus, ut non amplius a Lurgundionibus, qui infra venerunt, requiratur, quam ad praesens necessitas fuerit, medietas terrae. Alia vero medietas cum integritate mancipiorum a Romanis teneatur : ncc exinde uUam violentiam patiantur. Then read Lex Burg. XXXI. 1 : Inter Burgundiones.et Romanos id censuimus observandum, ut quicunque in communi campo nullo contradicente vineam fortasse plantaverit, similcm campum illi restituat, in cuius campo vineam posuit. 2 : Si vero post interdictum quicunque in campo alterius vineam plantare praesumpserit, laborem suum perdat, et vineam cuius est campus accipiat. Also Ibid. XIII : Si quis tani Bur- gundio quam Roraanus in S3lva communi exartum fecerit, aliud tantum spatii de sylva hospiti suo consignit, et exartum, qucm fecit, remota hospitis communione, possideat. Note 73. — Page 30. See Alsat. Dipl. IX, XII, XXXII, XXXIII. Trad. Wiz. IX, X, XIII. Neugart Cod. Dipl. V. Cod. S. Oalli 18G, 334, 352, 438, 676. Wirtemb. Urkb. XLVII, CCLXVII. Mon. Scheftl. p. 377 (XXVI). Cod. Patav. I. xiii and lxii. Hist. Prising. 1. p. 35 (53?). Ibid. Nos. CLXXIX, CCXLVII, CCXC, CCXCIII, CCCLXV, CD. Two cases ma}* be given as examples. Ilist. Prising. CXVII : tres germani fuerunt, et uno defuncto duo superstites fuennit fratrcs, ot dividere debucrunt aequaliter inter so ipsani hereditatem dcfuncti fratris Scatto, et Poapo, sed 180 EARLY HISTORY OF LAND-HOLDING. antequam divisio haec facta est, et raortuus est Poapo rclinquens portionem suam filio suo Kejoni, et ipse Kejo bene valens portio- nem, quod ei accedere debiiit contra patruum suum traditit Deo, et Sancto Tertuliano ad Slechdorf. Sed nolente Kcjone renuit omnia haec Scatto, et reliquid lilio I'uo Rcginberto. Tunc ipsi missi cum Oreudilo judice, et ceteris veracibus hominibus tractaverunt, pro qua causa Reginperht possidere debuisset portionem nepotis sui Kejoni hereditas, quod ipse pro anima fua Deo traditit, et Sanctis ejus. Tunc convictus cum lege et justitia Reginpertus de presente reddidit Advocate ipsius Ecclesiae et Archipresbytero ipsius Epis- copi Ellannodo loca nuncupata Allingas, Kupingas, et in Germa- reskavve, ut amplius eas possiderent praesules loci ipsius absque uUa coutratlictione evindicatas jure perpetuo, et ita finita est con- tentio coram resedentibus, et adstantibus multis. Et testes usu Bajowariorum per aures ex utrisque partibus tracti, ut amplius exinde finita esset contentio. Ibid. CCCLXXIX : De traditione, quam fecit Isanhart Clericus filius Saxoni ad Steinhard. Ipse quidem Isanhard eo modo banc traditioncm cum matre fua Tunna nomine feceruut, post obitum Saxoni patris fui coeperunt fratres illius ei contradicerc propriam hereditatem a patre suo legitime derelictam, ipseque Isanhart junior erat fratribus fuis, et propter infantiam non potuit contendere contra fratres suos jam annorum aetate viginti. Veniens ad venerabilem Hittouem Pontificem et enarrabit ei omnem necessitatem, atque angustiam, quam eis fratres ejus in propria hereditate actam habu- erunt, at ille blande consolavit eum, ipseque accepta consolatione ab Episcopo accessit ad altare Sauctae Mariae, et tradidit seipsum in servitium Sanctae Mariae semper Virginis cum omnibus, quae habuit, vel quodcumque pater ejus Saxo ei in propriam hereditatem dereliquid, nihil enim praetermisit cum omni integritate, quae habuit, et banc, quod juste, et legitime ad fratres suos conquiri debuit, cum seipso Domui Sauctae Mariae in servitium tradidit, et firmiter confirmavit. Note 74. — Page 30. Formula CXXV: In Dei nomen. Placuit adque convenit inter illus et illus germanus ut inter se de res eorum dividere debuerunt, quod ita et fecerunt . . . et hec paccio divisiouis omni tempore firma permaneat. NOTES AND REFERENCES. 181 Formula CXXVI : Pactum divisiones inter fratres, id sunt illi et illi, lierodes illui et illei quondam, qualitcr se de alote eorum dividcre vel exequare deberfut, quod ita ot fecerunt. Formula CXXVII : De divissione, ubi rege aecederit missus. Dum et divisio vel exsequatio inter ilkun et ilium seu consortes eorum de alode lui aut de agro illo eaelebrare debetur, et quatenus petitio illorum adfuit ut missus de palatio nostro ad hoc inter eos dividendum vel exequandum accedere deberet ideo cognoscite uos misso nostro, inlustris viro illo, ad hoc inter eos cxequando visi fuimus di[re]xisse. Propterea per praesentem praeceptum [decre- vimus ac iubemus] ut ipsum in hoc vos recipere faciatis, et unicui- que ex ipsis iusti debita portionem terminetur, et decimo illo suntellitis quod exinde in fisci ditionibus, tam de terra, vineis, maneipia vel undecumque redebetur, ipsi vir ille habeat ex nostra indulgentia concessum, vel quicquid exinde facere voluerit, liberam habeat potestatera. Formula CXXIV : Pactum inter parcntes de eorum hereditate. Quicquid enim inter propinquos de alode parentum, non ad iudici- aria potestate coacti, sed sponti, manente caritate, iusti debitum uniquique portio terminatur, non de rebus detrimentum, sed aug- mentum potius potest esse consendum. Et ideo necesse est inter se eorum facta scribturarum series alligari, ne ab aliquibus in poste- rum valeat refragari. Ideo dum inter illo et gerraano suo illo de alode genitoribus eorum illis et illis bone pacis placuit atque convi- nit ut eam inter se, manentem caritatem, dividere vel exaequare deberent, quod ita et fecerunt. Accepit itaque ille villas nuncu- pantes illas, sitas ibi, cum maneipia tanta ilia. Similiter et ille accepit econtra in compensatione alias villas, nuncupantes illas, sitas ibi, cum maneipia tanta ilia. De presidio vero, drappos, fabricaturas vel omni supellectile domus, quicquid dici aut nomi- nare potes, aequalentia inter se visi sunt dividisse A^el exaequasse, et hoc invicem pars parte tradidisse, et per fistuca omnia partitum esse dixisse. Note 75. — Page 30. Lex Alam. LXXXVIII: Si quis fratres post mortem patris eorum aliquanti fucrint, dividant portionem patris eorum. Dum hoc non fuerit factum, nullus rem suam dissipare faciat usque dum 182 EARLY HISTORY OF LAND-HOLDING. aequaliter partiant. For descriptions of inheritances see Cod. S. Galli 28, 72, 112, 159, 174, 185, 373, 459, etc. We have selected these cases as good examples. Note 76.— Page 30. Lex Baiw. XIV. Cap. VIII : De divisionc inter fratres. Ut fratres hereditatem patris aequaliter dividant. Inheritances are described in Hist. Frising. I. p. 52 ; Ibid. p. 85 ; and in Nos. LXIII, LXXX, C'LXXV, CDXVI, DCI, DCXCIX. See also Mon. Schlehdorf. Dipl. VIII ; and Cod. Patav. I. xxxviii, xlvi. Note 77. — Page 30. See Notes 73-76. Then Lex Sal. LIX : De alodis. Cf. Herold Text of the same (Merkel, p. 72). See also the Capitular}- of A. D. 5G0, § 2 ; and the edict of Chilpcric, circ. A. D. 575, § 3. Lex Rip. LVI : De alodis. Lex Fris. XIX. Lex Angl. Werin. VI. Lex Sax. VII. Lex Wisig. Lib. IV. Tit. II. 2 : quod in hcreditatis successione filii primi sunt. Cf. Ibid. § 1 : ut sorores cum fratribus aequaliter succedant. This comes without doubt from the Roman Law. See also Lex Burg. Tit. I. 1. In Lex Wisig., and also in Lex Burg., the primitive custom of inheritance is somewhat modified b}- subsequent legislation. This is so also in the Lombard Law. See Rothar CLIV, CLV. Here natural sons take shares with legitimate sons, onlj' their shares are smaller. Then read Grimoald V. If a son dies, his sons are allowed to step into his place and take shares with their uncles. The principle of repre- sentation is admitted. It appears to have been introduced in some places by means of adoption. The grandsons were adopted as heirs in the place of their father. See Formulae CXXXI, CXXXII, CXXXIV. There is ver^- little regarding the laAV of inheritance in the early English records ; still we find a few passages. See Kemble's Codex CXLVII : rus etiam hoc modo donatum est, ut suum mas- culum possideat ct non femininum. Cf. Alfred LI : if a man have boc-land, he must not give it out of his maeg-hurg^ if to do so was for1)id(len by those who first acquired it and gave it to him. King Alfred saA-s in his will that the persons, his kinsmen, who NOTES AND REFERENCES. 183 have received freehold land from him, must not let it go out of the family. If left to descendants, it must go to males. Lib. de Ilyd. p. 332. That the principle of inheritance was fully recognized at this time appears evident. Cf. Kemble's Codex CXCl : et jure hereditario firmiter fixa permaneat. That the heirs divided their inheritances appears in Cnut 79 : let the heirs succeed to the land and the propert}', and divide it ver^- justl}-. It must not be in- ferred from the above that women were alwa^'s, or even regularh', excluded from the right of inheritance. Cf. Kemble's Codex CCXXXII : possessoribus quorum propria haereditas, id sunt tres sorores. Probabl}', except in special cases like those cited above, daughters took the inheritance when there were no sons. This is the rule of Kent Custum. X. The early law of inheritance appears to be here preserved. In other parts of England, primogeniture was introduced. Although the law of inheritance differs somewhat in different countries, it is quite safe to say that sons were general!}' preferred to other persons ; that they came into their inheritance with equal claims ; that the inheritance was consequentl}' divided among them in equal shares. Note 78. — Page 31. Liutprand LXIX : Si inter fratres per xl annos possessio fuerit de rebus, seu de casis, vel de terris, quae indivisae sunt, vel inter parentes, qui per xl annos possedit, qualiter praesumit dicere, per sacramentum ad sancta Dei Evangelia aflirmet, quod de avo, aut de patre, aut de fratre, aut de aliquo parente ipsas res suas habeat factas, aut per donationem, aut commutationem, aut per aestimationem, aut per comparationem, aut quoraodo prae- sumpserit dicere aut afhrmare : et liccat ei postea ipsas res illil)atas habere, et possidere. Aliae vero res, quae divisae fuerint inter fra- tres seu nepotes, vel ubi mensura tracta est, sorte stante adae- quentur. Nam ubi per xl annos mensura minime ambulavcrit, et caussa probat, fuerit, quod iure quicto possedissot, sicut supra legitur, per sacramentum liniatur, excepto si communiter aliquid possedissct. Cf. Ilist. Frising. DLV : Kcrolt et Kornod qui communeni licicili- tatcm hubuerunt, non intt-r se divisum sed communiter sine divi- lS-1 EARLY HISTORY OF LAXD-HOLDING. sione usitavcrunt, sicut amabiles fratres Dei amore usitare debue- runt. See also Num. CDLXVI. Note 79. — Page 31. Lacomblet Urkb. IG : notum fieri desideramus omnibus tam pre- sentibus quam futuris qualiter nos coheredes et coiiparticipes et consanguinoi his nominibus . . . tradidimus agrum hereditarii juris nostri. Ibid. 17 : idcirco placuit nobis coberedibus et conpar- ticipibus in uno patrimonio, his nominibus . . . tradere aliquara particulam hereditatis nostre. Cf. Cod. S. Galli 386 : quidquid proprietatis visus sum habere sive ex paterna hereditate seu ex ad- quisita, sive divisum habeam cum meis coheredibus, seu indivisum. Ibid. 480 : hereditatem in Ludolteswilare in meam portionem a coheredibus accepi. Ibid. 594 : silvulae medietatem, quam ibi habemus ego et coheredes mei. See also Ibid. Anhang 9 : quidam fratres K, C, R, K, E, M, B, et coheredes illorum intcrpellati pro decimatione hereditatis sue. Bej-er Urkb. 119 : Terra AVolfgrammi et Ruodiconis et consanguineorum ipsorum . . . et silvam com- muuem S. Goaris que ad ipsum monasterium pertinet et aliorum co- heredum ... ad terram Hildimuodi et Waltarii et eorum heredum. Ibid. 640 : Ilcnricus de Tris cum filiis, cum ceteris ejusdem ville coheredibus allodium suum quod commune habuerunt contulerunt. Then read Fulda Cod. 366 : isti habent hereditatem in Dienenheim. Hruodpraht (Comes) and twenty-two other persons are mentioned as holders of the inheritance, and coheu's therein. Note 80. — Page 32. Cod. S. Galli 439 : inter nos et Rihwinum et coheredes ejus fuit contentio in loco, qui dicitur Scppenwauc ; quapropter illuc illuc venit Iluodalrihns comes et prepositus noster Ilartmuotus et advo- catus Ruodpertus necnon et Rihwinus et coheredes ejus. Et jactatis inter se causis conplacuitRihwino et Otgero atque Geroloo fratribus necnon ceteris coherodil)us, ut aliquid nobis de sua proprietate donarent, quod et fecerunt, ita ut a nobis pagalium firmitatis acci- perent; ea videlicet ratione, ut nos supra nominatum locum, quali- ter tunc per denotata signa segrcgatus est, securiter nos haberemus, nee ullus incidenti vel extirpandi infra denotata signa habeat po- NOTES AND REFERENCES. 185 testatem. Et similiter Rihwinus et coberedes ejus suas portiones contra ipsum locum per se baboant cxcepto ut pascua couiiuuuia in agris babeamus. Note 81.— Page 32. Hist. Frising. I. p. 49 : dum erga eodem loco conexae arvac ducali pascua non sufHccrant ; appelivi locum ad proprios beredcs, quo vocatur Ericbinga, et il)idem [)ro necessitate domos construxi, quia antca jam temporibus plurimis inculta atque deserta remansit, omnis autcm possessores bujus loci prum[)tis viribus donantes atque tradentcs . . . Tassilo Dux IJajoarorum quicquid ad Fcringas pertinebat pariter ipsis consentientibus Alfrid cum fratribus suis et participibus eorum atque consortiis, reliquas autem partes quicquid ad genealogiam quae vocatur Fagana pertinebat, tradiderunt ipsi, id sunt Ragino, Anulo, Wetti, Vurmhart, et cuncti participes eorum, donantes atque transfundentes seu firmitatem secundum jus Bajoarorum facientes, ut ipsaque bujus loci, id est Ericbinga, fines utrorumque genealogiarum sine fraude ditionibus beatae prae- dictae Dei Genetricis Mariae consistere in perpetuum firma perma- ncat. The land alienated appears to have been the undivided inheritance of two groups of heirs, — the members of the ducal family, the Agilofingi, and the members of the Fagana family. These families are mentioned in Lex Baiw. Tit. II. Cap. XX. Note 82.— Page 32. See Reg. Hist. Westf. XX, and Beyer Urkb. Nacblese I. No. 3 : quod contra allodiones meos reccpi totum ad integrum dono atque trado, terris silvis, etc., quantum cuiKjut' uiihi obvenit. The heirs in an undivided inheritance are usually called cnhcredcs (see Notes 79, 80, 81) ; or else they are called consortes (see Note 81). Alsat. Dipl. IX : quicquid nos de Animgo seu consortes ipsius, vel de quibascunKjue hominibus comparavimus. Cod. S. Galli 155 : quiccfuid in pago Durgaucnse genitor meus a consortibus suis in partem visus fuit accepisse et ille postea suis dividenda dimisit heredibus. Ibid. 199 : pratum quod cum consortibus meis adhuc in commune visa sum possidcre, reliqua omnia que in pre- dicta villa niilii in hercditate succedunt volo esse concessum. 186 EARLY HISTORY OF LAXD-HOLDING. Lauresham Cod. X : rubo per Agilolfum et suos consortes pro signo incisus. The word socii occurs instead of the word consortes in Fulda Cod. 1G5 : traditio Waltoni et soeiorum. Fifteen persons are mentioned as donors of a certain undivided appropriation : capturam que de villa B. capta est et haec sunt nomina locorum quibus ilia per gyrum determinatur. In Ibid. 471, fourteen persons unite in selling a captura. They receive payment severally. A claim is afterwards put in b}' two other persons, that a portion {portiunculd) of the property belonged to them. They gave up their claim upon the receipt of the following articles : duos bovcs et duo pallia, lanea et linca, duos gladios. The}' then declared : quod ulterius in ilia captura nullam communionem habeant. The word communio is used here, as elsewhere, to describe a right in undivided land, a right to a portion of it, or, the land remaining undivided, a right of enjoyment in it. Cf. Note 72. The word potestas is often used instead of the word communio. See, for example, Cod. S. Galli 514 : et jam dicti fratres omnem potestatem, quam habuerunt in Goldahun marcha et in eadem silva ad monasterium Sancti Galli vcndiderunt, et xxx solidos pro pretio acceperunt. "When, in the early time, a group of kinsmen took possession of a tract of land, every individual member of the group had a potestas or communio in the land, — a right to appropriate as much as he wanted of it, or to use and enjo}' it without stint. But as time went on it became necessary to define the amount of land which the individual might appropriate, or, if the land remained undivided, to define rights of enjoj-ment. A right of appropriation being defined, it was held as property. It was transmitted from father to sons, and it was alienated. Rights of enjoyment in undi- vided lands were held in the same way. They were hereditary and alienable rights. But we shall speak of this matter at length prcscntl}'. Note 83. — Page 32. The passage is given in Note 72. In Notes 73-78, and in Note 82, we learned how inheritances were divided among the heirs. The heirs are called parceners (participes) in the passage cited from Hist. Frisins;. in Note 82. Divisions of land anions; kinsmen NOTES AND REFERENCES. 187 are described in Lex "NVisig. X. Tit. I. See passages cited in Note 33. Note 84. — Page 32. Liutprand LXXIII : Si infans dum intra aetatem est, res suas cum fratribus, aut cum parentibus suis dividere voluerit, aut si ipsi cum ipso infante dividere voluerint, faciant ludici notitiam ; et ipse Index faciat venire parentes ipsius propinquos, ut una cum ipsis, aut per se, aut per niissum suuin bonam i)ersonam Deum timentem res ipsas dividat, sic tamen, ut omni tempore sortes stare debeant, et adaequatio percurrat. Formula. Petre te appellat Martinus, quod tu tenes sibi malo ordine terram in tali loco. lUa terra dico esse mea, quia quando tu eras infra aetatem, voliiisti dividere mecum, et Comes divisit ipsam terram, aut per se, aut per Missum suum, et tui parentes fuerunt : Aut probet, quod sic fuisset facta divisio ; aut perdat. Note 85. — Page 32. Formula CXXVII. See Note 74. NoTi^ 86. — Page 33. Beyer Urkb. Nachlese I. No. 3. Cited in Note 82. Note 87. — Page 33. Cod. S. Gain 480. Cited in Note 79. Note 88. — Page 33. This text of Lex Salica, De alodis, is first found in the " Origi- num ac Germanorum Anti(iuitatum Libri " of V>. J. Ilerold (Basi- leae, 1555, folio). It is probabh" the text of a MS. once preserved at Fulda, but now lost. It is a simple, logical amplification of the ordinary texts. It is safe, therefore, for us to use it. If it wore inconsistent with the ordinary texts, if it were in any sense con- tradictory of them, we could not use it. It will be remembered that 188 EARLY HISTORY OF LAND-HOLDING. "we possess no MS. for the Lex Frisiouiim ; tliat the citations which ■we use are from the Editio I'rinecps of Ilerokl. The text of the De alodis which we liave cited has, therefore, precisel}' the same authority that a passage of Lex Fris. has : no more, no less. The phrase nepotes ant pronepotes should be noted. The division was supposed to be made between grandsons o?- great-grandsons. Can we infer, therefore, that this text of the De alodis antedates the introduction of the principle of representation ? Cf. Formula CXXXIV (in Note 155). It is hardly safe to put so much stress upon the word aid, it is so constantly used for et in our early records. Note 89. — Page 35. See Joshua xviii. There remained among the children of Israel seven tribes, which had not yet received their inheritance. The land was accordingly divided into seven parts, one for each tribe. Joshua then cast lots, and divided the land unto the cliildren of Israel according to their divisions ; according to their tribes and according to the families within the tribes. Ibid, xix : The sec- ond lot came forth for the tribe of the children of Simeon according to their families : and their inheritance was within that of the children of Judah. See also Numbers xxxvi : The Lord commanded that the land should be given for an inheritance b}' lot to the children of Israel, and the inheritance of Zelophehad went to his daughters. See also Chronicles vi. 63, where the land is given " by lot throughout their families." We do not suppose that the land was distributed in this manner among the German clans, but within the limits of the clan and family, distributions were made upon this principle, without doubt. Iveference is made to per stirpes divisions in the Ilerold text of Lex Salica, De alodis. See Note 88. Divisions among brothers were made by lot. See, for example. Cod. Patav. I. i.xii : quod mihi pater mens nioriens dereliquid et quod mihi sortie accedit erga fra- tres meos ; id est in domibus, mancipiis, campis, pratis, silvis, etc. Divisions among brothers were made by lot : why should divisions among grandsons and groat-grandsons be made upon an}' different principle? We see, in Liutprand LXIX, that divisions among grandsons were made by lot. See the passage in Note 79. In NOTES AND REFERENCES. 189 Liutprand LXXIII (in Note 84) we see that divisions between kins- men (parentes) were made by lot. Wc read in Kotliar CLIII : Omnis parentela usque in septimum genuculuin numeretur, ut parens parenti per gradum et parentelam heres succedat, sic tamen ut ille qui suceedere vult, nominatini unus- cujusque nomina parentum suoruin antecessorum dicat. It is a fact beyond question that the knowledge of genealogical rela- tionships was as careful!}' preserved among the Germans as among other people in early times. How is this to be explained, unless the knowledge was useful in some way? The hypothesis sug- gests itself; that the knowledge of genealogical relationships was preserved as a means of determining rights of property by inher- itance ; that the knowledge of relationships was preserved for the same reason that title deeds are preserved among us. If this is so, it is possible tliat ancestor worship was introduced as an aid to the memory ; ancestors being so soon forgotten if not repeatedl}- re- membered. We can imagine the house-father saying to his children : Let us institute a festival in honor of our progenitor in order that we ma}- not forget him : for we may some day lose our inheritance by forgetting him. But all this is mere hypothesis. Note 90. — Page 35. Lex Burg. Tit. LXXVIII : De hereditatum successione adten- tius pertractantes, statuhuus ut si pater cum filiis sortem suam diviserit . . . Cf. Liutprand LXXIII, in Note 84, and Ibid. LXIX, in Note 79 : aliae vero res, quae divisae fuerint inter fra- tres sen nepotes, vel ubi mensura tracta est, sorte stante adaequen- tur. Inheritances, being distributed by lot, were very properly called sortes. So in Cassiodorus, Varia VIII. 26 : quae necessitas ad in- justa compellat, cum vos et sortes alant propriae, et munera nostra, domino adjuvante ditificent? Note 91. — Page 35. See Formula CXXVII in Note 74. It is from the collection of Marculf (I. 20), who lived in the time of Landeric, Archl)i,shop of Paris, in the second half of the seventh century. The shareholders in the alod were consortes ; the alod was their sors. Then see pas- I'JO EARLY HISTORY OF LAND-HOLDING. sages cited in Notes 79, 82, and 90. The phrase terra sortis titulo acquisita occurs in Lex Burg. Tit. I. 1. Note 92. — Page 36. We have already cited Cod. S. Galli 199 : pratum carrorum quinque, quod cum consortibus meis adhuc in commune visa sum possidere. Cf. Hist. Frising. DCCCLXXVI : de pratis carradas XXX, except© quod commune est cum aliis. So in Ibid. CCCXLVIII : territorium jurnales xxx, de pratis carradas l, ct in alio loco pratas communes, sicut alii coheredes habent. Note 93. — Page 36. Formula CCXXXIX : dedi eidem sponsae meae futuraeque uxori dotis nomine curtcm sepe cinctam et in eadem marcha de arvea terra juchos c, de pratis juchos totidem, de silva proprii niei juris juchos CL, communem pascuam coramunesque silvarum usus, etc. Part of the pasture land had been divided, or api)roi)riated. The rest remained common. It was held in undivided shares, which were, it appears, alienable. The shares of the common land were probably proportioned to the shares of land held in severalty. See Chart. Silhiense, p. 103 : mansam cum castitiis ; de prato bunaria XVI. de terra arabili bunaria clviii, de silva grossa bunaria xvm ad saginandos porcos xx, de silva minuta bunaria li, de pastura communi sulTicienter. Cf. the passages cited from Lex Burg, in Note 72 ; also Lacomblet Urkb. 3 : unum modicum curtile cum agris HI, cum waterscapis, perviis, communiis paseuis ; et dedi ei potestatem habere in silvam que dicitur Sitroth. Cod. Trad. Lunaelac CV : trado atque transfirmo partes duos horeditatis meae ... in omnibus flrmabo, cum domibus, cdificiis, curtiferis, cum terris aral)ilis, cum campis, pratis, paseuis communiis, etc. Here we liaA-e fm^ma communin, i. e. undivided shares of a com- mon pasture, included witliin an inheritance. Two thirds of these undivided shares of common pasture are alienated to the Church of St. IMichacl at Lunaelac, or Mondsee. The word conpasnia is often used instead of the phrase pascua commuma. See Beyer Urkb. 280. Hist. Frising. MCCXXXI. Wirtemb. Urkb. CCCVII. Gunthcr Cod. Dipl. 31. In Ibid. 59 NOTES AND REFERENCES. 191 we have communihus pascuis alienated with a mansus : qucndam mansura ex proprietatibus cum omnibus appenditiis ; vidcHcet vineis, areis, agris, communibus paseuis. The communia pascua belonged to the owner of the mansus. We have conpascua again in Orig. Nassoic. LXVIII. These common pastures are not, strict!}' speaking, common pastures. They are not the property of the community. The}' are the undivided property of neigh- boring hind-owners. It is property held in common, not connnon property. AVith unity of possession we have diversity of title. The undivided sliares arc hereditar}', divisible, and even aUenable, — alienable as wholes or in fractions. "We must not infer com- munism from the word communis. Many writers have done this. The}' have fallen, consequently, into very serious errors. Note 94. — Page 36. Lex Burg. Add. I. Tit. I. 6 : sylvarum, montium, et pascuorum, unicuique pro rata suppetit esse communionem. Note the force of the words pro rata. The arable land of an inheritance being divided, the rest of the land was often held in undivided shares proportioned to the shares of land held in severalty : secundum terrarum modum vel possessionis ratam. See passage of Lex Burg. (Tit. LXVII) cited in Note 72. When a man alienated his severalty lands he alienated with them proportionate but undi- vided shares in all the common lands. See, for example, Westf. Urkb. 3 : mansos duos cum terris cultis et incultis et silvis com- munibus ad COS mansos pertinentibus. In Cod. Trad. Lunaelac LXIV, an estate is alienated including silvis communiis. In Ibid. CXXX a sih-a communia is included under res suas proprias. Cod. S. Galli 4GG : pars silve quae in ipsa marcha ad meam perti- net proprietatem. So in No. 531 : de coramuni silva quantum ad portionem nostram pertinet . . . de silva juxta estimationem nos- tre portionem incommuni silve. Lauresham Cod. JNOLMDCXCYI : portionem suam de silva inter ambas marcas. Ibid. MCCXXX^'I : de ilia silva communi, quantum jure hereditario ad me pertinere videtur. MM]MDCCXVI : de silva portionem suam, item sextam partem, JVI^IMDCCXLVI : de silva quod ad sc pcrtinuit. Trad. Wiz. LXIX : tres partes de ilia marca silvatica portione sua. Ibid. CC : sortes mi, et silva in communiis que [)Ossunt porci sagi- 192 EARLY HISTORY OF LAXD-HOLDING. nari niimcro cc si fructus evcnerit. In Hist. Frising. DCCCLXI a man alienates a silcam commmiem cum ceteris viris. Cf. DC'CCCIX : maxinuun partem de silva optima communem cum ceteris nobilibus viris. Brev. Not. Salzb. XV. 2 : silvam cum participibus suis. Then read Formula CCCCII : silviculam propriam vcl cum suis coheredil)us eonnnunem. It is e\ident from these examples, and man}' more which might be cited, tliat the silva communis was simply undivided propcrt}', or I^roperty held in undivided shares. The shares of it were held as private propert}'. They were hereditar}-, divisible, and even alien- able. The silva communis did not belong to the communitj'. It belonged to the members of it. Among them there was unity of possession, but diversity of title. Note 95. — Page 36. Lex Rip. Tit. LX. 2. Note 96. — Page 36. Communia are described as private property, as hereditary and alienable, in Formulae CXVIII, CLXXII (observe how the com- mnnia are included under the head of possessiones vel dominationes)^ CC (here they are alienated per festucam^ included within a pos- sessio vel domination under Q.jtis vel dojuinatio) , CCII (here they have been acquired de alode, de comparator seu de adtracto, and are in- cluded under sl jus et dominatio) ^ CCCI, CCCXLVI, CCCLXVII : nsus saltuum communium (described as private property, in the same category with mancipiis, Jumentis, pecorihus^ curtilibus et hobis possessis). See, lastly, Formula CCCCII. Then Kemble's Codex LXVI, XCVI, CVIII, CXC, CCLXXVI : connnunionem marisci quae ad illam villam antiquitus cum recto pertinebat. See also CCLXXXVIII, CCCCXXXII. Then Chart. SUhiense, p. 61 : where a man alienates two thirds of his estate including com- muniis. Cf. p. (32, where a whole estate is alienated including com- muniis. Then read Lex Burg. Add. I. G again (given in Note 72). See also Chart. Sithiense, p. 117 : curtilem, id est cum casti- ciis ; et, inter ipsum curtilem et pratum ac tcrram arabilem, buna- ria XL ; etde silva Inniariax, una cum ipsorum locorum communiis. NOTES AND REFERENCES. 193 The communia were rights in common lands sup[)lc'mentar3' to property held in severalty. Kights in severult}- lands being alien- ated, communia went with them, — the communia ipsorum loco- rum. In Lacomblet Urkb. G, a comprehensio in silva is alienated and with it a commnnio in eandeni silcam. In Ibid. 3, the \)\xYi\S(i potestas in sih-a is used instead of co;«;?2«m«o in silra. In No. 5 we have the phrase dominatio in silvam. Cf. No. 8 : portioncm heredilatis mee ... in terra aratoria, sen in pratis, et in pascuis, et in oninera communionem mecum in silvam. Hist. Frising. DCCLXXXIII : dedit episcopus ... in silva communem usum cum aliis. Ibid. MXXX : communionem in silvis, etiam hi marchis. Ibid. MCXCVII : praedium cum privatis et communibus iisibus lega- liter ad cundem locum pertinentibus. Brev. Not. Salzb. VII : portioncm venationis communem cum cohaeredibus suis. Be3'er Urkb. 400 : coheres est in communione que pertinet ad Tris. Wirtemb, Urkb. XXXVII : utilitatibus, quam in ipsam supra- dictam marcam et ad ipsam supradictam rem legitime pertinet. Ibid. LXXVIII : commoditatibus. Osnabrk. Gesch. XXVI : utili- tatibus ad eadem loca pertinentibus. Cod. S. Galli 514 : potesta- tem quam habuerunt in marcha ; 680 : usum habuimus qualem unusquisque liber homo de sua proprietate \_note tlris] juste et lega- liter debet habere in campis, pascuis, silvis lignorumque suceis- sionibus, atque porcorum pastu, pratis, viis, aquis, aquarumque decursibus, piscationibus, exitibus et reditibus. See also Ibid. 738, 740, 742 : in silva usus ad focos et ad sepes et ad edificia quantimi sufhccrent ad curtile. Ibid. No. 80G : quicquid heredita- rio jure possidemus . . . agris, pratis, silvis, omnibusque usibus ad ea ccdeutibus. See also No. 808. It is evident, from the above examples, that rights of enjoyment in common land were based upon rights of property therein. The common land was simply undivided land, in which two or more persons owned shares. It was in virtue of this shareholding that they had rights of enjoyment. It appears that these rights of en- joyment wore of the nature of real property. They were held as real property, inherited, divided, and alieuated. 13 194 EARLY HISTORY OF LAXD-HOLDIXG. Note 97. — Page 37. Wirteraberg. Urkb. LXIII, or Cod. S. Galli 199. See Note 92. Note 98. — Page 37. Trad. Wiz. CCLXXII. Kemble's Codex CCXCII. Cf. Ibid. LXVI : cominuna pasturae pro oinni geuere animalium omnibus seionis sibi et boiniiiibus suis sive tenentibus. Ibid. CVIII : unius gregis porcorum pascuara in saltii Andoredo. See Chartula- rium Abbatbiae de Novo Monasterii (publisbed by tbe Surtees Society, Durham, 1878,8°), p. 72: eouimunem pasturam ad iiii equos domitos, et ad x boves et xxx vaccas cum vitulis earum do- nee superenentur, et ad quadringentas oves cum agnis earum. There are other similar passages in this Cartulary ; ^vhich, b}' the wa}-, has been accidentally omitted from our list of sources. In addition to the passages cited above, two passages ma}' be given from the Visigothic Law. Lex Wisig. VIIL Tit. 5, 2 : Si inter consortes de glandibus fuerit orta contentio, pro eo quod nnus ab alio plures porcos habeat : tunc qui minus habuerit, liceat ei secundum quod tcrram dividit, porcos ad glandcm in portione sua susciperc, dummodo acqualis numcrus ab utraque parte ponatur. Et postmodum dccimas dividant. Sicut et terras diviserunt. See also Ibid, o : Si in pascua grex alienus intraverit, sive ovium, sive vaccarum, hoc quod de porcis constitutum est praecipimus custodiri. Consortes vero vel hospites nulli calumniae subiaceant : quia illis usum herbarum, quae conclusae non fuerant, constat esse communem. Qui vero sortem suam totam forte concluserit, et alicna pascua absente domino invadit, sine pascuario non praesu- mat, nisi forte dominus pascuae voluerit. It is evident that the common pasture was simply the undivided pasture ; that rights of enjo^-ment were unregulated, or else pro- portioned to undivided shares. Note 99. — Page 38. Lauresham Cod. MCCXXXVI. Cod. S. Galli, No. 531. Westf. Urkb. No. 3. The passages were cited in Note 94. A share of the common forest was attached to ever}- mansus or NOTES AND REFERENCES. 195 hnba ; so that if a man owned two mansi or hubae, he owned two shares of the common forest. The tenants of the nidiisi or huhae had rights of common in the common forest. The owners or lords of the hnbae had shares of the connnon forest : their tenants had rights of connnon in it, by grunt or by prescription. AVc may again refer the reader to Mr. Joshna Williams's " Rights of Common," and to Mr. Charles Elton's "Law of Commons and Waste Lands." Through the early period the common forests were owned by a great many persons. Some owned a few shares, some owned many ; but in the course of time there was an enormous concentra- tion of ownership, and a substitution of tenanc}' in its place. The common forest came to be the property of one or more great lords, and the mass of the people had merely rights of common therein. During the following centuries, however, the tenants succeeded, in many places, in getting rid of their landlords. In the mean time the}' had grouped themselves in corporations ; so the landlordship which they took away from their landlords was assumed, not by individuals but I)}' corporations of individuals, — b^' communes, or communities. This theory differs very much from that which is commonly held ; but we recommend it to the reader for his con- sideration. Note 100. — Page 39. Hist. Frising. DCCCLXXVI. Ibid. DCCCXV. Ibid. DCCCCIX. Note 101. — Page 40. The possession of undivided land was almost the first bond of union between the allodial land-owners. There was no other in the early time, except the bond of kinship ; and even the bond oi" kin- ship was very loose except where there were undivided inheritances to keep the kinsmen together. As long as tlicre was plenty of land, and cvci-y man could take as much of it as he wanted, rights in the land were seldom disputed, and seldom brought for discus- sion before the assembly of land-owners. In the course of time, however, the good land liecame scarce. Quarrels arose in regard to the rights of j)i-op('rt\- in it. Systematic divisions of the un- 196 EARLY HISTORY OF LAND-HOLDING. divided lands were called for. These divisions were usually made by tlie assembly of land-owners. But in regard to pasture and forest lands, it was often tliought best not to divide them, but to have rights of enjoyment in them dclined. Tlie delhiitions were seldom permanent, lu)\vever. Disputes continued to arise, and these disputes were settled by the assembly of land-owners ; and when the right of the individual was opposed to that of the majority it was apt to be annihilated. Strangers were sometimes admitted to rights in the common land, by the assembly. In this waj- the sovereign control over the common land came to be vested in the communit}' or corporation, rather than in the members. It is generally true, that wherever the control of undivided property is vested in a majority of the shareholders, rather than in the majority of shares as represnted by their owners, the property becomes, sooner or later, the property of the community or corporation. The majority vote may be described as the root of communism. Most of the communism which the world has seen has been an out- growth from it. Note 102. — Page 40. Take, for example, the ahnend of Switzerland. AYas it, in the earh' time, land held in common, — i. e. undivided land, held in un- divided shares, — or was it land which belonged to an association or corporation of persons, in which the individual had merel}- a usu- fruct? No careful student of the records will hesitate in conclud- ing, the question being put to him in this way, that the almend was undivided land, land held in undivided shares. He will remem- ber perhaps the passage of Cod. S. Galli 680 (A. D. 890) : talem usum habuimus qualem unusquisque liber homo de sua projjrietate \iiote these ioords~\ juste et Icgaliter debet habere in campis, pascuis, silvis, lignorunKiuc succisioniljus ntque porcorum pastu, prulis, viis, aquis, aquarumque decursibus, piscationibus, exitibus et reditibus. Sec Notes 92-91, 9G-99. The student will remember also the in- numerable documents in which shares of the undivided and com- mon land are described as hereditary, divisible, and alienable. That the nature of the almend has changed in the course of the Middle Ages, that at the present time the ownership of it is vested rather in the villages and communes than in individuals, is to be NOTES AND REFERENCES. 197 granted, of course. The elumge in the constitution of the ahnend ma}- be explained as the result of giving the control of the almend to the majority of the shareholders, rather than to the majority of shai'es as represented b}- their holders. l>ut this is not the only explanation of the present constitution of the almend^ nor perhaps the best. The almend was, in many cases the property of one or two great lords ; but it was occupied b}- the tenants of these lords. They had rights of common in it, b}- grant or b}* prescription. The tenants then formed themselves into corporations or communes, and succeeded in overthrowing the lord or lords, and in getting possession of the landlordship. They then emerge with rights of common under their own landlordship. Of these two explanations the reader may take whichever he pre- fers, or both. It is probable that the histor}* of the ahnend has been different in dilferent cases. See remarks and citations in Note 17. What has been said here of the almend refers equally well to communal lands in Belgium, in England, and elsewhere. Note 103. — Page 41. Lauresham Cod. CCCLXXVII. Cf. Cod. Morav. CCCXXXVII : poilio Reinokli in via quam vendebat. "We have the via alicujus in Lex Baiw. IX. 13, In Wirtemb, Urkb, XLIII viis arc included under the head of omnes res meas. Cf. Ibid. LXI. See Formulae CCXXXI, C^CXXXIX. Many other instances might be cited. It was some time before roads and wa3's ceased to be regarded and described as undivided propert}'. They were held in undivided shares, — communiter divisam, as the phrase was. See Lex Burg. Add. I. Tit. T. 1 : Observandum viam publicam, vel inter agros communiter divisam, nee possideri, nee intercludi, ncc exartari posse. Note 104. — Page 41, Lex Burg. Add. I. 4 : Viam in actum, hoc est, ubi carpenta vel carra ducuntur, similiter biennio amitti, et adquiri posse. 198 EARLY HISTORY OF LAND-IIOLDIXG. Note 105. — Page 42. Lex Baiw. IX. 13 : Si quis viam publicam, ubi Rex vel Dux egreditur, vel viam aequalem alicuiiis [_note the force of this word'] clauserit contra legem, cum duodecim componat, et illam sepem toUat. Et si negare voluerit, cum duodecim sacrameutalibus iuret. If a man could get twelve witnesses to swear that the road was his, he might appropriate it : if he could not do this, he paid twelve solidi to the owner, the king or duke, or any one else {ciUquis) who happened to be the owner. Lex Baiw. IX. 14 : De via convicinali vel pastorali, qui earn alicui contra legem clauserit, cum sex solidis componat et aperiat, vel cum sex sacramentalibus iuret. Ibid. 15 : De semita convici- nali, si quis earn clausevit, cum tribus solidis componat, aut cum uno sacramentali juret. Note lOG. — Page 43. The formula aqvis aquarumve decursihus occurs in almost all the descriptions of property which we have, of the early period. One example will be suflicient, — Formula CCXXXVI : curtem clau- sam cum ceteris edificiis, cum terra salice, id est jurnales tantos, prata ad carradas tantes, et hobas tantas, cum agris, pratis, silvis, pascuis, aquis aquarumve decnrsibus, ut a die presente habeas, teneas, atque possideas. Cf. Cod. S. Galli G19 : potestative manu possidere usque in medium Ilreuum. See also Hist. Frising. DCCLXXXVII : terminum fluminis pertinentem. Cod. Trad. Lunaelac V : donavimus unam aquam. Fulda Trad. Cap. o. G9 : capturam unam et duas partes fluminis supra et infra. Ibid. Cap. 42. 1 : agrum in quo fons ebullit. Ibid. No. 215 : pratum unura et fontem in eo manentem. Fulda Cod. 410 : talem partem in illo fonte ubi nascetur sal qualis mihi contingit in eodem fonte. Lauresliam Cod. MMCXVII : fontem i in Sigulfingheim. Cf. Alsat. l)ii)l. LXIX. Formula CC. Kemble's Codex XXVII: fontanis vel mariscum. Beyer Urkb. 22 : de ilia fontana, quantum ad nos pertinet. Ibid. 4G5 (b) : xx mansos cum fontibus inde nianentibus. Cf. Lib. Eli. II. 21 : unum gurgitem quern Ean- flcad moriens partim dimisit Wine, et partim emit ipse a cognatis suis. NOTES AND REFERENCES. 199 Note 107. — Page 43. Lex Burg. Add. I. Tit. I. 3 : Aquae cursum et adquiri et amitti biennio constat. Note 108. — Page 4.3. Lex Baiw. IX. 16 : De fonte. 1. Si fontem quacumque immun- ditia coinquinaverit vel raaculaverit, emundet, cum prius, ut nulla sit suspicio coinquinationis, et cura sex solidis componat, aut cum sex sacramentalibus iuret. 2. Si autem plurimorum in vicinia putens fuerit, compositione inter se multentur. 3. lUe vero pu- teura in pristinum restituat gi-adum. Another stage in tlie liistory of wells is described in Rothar CCCXI : Si animal in puteo alterius ceciderit, et mortuum aut debilitatum fuerit, non requiratur, cujus putens est ; quia putei aqua communis omnium utilitatibus inveni- tur esse. Here the well is supposed to belong to somebody, but the water is free to all. The individual was no longer allovyed to hold an exclusive right to the water of his well. He must allow others to partake of it. Note 109. — Page 44. Lauresham Cod. DCCCCXLVH. See also Cod. S. Galli 731 : dimidium curtem cum nrboribus positum et dimidium domum. Hist. Frising. CCCLXXVII : qnicquid ipso die propriae hereditatis se habere videbatur totum tradidit . . . hoc est curtem medium et domum mcdiam cum alia edificia, tota media. Brev. Not. Salzb. XVII. 3 : Gotschalh dcdit mcdietatem domus suae et omnia ad earn pertinentia. So in Mon. Weihensteph. p. 471 : dimidiam domum suam delegavit. Lastly, sec Miinst. Bcitr. III. G : curtim in unum congregare commutatione. When several persons held a house in shares, the shares could be united again by means of pur- chases and exchanges. One of the shareholders bought out the others. Then he had the house to himself. Unless this was done, the house would come to be the undivided property of a great many persons, representing the original proprietor. We have already cited the passage of the Lombard Law, Rothar CLXVII : si fra- tres post mortem patris in casa comniuni re manseriiit . . . Doubt- 200 EARLY HISTORY OF LAXD-HOLDING. less grandsons and even great-grandsons sometimes remained together under tlie same roof, forming a house communit}'. The house community arises from the multiplication of heirs within the house of an ancestor. House comunmities of this kind may be seen in the Slavonic countries, especially in Slavonia, Croatia, Dalmatia, Servia, and Montenegro. The}- may be seen also in India and in other coun- tries. They are, in all cases we believe, assemblages of heirs holding an undivided inheritance. The inheritiyice (the ancestral homestead) being in its nature indivisible, the heirs arc bound together by it into a unit. They separate only when their inheri- tance will no longer contain them. Note 110. — Page 44. Salem Eeg. p. 327. See also Wirtemb. Urkb. XXXVIH: mediam partem de uuo molendino. Ibid. XLVII. Lauresham Cod. DXVI : tertiam partem de uno molino. Ibid. MMCXXIV : dimidium molendinum. Cod. S. Galli 127: mediam partem de uno molendino. Miinst. Beitr. I. No. VI : ego Goscalcus, cum pleno consensu uxoris me, et gcrmani mei, ejusque uxoris et eorum natoruni ; item et sororis mee, aliorumque tani hcredum quara co- hereduni meonim libero arbitrio vendidisse molendinum cum omni- bus suis emolumentis. In this connection the following passage of the Chart. Sithiense is interesting: p. 67: quod mirabile nostris hactenus monstratur temporibus [A. D. 800?] molendinum fecit [Orlandus, abbas] volvere aquis contra montem currentibus ; constituitque ut nullus hominum molendinum extra locum jam dictum [villa Arecas, Ar- ques?] construere presumeret : quod ad utilitatem monasterii Sithiu ad tempus fuit couservatum. This is a very early case of cop}'- right ! Note 111. — Page 44. Fulda Cod. 68. Hist. Frising. CXXIX. Capit. Wormat. A. D. 829. See also Capit., Additio Tertia LI (Corp. Jur. Germ. II. p. 805) : perlatum ad nos est quod inter heredes ecclesiae in rebus propriis constitutae dividantur, et tanta per eandem divisionem NOTES AND REFERENCES. 201 simultas oriatur, ut unius altaris quatuor partes fiant, et singulae partes singulos habeant presb3'teros : quod sine discordia et simul- tate nullo modo geri potest. Unde nobis visum est quod hujusce- niodi ecclesiae inter heredes dividi nou debeant. FA si in contentionem veneriut . . . References to shares of churches owned b}' individuals are very coramon. Alsat. Dipl. CCXLVIII : quarta pars ecclesiae. Formula CCCXIV : partem in basilica. Lacomblet Urkb. 289 : oetuvaui partem ecclesiae. Ritz Urk. 5 : portio mea do ilia basilica. Fulda Cod. IGl : partem illius ecclesiae quam pater noster nobis in hercditatem dereliquit. Lauresham Cod. LXXXIII : duas par- tes basilicae. Ibid. MDCCCCLXV : portionem meam de basilica. So also in MDCCCCLXVI, MDCCCCLXVII, MDCCCCLXIX- MDCCCCLXXII, and MDCCCCLXXIV. In these documents ditferent persons are mentioned as shareholders in the same church ; that of St. Lanpert in Mainz. See also Trad. AViz. CLXXVIII. Cod. S. Gain 13 : de ilia ecclesia, dc v partibus duas partes. Ibid. 108 : de ilia ecclesia portionem, quicquid mihi legitime obtin- git. Ibid. 155 : partem ecclesie, vel quicquid in predicto pago genitor mens a consortibus suis in partem visus fuit accepisse et ille postea suis dividenda dimisit heredibus. Ibid. 185 : partem basilice. See also Hist. Prising. CDXIV : tunc interrogavit Epis- copus Fridupertum et coheredes sui, si illorum portionem, quod eis contigisset in ipsa Ecclesia donai-e voluissent. Num. CDLXXIl is also interesting, and DCCXXXI. Wirtemb. Urkb. CXXXVI, CLIV, CCLVII. Lastly, see Reg. Hist. Wcstf. XX, where we have successores alodii in a church. Note 112. — Page 45. Hist. Frising. CCCLXVII : mancipias ii et iii um dimidium. Ibid. CDIII : unum mancipium et alium dimidium, qaem commu- ncm liabiiit ciun fratrc suo nomine Erlolf. Fulda Cod. 445 : unius pucri communis duao partes, nomine Ruadhelm. Ibid. 573 : man- cipia quorum quacdam mea, quaedam vero meorum propinquo- rum et mea communia, quorum haec sunt nomina. Cf. Trad. Corb. 383 : tradidit mansum cum mcdietate familie. 202 EARLY HISTORY OF LAND-HOLDINa. Note 113.— Page 45. Brcv. Not. Salzb. VII. 3 : Madelhelnuis quidem vir nobilis cum caeteris rebus suis portioncm venationis suae ad istam dei eccle- siam juxta ripam, quae vocatur Albina, banc esse eommuncm cum cohaeredibus suis. Cf. Ibid. VIII. 1 : ilia geucaloiria supradicto- rinn boiuinum de Albina. AVc have bcre a clan bolding a hunting ground in undivided shares, the shares being hereditar}^ divisible, and alienable. Venationes are frequently referred to in the docu- ments, where they are alienated with other property. See Cod. Quedlinb. XXVII, XXVIII, XXIX, XXX, and Juvavia II. Num. VI. p. 22. Note 114. — Page 45. Laureshara Cod. CCCCLXVIII. See also Indie. Arnon. VII. 4 : prata et silva et medietatem de lacu piscatione. Lib. Eli. II. 20 : dedit unius gurgitis piseationem. Liseh. Urk. II. No. I : piscatura dimidiam juxta mare. Juvavia II. p. 22. Lacomblet Urkb. 5. Cod. Quedlinb. XXVII-XXX. Note 115. — Page 46. Fez Thesaurus VI. Part I. p. 72 : de curte, qui dieitnr Atarhohf, inde licet piscari in Maninseohcbdomadas duas circa natale Domini. This is one of the Mondsee records. Sometimes a man was obliged to fish with a small net. See Stenzel XL VIII : piscaturam cum purvo rete. On the sea-coast the number of boats which a man might send out was sometimes limited. See Lisch. Urk. LVIII : libertatem capiendi rumbos \_Jlounders'\ cum una navi et rctibus in mari salso tcrre nostrc dominio adjacenti. In earl}' times, of course, hunting and fishing were enjoj'cd ad libitum. It was a long while before rights were defined or limited. The passage last cited dates from the year 1265. Just as soon as there was a scarcity of game or fish, disputes arose regarding hunting and fishing grounds, and riglits of propert}' in them, and rights of enjoj-ment in them were defined. Rights to hunt and fish were, in most cases, as- sumed by the landlords, who distributed tliem in the form of rights of common among their tenants. The r'vi\\t to fish in the lord's NOTES AND REFERENCES. 203 waters is called, in the English law, the " common of piscar}'." A " common of fowling" is not unheard of. All such rights fall un- der the general head of " profits ;i prendre." Note IIG. — Page 46. The German famil}-, or clan growing out of it, is best described b}' the German word Erbgenossenschaft. It was a group of heirs bound together by the possession of an inheritance in the land. The inheritance was the main bond of union or association among them. There was no other, in the earlj' time, except the bond of kinship, which, in itself, was a rather loose one. The Erbgenossenschaft must be very carefully distinguished from the association of Awia-holders, the Hubengemeinde. The Ilaben- gemeinde was an association of tenants holding allotments of land (hubae) from a landlord or landlords. The Erbgenossenschaft was, at the time of which we are 'speaking, the association of landlords. The Erbgenossrnschaft \cy\ often embraced one or more Hubenge- meinden. That is to say, the inheritances of the Erbgenossen con- sisted of Huben. An inheritance in the Erbgenossenschaft consisted of one, two, or more Hubcn of the Ilubengemeinden. In later times the distinction here drawn is of no importance. We have ErbgenossenscJiaften of tenants, and Hubcngemeinden of landlords. The two institutions arc so confounded that they can- not be distinguished. We shall consider this matter at greater length presently. It is worth while here to speak of the resemblance between the Teutonic Erbgenossenschaft and the Hindu village community'. The resemblance is very striking. The landholders in the Hindu vil- lage almost always trace their descent from a common progeni- tor, the founder of the village and first holder of the village lands. The landholders in the village are the heirs and representatives of this person. Sometimes the inheritance is undivided for several generations. During this time the heirs are apt to live in the an- cestral house, forming a house communit}' ; and the land is held in undivided shares, in common. After a while, however, the heirs in the inheritance become too numerous to live together in one house. They have to separate. New houses nro built in which they distribute themselves. At the same time, the land, or 204 EARLY HISTORY OF LAND-HOLDING. as much of it as is required, is divided among the different house- holds. Ever}' house has then an inheritance in severalty. The distribution of the land is usuall}' made according to the law of in- heritance applied to a table of descents from the common progeni- tor, i. e. per stirpes etjure hereditario. As the heirs increase in the different households of the village, the inheritances of the house- holds have to be divided and subdivided among the members, and the number of households increases constantly. The heir in an un- divided inheritance is allowed, at any time he pleases, to have his portion of the inheritance divided off and assigned to him as a sevcraltv. From time to time, as the land becomes exhausted, the fields of the village are shifted to a new localitj". In such cases the households of the village receive equivalent inheritances, and the individual receives a share of the land assigned to tlie house- hold of which he is a member. The divisions are regularly made according to descents and the law of inheritance. The undivided, common land of the village is regarded as the undivided inheritance of the dilFerent households, and of the individuals within these households. The Hindu family or clan, like the German family or elan, is not, properly speaking, a land-owning corporation. It is simply a group of heirs, with a partly divided, partly undivided, in- heritance in the land and the things on the land. The corporate character which the observers of the Hindu village community have described, and so much insisted upon, is due to the fact that the heirs in the village are held collectively responsible for the pay- ment of state taxes. The villagers are taxed, not as individuals, but as a group. They are taxed as a corporation. Apart from their relations with the state, however, they must be regarded as a group of parceners rather than as a bod}- corporate. A man dies holding certain taxable property. The property passes to his heirs, who hold it in undivided shares. The}' are collectively responsible for the taxes, but they are not properly speaking a body corporate. According to our system of law, when the property is divided the shareholders pay their taxes severally and indi\'idually. There is no coUoctive responsibility among them. But in India the col- lective responsibility remains, whether the property is divided or not. A certain tax being laid upon the property, it is paid by the holders of the property, whether tliey hold it in undivided shares or in severalties. They distribute the burden among themselves as they please. NOTES AXD REFERENCES. 205 The mode in which state taxes are levied, and distributed among the landholders, has nothing to do with the internal constitution of the village, except in so far as it may be the means of altering that constitution. AVe have no reason to believe that the revenue system of the Hindu kings, or of their conquerors, has to any a[)preciable degree changed the constitution of the Indian village community. The taxes have always been paid according to the extent of the different inheritances ; and the principle of private property has been persistently adhered to. Note 117. — Page 46. Formula CCCXVIII : in vico et genealogia quae dicuntur, ubi rivolis illc intrat in ilium flumen, curtiles duos et aforis a terra arabili jurnales tantos et de pratis ad carradas tantum et molendi- num unum ; et e contra in conpensatione harum rerum dedit memo- ratus vir ex suo proprio prefato episcopo ad partem episcopum, in pago illo, in villa vocabulo illo, prope fluvium ilium, curtilem unum et aforis de terra jurnales tantos, lucos duos, molendina duo. We see here that the principle of private propert}' was fully recognized within the vicus vel genealogia. Cf. also Brev. Not. Salzb. VII. 3 : portio venationis communis cum cohaeredibus. It was alienated to the church at Salzburg by a member of the genealogia de Albina. See Ibid. VIII. 1. And read again Lex Alam. LXXXIV : conten- tio inter genealogias de termino terrae eorum. The passage is given in full in Note 5G. It must be remembered that within the limits of the clan land the law of inheritance was in operation. By it the right of property in the land was being distributed among the in- dividual clansmen from generation to generation. In connection with Lex Alam. LXXXIV, Lex Alam. LXXXVIII must not be forgotten : ut fratres post mortem patris eorum hereditatem non dissipent antequam dividant cam. Nor must we forget the docu- ments of Cod. S. Galli in which individual inheritances of clan land are described : cam campis^ pratis, paxcuis, silvis, etc. Note 118. — Page 47. See Kemble's Saxons in England, Vol. I., Appendix A (I, p. 449 of the new edition, London, 1.S7G, 8""). 206 EAKLY HISTORY OF LAND-HOLDING. Note 119. — Page 47. Ethelbert 3, 5, 13, 17. Note 120. — Page 48. See Dr. Ernst Forstemimn : Die deutschen Ortsnamcn (Nord- hausen, 18G3, 8°) ; his Altdeutsches Namenbuch, Zweiter Band : Ostsnamen (Nordhausen, 1872, 4°) ; Prof. Willielm Arnold's An- siedelungen und Wanderungen Dcutscher Stiimme (Marburg, 1875, S^) ; the Rev. Isaac Taylor's Words and Places (London, 1865, 8°) ; and Mr. F. Seebohm's English Village Community (published this year by Longman & Co., in London, 8°). Besides examining the lists of local names in the above-mentioned works, the student will find it worth his while to look over the geo- graphical indices of the Cod. S. Galli and Hist. Prising., and over some good map of Germany- that gives the names of small villages. Note 121. — Page 48. See the genealogies in Angl. Sax. Chron. at the 3-ears 547, 552, 560, 597, Gil, 617. Take for example the last-named 3'ear, where Edwin the son of Aella is described as Eadwiue Aelling. There would be as many Aellings in England as there were sons of men named Aella ; but the}' would not necessarily be related one to another. Note 122. — Page 49. Edictus domni Ililperici regis (in Merkel's Lex Salica, p, 37), § 3 : Simili modo placuit atque convenit, ut si curaqne vicinos habens aut filios aut fihas post obitum suum superstitutus fuerit, quamdiu filii advixerint terra habeant, sicut et lex salica habet. Et si subito filios defuncti fuerint, filia simili modo accipiant terras ipsas, sicut et filii si vivi fuissent aut habuissent. Et si moritur, frater alter superstitutus fiiorit, frater terras accipiant non vicini. Et subito frater moriens, frater nc 1 derelinqucrit superstitem, tunc soror ad terra ipsa accedat possidenda. Det illi vero et convenit singula de terras istas qui si adveniunt, ut leodis qui patri nostro fuerunt consuaetudinem qua habuerunt de hac re intra se debeant. NOTES AND REFERENCES. 207 Note 123. — Page 49. Lex Burg. Add. I. Tit. I. 5. Formula CXXVII. See Notes 72, 74, 82. Note 124. — Page 50. Lex Wisig. X. Tit. I. 1, 2, 3, 8, See Notes 74-91. Note 125. — Page 50. Lex Sal. XLV : De Migrantibus. 1. Si quis super altcnim in villa migrare voluerit, si unus vel aliqui de ipsis qui in villa consis- tunt eum suscipere voluerit, si vel unus exteterit qui contradicat, migranti ibidem licentiam non habebit. 2. Si vero contra interdicto unius vel duorum in villa ipsa adsedere praesumpserit, tunc ei tes- tare debet et si noluerit inde exire ille qui testat cum testibus sic ei debet testare : Hie tibi testo in liac nocte proxima in hoc quod lex Saliga habet sedeas et testo tibi ut in x noctes de villa ipsa cgre- dere debeas. Postea adhuc post decern noctes iterum veniat ad ipsum et ei testet ut iterum in decem noctes exeat. Si adhuc no- luerit exire, item tertio decern noctis ad placitum suum addatur ut sic xxx noctes impleatur. Si nee tunc voluerit exire, tunc maniat eum ad mallum et testes super singula placita qui fuerunt ibi prae- stos habeat. Si ipse cui testatum est noluerit inde exire et eum aliqua sunnis non tenuerit et ista omnia quae superius diximus secundum legem est testatus, tunc ipse qui testavit super furtuna sua ponat et roget graflonem ut accedat ad locum et eum inde ex- pellat. Et quia legem noluit audire, quod ibi laboravit demittat et insuper mcc dinarios qui faciunt solidos xxx cuipabilis judicetur. 3. Si vero quis migraverit et infra xii menses nullus testatus fuerit, securus sicut et alii vicini maneat. Note 12G. — Page 53. See Notes 92-100. Note 127. —Page 54. Lex Angl. Werin. VI: De Alodibus. 1. PIcreditatem dcfuncti filius, non filia suscipiat. Si filium non habuit qui defunctus 208 EARLY HISTORY OF LAND-HOLDINQ. est, ad filiam pcciinia et mancipia, terra vero ad proximum paternae generationis consanguineum pertineat. 2. Si autem nee filiam habuit, soror cius pccuuiam et mancipia : tcrram proximus paternae generationis accipiat. 3. Si autem nee filium, nee filiam, neque sororem habuit, sed matrem tantum superstitem reliquit, quod filia vel soror debuerat, mater suscipiat, id est, pccuniam et mancipia. 4. Quod si nee filium, nee filiam, nee sororem, aut ma- trem dimisit superstites, proximus qui fuerit paternae generationis, heres ex toto succedat, tarn in pecunia atque, mancipiis, quam in terra. 5. Ad quemcunque hereditas terrae pervenerit, ad ilium vestis l)ellica, id est lorica, et ultio proximi, et solutio lendis, de- bet pcrtinere. 6. Mater moricns filio terram, mancipia, pecuniam dimittat, filiae vero spolia colli, id est murenas, nuscas, monilia, inaures, vestes, armillas, vel quidquid ornamcuti proprii videbatur habuisse. 7. Si nee filium, nee filiam babuerit, sorori pecuniam ct mancipia, proximo vero paterni generis terram relinquat. 8. Usque ad quintam gencrationem paterna generatio succedat. Post quintam autem filia ex toto, sive de patris sive matris parte, in hereditatem succedat, et tunc demum hereditas ad fisum a lancea transeat. Note 128.— Page 54. Ivothar CLTII : Omnis parentcla usque in septiinum gcnuculum numeretur, ut parens parenti per gradum et parentelam heres suc- cedat. Sic tamen ut ille qui succedere vult, nominatim uniuscuius- que nomina parentum suorum antecessorum dicat. Et si intentio fuerit contra Curtem Regis, tunc ille uni quacrit, praebeat sacra- mentum cum legitimis sacramcntalibus suis duodecira, et dicat per ordinem, quod parentela nostra sic fuit ; et illi sic fuere nobis pa- rentes quomodo nos dicimus. An explanation of the septimum gcnuculum is to be found in the Sachsenspiegel I. 3, § 3. The classification of collateral heirs appears to have been deter- mined, among the Germans, with reference to the natural divisions of the family and clan. It was not an artificial classification like that of the ancient Irish, described in the Book of Aicill. See An- cient Laws and Institutes of Ireland, Vol. III. Although the classification of collateral heirs was based upon NOTES AND REFERENCES. 209 the natural divisions of the fauiil}-, and chin growing out of it, the question has been raised whetlier the grandson of a father was preferred to the son of a grandfather ; whether the grandson of a grandfather would be preferred to the son of a great-grandfather. That is to sa}', were near descendants of a remote ancestor pre- ferred to distant descendants of a near ancestor? We do not propose to enter into a discussion of this question. If the reader cares to go into it, he should read the following books and essays. See first Johann Christian Majer's Deutsche Erbfolge (Stuttgart, 1804, 8°), and his Gemeinrechtliche Erbfolge-Ordnung (Stuttgart, 1805, 8°). Then Heinrich Sicgel's Germanische Verwandsehafts- berechnung (Giessen, 1853, 8°), and his Deutsche Erbreclit (Hei- delberg, 1853, 8°). Then Dr. II. Wasserschleben's Prinzip der Successionsordnung (Gotha, 1860, 8°), and a Replik by the same author (Giessen, 1864, 8°). Next in order, the controversy still raging, comes a summing up of arguments by Lewis in the Kritische Vierteljahrschrift fiir Gesetzgebung und Rechtswissenschaft (IX. p. 23). Then we have Dr. Heinrich Brunuer's Anglonormannische Erbfolgsystem (Leipzig, 1869, 8°) ; and, lastly, Karl von Amira's Erbfolge und Verwandschafts-Gliederung (Miinchen, 1874, 8°). Unless the student has a taste for controversies he will hardly be tempted into this one. There is very little to be ascertained from it. Note 129. — Page 55. Hist. Frising. CDXCII, DLXXIV. Mon. Scheftl. I (p. 363) See also Hist. Frising. XHI : congregavi multitudinem parentum meorum nobiliura virorum, per quandam dubitationeni liliorum meorum, consiliavi cum illis sicut ipsi consilium eorum niihi per fidem dederunt ut hereditatem tradidisscm ; and Ibid. LXXX : hacc sunt nomina proximorum suoruni, qui banc convenientiam cum ipso Waldkero fecerunt [Tradedit hereditatem]. Ibid. CII : tradedi hereditatem et propinqui mei conscnserunt et firmaverunt cum verbis eorum. Ibid. CXLII : factum est in presentia matris eorum nomine ludit, et aliorum plurimorum qui ibidem de familia adfuerunt. Ibid. CCCVIII : traditionem feci ; contigit autem mihi, ut ego valida infirmitate depressus vocari ad me proximos et viei- nos meos et in manus illorum totam dictam rem uieam per wadium 14 210 EARLY HISTORY OF LAND-HOLDIXG. posui, lit ipsi perfecissent traditionem. Cf. also Ibid. I. p. 49, — the passage cited in Note 81. Then read Fulda Cod. 189 : talem por- tionem que mihi a parentibus meis in propiictatcm hereditario jure contigit, consentiontibus atque simul conlaudantibus fratribus ac sororibus meis uterinis, nuUoque parentuin meorum et affinium con- tradicente coram testibus idoneis et cognatis meis trado. This is as good a case as we could find. Cf. Chron. Benedictob. p. 74 : tradidit absque ullius contradictione quidquid proprietatis habebat in villa Taerzins, edificia, curtes, animalia, sive in agris, in pratis, silvis, calminis, montibus aquis, etc. Mon. Schlehdorl". p. 1 : here- ditatom propriam transfundavi, per consensum illustrissinii Duels Tassilonis et Satrabuni ejus, atque confinitimorum nostrorum con- sentieutium. Some more references will be given under Note 164. Note 180. — Pace 56. Formula CCXXXTX. In a majority of the documents the heirs, collateral as well as descendant, are warned that no claim on their part will be deemed valid. The following formula is that which is commonlj' used : si quis, quod futurum esse non credimus, aliquis de heredibus nostris, vel quicumque, contra banc cessionem nos- tram agere aut ipsa rem tibi auferre conaverit, inferat tibi cum cogente flsco auri tantum, et banc epistola firma permaneat cum stipulatione subnexa. Note 131. — Page 57. See the last paragraph on p. 12; then pp. 17-19. It maybe argued from the words of Ca?sar, privati ac separati agri apud eos \_Suevos'] nihil est, that private estates were unknown ; but the argument is inconclusive. The agri may have been, probabl}' were, occupied and cultivated by serfs, and the lords and owners of the serfs were lords and owners of the land which they cultivated. It is probable that in the time of Caesar, as in the time of Tacitus, agri were occupied according to the number of cultivators ; that the cultivators were serfs ; that agri having been thus occupied (pro nuinero cultorum) were redistributed in sections, spat la campo- riun, and so intermixed. That being the case, it might very well be said : privati ac separali agri apud eos nihil est. The phrase NOTES AND REFERENCES. 211 ma}- refer, however, simply to the absence of boundaries between the possessions of one free-lord and another. It may not mean an}- more than the passage in VI. 22 : nequc quisquam agri modum certum aut fines habct proprios. The conclusion to which these considerations lead is, that there is nothing in the statements of Ciesar which can legitimately lead us to suppose that the holding of land was communistic. It is quite possible that the principle of individual property was fully recognized. We must not assume that the life of the people had alwa3S been migratory. There were, doubtless, periods of permanent settlement before the beginning of recorded history. Private propertv in laud ma}- have existed among the Germans hundreds of years before we meet with them in the Commentary of Caesar. The reasons which the Germans gave Ctesar as accounting for their migratory life would indicate that they had had some experience of the regime of private prop- erty. They were afraid, if they settled anywhere permanently, that the rich would drive the poor from their possessions, and so make great estates for themselves. See Note 31. Note 132. — Page 57. The testimony of Tacitus has been pretty thoroughly discussed in the previous pages and in previous notes. Enough has been said about it perhaps. Besides the passages already considered, however, — Germ. 5, 16, 20, 25, 26, 32, — it may be well to cite the following passage from the Annals. An. IV. 72 : ac primo boves ipsos, mox agros, postremo corpora conjugura aut liberorum servitio tradebant [Frisii, transrhenanus populus]. This would indicate that the Frisians held agri as property, that their property con- sisted chiefly of cattle and lands. We know from the concurrent testimony of the later records that this was the case. Without doubt, the testimony of Tacitus goes to prove the existence of pri- vate property in land. Communistic holding of land was probably quite unknown. There is no reference of any kind to it. Note 133. — Page 57. This will appear like a very bold statement : but we have spent the best })art of six years in reading through the early records with 212 EARLY HISTORY OF LAND-HOLDINa. the question in mind : Is there any evidence of tlie existence of communism in respect to land? We have found none. We make our statement, therefore, not raslily, but calmly, with the assurance of approximately complete knowledge. Note 134. — Page 58. See pp. 27-4G inclusive, and the Notes referred to. Note 135. — Page 58. See pp. 21-23, and Notes referred to. Note 136. — Page 58. Formula CCCCXII : Relatione pagensium ad rege directa. For- mula CXXVII : De divisione ubi rege accederit missus. See Notes G3, 74. Cf. Liulprand LXXIII : et ipse judex faciat venire parentes ipsius proi)inquos, ut una cum ipsis, aut per se, aut per missum suum res ipsas dividat, sic tamen ut omni tempore sortes stare debeant et adaequatio pcrcurrat. The only exception to the statement that when fighting was given up disputes were referred to the chief or king, or an agent, missits, is found in Lex Wisig. X. Tit. I. 3 : si plures fuerint in divisione consortes, quod a multis vel melioribus juste constitutum est a paueis vel deterioribus non convenit aliquatenus immutari. Among the Visigoths tlie voice of the best men, or of a majorit}', was referred to in disputes regarding tlie division of land. But this fact is no evidence of communism, because it is assumed that the shareliolders have riglits. The best men, or the majority, are referred to as judges to decide disputed claims. Observe the force of the w'ords^'ws^e constitutum est. Then it must be rememl)ered tliat the division of land once made was permanent. The decision of tlie best men, or of the majority, was not to be revoked : sed quod a parentibus vel vicinis divisum est, posteritas immutare non tentet. See Lex Wisig. X. Tit. I. 8. Note 137. — Page 59. See Notes 73-77. Whenever a tract of territory was occupied, there was at once a distribution or ap[)ropriation of inheritances ; NOTES AND REFERENCES. 213 and these inheritances passed from tlie original holders to tlieir descendants to be divided and snbdivided among them. This appears ver}' clearly in the first three paragraphs of the Edict of Chilperic (A. D. 573-575). Tlic}- are as follows: 1. Pertrac- tantes in Dei nomen cum viris magnificentissimis ohtimatibiis, vel antrustionibus, et omni populo nostro, convenit qui lluviumCaronna [_Garon7ie'] hereditas non transiebat, ubi et ubi in regione nostra hereditas detur [leodibus nosf.ris^, sient et reliqua loca ut et Turro- vaniasis heroditatcm dare debent et accipere [for as in other places so now in the country of Tours inheritances must he distributed and received^ . 2. Similiter convenit ut reibus [rebus^ res, i. e. heredi- tates] concederemus omnibus leodibus nostris, ut per modicam rem scandalos \_lll feeling , discontent^ disturbance'^ non generetur in regione nostra \_it was decided that everybody should have an inherit- ance']. 3. Simili mode placuit atque convenit, ut quicumque vici- nos [froximi, parentes vel vicini'] aut filios ant filias post obitum suum superstitutus fuerit, quamdiu filii advixcrint terra habeant, sicut et lex Salica habet . . . The rest of the passage may be read in Note 122. These paragraphs have been much misunderstood. The assump- tion that the word reibus, in § 2, has reference to the sum of money which he who married a widow was obliged to pay to the relatives (see the first of the Capitularies appended to Lex Salica, § 7, on p. 90 of Behrend's edition) is absurd. The word reibus stands for rebus, and rebus stands for res, without doubt. Merkel gives us the reading rebus (p. 37), and makes no reference to any other. The use of the ablative instead of the accusative is not uncommon in these early writings. The accusative loca is used for loeis in § 1. The localities referred to in § 1 are fixed for us in Greg. Turon. IV. 48. Note 138.— Page 59. Given a law of inheritance in land, the inference is that all un- divided lands are undivided inheritances, until we have the means of proving them to be something else. Given an undivided inheritance, the inference is that with unity of possession tliere is diversity of title. We must assume that the inheritance is divisible among the heirs, until evidence is adduced to show that it is indivisilde. 214 EARLY HISTORY OF LAND-HOLDINa. Unless the student keeps these rules in mind, he will tail into serious errors. Undivided property must not be called common property. Holding in common must not be described as commu- nistic holding. Note 139. —Page 59. All these points have been so fully considered in the preceding pages, and so fully illustrated in the notes, that it will not be ne- cessary' to dwell upon them much longer. Undivided lands were, without doubt, regarded as undivided inheritances. See once more the words in the Edict of Chilperic (Note 137) : convenit, quia fluvium Caronna hereditas non transiebat, ubi et ubi in regione nos- tra hcreditas detur. Newly occupied lands were speedily divided into inheritances, and if any land remained undivided it belonged to these inheritances in pro rata shares. See once more the passages of the Burgnndian law, cited in Note 72 ; and Formula CCCCII, in which the division of mark-land inter Jiscum regis et populares possessioncs is described. The Formula was referred to in Note 70. Note 140. — Page 60. Lex Sal. LX : De eum qui se de parentilla tollere vult. 1. In mallo ante thunginum ambulare debet et ibi tres fustis alninus super caput suum frangere del)et. Et illos per quattuor partes in mallo jactare debet et ibi dicere debet, quod juramento et de here- ditatem et totam rationem illorura se toUat. 2. Et sic postea ali- quis, de suis parentibus aut oceidatur aut moriatur, nulla ad eum nee hereditas nee conpositio perteneat sed hereditatem ipsius fiscus adquirat. If an}' doubt remains in the reader's mind, whether the in- heritances which passed to kinsmen and neiglibors were divisible among them or not, the passage above cited is likely to re- move it. It is evident that the kinsmen and neighbors received their inheritances distributivel}-, as a bodj' of heirs, and not col- lectively, as a body corporate. Note the force of the words nulla ad eum nee hereditas nee conpositio perteneat. When a man died without sons, and his inheritance passed to his kins- NOTES AND REFERENCES. 215 men and neighbors, every one of them came in for a share. The onh- question which remains unsettled is the question, How was the inheritance distributed among the neighbors and kinsmen ? We know tliat it was subject to distribution, but we do not know upon what principle the distribution was made. Perhaps it was made per capita ; perhaps it was made per stirpes. Perhaps it was made upon some other principle. We know nothing about it. Note 141. — Page 60. See pp. 48-56, and the Notes referred to. Sec also the preceding Note, No. 140. Note 142. — Page 63. The passage is cited from a document of A. D. 1173, first printed, " aus der schonen Urschrift," in Bodmanu's Rheingauische Alterthiiraer, p. 453. Note 143. — Page 64. It is said, that we have in the agricultural communit}' of the Middle Ages the remains of an ancient community antedating all forms of landlordship. It is said that landlordship was introduced afterwards ; that the primitive community was, in one way or another, drawn under this landlordship ; that we have in the manor of the Middle Ages a union of the two institutions, — landlordship and the ancient village communit}-. In other words, according to a generalh' received theory, the manorial group has been evolved out of the village communit}', li^^ the imposition upon the village coramunit}- of an over-lord, with a right of property in the village lands and autliorit}' over its inhal)itants. The i)rocess has been descrilicd as tlic transformation of the mark into tlie manor. There is aver}' serious objection to be raised against this theory. The agricultural coinmunity of the IMiddlc Ages is a community of tenants under landlordshii) ; and it is nothing else in tlie very earliest period of its recorded history. According to the records landlord- ship is at least as old as the agricultural community included under it. What riglit have we, therefore, to assume that tlie agricultural commnnifv antedates the institution of landlordship? \\\\\ not 216 EARLY HISTORY OF LAND-HOLDING. assume that landlordsliip existed first, that the vilUigc conimu- uit}' arose under it, — a community of serfs or dependants ? It must not be forgotten that, according to tlic earliest records we have, the freemen had dependants and slaves attached to their households. Wh}- not, therefore, derive the manor out of tliis group? AYhy not derive the manor out of the patriarchal house- hold with its company of dependants and servants ? It is said that tlie manor has grown out of the village commu- nit}'. Why not say that the village communit}^ has grown out of the manor ? We can show, first, how at the dawning of our his- tory landlordship existed everywhere ; how there were groups of tenants arising under it. Then we can describe how, as time went on, these groups of tenants assumed a communal character ; how they became village communities. Lastl}', we can describe how tlicsc communities waxed stronger and stronger, until thej' were able to overthrow the incubus of landlordship which op- pressed tliem, and how they then emerged as independent free communes. Take, for example, the little commonwealths of Uri, Schwyz, and Unterwalden, in Switzerland. We are told tliat they are the remains primitive of agricultural communities and democratic villages. We are told how, during the Middle Ages, they became subject to feudal lords ; how, afterwards, they recovered their independence again. But what right have we to suppose that they were independent communities before the feudal period? Why not suppose that they were associations of tenants under allodial lords, — that they be- came organized into comnnuiities during the periods of allodial and feudal landlordship, — that the}' became strong enough at last to fight for, and to secure, their independence? Is there anything in the records inconsistent with this tlicory ? After a careful exami- nation of them, we can say with confidence that there is not. On the contrary, there is a great deal to support and establish it. AYe cannot go into this matter in detail. We are glad, however, to be able to refer the reader to M. J. J. Ilisely's admirable essay entitled, L'Origine et le Developpement des Libertes des Wald- stetten, published in three parts (Lausanne, 1838-43, 8°), by the Societc d'llistoire de la Suisse Romande. We have a theory, that in most cases the village community has originated within the manor and grown out of it, that the manor has NOTES AND REFERENCES. 217 disappeared leaving the village comiiiunit}- as a legacy to the fu- ture. Had we space, we should be able to illustrate this theory by man}- examples. Only consider the multitude of village com- munes in France and in German}', which were manorial villages during the earl}' and middle ages ; which have succeeded in throw- ing off the overlordship which oppressed them so long ; which appear now as independent, free communes ! The theory that these communes existed before there was any landlordship, that they were not in their origin manorial villages, is probably erroneous, except, perhaps, in regard to a few cases. Note 144. — Page 65. The advocates of the communism theory assume, in the first place, that private property has arisen from the disentanglement of individual from collective rights, — the rights of the family from those of the tribe or clan, the rights of the individual from those of the family. Then, wherever they find any communism, no matter where it is, or what its date is, they seize upon it and describe it as a vestige of the primitive condition of things. And wherever they find private property, they say at once, the communistic stage of development has been passed. Then, even where they find no evidence tliat communism ever existed, they assume that it ex- isted, '• because it existed everywhere in early times." Again and again they fall back upon their original assumption, that pro- gress has been from communism towards individualism ; and tliey convince the uninitiated simi)ly by incessant reiteration of this idea. They assume what they have to prove, and prove it by re- iteration. The evidence adduced to prove tlic universality of communism in early society, has very little value from a scientific point of view. It consists of fragments of communism gathered from all parts of the world and from all periods of time, classified in a most im[)erfect manner. It may be thouglit that we are too severe in this judgment. We are, therefore, glad to cite the following passage from an essay of M. Fustel de Coulanges, read before the French Academy in No- vember, 1879. The subject of the essay is "La Propriety 5. Sparte." The essay was printed iu the " Seances,"''' in the " Jour- 218 EARLY HISTORY OF LAND-HOLDIXG. nal dcs Savants," and afterwards separately (Alpb. Picard, Paris, 1880, 8°). "II s'cst produit, dans ces dernicres annees, uno opinion liisto- rique qui nous parait meriter une serieuse attention, mais dont I'exactitude a besoin d'etre verifiee. On a soutenu que le droit de propriL'te sur le sol avait etc ineoiniu anx antiques soeietes, qu'elles avaient longtemps cultive la terre en couimun, et qu'elles n'utaient passees au regime de I'appropriation que tardivement et par degrds. . . . L'expression la plus claire de I'opinion nouvelle se trouve dans le livre qu'un esprit fort distingue, M. Em. de Lavele^^e, a public en 1874, sous ce titre : De la propriete et de ses formes primitives. L'auteur passe en revue presque tous les peuples du monde, la Russie, File de Java et I'lnde, la marhe germanique et les communautes agraires des Arabes, Rome et rEg3-pte, I'ancienne Grece et la Suisse moderne. . . . Je ne conteste pas que la methode comparative ne soit fort utile en liistoire ; clle pent de- venir une source fcconde de dccouvertes ; mais I'abus en est dan- gereux. Vous apercevez certaines communautes de village dans rinde ; vous recontrez quelque chose d'analogue dans le mir russe et dans les petits villages de Croatie ; vous entrevo3"ez les niemes traits dans les allmcnden de la Suisse ; vous rapproehez de tout cela deux lignes de Cesar sur les anciens Gerraains, une phrase de Dio- dore sur un petit peuple des ilcs Lipari, et quclques fantaisies des poetes latins sur I'age d'or ; vous accumulez ainsi quelques indices, mais hativouient recucillis, impai'faitement etudies, pris 9a et la en melant les c[)oqucs ct en confondant les peuples. Est-ce assez de cela pour dcduire une loi generale do I'humanitc ? Une telle methode manque de rigucur. La comparison entre les peuples ne devrait venir qu'aprcs une etude scrupuleuse et complete de chaque peu- ple. L'analyse doit prcccder la synthcse. Je voudrais que I'his- toire du 7nir russe, celle du village indou ou javanais, celle de la communaulc agrieole de Croatie, et meme celle de la marke germa- nique, fussent plus nettement connues qu'elles ne le sont, avant qu'on tirat du rapprochement de ces connaissances une conclusion generale. Je souhaiterais qu'une generation de travailleurs s'appli- quat separement a chacun de ces objets et qu'on laissat a la gene- ration suivantc le soin de chercher la loi qui se dcgagera, peut-etre, de CCS etudes particulieres." No criticism could be more just, no advice better or more timelj". NOTES AND REFEEENCES. 219 Note 145.— Page 67. The reforence is to Numbers xxxvi. Cf. Tacitus Germ. 17: prope soli barbarorum singulis uxoribus contenti sunt, exceptis ad- modum paucis, qui non libidine scd ob nobilitatem pluiiltus nuptiis ambiiintur. The onl}- rule which was imposed regarding marriages was that the husband and wife should be of equal rank. See Ru- dolfi Transl. S. Alex, in M. G. H. Script. 11, p. GT.j : Quatuor igitur differentiis gens ilia consistit, nobilium scilicet et liberorum, libertorum atque servoi'um. Et id legibus firmatum ut nulla pars in copulandis conjugiis propriae sortis terminos transferat, sed nobilis nobilem ducat uxorem et liber liberam, libertus conjugatur libertae et servus ancillae. Si vero quispiam horum sibi non cou- gruentcm et genere praestantiorem duxerit uxorem, cum vitae suae damno componat. See the passage of Lib. Eli. cited in Thorpe I. p. 192, note a (Gale, II. c. 40). Intermarriages between clans were very common. This propo- sition could be proved, if it were worth while, by reference to par- ticular cases, but we may venture to take it for granted. Note 146. — Page 67. Lex Angl. Werin. VI : De alodibus, 8 : Usque ad quintam gene- rationem paterna generatio succedat [proximus paternae genera- tionis consanguineus] . Post quintam generationem filia ex toto, sive de patris, sive de matris parte, in hereditatem succedat, et tunc demura hereditas ad fusura a lancea transeat. We assume that the limit of collateral inheritance was also the limit of the clan. The limit of the clan was probabl}^ determined b}^ the limit of collateral inheritance. Among the Lombards the clan appears to have included the male descendants of seven successive genera- tions. This was the limit for collateral inheritance. See Rotliar CLIII : Omnis parentela usque in septimum genuculum numeretur, ut parens paronti per gradum et parentclam heres su(!cedat. Cf. Lex IJaiw. XIV. Cap. IX. 4 : (^uod si maritus et mulier sine heredes mortal fuerint, et nullus usfpie ad sei)tiinum gradum de propinciuis et quibuseunfjue i)arcntibus invenitur, tune illas res fiscus adquirat. As among the Lombards, so among the Bavarians, seven generations was the limit of collateral inheritance. It was without doubt the limit of llie clan as well. 220 EARLY HISTORY OF LAXD-HOLDINa. The subject of clan relationships and collateral inheritance is, however, very dilfieult. AVe arc by no means sure that we under- stand it. The records bearing upon the subject are few. They are vague in their terms, and to a certain extent contradictory. It is doubtful whether any defluite general conclusions can be drawn from them. Note 147. — Page 68. We have alreadj^ seen how, at the time of Lex Salica, when a man died without sons, the neigh])ors, vicini, took the inheritance. We have seen how at the same time neighbors were regularly kins- men, paretiteSi proximi. See pp. 46-5G, and the Notes referred to. The classification of collateral heirs was inaugurated, apparentl3', by the Edict of Chilperic, A. D. 573-575. See passage cited in Note 122. We are speaking here, and in the text also, of the right of inher- itance in land. We are not speaking of the right of inheritance in movable property. AVe know, from Lex Sal. LIX. De alodis 1-4, that inheritances of movable propert}' passed from the family of the deceased to dis- tant relatives in the order of their proximit}" : quicumque proxi- mior fuerit ille in hereditatem succedat. While collateral heirs in land remained unclassified, collateral heirs in movable property were, it appears, very carefuU}' distinguished one from another, according to relative degrees of proximit\'. This is \cvy curious and inexplicable. What is still more curious and inexplicable, however, is the fact that, when collateral heirs in land came to be classified, they were classified without reference to the classification of collateral heirs in movable propert}', so far as we can make this clear from tlie De alodis. In Lex Sal. LVIII De crenecruda, still another classification of relatives is hinted at. Reference is made to tres de generatione matris et tres de generatione patris qui proximiores sunt. After much puzzling over these inconsistencies, we conclude that it is impossible to explain them in any satisfactory manner under one theor}- ; that it is best, on the whole, to take De alodis 5 (qui fratres fuerint tota terra porteneat), and the passage (§ o) of the Edict of Chilperic (referred to above), and to consider these pas- NOTES AND REFERENCES. 221 sages by themselves, Tvithout reference to De alodis 1—1, and with- out reference to the De chrenecruda, as these passages appear to have no direct bearing upon the question of inheritance in land. Accordingl}', when we say that the kinsmen were not classified among the Franks, as among the Angli and Werini, we are speaking of them as heirs in the land simply. "Without this qualification the statement is of course open to criticism. "We ma^- say, once more, what we have said before, that it is probably impossible to reach an}- ver}- definite conclusions in regard to clan relationships and collateral inheritance among the early Germans. "What we have said upon the subject has accordingly been said with no little dillidcnce. Note 148. — Page 68. Lex Sal. LIX : De alodis. Lex Rip. LVI : De alodibus. It may be stated, as a general rule, that a practice is not forbidden until it actually obtains, or has its advocates. So, wiien we read that women had no right of succession in the ancestral inheritance, we may assume that women had in certain instances received an- cestral inheritances, or else, that there were persons who desired that they might receive them. Note 149. — Page 68. Formula CXXXVI. Cf. Formula CXXXV : Dulcissima atquc in omnibus amantissima filia mea ilia, ego enim vir magnilicus ille. Omnibus non habetur incognitum que, sicut lex Salica contenit, de res meas, quod mihi de alode parentum meorura obvonit, apud germanos tuos filios meos minime in hereditate succidere potebas. Note 150. — Page 69. According to the Edict of Chilperic, A. D. 573-575, cited in Note 122. Note 151. — Page 69. Lex Alam. LXXXVIU, and LVII : Si autem duae sororcs abs- que fratre relictae post mortem patris fuerint, et ad ipsas hereditas 222 EARLY HISTORY OF LAXD-HOLDING. patonuv pcrtingat, et una nupserit sibi coacqiKili lihcro, alia autem uupserit aut colono Regis aut colono Ecclesiae, ilia quae illi libcro nupsit sibi coacquali, teneat tcrram patris earum. lies autem alias aequaliter dividant. Ilia eiiim quae illo colono iiupsit, noa intret iu portiouem terrae, quia coaequali non nupsit. Lex liaiw. XIV. 8 : Ut fratres liereditatem patris aequaliter dividant. Ibid. 9 : De eo qui sine filiis et filiabus mortuus est, mulier aeeipiat portionem suam, dum vina ilia, hoc est in lam dicto loco tam terris, domibus, et cetera. Quicquid in iam dicto loco genitor vester et filios meos illos et illas dividere et exsequare deberet, vos quoque, ncpotes mei, per banc affatimum post [diem] obitus mei dividere [et] exsequare faciatis. Illud etiam in banc affatimum conscribcre rogavimus, ut si fuerit aliquis de heredibus meis propinquos, avunculos vestros, aut de aliis here- dibus, vel quislibet in corum causas, nulla caluinnia ncc repetitione NOTES AXD REFERENCES. 225 generare non pracsumat, sed iurc lirmissiuio in oninilnis habeatis potestatem faciendi, tencndi, dandi, commutandi, vel quieqiiid exinde faeere elegeritis, liberam in onniibus perfruatur potestas faciendi. Sed si fuerit aliquis de lieredibus meis, qui contra lianc affatimum venire aut refragare praesumpserit, socio fisco solidos tantos contra qucm litem intulerit suis partibus multa componat, et ille qui repetit nihil vindicet sed praesens affatinius diuturnum tem- pore firmus et inviolatus valeat permanere, quam manu propria subterfirmavimus et bonis operibus viris magnificis roborare decre- vimus. Note 156. — Page 71. Formula CCLVI. Hist. Frising. DCVII. Cf. also Formulae CCLV and CCLVITI : per banc titulum traditionis, vel per servo mco, et per hostium de ipsas domus, et cispitae de ilia terra, seu vitis de ipsas vineas, et ramos de illas arbores ; et quantumcum- que in ipsa donatione continet ; id sunt tam terris, viueis, pratis, silvis, exenis, aiacentiis, omnia ex omnibus, sicut in ilia donatione loquitur vel in ista traditione insertum est. See also No. VI. of the Capitularia in lege salica mittenda (Merkel p. 47) : De his qui ad casam Dei res suas tradere voluerint . . . domi tradi- tionem faciat coram testibus Icgitimis. According to Lex Sal. LVIII, De chrenecruda, the debtor for homicide, having no movable property, supra terra nee suhtus terra, with which to pa}' his debt, has to mortgage his land. This he does by a procedure in his house, and upon the threshold of it, looking into it : et postea debet in casa sua intrare et de quatuor angulos terra in pugno collegere, et sic postea in duropalo hoc est in limitare stare debet et intus in casa respiciens et sic de sinistra manu de ilia terra trans scapulas jactare super ilium quem proximiorem parentem habet. The nearest relative, or relatives, took the mort- gage and paid the debt, if they could, rather than allow a stranger to come into possession of an}- of the clan land. Of course it was very undesirable to allow the heirs of him who had been murdered or killed to come into the possession of any of it. In connection with the De chrenecruda, it is worth while to read the Capitulary of Childebert, A. D. 595, § 15 : Dechrcncchruda lex. (juani paganorum temi)ore observabant, deinceps nunquam valeat, quia per i[)sam cecidit multorura potestas. 15 226 EARLY HISTORY OF LAND-HOLDING. It appears, from the passages cited, that the casa was the regular place for alienations of land. It cannot, therefore, be maintained that the De uffatomie procedure was employed for the alienation of movable propert}- onh', on the groinul that property in land would not be alienated in casa. Before leaving this point we may refer the reader to the interest- ing passage of the Lex Alam., from which it appears that a man received an inheritance from his wife who had died in childbirth, onl}' in case the child had opened its e3'es to see the roof and four walls of the house, — Lex Alam. XCII. Note 157. — Page 72. Diplomata IMcrowing. 12. For other examples of the use of the woi'd facultas to describe landed propert}^, see Fulda Trad. Cap. 4. 74 and 127; Cap. 39. 73; Beyer Urkb. G; Trad. ^Yiz. CCII ; Cod. S. Galli 19 and 199 : facultates meas excepto ima silva et pratum. The ancestral inheritance is described by the word facul- tas in Lex Burg. LXXV, Lex AYisig. IV. Tit. II. 1, and elsewhere. Note 158. — Page 72. Fulda Cod. 355 : agris seu alia pecunia. Kemble's Codex DCXXI : X mansas . . . numinis mei particulam. See also Cod. Trad. Lunaelae XXXIII, where the word pecunia is used to de- scribe a curtcm cum domos, terram, pratas, rures, campos, silvas, aquas, cultum et incullum, etc. Note 159. —Page 73. See Formulae CXXXIV, CLXVIII, CXXXI, CXXXII, and CXXXIII. Until the principle of representation was admitted, fatherless grandsons were constantly adopted into the inheritances of their respective fathers. For a long time a man was expected, if he gave away his property, to give it either to the Church, or to increase the possessions of his kinsmen. See Formula CLXXI. The passage referred to will be cited in Note 161. Note 160. — Page 73. See Notes 152-154. NOTES AND REFEEEXCES. 227 Note IGl. — Page 73. Formulu CLXXI : Licet unicuique de rebus suis quas in presente seculo viditur [habere], tani ad sanctorum loca seu parentuni melio- rare, et lex manet et consuetude lougiuquaiu percurrit facere quod voluerit. Note 162. — Page 73. Hist. Trev. XXXII (A. D. 709), XXXIV (A. D. 711), XXXV (A. D. 712). Ttie alienation of Folker secundum Legem Ripuariam et Salicam is given in Miinst. Beitr. II. Num. III. See also For- mula CCXXXI : dono tibi donatumque secundum legem Salicam in tua dote a die praescnti jure legitime in perpetuum esse volo, et de meo in tuum jus et dominationem trado atque transcribo, hoc est mansum juris mei indominicatum, cum aliis mansis servilibus, silvis, pratis, carapis, etc. The conclusion at which we arrived, that land was alienable according to Lex Salica, is by these records conipleteh' verified. In Diplomata Merowing. 15, of the date A. D. G3o, a man named Dado alienates certain lands to the Church per festuca, and it is re- corded that his brother and his futlier had done lilvewise, before him. This takes the practice of alienating land back quite to the time of Lex Salica. The fact that the land was alienated per festuca takes us to the passage De affatomie. Tlie procedure of the Dc affatomie was certainly used for alienating land. Tliat the right to alienate land was exercised freely everywhere, from the time of Lex Salica on, is proved by the concurrent testi- mony of Folk-Laws, Formulae, and Documents. No fact is more clearly recorded, more indisputable, than this. Note 1G3. — Page 74. Lex Sax. XV: De traditionibus. 1. Traditioncs et vcnditioncs omnes legitimae, stabiles permaneant. 2. NuUi liceat traditionem haereditatis suae facere, praeter ad Ecclesiam, vel Regi, ut haerc- dera suum exhaeredem faciat. 3. Nisi forte famis necessitate co- actus, ut ab illo, qui hoc acceperit, sustentetur, mancipia liceat illi dare ac vendere. Rothar CLXVIII. 228 EARLY HISTORY OF LAXD-HOLDING. Note 164. — Page 74. The consent of heirs is very often referred to in grants of land. See Beyer Urkb. 341 : filiorumqiie ineorum consensu, ceterorum- "que mei amicorum suggestione. Osnabrk. Gesch. XLIV : con- sensu et coUaudatione legitimorum heredura suorum. Ibid. XLVII : landantibus et consentientibus duobus eorura filiis. Wirtemb. Urkb. CCLXIII : liberis meis consentientibus. Lisch. Urkb. XXVIII : cunctis heredibus sibi consentibus. Ibid. LXVI : de pleno con- sensu heredum nostrorum, filiorum nostrorum videlicet ac filiorum fratris nostri. Hist. Frising. I. p. 35 (53?) : propriara portionem quam de fra- tribus meis recepi dono atque transfundo, per consensum fratrum meorum, colonias vim. See also the references given under Note 129. Note 165. — Page 74. The evidence for this statement may be found on p. 55 and in Note 129. Note 166. — Page 74. Lex Burg. LXXXIV : 1. Quia cognovimus Burgundiones sortes suas nimia facilitate distrahere, hoc praesenti lege credidimus sta- tuendum, ut nulli venderc terram suam liceat, nisi illi qui alio loco sortem aut possessiones habet. 2. Hoc etiam interdictum, ut quisque habens alibi terram, vendendi necessitatem habet, in com- paraiulo, quam Burgundio venalem habet, nullus extraneus Romano hospiti praeponatur nee extraneo per quodlibet argumentum terram liceat comparare. Note 167. — Page 74. Lex Burg. 1 : 1 . Quia niliil de praestita patribus donaudi lieentia vel munificentia dominantium legibus fuerat constitutum, praesenti constitutione omnium uno voto et voluntate decrevimus, ut patri etiam antequam dividat, de communi facultate et de labore suo cuilibet donare liceat, absque terra sortis titulo aequisita, de qua prioris legis ordo servabitur. 2. Aut si cum filiis diviserit, et por- NOTES AND REFERENCES. 229 tionem suam tiilerit, ct postea de alia uxore filios halnicrit aut unura aut pliires, illi filii, qui de sccunda uxore sunt, in illam, quam pater accepit, portionem suecedant : et illi, qui cum patre dividentes por- tiones suas fuerant consecuti, ab eis penitus nihil requirant. Ibid. LXX\'III : De hereditatum successione adtcntius pertrae- tantes statiiiunis, ut si pater cum liliis sortem suam diviserit, et postea mori filiuin vivo patre contigcrit sine filiis, pater facultatum filii intogram usafruetuario iurc vindicet portionem : quam inter filios et nepotes ita moriens dimittat, ut quanti nepotes ex uno filio fuerint qui patrein non habent, portionem patris sui viiidi- cent, qaalem pater corum liabiturus erat. Illam vcro partem, quam pater cum filiis dividendam habuisset, superstitibus Oliis derelin- quat, et nepotes in earn partem non suecedant. Praesens tamen lex ad masculos tantummodo pertinebit. Lex Baiw. I. 1 : Ut si quis liber Baiuarius vel quiscumque alo- dem suam ad Ecclesiam vel quamcunque rem donare voluerit, libe- ram habeat potestatem. Ut si quis liber persona voluerit et dederit res suas ad Ecclesiam pro redemptione animae suae, licentiam ha- beat de portione sua, postquam cum filiis suis pertivit. Nullus eum prohibeat, non Rex, non Dux, nee ulla pei'sona habeat potestatem prohibendi ei. Et quicquid donaverit, villas, terram, maneipia, vel alifiuam pecuniam, omnia quaecunque donaverit pro redemptione animae suae, hoc per epistolam confirmet propria manu sua ipse, et testes adhibeat sex vel amplius si voluerit, et imponat manus suas in epistola, et nomina eoruni notent ibi quos ipse roga- verit. Cf. Trad. Wiz. CLII: jurnalcs terre xxxx quas contra hercdes meos mihi pareiendo sors contulit. Cod. S. Galli 3G0 : quicquid contra filios meos in portionem etin meam swascarain accepi. Hist. Frising. CLXXXVIII : tradidit quidquid in suam partem ei evenit hereditatis, quando cum filiis partivit. Ibid. DLVIII (b) : quic- quid de patre vel fratre suo in proprietatem divisum ab illis acce- pisset. See also Ibid. CXII, CXV, DCVII, and INIon. Scheftl. p. 304 : tradidi ego Atto et filius mens Ammo que nol)is in partem contigerunt, quando divisimus cum Albrico filio ineo omnia. A great many more cases might be adduced, but these will suffice. 230 EARLY HISTORY OF LAND-HOLDING. Note 168. — Page 75. See Grimm Eechtsalt., 2d ed., p. 530. See also Prof. Ilanssen's '' Abhandhiiigen," p. 48, note ; where he refers to Jiit. Low I. 34, and Erich-seel. Ges. III. 2. M. Paul Viollet cites an interesting passage from the Guta-Lagh in his article in the Bibliotheque de I'Ecole des Chartes, Vol. XXXIIL, 1872. We have not ourselves had access to these records. The prior right of purchase which neighbors obtained must have been based upon the opinion, that of two prospective purchasers the neighbor should be preferred to the stranger, — an opinion which naturally recommends itself where the population is increasing and inheritances are small. The right had its raison d'etre in economic conditions which are known to have existed in many places during the Middle Ages. Note 169. — Page 76. See Lex Sal. : De migrantibus, in Note 125. Cf. Coutum. d'Or- leans CCCCLXXXVl : On acquiert possession d'heritage, droict corporel ou incorporel, en jouissaut par an et jour. See Coutum. Gen. III. p. 807. See also Ibid. p. 37 ; Coutum. de Paris XCVI. So in the Coutumes de Beauvoisis (Beaumanoir, Cap. XXIV. 4) : Uzages de an et jor pesiblement soufist a aquerre saizine. Note 170. — Page 76. Twelve Tables VI. 3 (in Ortolan, Instituts de Justinien, 9th ed., Vol. I. p. 110) : Usus auctoritas fundi bienuium. Cf. Gains II. 42 ; Ulpian XIX. 8. Note 171. — Page 76. Lex Burg. Add. I. Tit. I. 1, 3: Observandum viam publicam, vel inter agros communiter divisam nee possideri, nee intercludi, nee exartari posse . . . viam in actum, hoc est ubi earpenta vel carra ducuntur, biennio amitti et adquiri posse. Note 172. — Page 76. The passage cited in the text is from Lex Wisig. X. Tit. II. 5. See also Lex Burg. LXXIX : De praescriptione tcmporum. NOTES AND REFERENCES. 231 Note 173.— Page 77. Rothar CCXXXI, and Grimoald IV, given in Note 56. Note 174. — Page 77. See Notes o3-G0. Note 175. — Page 78. The proprietors in the village were called shareholders, participes villae. See Greg. Turon. VII. 47 : Cum autem haec Chramnisindus audisset, commonitis parentibus et amicis, ad domum ejus [Sicha- rii] properat. Quibus spoliatis, interemtis nonnullis servorum, domus omncs, tarn Sicharii quam reliquorum, qui participes hujus villae erant, incendio concremavit, abducens secum pecora et quae- cumqne movere potuit. We get a glimpse of the Teutonic village in this passage. Note 176. — Page 79. If it were not for the statement of Tacitus, in Germ. 16, colnnt discreti ac diversi utfons ut campus ut 7iemus placw't, we might infer that the freemen who had onl}' a few slaves settled down in vil- lage groups ; that thev built houses for themselves and houses for their slaves ; that arable lots, agri, were marked off, one for ever}' ■freeman and one for ever}' slave ; that the freeman in the village had one lot for himself and one for each of his slaves ; that the slaves cultivated their own lots, and those of their respective lords as well. In view of the statement, cohint discreti oc diversi, how- ever, we are not at liberty to suppose that the freemen settled down in village groups. Such villages as there were must have been villages of dependants or slaves connected with tlie isolated farmsteads, the Eiiizelhofe, of different free-lords. There were, accordingly, no independent free village communities in Tacitus's time. As soon, however, as the migrations were over and settle- ments were permanent, heirs began to multiply upon the isolated domains, and we have consequently house comnuuiities, and then clan villages. In this wav village life was introduced amons the 232 EARLY HISTORY OF LAXD-IIOLDIXG. freemen. Then new villages were founded, in the manner de- scribed. Several freemen went out together, built houses for them- selves and houses for their dependents and slaves, and took shares in the land according to the number of houses (mansi) each one owned. Each of the free proprietors in the village then owned one, two, or more mansi, cum campis, prntis, pascuis, silvis, aquis, etc. The portio in villa is regularly described by this formula, or some equivalent. Note 177. — Page 80. See the maps in Prof. Mcitzcn's introduction to Cod. Dipl. Siles. IV. pp. 72, 82. The same maps are given in his statistical work, Der Boden des Preussischen Staates, I. pp. 358, 3G0, and in an article in the Jahrb. fur Xationalokonomie und Stutistik, Jahrg. XVII. Bd. I. See also the map in Schroder's xsiederliindischen Kolonien (Berlin, 1880, 8°), — Flurkarte der Dorfer Borstel und Wester- Jork, Note 178. — Page 81. In regard to the division and distribution of arable lots, see pp. 0-8 and the Notes referred to. In addition to the passages cited in Note 13, the student should read the following passage from Lex Wisig. X. Tit. I. 14 : Si inter eum qui accipit terras vcl silvas, et qui praestitit, de spatio unde praestiterit, fuerit orta con- tentio : tunc si superest ii)se qui praestitit, aut si certe mortuus fuerit, eius liercdes pracbcant siicramenta, quod non amplius auctor eorum dederit, quam ipsi designanter osteudunt ; et sic posteaquam iuraA'crint, praesentibus testibus quae observontur signa constitu- ant : ut pro ea re nulla deinceps accedat caussatio. Si vcro con- sortes eius non dignentur iurare aut forte noluerint : vel aliquam dubietatera habuerint, quantum vcl ipsi dedcrint, vel antccessores eorum : ipsi ut animas suas non condcmpncnt, nee sacramentum praestent : sed ad tota aratra, qnantum ipsi vel parentes eorum in sua sorte suscepcrant, per singula aratra quinquagenos aripennes dare debent. Ea taraen conditione, ut quantum occupatum habue- rint, vel cultum mixii quinquaginta aripennes concludant ; nee plus quam in eisdem mensuratum fuerat aut ostensum, nisi terrarum dominus forte praestiterit, audeant usurpare. Quod vero amplius usurpavcrint, in dui)lum reddant invasa. NOTES AND REFERENCES. 233 Note 179. — Page 81. See Commons Inclosure Report of 1844, No. 29G (p. 27), and Nos. 372-583 (pp. 35, 30). Note 180. — Page 82. See pp. 21, 22, and Notes 53-60. Note 181. —Page 88. There is little or no evidence that redistributions of the same land among the same persons, or representatives, took place in the early period. The custom was introduced here and there, we cannot sa}' when, and in certain places it has survived down to our own time. It is doubtful whether we have an}- right to argue from the modern instances that the custom is an ancient one ; and per- haps the custom was introduced in the tenant communities only, and not at all among free proprietors. Note 182. — Page 83. The rotation s3-stem is one of the man}- institutions which have been, in their origin, remedies against violence, devices to prevent quarrelling and fighting, or compromises to reconcile conflicting claims. It was an improvement on redistributions b}- lot ; and re- distributions b}- lot were an improvement on the grab-s^-stem which obtained generally in the early period. It is probable that redis- tributions by lot and the rotation system originated in the tenant colonies. In that case they were introduced by adoption into the colonies of freemen. It is possible, however, that the rotation system was introduced into the tenant communities onh', and not at all among the free proprietors. There is no evidence of the existence of the system in any early records. It appears to have been introduced during the Middle Ages. We cannot say when. The custom has survived in certain i)laces to our own time. That is all we know about it. 234 EARLY HISTORY OF LAiSID-HOLDING. Note 183. — Page 83. See Mr. Elton's Observations on the Commons Bill, 187G, p. 38. Note 184. — Page 84. See Notes 20, 21, 92, 96, 97, and the pages of the text re- ferred to. Note 185. — Page 84. See note 22. In regard to the "marks" used in casting lots, see, besides the writings referred to in Note 22, Mr. Benjamin- Williams's articles in the Archaeologia, vol. 35, p. 471, and vol. 37, p. 382 ; also A. L. J. Miehclsen's llausmarke, Jena, 1853. It must be remembered tluit the free colony we are describing was cast in the mould of the tenant colony of earlier time, and what is true of the one is probably true of the other. During the Middle Ages the free colonies became, in most cases, subject to over-lords ; either by being conquered, or in consequence of a vol- untary surrender of independence for the sake of the protection which the over-lords offered in return. We have then only the tenant colonies ; and we cannot say which of them were in their origin colonies of proprietors. Note 186. —Page 84. See Ine 42 : If ceorls [i. e. husbandmen] have a common meadow or other partible land {gedal-Iand) to enclose, and some have en- closed their portion and some have neglected to do this, and [cattle come in] and eat the grass ; let those go who own the gai) and com- pensate the others for the damage done. Then they may demand such justice on the cattle as may be right. The landholders took equal portions of the fence or enclosure only when they held equal shares of the land enclosed. If the land was distributed in un- equal shares, the burden of fencing and enclosing was distributed accordingly. NOTES AND REFERENCES. 235 Note 187. — Page 84. The best source of information upon this point is the Commons Inclosure Report of 1844. See especially Nos. 293-300, the testi- mony of W. Blamire, Esq. Note 188. — Page 85. See Notes 25, 93, 9G, 98. Note 189. — Page 85. . See Notes 94, 9G, 99, 100. Note 190. — Page 85. See Note 20. Note 191. — Page 86. Lex Sal. XXVII. 9. Note 192. — Page 86. See Lacomblet Urkb. Gl : hoc est quod traclidi in pago Sutrachi, in villa que dicitur Aldgrepeshem, terram xx auimalium et dirai- dium unius, et in alia villa terram xv animalium. In such cases, it is probable that the pasture was divided into severalties ; that it was a common pastui'e, however, in spite of this fact. Tiiat is to sa}', it was unenclosed. The severalties were unenclosed and the animals ranged at large. At the same time no man turned out more animals than could be supported upon his own land. By this system the labor and ex- pense of enclosures were avoided. See references under Note 25. Note 193. — Page 86. See Lex Burg. XXVIII. 1 : Si quis Burgundio aut Romanus sylvam non habeat, incidendi ligna ad usus suos do jacentivis et sine fructu arboribus in cujuslibet sylva habeat liberam potestatem, neque ab illo cujus sylva est repellatur. 23 G EARLY HISTORY OF LAND-HOLDING. Note 194. — Page 86. Lex SaL XXVII. 18 : Si quis ligna aliena in silva aliena fura- veiit solidos iii culpabilis judicetur. Capitularia A. D. G15, XXI: sylvas Ecclesiarum aut privatorum. See also Lex Baiw. XXI ; Lex Burg. XXVIII ; Lex AVisig. Lib. VIII. Tit. II. 2, Tit. III. 8, Tit. IV. 27, Tit. V; Rotliar CCXLIV, CCXLV, CCCXXIV et seq. ; Alfred 12 : if a man burn or hew anotiier's wood ; and Ibid. 13: he who owns the wood. Capitularia A. D. 813, III. 40: hereditas de sylva. Alsat. Dipl. XI : possessio in silvis. See also Ibid. XXXV, LXVII, LXXXVII : de silva quasi jugcra septem . . . holzraarcha. Formulae CCXXXIX, CCLXXXII, CCCXIV: unam silvam suae singularis ac propriae potestatis ; CCCLXV : de terra vero silvativa duas hobas ; CCCLXVII : nemoribus propriis ; CCCXCVIII, CCCCTI. Kcmblc's Codex CCXIII (cf. CCLXV), CCXCVII. Lacomblet Urkb. 7 : scara in silva juxta formam houe plene ; Go : in ilia silva searas lx ; 93 : duos speciales forastas. Fulda Trad. Cap. 6. 67 : Reginbraht Trad, unam holzmarcham ; 91 ; 98 ; 101 : ambitum de silva ; 130 : unum nemus. See also Ibid. Cap. 5. 4, and Cap. 38. 201 : trad, holzmarcham ad x hubas ; Cap. 39. 77 : tria novalia proprie silve ; 82 : huba in silvis. Fulda Co- dex 298 : X jugera sultus ; 506, where property in woodland is exchanged for arable land, in the same villa. Lauresham Cod. XXXIII, MMCCCXXI, MMDCCCXCIII, MMMDLXXII, MMMDCCCVIII : silvam in qua saginari possunt C porci. Trad. Wiz. XXI, LIll : silva quod ego mea uxore condo- navi. Ibid. CLXXVIII, CCVI, CCVIII : in marca forastum meum et portione de ilia harde. Ibid. CCIX, CCXI, CCXIX, CCXXVII, CCXXXV, CCXLIV : de ipsa silva sua portione, perticas nona- ginta et una. Then Ibid. CCLXIII. Cod. S. GalU 85, 102, 110 : in villa silva quod pater mens reliquid mihi ; 123, 331 : tres silvas conscrvatas ; 373, 381 : silvam habentem hobas v ; 410, 444, 586, 619, 643: silvulam ab aliorum potestate segregatam ; 701, 775: silvulam unam bonam. Hist. Frising. I. p. 199. Then Ibid. XXX, XLIX, CXCVIII, CCIII : partem propriae silvae ; CCCXXVII : suam silvam ; CDXLII, DIV, DXXVIII : partem de propria silva ; DXL, DXLVI, DLXXIV, DCI, DCVIII, DCXVIII, DCXXXVII, DCXCIII, DCCIX : unum lucum : DCCXXXVII, DCCXXXIX, DCCXLVII, DCCLXVII, DCCLXXIV : de silva hobas ii. Ried NOTES AND REFEEENCES. 237 Cod. Dipl. XXXin, XL, LXXXII, LXXXIH, XC : communi utilitiite silvae, sivo in special! comprcbensione ; XCVII : forestum cum forestario. "Wirtemb. Urkb. XXVIII : silvamea. So elsewhere, in numberless places. The references to undivided and common forests are comparativeh' rare. In man}' cases the silva is not de- scribed either as undivided or as divided property- ; as, for exam- ple, in the formula, cian campis, pratis, pascuis, silvis, etc. In such cases the question whether it was held in severalty or in common remains open. Note 195. — Page 87. Given the formula, cum campis, pratis, pascia's, silvis, etc., it remains an open question whether the lands referred to were held in common or in severalty ; because we find lands held in common, and also lands held in severalt}*, in records of the same date. In order to prove that the silvis of the formula were common lands, it would be necessary to show that private forests did not exist at the time. This cannot be done in any case. We know that sev- eralties of forest land existed everywhere from the time of Lex Salica on. See Note 194. Note 196. — Page 87. See Notes 9G, 97, 98. Note 197. — Page 88. See Notes 101, 102. Note 198. — Page 89. According to the laws of inheritance. Sec pp. 29, 30, and Notes 73-77. Note 199. — Page 89. Although in some cases the original divisions were obliterated, they usually remained. A village which originally consisted often allotments, mansi or Jmhae, continued to consist of ten allotments ; 238 EARLY HISTORY OF LAND-HOLDINa. in spite of tlie fact that the allotments were divided and distributed among several or man}- persons. The preservation of the original allotments facilitated very much the division and distribution of undivided lands. The owners of the different allotments had differ- ent marks, which were used in easting lots. See Notes 22, 185. The holders of the same mark received their lands together, and then divided them among themselves according to individual shares. The villagers as a body took no i)art in the subdivision of the allotments. They were assigned to the owners, and divided by them, among themselves. See references in Note 200. Note 200. — Page 89. See Prof. Ilaussen's essay upon the "Gehoferschaften in Regi- erungsbezirk Trier," in the Proceedings of the Berlin Academy of Sciences, 1883. The essay is reprinted in his " Agrarhistorische Abhandlungen." See also Dr. Achenbaeh's " Ilaubcrgs-Genos- senschaften des Siegerlandes " (Bonn, 18G3). Note 201. — Page 90. Dion3-sius Ilalicarnassensis IV. 14. Note 202. — Page 91. This was the condition of things until the feudal system was in- troduced. We have first the system of isolated farms, — Einzel- hofe; then a S3-stem of clan villages and free colonies, — a system of Gehoferschaften. Then the property in the GeJioferschaflen came to be concentrated in a few hands. At the same time the mass of the people became dependants under over-lordship. As depend- ants they were distributed in tenant colonies. We have then Geho- ferschaften of tenants, as distinguished from Gehoferschaften of fi'ee proprietors. These later Gehoferschaften must be very carefully distinguished from those of earl}' times. The}' differ from them in many respects. The princii)lc of individual property is less clearly recognized, less rigidly adhered to. Elements of democracy and communism appear in the later Gehoferschaften for the first time. The undivided land was often the property of the lord, and NOTES AND REFERENCES. 239 the members of the Gchuferschafl had only commoners' rights in it. In other eases the land was given bj' the lord to the Gehliferschaft, rather than to the members thereof. The GehlJferschaft appears then as a land-holding corporation. In no case, so far as we know, did the curlier Gehoferschaften have this character. Note 203. — Page 92. Mon. Schlehdorf. p. 13 : mancipia in domo, tam in villis [vici locati in Tacitus Germ. IG?] manentibus. Cf. Hist. Frising. I, p. 126 : curtem cum domo et horrea tria ; infra domum mancipia vim . . . et ibidem ad ipsam curtem aspiciunt mansos duos vestitos ; inter illos contincntur mancipia decem. Note 204. — Page 93. Tacitus saj^s of the Germans, that thej' settled apart from one another in isolated farmsteads. Then he sa3'S that the}' established villages, — vicos locant. It is evident that these must have been villages of dependants or slaves. "We know, from Germ. 25, that the Germans had dependants and slaves, and that they were set out upon the land like Roman coloni. The}' must have been dis- tributed in village communities. "We have seen how this inference is supported by the testimony of the later records. It is probable that in many cases several free-lords combined in founding a vil- lage, and took shares in it according to the number of dependants or slaves each one contributed, as described in the text. There is nothing in the statements of Tacitus, nor is there anything in the later records, inconsistent with this supposition. "We may, if we please, interpret Germ. 26 in accordance with it. See Note 9. The freemen occupied as a body as many arable lots as they liad cultivators, and then divided the lots secundum dir/ nation em ; which would be according to the number of cultivators each man had in his following. He who contributed ten cultivators would receive ten lots ; he who contril)uted five cultivators would receive five lots; and so on. Having disposed of the cultivators in this way, the free-lords might retire to their isolated farmsteads and their life of ease. They would be supported by the produce of their i-espect- ive lots and the labor of the cultivators. There is a good deal to be said in favor of this view. 240 EARLY HISTORY OF LAND-HOLDINa. Note 205. — Page 93. "^''c have, in the first place, certain noble or patrician families as a governing body. Then we have a class of artisans, mechanics, and tradespeople, and a class of agricultural laborers, distributed in houses and upon lands belonging to members of the governing body. The historj- of the group thus constituted resembles in verj' many points the history of a Greek or Latin town. The lower classes increase in power and influence, and finally obtain a share in the government of the city and its district, in very much the same way as they did in Greece and in Italy. Note 20G. — Page 94. In regard to the Gehoferschaften along the Saar and the Mosel there are two theories. According to some writers these Gehofer- schaften were originally communities of dependants or slaves, that is to sa}' communities of tenants under landlordship : while accord- ing to other writers they were originallj- free communities, without an}- over-lords. For our own part, we do not see how the question can be decided except in cases, if there be an}', in which an origin is described in the records. We are inclined to think that these particular Gehoferschaften were originall}' communities of serfs. We believe that in most cases the}' are described as such in the earliest records ; and we think it is best to abide by the testimony of the records. At the same time, inasmuch as the existence of free Gehoferschaften in early times is a pretty well established fact, we grant that it is possible, if not probable, that the aforesaid Gehoferschaften were originally free. If, however, we assume that they were originally free, we must not assume that they became sub- ject to over-lords and endured over-lordship without being changed in many respects thereby. We may be sure that their original constitution was changed, though we may not know in what partic- ular respects. We must be careful, therefore, how we use them to illustrate a primitive condition of things. It is often said that we have in the Gehoferschaften of the Saar and Mosel examples of a primitive village community. This, however, is an assumption. We do not know whether they were originally free communities, or communities of serfs ; and even if we could be sure that they were NOTES AND REFERENCES. 241 originally free communities, we do not know to what extent their original constitution has been changed under the regime of the over-lords and the feudal system. Note 207. — Page 94. Formula CLXI : Quia si aliquis servo suo gasindo suo, aliquid concedere voluerit. lustissimus nostris sublevatur muncribus qui nobis fideliter et instantia famulantur officio. Ego, in Dei nomen, ille, fideli nostro illi. Pro respectu fidei inservitii tui, quia circa nos inpendere non desistis, prumtissima voluntate cedimus te a die praesente locello nuncupante illo, aut manso illo, infra tcrmino villa nostra ilia, cum omni adiacentia ad ipso locello aut mancello aspi- cientera, terris, domibus, raancipiis, vineis, pratella, silvola, vel reliquis beneficiis ibidem aspicientibus : ita ut ab hoc die ipso iure proprietario, si ita convenit, aut sub reditus terre, in tua revoces potestate, et nulla functione aut reditus terrae vel pascuario aut agrario aut quodcumque dici potest exinde solvere, nee tu, nee tua posteritas, nobis nee heredibus nostris, nee quicumque potest nos ipsa villa possidere, non dcbeatis, nisi tantum, si ita vult, riga, sed ipsum omnibus diebus vite tuae aut haeredis tui emuniter debeatis poscdere, vel quicquid exinde facere volueritis liberam ha- beatis potestatem. Si quis vero, quod futurum esse non crcdimus, aliquis de heredibus nostris, vel quicumque, contra banc cessionem nostram agere aut ipsa rem tibi auferre conaverit, inferat tibi cum cogente fisco auri tantum, et banc epistola firma permaneat cum stipulatione subnexa. Cf. Rothar CCXXVIII : si aliquid in ga- sindio Ducis, aut privatorum hominum obscquio donum vel munus conquisierit. Note 208. — Page 94. Wm. Conq. XXIX : De colonis torrc. Coloni et tcrrarum cxcr- citores non vexentur ultra debitum et statutum : nee licet dominis removere colonos a terris, dumraodo debita servicia persolvant. Cf. Ibid. XXXI : Do terra colenda. Si domini terrartim non pro- curent idoncos cultores ad terras suas colendas, justiciarii hoc faci- ant. This is a rather interesting bit of legislation. IG 242 EARLY HISTORY OF LAXD-HOLDING. Note 209. — Page 95. The nature of such communities may be gathered from the Cou- tum. de Nivernais, Chap. XXII : Des communautez et associations. See Coutum. Gen. Ill, pp. 1145, 1146. It will be seen how the house communities arose from the multiplication of heirs upon undivided inheritances. Note 210. — Page 95. The vavassoriae were estates held by vassals of low degree. They must be distinguished from the fiefs of the great nobles, on the one hand, and from the allotments assigned to serfs, on the other. The}' were held to be divisible according to the customary law of inheritance, and were as a rule ver}' much subdivided. A vavassorin, belonging to the abbey at Caen in the year 1430, con- sisted of sixt3'-six acres of land. It was divided into no less than a hundred and ten parcels, which were owned by thirtj'-nine differ- ent persons. Although the vavaasoria was thus divisible among the vavassores, the lord had no dealings except with one person, usuallj' the eldest male of the oldest family in the community. This person repre- sented the vavassores in all relations with the lord. He paid the (lues and services, and then distributed the burden thereof between himself and his associates. He was the head man of the commu- nity, and the only member thereof who came, necessaril}', into con- nection with the outside world. See Le Grand Coustumier de Normendie, Chap. XXVI, in Coutum. Gen. IV, p. 13. See also Leopold Delisle's Etudes sur la Condition de la Classe Agrieole en Normandie (Evreux, 1851, 8°), pp. 32-34. This work is of great value, especialh' as it contains many extracts from unpublished rec- ords ; but, unfortunately, it has become excessively rare, and is verj^ costly. It is interesting to observe that the lands held according to the custom of Gavelkind in Kent, England, correspond ver\' closely with the vavassoriae of Normand3\ As in the case of the vavassoriae, so in the case of Gavelkind lands, we have partition among the heirs and " one suite for all the parceners." See Kent Custum X and XI (p. 7). NOTES AXD REFERENCES. 243 Note 211. — Page 96. It is maintained, for example, that the Russian mir is an ancient form of proprietorship antedating all forms of private i)roperty and landlordship ; and tliis view is maintained in spite of the faet that the mir has been an association of tenants, under over-lordship, from the earliest period of its recorded historj'. What right have we to assume that the mir is more ancient than the over-lordship under which it has alwaj's, so far as we know, existed? The communistic mir is constantly cited as an example of "primitive property"; when the fact is, that it cannot be cited even as a case of primitive tenanc3\ The communism of the Rus- sian m^V, its peculiar characteristic, appears to be an innovation of comparatively recent times. The testimony of the records goes to show, we are told b^' good authority, that the custom of making redistributions of the land is relatively modern, having been intro- duced some time during the seventeenth centurj'. The custom appears to be a result of the heavy poll-taxes which the people were obliged to pay. The village was charged with a certain rent, which was distributed among the villagers in equal shares. A nat- ural result of this was an equalization of holdings. The result of equal taxation was an equalization of property taxed. In regard to the custom of redistributing the land in the Russian village communities, see the very interesting article by Mr. D. Ma- kenzie Wallace, in Macmillan's Magazine for June, 1876. See also the article, hy M. Tchitcherine, upon serfdom in Russia (^Leibeigen- schajt in liusdand), in Bluntsehli's Staatsworterbuch. Note 212. — Page 96. The distinction which we should draw between tribute and rent was seldom if ever marked in early times. The receiver of tribute was regarded as the landlord, and he who paid tril)ute was regarded as a tenant, paying rent. So when a countiy was conquered and made tributary, the iniiabitants were regarded as tenants paying rent. The proprietorship of the land, the landlordship, passed into the hands of the conqueror or conquerors. The inhabitants of the laud, the former proprietors, became tenants. 244 EARLY HISTORY OF LAND-HOLDING. Note 213.— Page 96. Grants of land were constantly made upon the following condi- tion, — in ea ratione ut, qiuundiu mihi vita comis fuerit superius denominatas res habere mihi liceat et cum censu singulis annis prosolvere, infantesque mei post obitum meum similiter faciant, omnisque posteritas, quae de ipsis fuerit procreata, usque in sem- piternum. (Juod si evenerit ut ipse res sine herede remaneant, sine meae posteritatis legitima procreatione, quod plerumque contingit, nullus de heredibus vel proheredibus ceteris se ibidem possit ad- jungcre, sed ubi cum censu prosolvebatur, illuc jam redcat in per- petuum. See Formula CCCLIV : Quod omnis posteritas habere debet. Examples abound. Cod. S. Galli 94 : ut annis singulis censum solvani ego et agnatio mea post me. Ibid. 113 : post obi- tum nostrum lieres noster ipsum censum et opus reddat ; similiter et tota eorum procreatio faciat legitime genita. Ibid. 193 : ipsam rem liceat mihi et filiis meis post me et filii filiorum meorum et generaeionibus meis ad usum fruetuario habere, et exinde censum dare debeamus solidum unum in quicquid potuerimus ad festivitate sancti Gallonis aut sancti Martini. Ibid. 211 : post obitum meum filii mei et tota agnitio eorum. Ibid. 232 : filii mei similiter faciant et illorum tota deinceps cognatio. Ibid. 279 : similiter et tota pos- teritas mea in eundem percipiat censum. Ibid. 318 : similiter et legitima procreatio faciat. So also in Nos. 346, 469, 742, 766, and in others besides. Cf. Alsat. Dipl. LXXVI : ut quamdiu vixero, easdem res habeam, similiter infantes et eorum posteritas, quamdiu legittima fuerit et eundem censum persolvant. Cf. also Ritz Urk. 40 : ut singulis annis ipse vel omnes postcri ejus xii ibidem persol- vant denarios ; and Ibid. III. 7 : eadem bona jure hercditario recepi, pro annua pensione so. octo maldris siliginis et quatuor titrici : que pensio tam a me quam ab omnibus dictorum bonorum successoribus in festo S. Rcmigii vel ante in porpctuum persolvetur. These examples could be multiplied indefinitely. Note 214. — Page 97. See Du Cange, sub voc. alodialiter. NOTES AND REFERENCES. 245 Note 215. — Page 97. See the address of the Synod of Clermont to Theodebert I., in Ruinart's edition of Greg. Turon. pp. 1334:-133o. Note 216. — Page 97. Tacitus Germ. 15. Note 217. — Page 98. Chlotarii Constitutio Generalis A. D. 560, Cap, XI : Agraria, pascuaria, vcl decimas poreorum, Ecclesiae pro fidei nostrae devo- tione coneedimus, ita ut actor aut decimator in rebus Ecclesiae nullus aceedat : Ecclesiae vel clericis nuUam requirant agentes pub- lici functionem, qui avi vel genitoris aut germani nostri immunita- tem meruerunt. Then Read Greg. Turon. IX. 30, and Ibid. V. 29. Note 218. — Page 99. Chlotarii Constitutio Generalis, Cap. XI. The passage is given in Note 217. Then read Formula CXLVII : Ergo cognuscat magnitudo seu strenuetas vestra uos inlustre viro illi prumptissima voluntate villa nuncupante ilia, sita in pago illo, cum omni merito ex termine suo, in integritate, sicut ab illo aut a fisco nostro fuit possessa vel moderno tempore possidetur, visi fuimus concessisse. Quapropter per praesentem auctoritatem nostram decernimus, quod perpetualiter mansuram esse iubemus, ut ipsa villa ilia antedictus vir ille, ut diximus, in orani integritate, cum terris, domibus, aedi- ficiis, acolabus, mancipiis, vineis, silvis, campis, pratis, pascuis, aquis aquarumve decursibus, farinariis, adiacentiis, appendiciis, vel qualibet genus hominum ditioni fisci nostri subditum, qui hibidem commaneut, in Integra emunitate, absque ullius introitus indicum de quaslibet causas freda exigendum, perpetualiter habeat concessa : ita ut earn iure proprietario absque ullius expectata indicum tradi- tione habeat, teneat atquc possideat, et suis posteris, Domino adiuvante, ex nostra largitate, aut cui voluerit, ad possedendum relinquat, vel quicquid exinde facere voluerit ex nostro permisso liberam in omnibus liabeat potestatem. Et ut haec auctoritas fir- 246 EARLY HISTORY OF LAXD-HOLDING. luior habcatur, manu nostra subter earn decrevimus roborare. This is a good example of the immunity grant. See also Formulae CXLVIII, CXLIX, CL ; and Diplomata Merowing. 2, 4, 9, 15, 28, 31, 38, 54, 55, 63, G9, etc. Kemble's Codex LXXXVII : sit libera ab omnibus saecularibus servitiis, et omnes terrae ad ilium pertinentes, exceptis expeditione, pontis et areis constructioue. This is the regular form of immunity in early English records. The landholder was freed from all dues and ser- vices, except military service and the duty of repairing bridges and fortifications, — the trinoda necessitas as the phrase was. See also Kemble's Codex LVIII, CLXVII, CXCVI, CCVI, CCXIV, CCLXXXVII, and man}- more. It is useless to multiply these examples. Note 219. — Page 99. Wirtemb. Urkb. CXLV and CXLII (No. 527 of Cod. S. Galli). Note 220. —Page 100. There was an enormous concentration of allodial property during the Carolingian period. It is merely necessary to turn over the documents of the period, to be convinced of this. An admirable account of the growth of great estates is given by Dr. K. T. von Inama-Sternegg in his work entitled, Die Ausbildung der grossen Grundherrschaften in Deutschland wiihrend der Karo- lingerzeit (Leipzig, 1878, 8°) ; and in his Wirthschaftsgeschichte (Leipzig, 1879, 8°). We must take the opportunity here to recom- mend these writings to the student, for his especial consideration. Dr. von Inama-Sternegg has reasoned conclusivelj- to prove the great antiquity' of the system of isolated farms, the Einzelhofsystem^ and private property in land, Sondereigenthum. He has questioned the existence of any community of land, Feldgemeinschaft^ in the ancient marks, Markgenossenschaflen. He calls them Markgcnossen- schaften ohne Feldgemclnschaft. He holds that the agricultural com- munit}' of the Middle Ages is, as a rule, a community of tenants and serfs ; that it has been a community of tenants and serfs from the earliest period of its history. These conclusions seem to us to be sound and true. "We recommend them, accordingly, to cur NOTES AND REFERENCES. 247 readers ; and take the opportunit}-, at the same time, to express our respect for their advocate, and also our gratitude for the kind encouragement he has extended to an unknown writer in a dis- tant land. Note 221. — Page 101. Cod. S. Gain 491. Cf. references in Note 213. Note 222. — Page 101. The distinction between socage tenures and tenures in villenage, what are now known as copyhold tenures, is clearl}' drawn in our English law books. It is a distinction based upon essential differ- ences, — differences which have existed from the earliest period of recorded histor}-. So in France and Germany, the distinction between free tenures and tenures in villenage is everywhere clearly drawn. It is everywhere based upon real differences. Without doubt, tenures in villenage were sometimes converted into free ten- ures, and free tenures were converted into tenures in villenage ; but that is no reason why the}' should not be distinguished one from another. B}' such conversions one form of tenure was substituted for the other. It is sometimes argued that we have in the free tenant the ancient allodial proprietor. I>y others it is argued that the villein tenant was the ancient allodial proprietor. There is quite a controversy, whether ancient allodial property has survived to modern times in the free tenures or in the tenures in villenage. The controversy seems to us a very idle one. When allodial property was con- verted into a free tenure or a tenure in villenage, it ceased to be allodial property. It no longer comes under the definition given to allodial property. When we have once defined an institution correctly, it survives only so long as it answers to the defini- tion. Neither free tenures nor tenures in villenage answer at all to a definition of allodial property ; so it cannot be said that allodial property survives either in the one or the other. The question may be raised whether the mass of allodial proprietors became free tenants or serfs ; but the question should be at once laid on the shelf, because we have no statistics in the records to 248 EARLY HISTORY OF LAXD-HOLDING. enable us to answer it. Besides, it must not be forgotten that both the free tenants and the serfs must have descended, more or less immediateh-, from allodial proprietors, inasmuch as allodial pro- prietorship antedates both free tenancy and serfdom ; free tenancy being defined as free holding under proprietorship ; serfdom being defined as servile holding under proprietorship ; there being no other proprietorship among the earl}' Germans, except that which comes under the definition of allodial proprietorship. Of course we have a feudal proprietorship, but that is not properly- speaking proprietorship. It is another form of tenancy under proprietorship. We cannot say that allodial proprietorship survived even in feudal lordships. Properly- speaking it survived only in the sovereign over-lordship of the kings and emperors, and, here and there, where there were independent lordships among the people. Allodial pro- prietorship was a sovereign and independent proprietorship. The allodial proprietor ma}' be ver}- correctly described as a king, within the limits of his estate. He was a judge in disputes arising among his tenants. lie was their advocate in causes of dispute with persons outside the estate ; and he made war upon his neigh- bors, if he dared to take the consequences of so doing. His neighbors, however, were his kinsmen, and he was usually on good terms with them. In company with his kinsmen, he with his ten- ants and they with theirs, he waged war on alien families and elans, with more or less success. The state of the earh' Germans is best described as a confederation of sovereign proprietors, — reges vicini. The territor}- of the state consisted of the estates of these proprietors. The assemblj^ was an inter-estate convention so to speak, in which the opinion of the best men, or a majorit}', was law. All this, however, is very much of a digression. We do not propose to examine here the political constitution of the early state. It is with the land system onl}' that we are concerned. Note 223. — Page 103. Tacitus Germ. 32 : inter familiam et penates et jura successio- num equi traduntur : excipit filius, non ut cetera, maximus natu, sed prout ferox bello et melior. Cf. Germ. 20: heredes tamen successoresque sui cuique liberi, et nullum testamentum. In the NOTES AND EEFERENCES. 249 first passage the Tencteri are referred to ; in the second, the Ger- mans in general. Note 224. — Page 103. See Mr. T. E. Cliffe Leslie's ver^' interesting article on Auvergne in the Fortnightly Review, December, 1874, p. 745. Note 225. — Page 104. See Note 223. See also the Vita S. Benedicti of Baed, § 11 : quomodo terrcni parentes quem primum partu fudcriiit, eum princi- pium liberorum suorum cognoscere et ceteris in partienda sua here- ditate praeferendura ducere solent. With the exception of the passage in Tacitus, this is the earliest reference to the custom of primogeniture which we have found. The passage may, however, refer simply to a preference given to the eldest son in respect to certain items of the inheritance inca- pable of division, heirlooms for example. So in the Customs of Stretford in Oxfordshire. See Coke upon Littleton, 18. b. Note 226. — Page 104. For the Haiisgesetze, see J. J. Moser's FamiUen-Staatsrecht der dcntschen Rcichstiinde ; also his Personliehes Staatsrecht, and Deutsches Staatsrecht. These works were published towards the end of the last century. The Hausgesetze of reigning families in German3' were published at Jena, in 18G2, by Hermann Schulze, under the title, Die Hausgesetze der rcgierendendeutschen FUrsten- hauser. We have not ourselves had access to these works. We have had to depend ui)on the account of their contents given l)y Hermann Schulze in the Appendix to Stobbe's Geschichte dor deutschen Rechtsquollen (2 vols., Braunschweig, 18G0-G4, 8°). By means of the Hausgesetze inheritances were given to males rather than to females ; the}^ were made inalienable and indivisi- ble ; and the right of succession was conferred upon the eldest son, or the eldest male of the eldest line. 250 EARLY HISTORY OF LAND-HOLDINa. Note 227. — Page 106. Sec Note 222. Note 228. —Page 106. This may be inferred from the existence of the rules prescribing divisions among heirs, and the absence of exceptions to tliese rules. Among the Bavarians, for example, we have the rule : ut fratres hereditatem patris aequaliter dividant. See Lex Baiw. XIV. Cap. VIII. 1. No exception being made to the application of this rule, we may assume that the rule had a universal application, — that it governed the distribution of all inheritances, whether they were held as independent property or as benefices. The existence at this time of beneficiary holdings is proved bv the words nisi defensor Ecclesiae ipsiiis inr henejicmm praestare voluerit ei, in Lex Baiw. I. Cap. I. The vavassoriae of Normandy partook of the nature of benefices. Tliey were caWqA feuda minora. At the same time they were divis- ible among the heirs from generation to generation. See Note 210. We ma}' suppose that this was the case with almost all bene- fices in the early time, in so far as the}' were held with a right of inheritance. We may regard the Norman vavassoriae as tyi)ical examples of ancient beneficiary holdings. The rule of indivisibility of fiefs was introduced afterwards. Note 229. — Page 106. The principle of indivisibility of fiefs being recognized, the ques- tion arose which of the heirs shall have the inheritance. The first answer to this question would be, that he who was best qualified to hold and administer it ought to have it. Then the question would arise which of the heirs is Ix'st qualified. In order to settle this fre- quently very diflicult question, and the disputes arising in regard to it, it would be necessary to adopt a rule of succession. The rule which, in the long run, would be most satisfactory, would be the rule of primogeniture ; and that was the rule generally adopted. We are told that the earliest Ihinscieselze now extant belong to the fourteenth century, and are simply rules against divisions of family property, — Untheilbarkeitsverordnungen. See Stobbe's Geschichte NOTES AND REFERENCES. 251 der Deutschen Rechtsquellen, II. pp. 501-502. The rule of indi- \'isibility being recognized and adopted, the rule of primogeniture follows as a natural result, almost inevitabl}', as the means of pre- venting disputes among heirs upon the question of succession. Note 230. — Page lOG. Take, for exami)le, the vavassoi-ia called le fief au Rosel at Quette- hou, of which we have a detailed account dating from the beginning of the fifteenth century. It consisted of sixty-six acres of land, and it was divided among more than thirty-nine persons. That would give a little more than an acre and a half to the individual, on an average. With such limited inheritances it is not likel}' that the vavassores were persons of any distinction or influence. See Delisle's Etudes sur la Classe Agricole en Normandie, pp. 33-34. Note 231.— Page 108. Already in the time of Tacitus the people were beginning to group themselves in foUowings, — Gefulgschaften. They gave up their estates and became companions of a chief or king. They re- ceived from him arms and horses, and they lived with him as mem- bers of his household. Then there arose a competition between the chiefs and kings, to obtain the greatest number of personal adherents, and various and great were the inducements offered to the people at large, to lead them to give up their independence See Germ. 13, 14. The result was, that all but the wealthiest and most powerful of the allodial proprietors became dependants. Then the number of dependants became, in many cases, so great that it was impossible to maintain all of them as retainers in the house- hold. They were, consequently, distributed into two classes, — a class of retainers in the household, and a class of beneficiaries. Then a struggle for wealth and power began between the lords and the beneficiaries. The lords discovered that their estates must either be increased or remain undivided, and the beneficiaries came to the same conclu- sion. As long as there was plent}' of land, estates were increased and divided ; but as soon as land became scarce, and further con- quests were impossiI)lc', the lords began to ailopt the princii)le tliat 252 EARLY PIISTORY OF LAXD-HOLDINQ. inheritances must not be divided. The beneficiaries followed their example. The feudal system was the result. It was only among the lower orders of tenants that divisions among heirs continued to be made. It was among the lower orders of tenants onh' that the clan system continued its existence. While the lords and the higher class of tenants became rich and powerful, pauperism and servitude increased beneath them. The number of discontents grew constautl}- larger and larger, and the number was increased b\' the accession of the disinherited members of the upper classes. The feudal S3-stem became more and more intolerable, until the lower classes were stirred to revolt, and it was overthrown more or less completely everywhere. It is in England only that the practice of disinheriting all but one heir is still tolerated by an indulgent populace. The lower classes are gathered into the manufacturing centres. The disinherited members of the upper classes take refuge in the professions. The land remains still in the hands of compara- tively few persons, as in the Middle Ages. How long this condition of things may last remains to be seen. It can hardl}^ last very long. The number of people who consider it intolerable seems to be increasing day b}' day. With the abolition of indivisible estates a fundamental cause of feudalism will be removed. Given indi- visible estates and an increasing population, the result will be de- pendence upon landlords and personal adherence to them. The ultimate result will be a form of feudalism. The student who desires to review the literature of our subject will find the following list of authors and titles ser- viceable. AcHENBACH, IT. — Die Ilaubergsgenossenschaften des Siegerlandes. Ein Beitrag zur Darstellung der deutschen Flur- und Agrar- Verfassung. Bonn, 1863. 8°. Adams, H. B. — The Germanic Origin of New England Towns. Johns Hopkins University Studies in Historical and Political Science. II. Baltimore, 1882. 8°. Allen, W. F. — Community of Land in New England. In the Nation, Vol. 2G, p. 22, No. 654, Jan. 10, 1878. NOTES AND REFERENCES. 253 Allen, W. F. — Rural Classes of England in the Thirteenth Cen- tiir3\ Madison, Wisconsin, 1874. Peasant Communities in France, and Origin of the Free- holders [in England]. A pamphlet without imprint. English Cottagers of the Middle Ages. Pamphlet without imprint. Amiha, Karl v. — Erbfolge und Verwandschafts-Gliederung nach den alt-niederdeutschen Rechteu. Miinchen, 1874. 8°. Anderson, Joseph. — The Orkne3-inga Saga, with Notes and an Introduction. Edinburgh, 1873. 8°. Anton, K. G. — Geschichte der teutschen Landwirthschaft. 3 vols. Gorliz, 1799-1802. 8°. Arnold, Wiluelm. — Ansiedelungen und Wanderungen deutscher Stiimme. Marburg, 1875. 8°. Deutsche Urzeit. 3d edition. Gotha, 1881. 8°. Beaune, Henri. — Introduction a I'Etnde Ilistorique du Droit Coutumier Fran(;ais jusqu'ii la Redaction officielle des Cou- tumes. Lyon, 1880. 8°. Beck. — Beschreibung des Regierungsbezirkes Trier. Bd. I. con- tains an account of the Geltoferschaften. Trier, 18G8. Bethmann-HollweOx, M. A. v. — Der germanisch-romanisch Civil- prozess im Mittelalter. 3 vols. Bonn, 18G8-74. 8°. Blackstone, Sir AVilliam. — Commentaries on the Laws of Eng- land. We have used the IGth edition, with Notes by John Taylor Coleridge. 4 vols. London, 1825. 8°. Bluntsciili, J. C. — Ueberdie Landgemeinden. Kritische Ucber- schau der deutscheu Gesetzgebung und Rechtswissenschaft. Bd. L 1853. Die Wirthschaftliche Rechtsordnung der deutschen Dorfer. Kritische Ueberschau der deutschen Gesetzgebung und Rechts- wissenschaft. Bd. II. 1855. Staats- und Rechtsgeschichte der Stadt und Landschaft Zurich. 2d edition. 2 vols. Ziu'ich, 1856. 8°. Binding, Carl. — Das Burgundisch-Romanische Konigreich (von 443 bis 532 N. Chr.). Leipzig, 1868. 8°. BoDMANX, F. J. — Rheinijauischer Altortluhner. Mainz. 1819. 4*. 254 EARLY HISTORY OF LAND-HOLDING. BoRCHGRAVE, Emil de. — Histoirc dcs Colonies Bolges qui s'ota- blirent en Alieniagne pendunt la Doazieme et le Treizieme Siecle. Bruxelles, I8G0. Essai Ilistorique sur les Colonies Beiges qui s'etablirent en Ilongrie et en Transsylvanie. Bruxelles, 1871. BuANTs, Victor. — Essai Ilistorique sur la Condition dcs Classes Rurales en Belgique. Louvain, Paris, 1880. 8^. Briesen, Constantin v. — Urkundliche Geschichte des Kreises Merzig. With an account of the GehUferschaften. Saarlouis, 18G3. 8°. Brodrick, G. C. — The Law and Custom of Primogeniture. S3's- tems of Land Tenure in various Countries. IX. Published by the Cobden Club. Loudon, 1876. 8°. Brunner, Heinrich. — Das Anglonormannische Erbfolgsjstem. Zur Geschichte der Parenteleu Ordnung. Leipzig, 18G9. 8°. Zur Reehtsgeschichte der Romischen und Germanischen Urkunde. Berlin, 1880. 8". BuciiKU, Karl. — Das Ureigenthum, von Emilc de Laveleye. Au- thorized translation, with amplihcations. Leipzig, 1879. 8°. Coke, Sir Edward. — Upon Littleton. We have used the editioa with Ilardgrave's and Butler's Notes. 2 vols. Philadelpliia, 1853. 8°. CouLANGES, FusTEL DE. — Tlistoirc dcs Institutions Politiques de I'Ancienne France. I. Paris, 1875. 8°. Etude sur la Proprietc a Sparte. Memoire lu a I'Academie des Sciences Morales et Politiques. Nov.-Dec. 1879. In the Seances ; in the Journal des Savants, 1880 ; and separately, Paris, 1880. 8°. Dahn, Felix. — Die Konige der Germanen. G vols. Miinchen, Wiirzburg, 1861-71. 8°. Dareste de la Chavanne, C. — Ilistoire des Classes Agricolcs en France depuis Saint Louis jusqu'a Louis XVI. Paris, 1854. 8°. Dareste, R. — Les Ancicnncs Lois Suedoises. Journal des Sa- vants. Sept., Oct., 1880. Anciennes Lois de Dancmark. Journal des Savants. Fev. 1881. NOTES AND REFERENCES. 255 Dareste, R. — Les Ancionnes Lois de la Xorvege. Journal des Savants. April, Mai, 1881. Dasent, G. "W. — The Stor}- of Burnt Njal, or Life in Iceland at the P2nd of the Tenth Century. 2 vols. London, 18G1. 8°. Delisle, Leopold. — Etudes sur la Condition de la Classe Agri- cole, et I'Etat de 1' Agriculture, au Moyen Age. Evreux, ISol. 8°. DiGBY, K. E. — Introduction to the History of the Law of Real Property. Oxford, 1875. 8°. EiciiHOKN, K. F. — Deutsche Staats- und Rechtsgeschichte. oth edition. 4 vols. Gottingen, 1843. 8°. Ellis, Henrt. — General Introduction to Domesda}' Book. In Domesday III. ; or 2 vols., London, 1833. 8°. Elton, Charles. — The Tenures of Kent. Oxford, London, 1867. 8°. The Law of Commons and AYaste Lands. London, 1868. 8°. The Law of Copyholds and Customary Tenures. London, 1874. 8°. Observations on the Bill for the Improvement of Com- mons, 1876. London, 1876. 8°. — Origins of English Ilistor}'. London, 1882. — Custom and Tenant-Right. London, 1882. Eriiardt, Louis. — Aelteste germanische Staatenbildung. Leip- zig, 1879. 8°. Entstehung des deutschen Konigthums, von Ileinrich von S^-bcl. Gottingische gelehrte Anzcigen. 27 Sept., 1882. Fenton, John. — The Right of Pre-emption in "Village Communi- ties. The Antiquary, No. 21, Vol. IV., Sept., 1881. FiNLASON, "W. F. — History of the Law of Tenures of Land in England. London, 1870. 8°. Fisher, Joseph. — The History of Landholding in England. In the Proceedings of the Ro3'al Historical Society, and in the Humboldt Liljrary, No. 27. New York, 1881. 8°. Freeman, E. A. — The Norman Conquest. 6 vols. Oxford, 1867-79. 8°. 256 EARLY HISTORY OF LAND-HOLDING. Freeman, E. A. — The Growth of the English Constitution from the earUest Times. London, 1«72. 8°. A third edition, with notes. 1876. 8°. G. A. (Grant Allen ?) . — Old EngUsh Clans. Cornhill Magazine. Sept. 1881. Gaupp, Ernst Tiieodor. — Die germanischen Ansiedclungen und Landtheilungcn in den Provinzen des romischen Wcstrciches. Breslau, 1844. 8°. Geffroy, M. a. — L'Island avant Ic Christianism. Memoires presentes par divers Savants h TAcadcmie des Inscriptions et Belles-Lettres. 1" Serie, Tom. VI. 18G4. Gierke, O. F. — Das deutsche Genossenschaftsreeht. Erster Band. Rechtsgescliichte der deutschen Genossenschaft. Ber- lin, 18G8. 8°- GoMME, G. Laurence. — Nottingham Borough Records. The Antiquar}^ No. 40, Vol. VII., April, 1883. Grimm, Jacob. — Deutsche Rechtsalterthiimer. 2d edition. Got- tingen, 1854. 8°. GuERARD, B. — Polyptique de I'Abbe Irminon. Prolegomenes. Paris, 1844. 4°. GL^zoT, F. P. G. — Essais sur I'Histoire de France. 11th edition. Paris, 1866. 8°. Hallam, Henry. — View of the State of Europe during the Middle Ages. 10th edition. 3 vols. London, 1853. 8°. Hanssen, Georg. — Agrarhistorische Abhandlungcn, 1835-79. Leipzig, 1880. 8^ Agrarhistorische Fragmente zur Erkentniss der deutsche Feldmarkverfassung von der Urzeit bis zur Aufhebung der Feldgemeinschaft. Zeitschrift fur die gesammte Staatswissen- schaft. Jahrg. 36 and 38. Untersuchungen iiber das Ilofsvstem in Mittelalter, von Dr. K. T. von Inama-Sterncgg. Gottingische gelehrte Anzeigen. 1873, I. p. 921. Haxtiiausen, August v. — Ueber die Agrarverfassung in Nord- deutschland. Berlin, 1829. 8°. Ueber die Agrarverfassung in den Fiirstenthiimer Pader- born und Corvey. Berlin, 1829. 8°. NOTES AXD REFERENCES. 257 IIaxtiiausex, August v. — Die Hindliche Verfassuug tier Proviiiz Ost- und West-Preussen. Konigsberg, 1831). I'lspruMg und GruiuUiigen der Verfassuug in den ehemals Sluvischen Liiuderu Deutselilunds. Berlin, 1842. 8°. Hensleu, AxuuEAS. — Die Gewere. AVeiniar, 1872. 8°. HiSELY, J. J. — Essai sur I'Origine et le Developpement des Liber- ies des Waldstetten, Uri, Schwj-z, Unterwalden. Published in 3 parts, b}' the Societe d'llistoire de la Suisse Romande. Lausanne, 1838-43. 8^ Holmes, O. W., Jk. — The Common Law. Boston, 1881. 8^ . HosKYXs, C. Wrex. — The Land Laws of England. Sj'stems of Land Tenure in various Countries. II. Published b}- the Cob- den Club. London, 187G. 8°. Inama-Sternegg, K. T. v. — Untersuchungen iiber das Ilofsystem im Mittelalter. Innsbruck, 1872. 8°. Die Entwickelung der deutschen Alpendorfer. Ein Wirth- schaftsgeschichtlicher Essa}'. Ilistorisches Taschenbuch. o Folge, 4 Jahrgang. Leipzig, 1874. Die Ausbildung der grossen Grundherrschaften in Dcutsch- land warend der Karolinger Zeit. Leipzig, 1878. 8°. Deutsche Wirthschaftsgeschichte bis zum Schluss der Ka- rolingerperiode. I. Leipzig, 1879. 8*^. Die Quellen der deutschen Wirthschaftsgeschichte. No- vemberheft des Jahrganges 1876 der Sitzungsberichte der Phil.-IIist. Classe der Kais. Akademie der Wissenschafteu. Wien, 1877. 8°. Jacobi, Victor. — Agrarwesen des Altenburgischon Ostcrlandes. First printed in the Leipziger Zeitung ; then reprinted under the title, Slaven- und Teutschthum. Hannover, 1845. 8°. Jaux, Aij'.eut. — - Die Geschichte der Burgundioncn und r>ur- gundiens, bis zum Ende der I. Dj-nastie. 2 vols. Halle, 1874. 8\ Jastrow, Igxaz. — Zur Strafrcchtlichen Stellung der Sklaven bei Deutschen und Angelsachsen. Brcslau, 1878. 8°. Ueber das Eigonthum an und von Sclaven naeh deutschen Volksrecliten. Forschungen zur deutschen Geschichte, XIX. p. C2G. Gottingen, 1879. 8°. 17 258 EARLY HISTORY OF LAXD-HOLDING. Kemble, J. M. — The Saxons in England. First edition. Lon- don, 1848. Second edition, 1876. 8°. KiNULiXGEK, NiKLAS. — Gescliiclitc del- deutschcn Ilorigkeit, inbe- soudere der sogenannten Leibeigenscliaft. IJeiliu, 181D. 8°. KoHLER, Joseph. — Emile de Laveleyc, das Ureigenthum. Yiertel- jahresschrift fiir Gesctzgebung und Reclitswissenscliaft. Bd. XXIII. p. 24. (Neue Folge^ Bd. IV.) 1881. KovALEWSKY, Maximcs. — Umriss eincr Geschiehte der Zerstiicke- lung der Feklgemeinschaft in Canton Waadt. Zurich, 1877. Labgulaye, E. R. L. — Ilistoire du Droit de Propriete Fonciere en Occident. Paris, 1839. 8°. Laing, Samuel. — The Ilcimskringla. A Chronicle of the Kings of Norway. From the Icelandic of Snorro Stnrleson. With a Preliminary Dissertation. 3 vols. London, 1844. 8°. Landau, Geokg. — Die Territorien in Bezug auf ihre Bildung und ihre Entwicklung. Hamburg, Gotha, 18o4. 8°. Das Salgut. Kassel, 1862. 8°. Lappenberg, J. M. — History of England under the Anglo-Saxon Kings. Translated from tlie German (Hamburg, 1834) bj' Benjamin Thorpe. 2 vols. London, 1845. 8°. There is a new edition in Bohn's Series. Laveleye, Emile de. — De la Propriety et de ses Formes Primi- tives. Paris, 1874. 8°. Leake, Stephen Martin. — An Elementary Digest of the Law of Property in Land. London, 1874. 8°. Lehuerou, J. M. — Ilistoire des Institutions Merovingiennes et Carolingiennes. 2 vols. Paris, 1843. 8". Leo, IIeinrich. — Upon the Rcctitudines Singularum Personarum. Halle, 1842. 8°. Lewis, W. — Die Successionsordnung des Deutschen Rechts. Vierteljahrschrift fiir Gesctzgebung und Rechts-Wissenschaft. IX. iliinchen, 1867. Lodge, H. Cabot. — An Essay on Land-Law, in Essays in Anglo- Saxon Law. Boston, 1876. 8°. Maine, Sir Henry Sumner. — Ancient Law. Its Connection with the Early History of Society, and its Relation to Modern Ideas. London, 1861. 8°. NOTES AND REFERENCES. 259 Maine, Sir Henry Sumner. — Village Communities in the East and West. London, 1871. 8°. There are later editions with additional essays. Lectures on the Early Ilistor}" of Institutions. London, 1875. 8°. Dissertations on Early Law and Custom. London, 1883. 8°. Majer, J. C. — Teutsche Erbfolgc in Lehen- und Stammgutern. Stuttgart, 1804. 8°. Gemeinrechtliche Erbfolge-Ordnung. Stuttgart, 1805. 8°. Marshall. — A Review of the Reports of the Board of Agriculture from the Southern Department of England. York, 1817. A Review of the Reports of the Board of Agriculture from the Midland Department of England. York, 1815. Or else see the Reports themselves. They were printed towards the end of the last centur}-, under the superintendence of Sir John Sinclair. Maltier, G. L. v. — Einleitung zur Geschichte der Mark- Ilof- Dorf-, und Stadt-Yerfassung. Miinchen, 1854. 8°. Geschichte der Markenverfassung in Deutschland. Fa'- langen, 185G. 8^ Geschichte der Fronhofe, der Bauernhofe und der Ilofver- fassung in Deutschland. 4 vols. Erlangen, 18G2-63. 8°. Geschichte der Dorfverfassung in Deutschland. 2 vols. Erlangen, 18G5-GG. 8°, Maurer, Konrad. — Die Entstehung des isliindischen Staats und seiner Verfassung, Miinchen, 1852. 8°. Ueber Angelsachsische Rechtsverhiiltnisse. Kritische Ue- berschau der deutschen Gesetzgebung und Rechtswissenschaft. I, IL 1853-55. Island von seiner ersten Entdeckunff bis zum Untersranoe des F'reistaats. Miinchen, 1874. 8°. Meitzen, August. — Cod. Dipl. Siles. Bd. 4. Einleitung. "Willi maps of villages. Breslau, 18G3. 4°. Der Boden und die Landwirthschaftlichcn N'erlialtnisse des Preussischen Staatcs. 4 vols. Agrarverfassung in Vol. I. Berlin, 18G8. 4°. 260 EARLY HISTORY OF LAND-HOLDING. Meitzen, August. — Die Ansbreitung der Deutschen in Doutsch- land, und ihre Besiedelung der Slavengebiete. Jahrbiichcr fiir Nationalokonoinie und Statistik. XVII. Jalirgang, I. Bd., pp. 1-59. Der iiltcste Aubau der Deutschen. A review of Inama- Sternegg's Wirthschaftsgescluchte. Jahrbiicher fur National- okonomie und Statistik. Neue Folge, Bd. II. Ilcft I. 1881. Agrarpolitik im engeren Sinne. Landosknltur-Gesetzge- bung. In the Ilandbuch der PoUtischen Oekonomie edited by Dr. Schonberg, Tubingen, 1881, pp. C.G9-710. Das Noniadentum der Gerraanen. Verhandhingen des zweiten Deutschen Geographcntages zu Halle. April, 1882. Die Individualwirtschaft der Germanen. Bemerkungen zu Lorenz v. Stein's : Drei Fragen des Grundbesitzes. Jahr- biichcr fur Nationalokonoinie und Statistik. Neuc Folge, Bd.VI. Heft I. MiASKOWSKY, August y. — Die schweizerische Allmend vom XIII Jahrhundert bis zur Gegenwart. Leipzig, 1879. 8°. Mill, John Stuart. — I\Ir. IMaine on Village Communities. In the Fortnightly Review, vol. 15, p. 543, May, 1871. MosER, Justus. — Osnabruckische Geschichte. 3 vols. Berlin, Stettin, 1880-1824. 8°. MONE, F. J. — Ueber die Allmenden vom 12 bis IG Jahrhundert. Zeitschrift fiir die Geschichte des Oberrhcins, I. p. 385. Karlsruhe, 1850. Morgan, J. F. — England under the Norman Occupation. 'Lon- don, 1858. 8°. Morier, R. B. D. — Agrarian Legislation of Prussia during the present Century. Systems of Land Tenure in various Countries. V. Published by the Cobden Club. London, 1876. 8°. Nasse, E. — The Agricultural Community of the Middle Ages. Translated from the German by Colonel Guvry. London, 1871. 8°. Village Communities. Contemporary Review, May, 1871. Olufsen. — Bidrag til Oplysning om Danmarks indvortes Forfat- nino- i de aeldre Tider. In the first volume of the Proceedings NOTES AND REFERENCES. 261 of the Kopenhagen Academj- of Sciences. There is a separate im[)iint : Kopenhagen, 1821. Rei:vl:s, John. — History of the English Law, from the Time of the Romans to the End of the Reign of EUzabeth. Edited h}- W. F. Finlason. 3 vols. London, 1869. 8°. Report. — Commons' Inclosure. Ordered to be printed b}' the House of Commons, August, 18-14. Folio. Reports. — Respecting the Tenure of Land in the several Countries of Europe. Printed for the Houses of Parliament. 2 Parts. 18G9-70. Folio. Robertson, E. W. — Historical Essay's in Connection with the Land, &c. Edinburgh, 1872. 8°. Robinson, Thomas. — The Common Law of Kent, or the Customs of Gavelkind, with an Appendix concerning Borough-English. London, 1741. 8°. Rosciier, AViliielji. — Ansichten der Volkswirthschaft aus dem geschiehtlichen Stand[)unkte. Leipzig, 18G1. 8°. System der Volkswirthschaft. II. NationaliJkonomik des Ackerbaues. Gth edition. Stuttgart, 1870. 8°. Roth, Paul. — Geschichte des Beneflcialvvesens. Erlangen, 18.")0. 8^. Feudalitiit und Unterthanverband. Weimar, 18G3. 8°. Savigny, F. C. v. — Geschichte des romischen Rechts im Mittel- alter. 2d edition. 7 vols. Heidelberg, 1834. 8°. Das Recht des Besitzes. Gth edition. Giessen, 1837. 8°. SciioTT, J. — Ueber die Natur der weiblichen Erbfolge. 1809. 8°. Schroder, Richard. — Die niedcrliindlichen Kolonien in Nord- deutschland zur Zeit des Mittelalters. Berlin, 1880. In Virchow's and HolzendorflTs Wissenschaftliche Vortriige, XV. Geschichte des ehelichen Guterrechts in Deutschland. Stettin, Danzig, Elbing, 18G3. 8°. Die Ausbreitung der Salisehon Frankon. Zugloich ein Beitrag zur Geschichte der dcutschen Fi'ldg(Miioinschaft. For- schungen zur dcutschen Geschichte, P.d. XIX. p. 137. Dif Frankon mid ilir Ixcclit. Weimar, 1881. 8°. Aus: Zeitschrift der Savign3--Stiftung fiir Rt'chtsgoschichte. 262 EARLY HISTORY OF LAND-HOLDING. ScncLZE, II. J. F. — Recht der Erstgeburt in den deutschen Fiirs- tenhuuseru. Leipzig, 1851. ScHWERZ. — Beitriige zur Kentniss der Landwirthschuft in der Gebirgsgegend dcs Ilundsiiicken. In Vol. XXVII. of the Moglinsche Annalen der Landwirthsehaft, Erstes Stiiek. Tliis is the first aceount we have of the Gchijferschaftcn. Seeboiim, Fredehic. — The Land Question. Feudal Tenures. Fortnight!}' Review, vol. 13, p. 89, Jan., 1870. The English Village Community, examined in its Relations to the Manorial and Tribal Systems. An Essay in Economic History. London, 1883. 8\ SiEGEL, IIeinrich. — Die Germanische Verwandschaftsbcrechnung, mit besoudere Beziehung auf die Erbenfolge. Giessen, 1853. 8=. Das Deutsche Erbrecht. Heidelberg, 1853. 8°. SoHM, Rudolph. — Die Friinkische Reichs- und Gerichtsverfas- sung. Weimar, 1871. 8°. La Procedure de la Lex Salica. Traduit et annote par Marcel Thevenin. Paris, 1873. 8^ Friinkisches Recht und Romisches Recht. Weimar, 1880. 8°. Aus: Zeitschrift der Savigny-Stiftung flir Rechtsge- schichte. Zur Geschichte der Auflassuns;. Festsfabe zum Doctor- .Jubilaum des llerrn Geheimen Justizrathes Professors Dr. IIeinrich Thcil in Gottingen. Strassburg, 1879. 8°. SoMNER, William. — A Treatise of Gavelkind. London, IGGO. 8°. Stein, Lorenz v. — Drei Fragen des Grundbesitzes und seiner Zukunft. Stuttgart, 1881. 8°. Stobbe, O. — Geschichte der deutschen Rechtsquellen. 2 vols. Braunschweig, 1860-64. 8°. Stubbs, William. — The Constitutional History of England. Vol. I. Oxford, 1874. 8°. Select Charters. Illustrations of English Constitutional History. Oxford, 1874. 8°. Stdve, C. — Wesen und Verfiissung der Landgeraeinden und des liindlichen Grundbesitzes in Niedersachsen und Westphalen. Jena, 1851. 8°. NOTES AXD REFERENCES. 263 Sybel, Heixricii v. — Entstehung dcs deutscben Konigthums. New edition. Frankfurt a. M., 18S1. 8°. Taillar. — Notice sur I'Origine et la Formation des Villages da Nord de la France. jMcnioiros de la Socititc d'Agriculture de Douai, 2d series, vol. G, p. 27G. Taylor, Silas. — The History of Gavelliind. London, 1GG3. 8°. TiiL'Dicnu5i, Friedrich. — Die Gau- und Markverfassung in Ueiitschland. Giessen, 1860. 8°. Uer altdeutsche Staat. Giessen, 18G2. 8^ Turner, Sharon. — The Histor}' of the Anglo-Saxons. 3 vols. London, 1852. 8°. TzsCHOPPE, G. A., and Stexzel, G. A. — Urkundensammlung zur Urspnings der Stlidte in Schlesien und der Ober-Lausitz. Einleitung. Hamburg, 1832. 4°. ViOLLET, Paul. — Caractere eollectif des premieres Proprietes im- mobilieres. Bibliotheque de I'Ecole des Chartes, vol. 33, p. 454. 1872. Waitz, Georg. — Deutsche Verfassungsgeschichte. Kiel, 1844. 8°. A second edition was begun in 1865. Die altdeutsche Hufe. Giittingen, 1854. Wallace, D. Makenzie. — Russian Village Communities. In Macmillan's Magazine, vol. 34, p. 97, June, 1876. Reprinted in the Eclectic Magazine, vol. 84, p. 196. Wasserschleben, H. — Das Princip der Successionsordnung. Gotha, 1860. 8°. Die germanische Verwandsehaftsberechnung und das Prin- zip der Erbfolge. Eine Roplik. Giessen, 1864. 8°. Wietersiieim, Eduard v. — Geschichte der Volkerwanderung. 4 Bde. Leipzig, 1859-64. 8°. A second edition, edited by Felix Dahn. 2 Bde. Leipzig, 1880-81. 8°. Williams, Bexjamin. — Account of the Officers of a IManor in Oxfordshire. Archaeologia, vol. 33, p. 269. 1850. Remarks on the Hide of Land. Archaeologia, vol. 35, p. 4 70. 1854. On Iho Land of Ditmarsh, and the Mark Confederation. Archaeologia, vol. 37, \). 371. 1857. 264 EARLY HISTORY OF LAND-HOLDING. Williams, Joshua. — Principles of tlie Law of Real Property. Fifth American, from the twelfth English edition. Phila- delphia, 1879. 8°. Kights of Common and otlicr Prescriptive Rights. London, 1880. 8°. Young, Ekxest. — An Essay on Famil}- Law, in Essays in Anglo- Saxon Law. Boston, 187G. 8°. ZiMMERLE, LuDwiG. — Dcutsche Stammgutssystem. Tubingen, 1857. 8°. INDEX. Acres, 6-7, so, 131, isi-ise. Adoption, 66, 69-73, 222-226. Agilofingi, family of the, 32, 185. Affatimum, 70-73, 223-225. Agri, (in Caesar IV. 1), 210-211 ; (in Tacitus Germ. 20), 4-5, 120, 129- 133, 231; (in the Annales IV. 72), 211. Agricultural life, transition from the pastoral to the, 3, 120, Agriculture, introduction of, 1-3, 126. Alfred, King, keeps half his forces in the field, half at home, 126; his will, 182-183. Alienation, right of, 54-56, GO, 73-75, 209-210, 224, 22G, 228-229. Alienations in casa, 71, 225-226. Allodial property, nature of it, 248 ; concentration of it, 99-101, 102, 105, 246; converted into hereditary tenures, 100, 106, 247; con- verted into tenures in villenage, 247. Almend, 138-139, 196 ; almend formula, 87, 152, 237. Alod, 35, 58, 174-175, 189. Ancestor worship, a theory as to its origin, 189. Ancient houses, 26. Appropriation of unoccupied laud, 13-14, 28, 151, 153, 1(58, 171-175, 177- 178, 193. Arable lots, occupied according to the number of cultivators, pi-o numero cuUorum, 4-6, 14, 16, 27, 129-133, 147-148, 151-1.52, 172-173, 231; shifted about, 7-8, 138 ; held in rotation, 10, 83; distribution of them in the free colonies, 80-83, 232. Authority, too much deference paid to it, 65. Auvergne, custom of inheritance in, 103, 249. 266 INDEX. BaED, his letter to Abp. Ecgbirht, 170; he refers to the custom of primo- geniture, 249. Benefices, 105-108, 250. Beneficiaries, 106-108, 251. Bibliography, 111-122, 252-264. Blood, kinship, as a bond of union, 66, 90, 195. Boc-land, 170-171, 182. Borough English, 104. Boundaries, none in the early time, 12, 17, 19, 23, 148-149 ; how first laid down, 13, 149-150. Burgundian Law, notable passages from it, 29, 179. Caesar, interpretation of his statements, 2, 12, 15, 17-20, 22, 125-126, 135, 148-149, 156-157, 210-211. Castles, origin of, 159. Charibert, taxation in the reign of, 98. Chiefs and kings, in the ancient houses of the nation, 26-27. Chilperic, the edict of, 48-49, 206, 213, 214, 220, 221 ; taxes in the reign of, 98. Chlothar I., taxes in the time of, 98, 245. Chronology, disregarded by the advocates of a primitive communism, 64-05. Churches, owned in shares, 44, 200-201. Civic life among the (iermans, 93, 240. Clan relationships and collateral inheritance, 220-221. Clan system of the Germans, 46, 66, 219-221 ; dissolution of it, 66-78, 219-231 ; clan system among tenants, 95, 101. Classification of collateral heirs, 53-54, 208-209, 220-221; among the ancient Irish, 208. Clients, 3. See Dependants. Collateral inheritance and clan relationships, 220-221. Coloni, 12, 148, 239, 241. Colonies, of free proprietors, 78-94, 231-234, 237-241 ; of tenants, de- pendants, slaves, or serfs, 14-16, 78, 81, 91-94, 124-125, 153-156, 176, 210-217, 233, 2.34, 238, 246. Comarcani, 100-161. Common of piscary and of fowling, 203 ; of estovers, 145. Common enclosures, 84, 234. Common lands (undivided property or property held in undivided shares), 36-40, 177-178, 191, 192-197 ; rights of enjoyment in, 193. Communia, Communiones, 30, 169, 192-193. Communio proxiraorum, confmium colieredum, 178. INDEX. 267 Communism, none in early times, 10-11, 55-65, 88-89, 212, 217-218; not to be inferred from the word cojiiinuiii',, 191. Concentration of allodial property, 99-101, 102, 105, 246. Conpascua, 190. Conquest, proprietors made tenants by, 9G, 2-43. Copyright, early case of, 200. Cord, funiculus, used in measuring off land, 1^32, 136. Coulanges, Fustel de, his judgment of the theory of a primitive comum- nism, 217-218. Curtis, tun, 159. Custom, services fixed by, 11-12 ; rent fixed by, 11-12, 133-134. DeISEXHOFEN, terraced acres at, 7. Dependants, clients, 3-4, 128-129 ; politically free, economically unfree, 4, 128-129 ; employed as cultivators of the soil, 4, 128-129 ; their condition little better than that of slaves, 4, 128-129. Development of the simpler forms of society out of the family, 17G-177. Distributions of land by the chiefs or kings, 169-170, 171. Divisions of land, how made in the early time, 23 ; made by chiefs or kings, or their agents, 58, 169-170, 171, 181, 212 ; made between brothers, 29-30, 179-183; among kinsmen generally, 31-35, 49-50, 1S(J-189, 212 ; between fathers and sous, 74, 189, 228-229 ; made by lot, 5, 34-35, 82-84, 188-189, 233. Documents, titles based upon, 170-171. Domain lands, 11, 145. Dues and services, 11-12, 133-134, 146, 246. Easement or profit m alleno solo, 88, 203. Einzelhofe, 1, 127, 175, 231, 238 ; they become Gehoferschaften, 27, 175. Enclosures, common, 84. England, law of inheritance in, 182-183; indivisibility of property, 252; fighting for land, 166; consolidated by the conversion oi folc-land into hoc-lmul, 171. Equality of property, 19-20; found only in the free colonies when first founded, 79-80, 80-89; prevented by the operation of the law of inheritance prescribing division among heirs, 88-89. Erbe, it has the same root as the word arbeil, 24, 173-175 ; antedates the Erbegenoxsenschaft, 175. Erbgenossenschaft, Erbschaft, 175, 178-179, 203. Eviction of tenants pruliibited, 94. 268 INDEX. FaCULTAS, use of the word, 72. Fagana family, 32, 185. Family, the elementary group in sociological development, 170-177; among the Germans, 4G, 170-177. Farm buildings, 10, 158-159. Farmsteads, isolated, 1, 10, 78-79, 124-125, 127, 138, 175-177, 238. Feudal system, origin of the, 100-108, 102, 241, 252. Fief au Kosel, 242, 251. Field-grass system of tillage, Feldgraswirthschq/l, 8. Fighting for land, 58, 77, 107-108, 212; among the Bavarians, 20-21, 1G3-104 ; among the Saxons, 21, 165; among the Franks, 21, 165; among the Alamanni, 21-22, 165-106 ; among the Lombards, 21, 76-77, 166 ; in England, 160. Fishing, 45, 85, 202-203. Folc-land, 170-171. Forest land, 10, 28, 36-39, 61, 85, 144-145, 152, 190-195, 235-237 ; en- joyment of it unregulated, 10, 36, 85, 144-145 ; enjoyment stinted, 37 ; severalties of, 86, 152, 236-237. Freedmen, 128. Freemen, as free-lords, considered from the economic point of view, 16- 17 ; how they passed their time, 2-3 ; colonies of, 78-94. Free tenants, 100, 106, 129, 247-248. Free tenures, origin of, 100, 247-248. Frisii, private property in land among them in Tacitus's time, 211. Funiculus, 132-133, 136. Furlongs, 134-135. Gavelkind in Kent, i66, 242. Gefolgschaften, 251. (Jehoferschaft, 27, 94, 175, 178-179, 238-239, 240-241. Genealogical relationships, knowledge of, 189. Genealogies, from the Anglo-Saxon Chronicle, 206. Gesettes-land, 145. Gewannen, 134-135. Gewere (gwerra or werra, guerre or war), 22, 107-168. Gewerida, 107. Grass land, 2, 9, 28, 36, 83-86, 141, 152; enjoyment of it stinted and un- stinted, 9, 30-37, 84 ; divided into lots, 9, 84, 80, 142, 152 ; the rotation system applied to it, 9, 143. Greeks, civic life of the, 93, 240. Guerra, guerre, 22, 107. INDEX. 269 HaUSGESETZE, 104, 249, 250. Heii's, how described in the early records, 31-35, 184-18G; they could always call for a division of the inheritance, 32, CO; their consent required before land could be alienated, 54-56, 74, 209-210, 228. Ilerdsmeu, 2, 125. Herold text of Lex Salica De alodis, 33, 187-188. Hide of land, hida, 4, 130-131, 139. Hindu village community, 155, 203-205. Ilochacker, in Bavaria, 7, 138. Holding in common, to be distinguished from communistic holding, 39, 57, 191, 192, 214. House communities, of proprietor.^, 1G1-1G2, 177, 199-200, 231; of ten- ants, 94-95, 101, 242. Houses owned in shares, 44, 199-200. Hubae, 4, 13, 25, 29, 93, 130, 152, 160, 178, 195, 203, 237-238; indomi- nicatae, 11, 145. Hubengemeinden, 178-179, 203. Hunting, 2, 45, 85, 202. Immunity, grants of, 98-100, 245-246; purchased, 99. Inama-Sternegg, K. T. v., value of his writings, 246-247. Independence, of the house-father in the early time, 16-17. Indivisibility of inheritances, 102-108, 162, 248-252; leads to the adop- tion of the rule of primogeniture, 102-108, 248-252. -ing, patronymical syllable, 46—48, 206. Inheritance, origin of, 24, 173-175; laws of, 30-33, 48-50, 52-54, 59, 182- 183, 213, 226, 250; by primogeniture, 103-106, l.s3, 207-209, 249, 250-251 ; by ultimogeniture, or Borough English, 104. Inheritances, earliest forms of, 24-25, 27-28, 154-155; multiplied at first, not divided, 2.5-26, 29 ; how they came to be divided, 29-35, 48-56, 58-60, 68-69, 77-78, 88-89, 95, 102, 161-162, 179-189, 195-196, 206-209, 212-215, 219-222, 237-238, 242, 2.32; how they remained undivided, 25, 31, 33, 36, 38, 46, 52, 59, 66, 78, 213, 214; not to be divided, 102-108, 162, 248-252; in the Hindu village commu- nities, 203-204; women allowed to take them, 66-69, 221-222. In-land, 145. Intermixed holdings, 5-6, 131-137. Intermarriages between clans, 67, 219, 222. Isolated farmsteads and domains, 1, 16, 78-79, 121-125. 127, 175-177, 238. Israel, children of, inheritances divided by lot among them, 188. JURNALTS, the Latin word for acre, 6, 135. 270 INDEX. Kings, they distribute the land among the people, 1G9-170; in the ancient houses, 26-27. Kinship, as a bond of union, OG, 90, 195, 203. LaNDLORDSIIIP and the village community, 215-217. See Proprietor- ship. Land-tax in Jndia, 204-205. Lintins, pecuniosi et locupletes, 1; prescription among them, 76; civic life among them, 93, 240. Lex Frisionum, text of the, 187-188. Lex Salica, De affatomie, 70-73, 223-224, 226, 227; De alodis, 33, 68, 182, 187, 188; De chrenecruda, 220, 221, 225; De eum qui se de parentilla tollere vult, 60, 214; De migrantibus, 50-52, 75-76, 230. Literature of our Subject, 252-264. Lot meadows, 9, 84, 142. JNlANORIAL system, 177; developed during the period of migrations, 156, 21.3-216. Manors and village communities, 215-217. Mansi, 4, 12, 13, 29, 38, 92, 93, 99, 130, 136, 145, 147, 151-152, 191, 194, 237-238; indominicati, 13. Markgenossenschaft, 160; ohne Feldgemeinschaft, 246. Markland, i. e. border land, 13, 16, 153, 159-161. Marks used in casting lots, 142-143, 234. Marriages between clans, 67, 219. Meadows. See Grass land. Measurement of land, 130-133, 136. Migratory life, not inconsistent with the development of a manorial sys- tem, 1.56, 215-216. Mills, owned in shares, 44, 200; run by water, 200. Mir, the Russian, 243. Missus, of the chipf or king, sent to divide property, 58, 181. Money, stock used instead of, 122. Morgen, the German word for acr-e, 6, 135. Mortgages in the time of Lex Salica, 225. Names, of isolated farmsteads and tenant colonies, 15-16, 157-158; of clan villages, 46-48. Neighborhood, as a bond of union, 90. Numen, use of the word, 72, 226. IXDEX. 271 Open field system, 137, 1 13. Ownership of land, distributive or collective ? 38-39, 49-52, 57-58, 60. Pastoral ufe, i. Pasture land, 1, 10, 28, 36, 84-85, 144, 100-191, 194; enjoyment stinted and unstinted, 10, 36-37, 85, 144; severalties of, held in common, 86, 235. Patres of the Latin town, 93. Patronymical names of places, 46-48. Pecunia, 72, 226. Per capita divisions, 33-35. Personal names in local names, 15-16, 157-158. Per stirpes divisions, 33-35, 188. Pictatium, 170. Ploughing, co-operative, 8-9, 140-141. Plough-lands, 8-9, 139-141. Ploughs, 8-9, 80, 139-141. Poll-taxes in Russia, 213. Population of the clan villages and tenant colonies, 91. Possession in early times, 22-23, 82, 169. Possessions, landed, how described in the early time, 22, 24. Predominance of the clan villages over the colonies sent out from them, 91. Pre-emption, the right of, enjoyed by kinsmen and neighbors, 75, 230. Prescription, 66-67, 75-77, 166, 230. Primitive communism, theory of a, 40-41, 5.5-65, 191, 212, 217-218. Primitive property, possession maintained when necessary by force, 82, Primogeniture, introduction of, 103-108, 183, 249, 250-251. Private property in land, found everywhere after the migrations, 57; may have existed in pre-historic times, 211; false theory of its ori- gin, 217. Profits a prendre, 88, 203. Property consisting of villages of serfs, village communities, 154-155. Proprietors in the German village, 231. Proprietorship, landlordship, to be distinguished from tenancy, 63-64, 9.5- 96; how it was in many cases converted into tenancy, 93, 06-07, 100, 213; concentration of it, 90-101, 102, 105, 240; acquired by corporations and communities, 40, 88, 195. ReDISTRTBUTTOXS of land, 82, 233. Rent, early history of, 133-1:M, 243. Rents, dues, and services, 11-12, 146. 272 INDEX. Representation, principle of, 188, 226. Revenue system of the Hindu kings, 205. Rights in land, not acquired from communities, but from individuals, 87- 88; rights in common lands, 193; rights of common, 88, 145, 195, 197, 202-203. Roads and ways, property in them, 41-42, 70, 107-198. Rod, vlrga, used in measuring land, 133, 13G. Rotation system, 9, 10, 83, 143, 233. Salic law. See Lex Salica. Services, agricultural, 11-12, 120, 146. Schwyz, commonwealth of, 216. Serfs, the class of, 4. Severalties, how held in common, 85-86, 235. Shareholders, parceners, 186, 231. Silva communis, 30-39, 61, 190. Slavery, the transition from the pastoral to the agricultural life affected by means of, 3, 126. Slaves as cultivators of the soil, 2-3, 79, 120-127, 17G; owned in shares, 45, 201 ; housed slaves (servi cassali) , 79; household slaves, 92; slaves as tenants, 79, 94. Socage tenures, 247. Sondereigenthum, 246. Sors, patrimonium significat, 35. Sortes, 35, 133, 189-190. Sources of information list of, 111-122. Spatia caniporum (in Germania 26), 5, 134-135. State of the early Germans, 91, 248. Stock, flocks and herds, 1-3, 13,23, 25, 20, 27, 29, 122, 123, 125, 138, 141, 157, 161, 176,' 211. Stretford, customs of, 249. Strips of land, 80. Tacitus Germania. Interpretation of Cap. XVI. 15, 124-125, 155, 231, 239; of Cap. XXVL 4-G, 7, IG, 27, 129-133, 131-135, 147-148, 151, 152, 172-173. Tagwerch, 135, 141. Taxes, institution of, 97-98; in India, 204-205; in Russia, 243. Tenancy, to be distinguished from proprietorship, 63-64, 95-96; in perpe- tuity, 94, 244; hereditary by custom, 94. Tenant colonies, 14-16, 78, 81, 91-94, 124-125, 143, 153-156, 176, 215- 217, 233, 234, 238, 246. INDEX. 273 Tenants, classes of, 106 ; how described, 12, 147-1-lS. Tencteri, rule of inheritance among them, 102-103, 1G2, 249. Tenures in perpetuity, origin of, 94, 244; free tenures (socage tenures) and tenures in villeuage, 247. Terraces, 7. Teutonic village, 231. Three-field system, 143. Titles, derived from original grants, 77; based upon the possession of documents, 170-171. Tothill-fields, battle for land at, IGG. Township system, none in our Southern States, 127. Tribal systems, German and Irish, 170. Tribes, genealogical and topical, 90-91. Tribes of the children of Israel, distributions of land among them, 188. Tribute and rent, 243. Trinoda necessitas, 246. Tun, Curtis, 159. Ultimogeniture, Borough English, io4. Undivided land, rights of property in it, how defined, 28-29, 86-39, 190- 197, 213-214 ; undivided land as a bond of union, 195-19G ; undi- vided land not necessarily common property, 214. See Holding. Universitas, 40, 88. Unterwalden, commonwealth of, 21 G. Unoccupied land regarded as undivided property, 13-14. Uri, commonwealth of, 216. VaVASSORIAE, 95, 242, 250, 251. Vestitio, 167. Vici locati in Tacitus Germania, 124-125, 155, 239. Vicini, the right of the, 48-50, 60, 214-215 ; origin of the right, 52-53. Vicus vel genealogia, 4G, 205. Village communities, origin of, 177, 215-217 ; in connection with land- lordship and the manorial system, 215-217 ; in India, 155, 203- 205 ; in Russia, 155, 243. Village community of the Germans, 231. See Villages of Proprietors. Villages of proprietors, origin of them, 27, -52, 231 ; inheritances in them, 27-28 ; description of them, 46. Villicus, propositus, actor, major, 14, 155-15G. Visigoths, divisions of land among them, 49-50, 212. Vorwerc, allodium, 171-175. 18 274 INDEX. Water, rights of property in, 42-43, 198-199; mills run by it, 200. Wells, ownership of, 43. Werra, war, 22, 1C7. Women, admitted to rights of inheritance in land, GG-G9, 221-222. Wood, right to cut it, 10, 141-145. ZELOniEIIAD, the daughters of, 07, 188. University Press : John Wilson & Son, Cambridge. UNIVERSITY OF CALIFORNIA LIBRARY, LOS ANGELES This book is due on the last date stamped below. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 001 256 235 l 58 00865 7263 t PLEA«=?: DO NOT REMOVE THIS BOOK CARD ' A^^t•UBRARYQ<^ 6J « » is it %0JITVDJO^ University Research Library I o ^^ .^ i2