One other question may be touched. It was the fashion in England some years ago that those who spoke of village communities should say something of ‘the Germanic mark.’ What they said seemed often to imply that the German village community was a mark community. This was a mistake. It seems indeed that there were parts of Germany in which the word ‘mark’ was loosely used[1191]; but the true Markgenossenschaft was utterly different from the Dorfgenossenschaft, and the lands with which it dealt were just those lands that belonged to no village[1192]. In the country which saw the Germans becoming an agricultural race, the lands belonging to the villages were but oases in a wild territory. In later days some large piece of this territory is found to be under the control of a ‘mark-community,’ whose members are dwelling here and there in many different villages and exercise rights over the land (for the more part it is forest land[1193]) that belongs to no village but constitutes the mark. Traces of what might have become ‘the mark system’ may perhaps be found in England; but not where they have been usually sought.
Intercommoning between vills.
We read of a tract in Suffolk which is common pasture for the whole hundred of Coleness[1194]. Instances in which a piece of land is common pasture for many vills were by no means uncommon in the thirteenth century. They grow rarer as time goes on. Our law provided but a precarious and uncomfortable niche for them under the rubric common pur cause de vicinage[1195]. These are the traces of what in different surroundings might have become, and perhaps were near to becoming, mark communities. In the thirteenth century the state seems to have been already enforcing the theory that every inch of land ought to lie within the territory of some vill[1196]. This was a police measure. The responsibility of one set of villagers was not to cease until the boundary was reached where the responsibility of another set began. But even in recent times there have been larger moors in the north of England which ‘belonged’ (we will use a vague word) to two or more townships in common. At any rate, we must not take back this theory that the vills exhaust the land into the days of the Germanic settlement[1197]. In some districts the vills must have been separated from each other by wide woods, and in all likelihood large portions of these woods were not proper to any one village, but were regarded as belonging, in some sense or another, to a group of villages. However, land of this kind was just the land which was most exposed to an assertion of royal ownership, and we imagine that a mark community had from the first little chance of organizing itself in England[1198]. But we have already made too many guesses.
Last words.
We must not be in a hurry to get to the beginning of the long history of law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous, and can only be accomplished little by little. If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian’s use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If, for example, we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation. The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the ‘archaic,’ of accustoming our eyes to the twilight before we go out into the night.
ESSAY III.
THE HIDE.
What was the hide?
What was the hide? However unwilling we may be to face this dreary old question, we can not escape it. At first sight it may seem avoidable by those who are interested in the general drift of national life, but have no desire to solve petty problems or face unnecessary difficulties. The history of weights and measures, some may say, is probably very curious and no doubt is worth study; but we, who shall be amply satisfied if we understand the grand movements and the broad traits, must leave this little province, as we must leave much else, to antiquarian specialists. Unfortunately, however, that question about the hide is ‘pre-judicial’ to all the great questions of early English history.
Importance of the question.