Domesday Book and Beyond: Three Essays in the Early History of England

by Frederic William Maitland

It is an interesting question whether in the history of our own people we ought to suppose any definite ‘stage’ intermediate between the introduction of steady agriculture and the ownership of land by individuals. To say the least, we have no proof that among the Germans the land was continuously tilled before it was owned by individuals or by those small groups that constituted the households. This seems to be so whether we have regard to the country in which the Germans had once lived as nomads or to those Celtic and Roman lands which they subdued. To Gaul and to Britain they seem to have brought with them the idea that the cultivable land should be allotted in severalty. In some cases they fitted themselves into the agrarian framework that they found; in other cases they formed villages closely resembling those that they had left behind them in their older home. But to all appearance, even in that older home, so soon as the village was formed and had ploughed lands around it, the strips into which those fields were divided were owned in severalty by the householders of the village. Great pains had been taken to make the division equitable; each householder was to have strips equal in number and in value, and to secure equivalence each was to have a strip in every part of the arable territory. But our evidence, though it may point to some co-operation in agriculture, does not point to a communistic division of the fruits[1171]. Nor does it point to a time when a village council or a majority of villagers conceived that it had power to re-allot the arable strips at regular or irregular intervals[1172]. On the contrary, the individual’s hold upon his strips developed very rapidly into an inheritable and partible ownership. No doubt this ownership grew more intense as time went on. It is a common remark that during yet recent ages the ownership of land that is known to our law has been growing more intense. This is true and patent enough; the landowner has gained powers of alienation that his predecessors did not enjoy. Possibly the only ownership of land that was known to the Lex Salica was inalienable and could be inherited only by sons of the dead owner. Then again, in old days a trespass that did no harm would have been no trespass. ‘Nominal damages’ are no primitive institution, and for a long time a man may have had no action if strange cattle browsed over land on which no crop of corn was ripening[1173]. But this growing intensity of ownership may be seen also in the case of movable goods. Indeed there is a sense in which English law may be said to have known a full ownership of land long ages before it knew a full ownership of chattels[1174]. What, however, we are concerned to observe is that the German village community does not seem to have resisted this development of ownership or set up for itself any antagonistic proprietary claim. It sought no more as regards the arable fields than a certain power of regulating their culture, and in old times the Flurzwang, the customary rotation of crop and fallow, must have appeared less as the outcome of human ordinance than as an unalterable arrangement established by the nature of things in general and of acre strips in particular[1175].

Meadows, pasture and wood.

Thus, so far back as we can see, the German village had a solid core of individualism. There were, however, lands which in a certain sense belonged to it and which were not allotted for good and all among its various members. For one thing, the meadows were often subjected to a more communal scheme. In the later middle ages we may see them annually redistributed by rotation or by lot among the owners of the arable. The meadows, which must be sharply distinguished from the pasture, were few, and, as we may see from Domesday and other records, they were exceedingly valuable. Probably their great but varying value stood in the way of any permanent partition that would have seemed equitable. Still they were allotted annually and the right to an allotment ‘ran with’ the house and the arable strips. But again, there were woods and pastures. If we must at once find an owner for this Almende, we may be inclined to place the ownership in a village community, though not without remembering that if this community may develop into a land-owning corporation, it may develop into a group of co-owners. But in all likelihood the question as to the whereabouts of ownership might go unanswered and unasked for a long time. Rights of user exercisable over these woods and pastures were attached to the ownership of the houses and the arable strips, and such ‘rights of common’ may take that acutely individualistic form which they seem to have taken in the England of the thirteenth century. The freeholder of ‘ancient arable,’ whose tenement represents one of the original shares, has a right to turn out beasts on the waste, on the whole waste and every inch of it, and of this right nor lord, nor community can deprive him[1176]. Perhaps we may attribute to our law about this matter an unusual and, in a certain sense, an abnormal individualism. In the much governed England of the Angevin time, the strong central power encouraged every freeholder to look to it for relief against all kinds of pressure seignorial or communal. Elsewhere a village moot may assume and retain some control over these pasture rights. But still the untilled land, the waste, the Almende, exists mainly, if not solely, for the benefit of a small group of tenements that are owned and possessed in severalty. As to the ownership of the land that is subject to the rights of pasture, it is a nude, a very nude dominium, and for a long while no one gives it a thought.

The bond between neighbours.

In a favourable environment the German village community may and will become a landowning corporation. But many dangers lie before it: internal as well as external dangers. We must not think of it as a closely knit body of men. The agrarian is almost the only tie that keeps it together. Originally the men who settle down in a village are likely to be kinsmen. Some phrases in the continental folk-laws, and some perhaps of our English place-names, point in this direction. But (explain this how we will) the German system of kinship, which binds men together by the sacred tie of blood-feud, traces blood both through father and through mother, and therefore will not suffer a ‘blood-feud-kin’ to have either a local habitation or a name[1177]. Very soon, especially if daughters or the sons of daughters are allowed (and very ancient Frankish laws allow them) to inherit the dead man’s land, a man who lives in one village will often be closer of kin to men who live in other villages than to his neighbours. The village community was not a gens. The bond of blood was sacred, but it did not tie the Germans into mutually exclusive clans. Nor did it hold them in large ‘house-communities,’ for the partible inheritance seems as a general rule to have been soon partitioned[1178]. Nor again may we ascribe to the German house-father much power over his full-grown sons[1179].

Feebleness of the village community.

Moreover, the village community was not a body that could declare the law of the tribe or nation. It had no court, no jurisdiction. If moots were held in it, these would be comparable rather to meetings of shareholders than to sessions of a tribunal. In short, the village landowners formed a group of men whose economic affairs were inextricably intermixed, but this was almost the only principle that made them an unit, unless and until the state began to use the township as its organ for the maintenance of the peace and the collection of taxes. That is the reason why we read little of the township in our Anglo-Saxon dooms[1180]. Only as the state’s pressure increases, does the vill become one of the public institutions of the kingdom. We may even exaggerate the amount of agricultural co-operation that was to be found within it. Beyond the age in which the typical peasant is a virgater contributing two oxen to a team of eight, our English evidence seems to point to a time when the normal ‘townsman’ held a hide and had slaves and oxen enough for its cultivation. Nor in all probability was the village community a large body. We may doubt whether in the oldest days it usually comprised more than some ten shareholders[1181].

Absence of organization.

Whatever might come in course of time, we must not suppose that the village had much that could be called a constitution. In particular, we must be careful not to carry too far back the notion that votes will be counted and that the voice of a majority will be treated as the voice of all. When that marvellous title De migrantibus raises a corner of the curtain and gives us our only glance into a village of newly settled Salian Franks, the one indisputable trait that we see among much that is disputable is that the new-comer must leave the village if one villager objects to his presence. His presence, we may suppose, might be objectionable because it might add to the number of those who enjoyed wood, waste and water in common; but any one villager can insist on his departure. Out of this state of things ‘communal ownership’ may grow; but all the communalism that we see at present is very like individualism[1182]. Above all, we must not picture these village lands as ‘impressed with a trust’ in favour of unborn generations or as devoted to ‘public purposes.’ If in course of time small folk, cottiers, ‘under-settles’ and the like, are found in the village, they will have to struggle for rights in the waste, and the rights, if any, that they get will be meagre when compared with those of the owners of ‘whole lands’ and ‘half lands.’ An oligarchy of peasant proprietors may rule the waste and the village.

The German village on conquered soil.