CHAPTER II.
THE MARK.
All that we learn of the original principle of settlement, prevalent either in England or on the continent of Europe, among the nations of Germanic blood, rests upon two main foundations; first, the possession of land; second, the distinction of rank; and the public law of every Teutonic tribe implies the dependence of one upon the other principle, to a greater or less extent. Even as he who is not free can, at first, hold no land within the limits of the community, so is he who holds no land therein, not fully free, whatever his personal rank or character may be. Thus far the Teutonic settler differs but little from the ancient Spartiate or the comrade of Romulus.
The particular considerations which arise from the contemplation of these principles in their progressive development, will find their place in the several chapters of this Book: it deals with land held in community, and severalty; with the nature and accidents of tenure; with the distinction and privileges of the various classes of citizens, the free, the noble and the serf; and with the institutions by which a mutual guarantee of life, honour and peaceful possession was attempted to be secured among the Anglosaxons. These are the incunabula, first principles and rudiments of the English law[[56]]; and in these it approaches, and assimilates to, the system which the German conquerors introduced into every state which they founded upon the ruins of the Roman power.
As land may be held by many men in common, or by several households, under settled conditions it is expedient to examine separately the nature and character of these tenures: and first to enquire into the forms of possession in common; for upon this depends the political being of the state, its constitutional law, and its relative position towards other states. Among the Anglosaxons land so held in common was designated by the names Mark, and Gâ or Shire.
The smallest and simplest of these common divisions is that which we technically call a Mark or March (mearc); a word less frequent in the Anglosaxon than the German muniments, only because the system founded upon what it represents yielded in England earlier than in Germany to extraneous influences. This is the first general division, the next in order to the private estates or alods of the Markmen: as its name denotes, it is something marked out or defined, having settled boundaries; something serving as a sign to others, and distinguished by signs. It is the plot of land on which a greater or lesser number of free men have settled for purposes of cultivation, and for the sake of mutual profit and protection; and it comprises a portion both of arable land and pasture, in proportion to the numbers that enjoy its produce[[57]].
However far we may pursue our researches into the early records of our forefathers, we cannot discover a period at which this organization was unknown. Whatever may have been the original condition of the German tribes, tradition and history alike represent them to us as living partly by agriculture, partly by the pasturing of cattle[[58]]. They had long emerged from the state of wandering herdsmen, hunters or fishers, when they first attracted the notice, and disputed or repelled the power, of Rome. The peculiar tendencies of various tribes may have introduced peculiar modes of placing or constructing their habitations; but of no German population is it stated, that they dwelt in tents like the Arab, in waggons like the Scythian, or in earth-dug caverns like the troglodytes of Wallachia: the same authority that tells of some who lived alone as the hill-side or the fresh spring pleased them[[59]], notices the villages, the houses and even the fortresses, of others.
Without commerce, means of extended communication, or peaceful neighbours, the Germans cannot have cultivated their fields for the service of strangers: they must have been consumers, as they certainly were raisers, of bread-corn; early documents of the Anglosaxons prove that considerable quantities of wheat were devoted to this purpose. Even the serfs and domestic servants were entitled to an allowance of bread, in addition to the supply of flesh[[60]]; and the large quantities of ale and beer which we find enumerated among the dues payable from the land, or in gifts to religious establishments, presume a very copious supply of cereals for the purpose of malting[[61]]. But it is also certain that our forefathers depended very materially for subsistence upon the herds of oxen, sheep, and especially swine, which they could feed upon the unenclosed meadows, or in the wealds of oak and beech which covered a large proportion of the land. From the moment, in short, when we first learn anything of their domestic condition, all the German tribes appear to be settled upon arable land, surrounded with forest pastures, and having some kind of property in both.
Caesar, it is true, denies that agriculture was much cultivated among the Germans, or that property in the arable land was permitted to be permanent[[62]]: and, although it seems impolitic to limit the efforts of industry, by diminishing its reward, it is yet conceivable that, under peculiar circumstances, a warlike confederation might overlook this obvious truth in their dread of the enervating influences of property and a settled life. There may have been difficulty in making a new yearly division of land, which to our prejudices seems almost impossible; yet the Arab of Oran claims only the produce of the seed he has sown[[63]]; the proprietor in the Jaghire district of Madras changes his lands from year to year[[64]]: the tribes of the Afghans submit to a new distribution even after a ten years’ possession has endeared the field to the cultivator[[65]]; Diodorus tells us that the Vaccaeans changed their lands yearly and divided the produce[[66]]; and Strabo attributed a similar custom to one tribe at least of the Illyrian Dalmatians, after a period of seven[[67]].
But so deeply does the possession of land enter into the principle of all the Teutonic institutions, that I cannot bring myself to believe in the accuracy of Caesar’s statement. Like his previous rash and most unfounded assertion respecting the German gods, this may rest only upon the incorrect information of Gallic provincials: at the utmost it can be applied only to the Suevi and their warlike allies[[68]], if it be not even intended to be confined to the predatory bands of Ariovistus, encamped among the defeated yet hostile Sequani[[69]]. The equally well-known passage of Tacitus,—“arva per annos mutant, et superest ager[[70]],”—may be most safely rendered as applying to the common mode of culture; “they change the arable from year to year, and there is land to spare;” that is, for commons and pasture: but it does not amount to a proof that settled property in land was not a part of the Teutonic scheme; it implies no more than this, that within the Mark which was the property of all, what was this year one man’s corn-land, might the next be another man’s fallow; a process very intelligible to those who know anything of the system of cultivation yet prevalent in parts of Germany, or have ever had any interest in what we call Lammas Meadows.
Zeuss, whose admirable work[[71]] is indispensable to the student of Teutonic antiquity, brings together various passages to show that at some early period, the account given by Caesar may have conveyed a just description of the mode of life in Germany[[72]]. He represents its inhabitants to himself as something between a settled and an unsettled people. What they may have been in periods previous to the dawn of authentic history, it is impossible to say; but all that we really know of them not only implies a much more advanced state of civilization, but the long continuance and tradition of such a state. We cannot admit the validity of Zeuss’ reasoning, or escape from the conviction that it mainly results from a desire to establish his etymology of the names borne by the several confederations, and which requires the hypothesis of wandering and unsettled tribes[[73]].