The word Mark has a legal as well as a territorial meaning: it is not only a space of land, such as has been described, but a member of a state also; in which last sense it represents those who dwell upon the land, in relation to their privileges and rights, both as respects themselves and others. But the word, as applied even to the territory, has a twofold meaning: it is, properly speaking, employed to denote not only the whole district occupied by one small community[[74]]; but more especially those forests and wastes by which the arable is enclosed, and which separate the possessions of one tribe from those of another[[75]]. The Mark or boundary pasture-land, and the cultivated space which it surrounds, and which is portioned out to the several members of the community, are inseparable; however different the nature of the property which can be had in them, they are in fact one whole; taken together, they make up the whole territorial possession of the original cognatio, kin or tribe. The ploughed lands and meadows are guarded by the Mark; and the cultivator ekes out a subsistence which could hardly be wrung from the small plot he calls his own, by the flesh and other produce of beasts, which his sons, his dependents or his serfs mast for him in the outlying forests.
Let us first take into consideration the Mark in its restricted and proper sense of a boundary. Its most general characteristic is, that it should not be distributed in arable, but remain in heath, forest, fen and pasture. In it the Markmen—called in Germany Markgenossen, and perhaps by the Anglosaxons Mearcgeneátas—had commonable rights; but there could be no private estate in it, no híd or hlot, no κλῆρος, or haeredium. Even if under peculiar circumstances, any markman obtained a right to essart or clear a portion of the forest, the portion so subjected to the immediate law of property ceased to be mark. It was undoubtedly under the protection of the gods; and it is probable that within its woods were those sacred shades especially consecrated to the habitation and service of the deity[[76]].
If the nature of an early Teutonic settlement, which has nothing in common with a city, be duly considered, there will appear an obvious necessity for the existence of a mark, and for its being maintained inviolate. Every community, not sheltered by walls, or the still firmer defences of public law, must have one, to separate it from neighbours and protect it from rivals: it is like the outer pulp that surrounds and defends the kernel. No matter how small or how large the community,—it may be only a village, even a single household, or a whole state,—it will still have a Mark, a space or boundary by which its own rights of jurisdiction are limited, and the encroachments of others are kept off[[77]]. The more extensive the community which is interested in the Mark, the more solemn and sacred the formalities by which it is consecrated and defended; but even the boundary of the private man’s estate is under the protection of the gods and of the law. “Accursed,” in all ages and all legislations, “is he that removeth his neighbour’s landmark.” Even the owner of a private estate is not allowed to build or cultivate to the extremity of his own possession, but must leave a space for eaves[[78]]. Nor is the general rule abrogated by changes in the original compass of the communities; as smaller districts coalesce and become, as it were, compressed into one body, the smaller and original Marks may become obliterated and converted merely into commons, but the public mark will have been increased upon the new and extended frontier. Villages tenanted by Heardingas or Módingas may cease to be separated, but the larger divisions which have grown up by their union, Meanwaras, Mægsetan or Hwiccas[[79]] will still have a boundary of their own; these again may be lost in the extending circuit of Wessex or Mercia; till a yet greater obliteration of the Marks having been produced through increasing population, internal conquest, or the ravages of foreign invaders, the great kingdom of England at length arises, having wood and desolate moorland and mountain as its mark against Scots, Cumbrians and Britons, and the eternal sea itself as a bulwark against Frankish and Frisian pirates[[80]].
But although the Mark is waste, it is yet the property of the community: it belongs to the freemen as a whole, not as a partible possession: it may as little be profaned by the stranger, as the arable land itself which it defends[[81]]. It is under the safeguard of the public law, long after it has ceased to be under the immediate protection of the gods: it is unsafe, full of danger; death lurks in its shades and awaits the incautious or hostile visitant:
| eal wæs ðæt mearclond morðre bewunden, feóndes fácne: | all the markland was with death surrounded, the snares of the foe[[82]]: |
punishments of the most frightful character are denounced against him who violates it[[83]]; and though, in historical times, these can only be looked upon as comminatory and symbolical, it is very possible that they may be the records of savage sacrifices believed due, and even offered, to the gods of the violated sanctuary. I can well believe that we too had once our Diana Taurica. The Marks are called accursed; that is accursed to man, accursed to him that does not respect their sanctity: but they are sacred, for on their maintenance depend the safety of the community, and the service of the deities whom that community honours[[84]]. And even when the gods have abdicated their ancient power, even to the very last, the terrors of superstition come in aid of the enactments of law: the deep forests and marshes are the abodes of monsters and dragons; wood-spirits bewilder and decoy the wanderer to destruction: the Nicors house by the side of lakes and marshes[[85]]: Grendel, the man-eater, is a “mighty stepper over the mark[[86]]”: the chosen home of the firedrake is a fen[[87]].
The natural tendency, however, of this state of isolation is to give way; population is an ever-active element of social well-being: and when once the surface of a country has become thickly studded with communities settled between the Marks, and daily finding the several clearings grow less and less sufficient for their support[[88]], the next step is the destruction of the Marks themselves, and the union of the settlers in larger bodies, and under altered circumstances. Take two villages, placed on such clearings in the bosom of the forest, each having an ill-defined boundary in the wood that separates them, each extending its circuit woodward as population increases and presses upon the land, and each attempting to drive its Mark further into the waste, as the arable gradually encroaches upon this. On the first meeting of the herdsmen, one of three courses appears unavoidable: the communities must enter into a federal union; one must attack and subjugate the other; or the two must coalesce into one on friendly and equal terms[[89]]. The last-named result is not improbable, if the gods of the one tribe are common to the other: then perhaps the temples only may shift their places a little. But in any case the intervening forest will cease to be Mark, because it will now lie in the centre, and not on the borders of the new community. It will be converted into common pasture, to be enjoyed by all on fixed conditions; or it may even be gradually rooted out, ploughed, planted and rendered subject to the ordinary accidents of arable land: it will become folcland, public land, applicable to the general uses of the enlarged state, nay even divisible into private estates, upon the established principles of public law. And this process will be repeated and continue until the family becomes a tribe, and the tribe a kingdom; when the intervening boundary lands, cleared, drained and divided, will have been clothed with golden harvests, or portioned out in meadows and common pastures, appurtenant to villages; and the only marks remaining will be the barren mountain and moor of the frontiers, the deep unforded rivers, and the great ocean that washes the shores of the continent.
Christianity, which destroys or diminishes the holiness of the forests, necessarily confines the guarantee of the Mark to the public law of the state. Hence when these districts become included within the limits of Christian communities, there is no difficulty in the process which has been described: the state deals with them as with any other part of its territory, by its own sovereign power, according to the prevalent ideas of agricultural or political œconomy; and the once inviolate land may at once be converted to public uses, widely different from its original destination, if the public advantage require it. No longer necessary as a boundary, from the moment when the smaller community has become swallowed up and confounded in the larger, it may remain in commons, be taken possession of by the state as folcland, or become the source of even private estates, and to all these purposes we find it gradually applied. In process of time it seems even to have become partible and appurtenant to private estates in a certain proportion to the arable[[90]]: towards the close of the tenth century I find the grant of a mill and millstead, “and thereto as much of the markland as belongeth to three hydes”[[91]].
The general advantage which requires the maintenance of the Mark as public property, does not however preclude the possibility of using it for public purposes, as long as the great condition of indivisibility is observed. Although it may not be cleared and ploughed, it may be depastured, and all the herds of the Markmen may be fed and masted upon its wilds and within its shades. While it still comprises only a belt of forest, lying between small settlements, those who live contiguous to it, are most exposed to the sudden incursions of an enemy, and perhaps specially entrusted with the measures for public defence, may have peculiar privileges, extending in certain cases even to the right of clearing or essarting portions of it. In the case of the wide tracts which separate kingdoms, we know that a comprehensive military organization prevailed, with castles, garrisons, and governors or Margraves, as in Austria, Brandenburg and Baden, Spoleto and Ancona, Northumberland and the Marches of Wales. But where clearings have been made in the forest, the holders are bound to see that they are maintained, and that the fresh arable land be not encroached upon; if forest-trees spring there by neglect of the occupant, the essart again becomes forest, and, as such, subject to all the common rights of the Markmen, whether in pasture, chase or estovers[[92]].
The sanctity of the Mark is the condition and guarantee of its indivisibility, without which it cannot long be proof against the avarice or ambition of individuals: and its indivisibility is, in turn, the condition of the service which it is to render as a bulwark, and of its utility as a pasture. I therefore hold it certain that some solemn religious ceremonies at first accompanied and consecrated its limitation[[93]]. What these may have consisted in, among the heathen Anglosaxons, we cannot now discover, but many circumstances render it probable that Wóden, who in this function also resembles Ἑρμῆς, was the tutelary god[[94]]: though not absolutely to the exclusion of other deities, Tiw and Frea appearing to have some claim to a similar distinction[[95]]. But however its limit was originally drawn or driven, it was, as its name denotes, distinguished by marks or signs. Trees of peculiar size and beauty, and carved with the figures of birds and beasts, perhaps even with Runic characters, served the purpose of limitation and definition[[96]]: striking natural features, a hill, a brook, a morass, a rock, or the artificial mound of an ancient warrior, warned the intruder to abstain from dangerous ground, or taught the herdsman how far he might advance with impunity. In water or in marshy land, poles were set up, which it was as impious to remove, as it would have been to cut or burn down a mark-tree in the forest.