PART III

THE HOLDING AND TRANSFER OF LAND IN MEDIEVAL SOCIETY

(See EXPLANATION OF TECHNICAL WORDS, supra, p. xxvi.)

CHAPTER XI

FOREIGN EXAMPLES. INCORPOREAL RIGHTS. VARIOUS

ENGLISH TENURES

HITHERTO the communal society has been considered as far as possible away from the land, as a society of mutual responsibility and mutual profit, responsible in personal dealings for the ill acts of its members, and as a consequence sharing in the profits of their several ventures.

So long as such a condition of things exists the user of the land is common with exceptions to the whole community; but the tendency to individual possession grows by that it feeds on, so that at various dates, according to the pressure exercised by economic causes, such as geographical position, land contour, climate, increase of population, opportunities for external trade, land in these communities becomes in some cases very early, in others very late, the subject more or less of individual property.

Foreign Instances of Dealings with Land.-Before we go on to the consideration of the alienation, inheritance, and user of land, a huge subject if one discusses it in any detail, which I do not propose to do, a subject which touches equally all systems of society, feudal or communal, it may be well to give a casual glance for a moment at some examples of the communal society existing or recently existing in places other than the British Islands.

Such communities, as we now see them, have for a long

time past regulated their social relations, both external and internal, largely by reference to land as a basis of society, as well as by the personal tie, modified ownership of land breaking in upon the personal relationships. The varying conditions cause great variety of degree in which the change takes place, but in every instance the evidences in writing for the change are late, and of the original conditions before the change there is rarely written evidence.

In Serbia by the Serbians,1 Dr Svina Troyanovitch, writing of present manners and customs, says, ancient legal documents referring to possessions only mention movable property, which shows that it was only at a later period that landed property began to be regarded as private possessions.

I give only one or two examples for the interest of the general reader, so that he may understand that this condition of society was not merely a primeval habit of the Germans of Tacitus' day or of the Irish or Western Islanders alone in the fourteenth to the seventeenth centuries, but a common form of social life spread over all Europe and Asia, and existing to very late times in parts favourable to its continuance. Those who wish to study the subject in greater detail are referred to the works of Sir Henry Maine, M. de Laveleye, and a host of other investigators.

To take as an example Russia in the late nineteenth century, in Mr Wallace's 2 account of the Mir he describes a peasant family and village association governed by a village elder who is controlled by the Heads of Households, who are themselves controlled by the adult members. The family has common responsibility for all the debts, and the village association for all taxes and communal obligations. The family farm together and pool earnings from other sources. The household farm independently of each other, and pay a fixed sum into the common treasury.

M. Kovalevsky, in his Ancient Laws of Russia, describes as then existing in Russia (in 1891) the sept, the clan, the group family, the undivided household up to fifty or more living under one roof, eating at one table, a society marked with the features found in our British communal societies of the Middle Ages, as of the society described by Tacitus a

thousand years earlier. This community, called a verv, was jointly answerable for the ill acts of the persons composing it, the society including adopted persons and the children of a wife by her former marriage. Such children would be grown up and able to help to support the family. These households, he says, are governed by a house elder, who, only primus inter pares, is the appointed officer of the community. He cannot dispose of the family possessions without the unanimous consent of all, both men and women. He represents the community in the Courts, and sees to taxes and military service; he settles all disputes in the house; he has great influence in matters of marriage and dowry; he arranges employment for the unemployed members; he is guardian to orphans; he manages the farming operations; he sells and purchases and accounts to the family. He acts on behalf of the community. It is the nulle terre sans seigneur, the legal doctrine underlying feudalism. Every man without a chief, to the king, say the Irish laws, 3 and we see the same rule in the Welsh codes. Someone had to be responsible for the behaviour of the individual so long as common responsibility lasted at all. The family shares in the earnings of its members and in the produce of its lands, the one exception being the earnings of the women and girls in their leisure hours, which go towards their dowry.

4

A fundamental rule of these communities, says Sir Henry Maine, as of Hindu joint families, is that a member trading at a distance from the seat of the brotherhood ought to account to it for his profits.

To give one more instance from the Slav peoples: what follows is extracted from an account of the present organisation of the communes in Serbia by Professor Constantin Kommanondi of Belgrade.5 To form a commune there must be 200 adults inhabitating the tract of land; several communes may combine and form a new one; a village may leave its own commune and join another, or may form a separate commune; the communes and the villages must by a vote at a meeting express the wish to do these things.

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The communes are autonomous entities"; they look after their own local affairs, free from interference by the

State, but they are also part of the State, and the State decides when the powers of the autonomous communities end and the powers of the State begin.

The commune is governed by the general meeting of the inhabitants in their communal assemblies or by delegated bodies called the Municipal Council and Communal Tribunal. The Municipal Council treats, among other things, of the voting of money and purchase of land, but their powers of raising money and disposing of property is strictly defined and limited. The Communal Tribunal is the link between the commune and the State, having extensive powers in either direction, police, autonomous, executive, and judicial.

In chapter xii. of the same work Dr Svina Troyanovitch relates (p. 172): Until quite recently there existed associations called Zadrugas, clans including male kinship to the second and third degree. All landed property, cattle, and, with exceptions, movable property, belonged to the men. The marriage was exogamous. The woman could not marry inside her own tribe.6 The Zadruga was ruled by an elder who settled all matters as to the duties of all members and the handling of property. Gradually the members of the Zadruga acquired separate property outside (Osobina), the property of the women being sheep, oxen, and the like. On a death there is division and redivision of the land, as among the early Irish and Welsh. The Montenegrins, he says, count pure kinship down to the seventh degree, all the members belonging to one Brastvo or brotherhood who may not intermarry. This is the tribe, the Zadruga, the sept.

At present, he says, the common property of the Brastvo consists of meadows and forests; fields for ploughing, which are hedged in, have always been regarded as the private property of a family or Zadruga. Every Serbian is member of a commune. He may leave and move to another commune, but the commune may refuse to receive him if he cannot support himself or if he is not of good character. The co-operative system has taken great hold in Serbia, as in Ireland, as a modern development of a society founded on the family as a unit, a society in which the kinship has died out. We now return to medieval Britain.

The Change to Feudal Custom.-The social system, by which the grant of land by one individual to another took the place of its common use by the community, did not affect the usufruct of land only; it extended to every matter ever so remotely connected with the land which could be the subject of grant or sale.

In every way it conflicted with and wiped out the usages of communal society, acting as a solvent particularly on those features of the society which rested on kinship. In some instances the change was merely the replacing of the kindred by the king or lord; in others a custom beneficial in itself was replaced by usages oppressive to the freemen.

The men attendant on the chief mentioned by Tacitus, the tribal bodyguard, the Welsh teulu, the men who form the court of the Orkney earls, serving the chief who is also their kinsman, a service so beautifully used in the battle between the clans in Scott's Fair Maid of Perth, are replaced by a guard of professional soldiers; the elaborate customs of inheritance by the joint family die out before rules based on individual succession and later testamentary dispositions administered by church courts; and the close ties of fosterage of the young and gossipred, the services of training and care given by the very near relations greatly for affection, the relationship which so intensely irritates the Elizabethan and Jacobean English, because it stood in their way of imposing their views of culture on the Irish, passed into the sale of the wardship and marriage of the minor to the highest bidder by the feudal lord.

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The Transfer of Incorporeal Rights.-The system tended to create a volume of charges on the actual land of things without bodily existence, incorporeal" rights, each of which could be sold or granted and held separately by different persons apart from either the communal or individual ownership or possession of the land itself, of which the occupiers might be unfree men.

All those easements, those rights over land which under the communal system were the possessions of the community, such as rights of use of the common mill, of fishing and hunting, of cutting timber, even of pasture on the common lands, become