There was yet another qualification of individual ownership. In these Islands and the Western Islands, and the coast adjoining them, settled by a naval and seafaring people who looked first to the sea for their living, the cultivated farms, the occupied land, the town or township as it was called, lay along the sea coast, convenient to the ships, or in deep narrow dales, separated by dykes or fences from the rough or hilly unfenced inland. This part within the dyke, which alone constituted the odal property by inheritance among the family, the tilled house fields and houses (aker and eng), which were enclosed, and the house pasture (husahagi), which might or might not be enclosed, but which was undivided and shared in common by all the township, was an ownership apart from the part beyond the dyke, the common hill out-pastures, over which all the townships in common had easements (unnendi). Each owner of the fenced and cultivated land had a common right of user in this far larger extent of unfenced waste behind, with convenience of access to and servitudes or easements of various kinds over it.

This matter of easements, though made up of little things, is of prime importance in the early relations of land. Where the land was held in common ownership in groups, the arable strips intermingled, the stinted pastures in common, interspersed as time went on with tracts owned in severalty by chiefs, ecclesiastics, widows, and other privileged persons, land occupied in large part as pasture for cattle which frequently break fence, we must expect the collections of customs to be largely concerned with predial rights by custom or by agreement over other people's property; in the first instance personal rights, rights called by English easements, by Romans servitudes, by Germans Grunddienstbarkeit, the mutual accommodations of adjoining owners of land in all those little auxiliary matters which are of necessity for the use of land, such as rights of water for stock and for milling, rights of fencing, of pasturage, of hunting, of cutting turves, rights of way across properties from one part to another, or to the waste or to the sea shore, rights of fishing, of felling wood, of building, of salvage of seals and whales, of leading water across land, of burning charcoal in woods; in fact, all those matters not pro

vided for in modern schemes of small holders not based on communal society. The easements over the common land early became such an integral part of the odal ownership that in the sixteenth century a deed in the Orkneys will be expressed to pass the land "from the highest stone on the hill to the lowest stone on the beach."

With these common rights come corresponding obligations to allow to others the same rights, and to refrain from acts which may interfere with their enjoyment. All the communal customs prohibit acts which may interfere with and provide for convenience for the common enjoyment. Examples of these mutual accommodations in communal ownership are given on p. 262.

The land which descends to the family, and which rests in the individual in all parts of the Islands, the odal land, the orba, tir, cruib or sliasta land, the bocland, the land which can be alienated as portions for daughters or given to the Church, is the cultivated and enclosed portion only. To every body of such land, as we might say to every estate, there pertains a proportionate interest in the rights and obligations attaching in the common beyond, essential in all parts of the Islands for the livelihood of the men who cultivate the small quantity of enclosed land.

This common ownership of the unenclosed waste has a long and varied history hardly yet ended. It continued until a very late period in all parts of the Islands, even in Southern England, although it was very much modified here by the feudal manorial system. In other parts it has a variety of experiences.

Vesting, in the first instance, in the chiefs of the community, who regulated its use for the common benefit, it became in almost every case throughout the Islands, by written deeds and charters, not infrequently monastic forged, or at the instance of parliaments and of lawyers acting in the interests of the men of wealth and power, the absolute property of the chiefs, in whom the common lands vested in trust for the community, or of their commercial assignees or successors, as being merely appurtenant to the cultivated land under fence which had passed into their individual possession. The reservation

to the despoiled community of certain limited easements was, and is, in daily danger of extinguishment on the grounds of public expediency.

Federal Antagonism to Communal Landholding. Those who aspired to federal authority began by breaking down the hereditary character of this communal system of landholding. This takes place in all parts. When Harold Harfager's son was in 880 killed by the Earl of Orkney in blood feud, Harold imposed a blood payment, which would fall on the odal landowners, of sixty marks of gold. The earl agreed with them to pay the whole if they would give up their rights to him and hold of him as feudal lord. This, says the Saga, 13 they agreed to do, "the poor because they had but little pieces of land, the rich because they could redeem their odal rights when they liked." In 1137, Earl Rognwald, in want of money to build St Magnus' Cathedral, offered the landowners that instead of redeeming the right of each succession as it fell in, they should redeem the odal outright, which they did. After this the conditions of the odal holding remained gradually decaying by the subdivision of lands and the legal encroachments of the Stuarts.

On his conquest of the Isle of Man in 1075, Godred Crovan kept for his own men the south of the island, but granted the north to the natives, on condition that none of them should at any time presume to claim any portion of the land by hereditary possession. 14

In a settlement in 1195 between Sverri, king of Norway, and the Earl of Orkney, Sverri, confiscating the estates of those who had rebelled, "fixed a limit of three years in which the kinsmen of the dead might ransom the estates with money." 15 "15 He takes Shetland under his own control for tax and tribute, and from this it came as a crown colony under the direct rule of the king of Norway.

The author of the Dialogus de Scaccario, chap. ix., says that William the Conqueror took the lands of the Saxons, and returned them to them without the right of succession, leaving them to gain that by bargains with their lords.

The same feature is found wherever the communal society is seen, from Ireland to India. The free institutions of the

Slavs are noted by Byzantine writers of early times, but they gradually cease to be free, overpowered by the Byzantine principle of unlimited monarchical power, which in all time through Rome has fought the folkmoot and all representative institutions.

Speaking of the decay of parliamentary forces in Russia under Peter the Great, and pointing to the worthlessness of Parliaments in England under the Tudors and Stuarts up to 1640, and the National Assembly in France after 1613, M. Kovalevsky says: "The fall of representative institutions we notice both in England and France was a common fact of European history." King Charles I. of England was not the only sinner.

1

NOTES.1 What is here said of the Orkneys and Shetlands applies, for the most part, as far as one can ascertain, to Man and the Western Islands of Scotland. But our authorities for these parts of the Islands are of the weakest. 2 Landnamaboc, I. vii. 2; viii. 2. 3 Landnamaboc, II. iii. 5, 6. 4 Landnamaboc, II. iv. 3. 5 Landnamaboc, II. iv. 14, 15. 6 Landnamaboc, v. i. 1. 7 Lib. v., c. 2, art. 63. See Appendix C, Town or Township. 8 Mackenzie's Grievances, pp. 10-11. 9 Heimskringla, I. 125–126. 10 Lib. v., c. 3, art. ii. in Mackenzie's Grievances, p. 7. 12 Declaratory Law made in the Law Ting of Shetland, August 22, 1604. 13 Harold Harfager's Saga, c. 32; Saga of Olaf the Saint, c. 99; Laing's Heimskringla. 14 Chron. of the Isle of Man, anno 1065. Train, in his History of Man, says, "The island is divided into two parts, south and north; the inhabitants of the former speak like Scots, and of the latter like Irish." 15 Sverri's Saga, 125.

CHAPTER XIII

ALIENATION AND INHERITANCE

The Right of Redemption.-The subject of the restraints on alienation and the principles of inheritance of communal property is capable of illustration in the past from almost every country in Europe; it has left deep marks on the laws and habits of those countries from which, as an institution, it has disappeared: it is still fully or partially the basis of

society in many parts of Europe, especially in Russia, Serbia, and other countries in the East. While the influence of the feudal system has very generally ceased to affect modern society, the instinctive ideas of the communal society remain dormant in the mind, ready to point to and help to modify evils attaching to the individual ownership of property, or, if ignorantly handled, to incite to revolution.

I have treated the Norwegian land question separately, because, owing, as I see it, to the origin of the settlement, the small area of cultivable soil and the seafaring occupations, the immediate family rather than the group family or tribe had early become the unit of division, the chief restriction either on gift inter vivos or public sale being the right of redemption by the near kinsfolk of the shares which the customary law secured to them.

This right of redemption to land was customary in all other parts of the Islands, including England,1 though in all cases it slowly dies away. But where there was a wider circle of kinsfolk entitled to share in the inheritance, this right was only part of a general prohibition of alienation, accompanied by large exceptions for various causes. The principles which governed alienation and inheritance to land in the other tribal parts of the Islands differed little from the Norwegian custom except in degree.

In England, under feudal law and the influence of Rome, the bocland exceptions, which governed the alienation of acquired land, ate out the customs relating to community land. Such exceptions being in writing, while the inheritance to common land was matter of unwritten custom, the records of successions to bocland have been taken as the rule and not as the exception, resulting in a most confused picture of landholding in early society. The custom in England before Roman and feudal influences caused the communal society to decay was almost certainly under the Danish kings the same Scandinavian custom, a family succession with right of redemption to the heirs. "If any dies without a cwide," the lord is to take nothing but the heriot, and the property is to be distributed under him "among the wife and children and the nearest kinsfolk, to each the proper share." 2