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Church, which, being in England outside the bonds of kinship, was dependent on the king's bounty and protection, were made often on terms which relieved the king or lord of expenses which in the first instance would fall on him as common administrator, as for instance when Alexander II. grants to the Abbey of Kelso sixteen acres of land at King's Selkirk, burdened with the obligation of keeping up a bridge over the Ettrick, or a grant made on the terms of providing so many fighting men. So long as any sense of communal control remained the community was not likely to make any protest against such action of their representative. But every grant strengthened the disproportion between the chief and the freeman.

As the chief's power in this respect grew, there could have been very little difference in effect as regards the use of the waste between the chief as kinsman of his people, bound to them by a personal tie and sharing the land with them, and the lord of the manor, controlling the use of the land, but restrained from harsh dealings by the custom of the manor.

The Power of the Chief.-The gradual decay of the communal ownership of land cannot be ascribed to any one cause alone, even in England.

A prime cause was the natural increase of the wealth and power of the king and of the chieftain class from which he sprang, at the expense of the poor freeman. It was not only that his cattle multiplied more greatly on the range and stinted pasture, or even that he had a larger personal following of kinsmen following him and feeding him, as Tacitus, in the Germania, tells us that the chiefs were followed and fed. Beyond this an increase of wealth and authority came to him from his position as vested representative of the interests of the community in the common soil, responsibility which steadily tended to become an absolute ownership.

His position as chief gave him, especially when the assembly of people fell into disuse, a deciding voice in all dealings with the land, and in particular with the waste land. In theory the protector of the common rights, he had every opportunity, in view of his large interests, to become,

whether by extension of custom or by purchase, or by undue legal pressure or by mortgage and loan, the absolute owner, the lord of the manor. His power and wealth grew by his ability to place strangers as his personal dependents on the

waste.

Strangers.-The jealousy of strangers, that is to say, of persons not akin, and not settled by some certain method within the territory, was a feature of all ancient communities, existing long after the kinship has ceased to be the foundation.

It was dangerous to take a stranger in, as the man doing so became responsible for his acts in his own person. A stranger and a person who had no property was liable to be arrested, unless he could find a native willing to become his surety. This was a necessary result of the stationary character of all early societies.

In early days, before commerce and pilgrimage had accustomed men to look more kindly upon aliens, the strangers in the tribe were generally the criminals, bankrupts, and broken men of other tribes. These, with the broken men of the tribe at home, put themselves under the protection of the chief, submitting to conditions which left them in a position very little above slavery. A fuidhir, says the Brehon law, is of this kind: however great the thing that may be required of him, he must (render it or) return the stock or quit the land. And however long he may have been in the service, he must quit the land at length. His evidence was not taken against his lord. Bracton 10 says mere villeinage is that which is a tenure, rendering uncertain and unlimited service where it cannot be known at eventide what service hath to be done in the morning-that is, where the tenant is bound to do whatever is commanded him.

The man who came in from outside, who had no kin to swear or to pay for him in the community, would, if he were a respectable person, be on the way home to his own people. He might be entertained for a night or two, but for no more. Beyond that he was in the hands of the chief. But the stranger could be settled by the king or chief on the waste land of the tribe on terms, and by this means the stranger becomes a very important agent, a prime cause of the break

up of the social system, as the kings and chiefs grew in power by the settlement on the uncultivated land of men not belonging to the tribe, not akin to anyone, as their own personal dependents. 11 A good proportion of these strangers were no doubt the refugees and broken men from other tribes, 12

But not all of them were so. Traders came and settled; men from other tribes married into the tribe; even in those days of close community and slow motion there was a great deal of travel, which the Norse invasions and the vogue of pilgrimage largely increased. A very slight acquaintance with the Norse sagas shows the perpetual sea voyages and admixture of races which resulted from commerce. As the numbers of the community increase, and they require greater use of the waste land, the trade increase is settling on the waste more men from beyond, who are responsible not to the community but to an individual, causing a conflict which works itself out to a great extent by violence, the unfree men of the chief dragging the freemen of the community down with them.

The settlement of foreigners of property, though jealously regarded, is provided for both in the Welsh and Irish customs, it being clearly assumed that every honest tradesman would sooner or later return to his own people. Every fuidhir, except the bond fuidhir, is able to separate from the chief if he leaves no debts or wrongs behind him.13

There is a ridiculous statement which crops up from time to time in the newspapers and in history books, to the effect that the Saxons drove the Britons to the mountains of Wales and Scotland. Apart from its inherent impossibilities, 14 which should strike even the most childlike mind, the absurdity of the thing rests on the alien character of the tribes in the East to those of the West, to whom it was supposed that they had fled, on the ground that they were all Britons. There could be no difference, so far as the character of the alien enemy went, between the Eastern fugitive and the Saxon raider. People took no risks in those days from aliens. Both would be enemies as coming from beyond, and both would be enslaved if caught. It is unlikely that the Eastern

and Western tribes would even speak the same dialect. As the Somerset man said of the people of Lincolnshire, "They do talk so strange; they do say us, where us do say we."

Just the same absurdity is written by our compilers of the status of the Northman in the time of the Scandinavian invasions. He is represented as being paid by a wicked king enormous sums out of the pocket of the monk chronicler (who has sworn a vow of poverty) in the face of a helpless and indignant nation. The only position he could hold, whether as merchant, pirate, or ally, was as a stranger protected by the king, Malachi, Alfred, Athelstan, Ethelred, and so forth, and settled on the waste, a foreigner for whom the king was responsible. He might under certain conditions become one of the tribe, but otherwise he had no place in the community, and "however long he may have been in the service, he must quit the land at length." It is impossible to make head or tail of any of these early periods without realising the fundamental bond of the kinship of the community.

Death was not a usual penalty in early days, whether under tribal custom or English court law, even if the criminal had no money to pay fines, but rather outlawry, which meant headlong flight or imminent risk of death at the hands of anyone who chose to act. Existence as a dependent of the chief, even on the most onerous terms, was preferable to wandering in the territory of other tribes as a base alien. So it was natural that the chief should settle under his protection on the waste to do him service, weaklings and strangers of all kinds as his own personal dependents, men for whose acts he would be responsible.

This very soon adjusts itself to the king's right of protection given to merchants from whom he takes fees for his services. He extends his grace to fairs and markets, and to those settlements which ripen into boroughs, because in these places there would be a great majority of foreign people with no tie of kinship and no local rights.

NOTES. 1 20 Hen. III. 2 Cal. Patent Rolls, 1313-17, p. 532. 3 Description of Ireland, 1600–3. 4 Every freeman may within the forest (but on his own ground) make a mill, spring, pool, marl-pit, dyke,

or arable ground, without enclosing such arable, so it be not to the nuisance of any of his neighbours. Charter of the Forest, 9 Hen. III., c. 12. The litigation caused by such acts may be seen in the Year Books. See "Nuisance" in my Tort, Crime, and Police. 5 Cox, Royal Forests of England, p. 105. 6 Act of James VI. of Scotland, para. 4, ch. ccxiv. That none hunt or hawk within six miles of the king's woods, parks, castles, or palaces under pain of one hundred pounds. 7 Cox, Royal Forests of England, p. 218. 8 Responsibility for a stranger, a casual labourer or tramp, "who lies down one night with thee," lasts for three days, "unless a native receives him from thee." A.L. Irel., i. 163. All should take care that they do not receive fugitives in their houses: for if the outlaw is taken in anyone's house, the receiver will lose all his chattels and will be in peril of his life and members. T.A.C.N., ch. 38, De Receteurs. See A.L. Irel., iii. 61. In the early English laws, among the matters pertaining to the king is the harbouring of outlaws. Cnut II., 12-15, Thorpe. No man may harbour a stranger beyond a night without pledges (borch). If anyone bides in a town beyond a night, he shall be brought before the justice or sheriff and be at their will. Assize of King David, c. 3, Acts of Parl. of Scotland, vol. i. 9 A.L. Irel., iii. 131, 385. 10 Folio 26a. 11 One of the deis rights (rights in relation to land) of the flaith, the higher class of chief, was "the following of cottier tenants (bothais) and fuidhir tenants which he brings upon his land, because his wealth is the greater and better." A.L. Irel., iv. 312. The divisions of the tribe (or query family) of every chief are stated to be his fuidhirs, his kinsfolk, his "gabhail fodagniat" dependents. Ibid., iv. 283. 12 Alltuds, whether of the king or the freeman, became proprietors in the fourth generation if they have occupied the land, the king's on the king's waste and the freeman's on his land. The freeman's alltud has a qualified proprietorship, which looks much like English villeinage. A.L.W., Ven. II. xvi. 21. 13 A.L. Irel., v. 513, 515–521. 14 A similar drive was tried on in New Zealand many years ago, with the object of confining the natives to one end of the island. When the driving party got to the end, the natives were behind them.

CHAPTER XIX

MEDIEVAL AGRICULTURE

Arable Farming.-Before tracing the development, and, for the most part, final extinguishment of the user of the waste as common pasture, it will be more convenient very shortly to consider the agriculture with which it was connected. This subject has been well written over, and there is no need to dwell upon it.

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