identical with the mark. rendered this method of partition easy: "They change the arable land, from year to year, and there is land to spare.' Thus the Germans dwelt together, either collectively in villages, or upon separate farms in the vicinity of villages. The vicus The vicus of Tacitus represents the Teutonic form of the village-community, and constitutes an important link in the chain of its history. If we could accept as of undoubted authority Cæsar's statement in reference to the community of kindred, occupying, subject to allotment, a given area of land for one year which it abandoned the next, we would have a perfect picture of the Teutonic village-community, while its members were still in a purely nomad state. However this may be, it is quite certain, that at the time Tacitus wrote the annual migrations have ceased; the village-communities have settled down upon definite areas of land, the arable part of which is cultivated according to the scheme of annual allotment which Tacitus has described. But it is impossible to work out the history of the Teutonic cultivating community by relying exclusively upon the brief outline contained in the Germania, its full history must be interpreted by the light of later facts, and by the aid of generalizations based upon the record of usages, and upon the general analogies of Scandinavian law.4 The mark in the time of Tacitus. Structure The portion of territory occupied by the community of kinof the mark. dred cultivators was termed in the German muniments the mark, — something, as the term denotes, marked out and defined, and having settled boundaries. The absolute owner subject has been worked out in great detail by G. L. von Maurer, in a series of works of the highest authority. Einleitung zur Geschichte der Mark-, Hof-, Dorf-, und Stadt-Verfassung und der öffentlichen Gewalt: München. Geschichte der Dorfverfassung in Deutschland: Erlangen. Geschichte der Frohnhöfe, der Bauernhöfe und der Hofverfassung in Deutschland: Erlangen. Geschichte der Markenverfassung in Deutschland: Erlangen. Geschichte der Städteverfassung in Deutschland: Erlangen. See, also, Nasse, Agricultural Community, etc., Ouvry; Maine, Vil lage-Communities, lects. i., iii.; Hearn, The Aryan Household; Seebohm, The English Village Community; Laveleye, Primitive Property. of the ship of the territory embraced within the mark was vested either in the community itself or in the state within which the mark was embraced, while the right to its common enjoyment and possession was vested in its qualified members. The mark might be located either in the forest or in the plain, according to the nature of the country in which the kindred chanced to fix their settlement; and its border land, according to circumstances, consisted either of wood or waste. The mark was divided into three parts, - the vil lage, the arable lands, and the common or waste lands.2 In the centre of the mark was situated the village in which The village. the mark-men dwelt in their homesteads, surrounded by their inclosures and outbuildings.3 Within the precinct of the family dwelling-place the head of the family was supreme. No one had the right to enter there except himself and those under his paternal authority. It could not be in- Sacredness vaded even by officers of the law. The possession of such a homestead was evidence of the fact that its possessor was a fully qualified member of the mark, and as such entitled to a full share in the enjoyment of the arable, the pasture, the meadow, and waste lands belonging to the community.5 The arable land embraced within the mark was usually divided The arable into three great fields; and it was so arranged that, in the rotation of crops, each field could lie fallow once in three years. In the fields under cultivation in any given year, every householder had allotted to him his equal share, which he cultivated separately by his own labor, together with that of his sons and slaves. But he was required to cultivate according to fixed rules; he was obliged to sow the same crop with the rest of the community and to allow his portion of the uncultivated field to lie fallow with the rest. The rules regulating this system of cultivation were both minute and complicated. The woods, pastures, and meadows which were embraced within the mark were undivided, and employed in 1 Konrad Maurer, Kritische Ueberschau, i. 65-72. 2 Maine, Village-Communities, p. 78. The author of Village-Communities has condensed into a few pages of that work a summary of Von Maurer's conclusions as to the structure of the mark, pp. 77-82. 8 G. L. v. Maurer, Einleitung, p. 21. 5 Dorfverfassung, vol. i. pp. 61–65. 6 See Laveleye, Primitive Property, p. 110, as to the time of the introduction of this triennial rotation of crops. Village-Communities, pp. 79, 80. lands. The comwaste lands mon or The markmoot. Theory of aggregation: common, and, originally, without restriction. When this primitive condition of things ceased, however, the use of the common lands was regulated by strict proportion, and an elected or hereditary officer watched to see that the common domain was equitably enjoyed.2 Such was the mark in its agricultural aspect, and such were the relations which the mark-men bore to each other as common cultivators of the soil. We must next consider the political aspect of the mark, and the character of the assembly in which its internal affairs were considered and determined. Every free mark-man had his place in the village council or mark-moot, which, if the assumption of Kemble be followed, must have had jurisdiction, in the early stages of social development, over all causes which could in any way affect the interests of the individuals composing it. But in historic times the marks appear as members of larger communities, and in the assemblies of such communities was vested the judicial power. In the mark-moot was transacted all the business which arose out of the system of common cultivation, and out of the enjoyment of common rights. The annual allotment of the arable lands, the rotation of crops, the choice of the meadow, the admission of a new member into the mark, were all questions which were determined in the mark-moot.* Within the limits of the mark are found dwelling together, in the peculiar corporate relations which have just been described, all grades of Teutonic life, nobles, freemen, freedmen, and slaves, – constituting a naturally organized, selfgoverning community. A group of families or households settled upon a given portion of land, and bound together in the organization of the mark, probably represented the orig 1 G. L. v. Maurer, Markenverfas sung, p. 142. 2 Village-Communities, p. 79. "Village cow-herds, swine-herds, and gooseherds are still employed in many parts of Germany." See "The Germanic Origin of New England Towns," Adams, J. H. Studies, 1st series, II. P. 15. 8 Kemble, Saxons in England, p. 55. Bishop Stubbs says that, "It is unnecessary to suppose that there was a period when the village marks administered justice among themselves. ... But the initiatory stage of legal proceedings may well have been gone through, complaints heard, and presentments drawn up, in the village council."- Const. History, vol. i. p. 51. 4 G. L. von Maurer, Einleitung, pp. 141-150. "It is with a reverence such as is stirred by the sight of the headwaters of some mighty river that one looks back to these village-moots of Friesland or Sleswick. It was here that England learned to be a 'mother of Parliaments.'"-Green, History of the English People, vol. i. p. 13. Kemble; inal basis upon which rested all Teutonic society.1 And if that theory be accepted which begins with the marks as the units of organization, it becomes easy to work out the process through which the larger divisions arose out of their aggregation. In the attempt heretofore made to describe the structure of the Teutonic state, as it first appears in the written history of the race, it was necessary to begin with the state as an existing political organization occuping definite geographical limits, without reference to the questions involved in the origin of its subdivisions, and in the process through which it was evolved out of their gradual coalescence. The unwritten history of this process rests upon the theory of aggregation; and as that theory depends, in a great measure, for authority, so far as English history is concerned, upon the great names of Kemble and Freeman, it may be well to state it in their own language. In the words of Kemble: "Next as stated by in the order of constitution, if not of time, is the union of two, three, or more marks in a federal bond for purposes of a religious, judicial, or even political character. The technical name for such a union is in Germany a gau or bant; in England the ancient name gá has been almost universally superseded by that of scir or shire. . . . The gá is the second and final form of unsevered possession; for every larger aggregate is but the result of a gradual reduction of such districts, under a higher political or administrative unity, different only in degree and not in kind from what prevailed individually in each. "2 In the words of Freeman: "We must re- as stated by member that the kingdom, like all our ancient divisions, from the shire, perhaps from the hundred upwards, was formed by the aggregation of smaller divisions. The unit is the mark, roughly represented by the modern parish or manor. The shire must not be looked on as a division of the kingdom nor the hundred or the mark as a division of the shire. The hundred is in truth formed by an aggregation of marks, the shire by an aggregation of hundreds, and the kingdom by the aggregation of shires. The aggregation of marks into shires is indeed mainly to be inferred from local nomencla 1 Kemble, Saxons in England, vol. i. P. 53. See, also, Seebohm, English Village Community, preface, x. 2 Kemble, Saxons in England, vol. i. p. 72. Freeman. The hundred, and court: ture and from the analogy of other Teutonic countries, but the aggregation of shires into kingdoms is matter of recorded history." 1 If we accept, therefore, the primitive Teutonic community, represented by the mark, as the unit, and then apply to its union with other units of the same class the theory of aggregation, the making of the Teutonic state becomes at once obvious and easy. 8. The mark has now been considered as an isolated, selfthe hundred governing community, and also as the smallest subdivision of the Teutonic state. In the ascending order it is necessary to examine the structure of the next largest division — the hundred. By the union of two or more marks was formed the pagus, gau, or shire, known in later times as the hundred, - a word which, in some form, enters into all of the Germanic constitutions. When the written history of the primitive Teutonic state begins, the formative period has ended; the state is an existing organization, occupying definite geographical limits, while the original units out of whose aggregation it arose have descended to the status of mere divisions and subdivisions. Connected in this way with the occupation of definite areas of land, these divisions and subdivisions represent forms of organization not only personal but territheir names torial. The name of the territorial district represented by in different the hundred has varied in different countries, and the name of its court, composed of all the freemen residing within the district, has varied nearly as much as that of the district itself. That fact must not be allowed, however, to mislead us as to the true character of either; for the hundred, and the hundred court, in respect to both judicial and administrative functions, were of all Teutonic institutions the most enduring and the most important. have varied countries. 1 Freeman, Norm. Conq., vol. i. p. 66. The faithful investigations of of Clovis, the reforms of Charlemagne, the dissolution of the Frankish empire, the dissolution of the county system, the dissolution of public authority by feudalism, the complete beginning of a wholly new development in the isolated territories. The hundred constitution gave way at last only to a more powerful enemy, - the awakening legal science of the sixteenth century." - Sohm, Altd. R.- u. G. Verf., i. p. 541. See Essays in A. S. Law, p. 20. |