Nowhere does this development of property rights in their successive forms exhibit itself more clearly than among the Germanic tribes which the Romans first met as pastoral groups moving from place to place, and subsisting upon the results of the chase, or upon the cattle which they herded on the common lands where they chanced to be. In this stage of race development there is essentially no holding of landed property, not even in common. That comes when the pastoral period is succeeded by the agricultural. The tillage of the soil brings with it ownership of land, but in the first instance a common ownership. The pastoral habits clung to the tribes, and they moved about, cultivating fresh lands of the unoccupied territory each year.1 As the agricultural system became more important, the village community crystallized. The territory of the tribe was the Mark, in which each family was entitled to the temporary enjoyment of a share. The woodland and pasturage were entirely common, and so continued even after the arable land had, in the progress towards individual property, been allotted and rendered subject to hereditary rights. Caesar and Tacitus testify to the existence of the peculiar features of the village community among the Germanic tribes of the Rhine countries. Laveleye asserts that "the triennial rotation of crops was introduced into Germany, . . . before the time of Charlemagne.'

"The parcels in each field had to be tilled at the same time, devoted to the same crops, and abandoned to the common pasture at the same period, according to the rule of Flurzwang, or compulsory rotation. The inhabitants assembled to deliberate on all that concerned the cultivation, and to determine the order and time of the various agricultural

1 Laveleye, Primitive Property, p. 102.

2

Laveleye, Primitive Property, p. 105.

Laveleye, Primitive Property, p. 105 (Citing De Bel. Gal. L. VI. c. 29, and Tac. Germ. c. VII).

Laveleye, Primitive Property, p. 110.

1

operations. The member of the German village community was a free man in the best sense of the word; he had a share in the common property, he had a voice in the assembly of his equals, and was subject to no arbitrary ruler. It is not strange that groups of these freemen were able to make themselves masters of the empire of the Cæsars.

Yet their very power had in it the seeds of its own destruction. The force of the combined freemen of the tribe or canton led to conquest over other tribes; conquest led to the acquisition of the territory of the conquered, and this in turn resulted in that unequal division of the acquired territory, the outcome of which was the feudal system. The leader of the band of freemen became the most important personage in the group; equality ceased to exist: the chief took the largest portion of the new land, and gave it out in parcels to his under-companions in arms, thus becoming, in time, the lord of the manor, subject indeed to his king,—the sovereign of the whole territory,—but having within his own manor arbitrary rule, and having under him and subject to his entire control, men who, in early Germanic times, would have been his equals.

Thus at the end of the tenth century in western Europe, but especially in France, the conditions of society were in many respects the very opposite of those by means of which the primitive German village community fostered the principles of freedom, equality, and representative government. The voice of the people in government had practically ceased to be heard. "Land has become the sacramental tie of all public relations; the poor man depends upon the rich, not as his chosen patron, but as the owner of the land he cultivates, the lord of the court to which he does suit and service, the leader whom he is bound to follow to the host."2

The earlier, freer, community-life, however, with the customs of common land tenure and of government by freemen

'Laveleye, Primitive Property, p. 111.

2 Stubbs' Constitutional History, I, p. 167.

met in general assembly, survived the changes just described, in some of the more secluded portions of the country, notably in the forest regions of the lower Palatinate east of the Rhine,' and in those northern provinces of the Netherlands— Friesland, Groningen and Drenthe-whose free peoples Rome never conquered, and whose right of self-government no haughty baron ever suppressed. Throughout the Netherlands, in fact, the feudal system, though prevailing, never obtained the firm foothold it gained in France, and even in more distant England. The industrial spirit and the growth of the importance of towns among the Dutch had modified the feudal system in Holland in a marked degree." "Holland was an aggregate of towns each providing for its own defence, administering its own finances, and governing itself by its own laws."3 Each town was governed by "a 'Wethouderschap' or Board of Magistrates, consisting of several burgomasters and a certain number of Schepens or Aldermen." The term of office was usually annual. The burgomasters and schepens were chosen by the eight or nine "goodmen" who were "elected by the 'Vroedschap,'" or great council of the town, which was itself composed, in most cases, of all the inhabitants who possessed a certain property qualification. There was also another important officer, named the 'schout,' who, in early times, was appointed by the Count, out of a triple nomination by the wethouders. The functions of the schout-whose name, according to Grotius, was

995

'Dr. H. B. Adams, in "The Germanic Origin of New England Towns," Vol. I of this series, pp. 13, 14, describes the primitive character of the villages now to be found in the Odenwald and Black Forest.

2 Brodhead's History of the State of New York, 1609-1664, p. 192.

3 Brodhead's History of the State of New York, p. 453,

'This privilege of "burgher-recht," which had to be acquired to entitle a resident to every municipal franchise, introduced some inequality among the people.

Brodhead's History of the State of New York, pp. 453-4.

Motley, Dutch Republic, I, p. 37, mentions the "Vroedschappen" or councillors.

an abbreviation of 'schuld-rechter,' or a judge of crimeswere somewhat analagous to those of bailiff or county sheriff'; combining, however, with them some of the duties of a prosecuting attorney."

In the course of the fifteenth century "the inhabitants were authorized . . . to select from among themselves a certain number, double or triple, from which the head of the government elected and appointed such as it considered best qualified to act as 'schepens' or magistrates."2

As early as 1295 the "Tribunal of Well-born Men," or of "Men's Men," as it was sometimes called, was instituted in the Low Countries. It originally had separate criminal and civil jurisdiction. Afterwards the Courts were united, and the bailiff of each district was allowed to administer justice in both civil and criminal cases with "Thirteen elected good Men." This tribunal, which resembled the modern jury, continued until the spring of 1614, when the number was altered to "Nine Well-born Men" who administered justice together.3

"The States-General," says Brodhead, "was, in one sense, an aggregate assembly of the States of the provinces, each of which might send an unlimited number of deputies.” 4

"The sovereign power of the province did not, however, reside in the States of Holland, but in the constituencies of

1 Brodhead, supra, pp. 453–4.

2 O'Callaghan, History of New Netherland, I., p. 391.

3

O'Callaghan, History of New Netherland, II., p. 40.

In view of the foregoing statements relating to early town government in the Rhine Countries, the position taken by Palfrey in his History of New England seems surprising. In Vol. I., pp. 275-6, he says: "The institution of towns had its origin in Massachusetts, and was borrowed thence by the other governments." He speaks of the selectmen as if they were indigenous to New England, whereas they are found to be as old as the history of Germanic institutions. Certainly, if the ancestors of our Hudson River settlers had, in Holland, chosen their selectmen, varying in number from thirteen to eight, from a time as early as the thirteenth century and probably much earlier, their Dutch descendants did not need to borrow from Massachusetts "the institution of towns."

4 Brodhead's History of the State of New York, pp. 454–5.

the deputies. The real authorities were the college of nobles, and the municipal councils of the towns. To them each deputy was responsible for his vote, and under their instructions alone he acted. Thus the government of Holland, in fact, rested mainly upon its people." In 1477, the first assembly of the States-General resulted in a charter of liberties, which after successive demands by the towns, "guaranteed and confirmed the ancient privileges of the municipal governments, and recognized the right of the towns, at all times, to confer with each other, and with the States of the Netherlands. It declared that no taxes should be imposed without the consent of the States; and it distinctly secured the freedom of trade and commerce.2 Thus at the close of the sixteenth century, the liberty-loving Netherlanders had not only preserved much of the freedom of the people, which the feudal system had tended to crush out, but they had also adhered to a freedom of trade which brought them wealth, and made them the most important maritime country of the world.

Just at this time-the beginning of the seventeenth century-the enterprising East India Company sent out from Amsterdam a small vessel under command of an English sailor to discover, if possible, a northwest passage to India. So it happened that in the fall of 1609,-nearly a dozen years before the Mayflower landed at Plymouth,-Hendrick Hudson, in his Dutch vessel the "Half Moon," sailed into the mouth of the river which now bears his name. Five years later the States-General of Holland granted a charter to the United New Netherland Company, giving it exclusive trade within the territory to which Holland considered that Hudson's discovery entitled her. Its object was not colonization and improvement of the land, but the monopoly of the furtrade with the Indians. Three trading posts were established on the river, at what is now New York, at Albany, and at

1 Brodhead's History of the State of New York, p. 452.

* Brodhead's History of the State of New York, p. 437.