Let us, however, return for a moment to the arable. Although held in severalty by different owners it was subjected to all sorts of interference on the part of the village union as represented in later ages by the manorial court framing by-laws and settling the course of cultivation. It might also happen that in conse quence of encroachments, disputes, and general uncertainty as to possession and boundaries, the whole distribution of the strips of arable in the various fields had to be gone over and regulated anew. In such cases, as in the Danish examples quoted before, the strips were apportioned, not to single owners, but to the nor mal holdings, the hides, and the actual owners had to take them in proportion to their several rights in the hides. This point is very important. It gives the English village community its pe culiar stamp. It is a community not between single members or casual households, but between definite holdings constructed on a proportional scale. Although there was no provision for the ad measurement or equalization of the claims of Smith and of Brown, each hide or ploughland of a township took as much as every other hide, each virgate or yardland as every other yardland, each bovate or oxgang as every other oxgang. Now the proportions themselves, although varying in respect of the number of acres included in each of these units in different places, were constant in their relation to each other. The yardland was almost every where one-fourth of the hide or ploughland, and corresponded to the share of two oxen in an eight-oxen plough; the oxgang was reckoned at one-half of the yardland, and corresponded to the share of one ox in the same unit of work.
The natural composition of the holdings has its counterpart, as in Schleswig-Holstein and as in the rest of Germany, in the custom of unified succession. The English peasantry worked out customary rules of primogeniture or of so-called Borough English or claim of the youngest to the land held by his father. The German examples already adduced teach us that the device is not suggested primarily by the interest of the landlord. Unified suc cession takes the place of the equal rights of sons, because it is the better method for preserving the economic efficiency of the household and of the tenement corresponding to it. There are exceptions, the most notorious being that of Kentish gavelkind, but in agricultural districts the holding remains undivided as long as possible, and if it gets divided, the division follows the lines not of the casual number of coheirs, but of the organic elements of the ploughlands. Fourths and eighths arise in connection with natural fractions of the ploughteam of eight oxen.
One more feature of the situation remains to be noticed, and it is the one which is still before our eyes in all parts of the country, that is, the commons which have survived the wholesale process of enclosure. They were an integral part of the ancient village community from the first, because there existed the most intimate connection between the agricultural and pastoral part of husbandry in the time of the open-field system. Pasture was not treated as a commodity by itself but was mostly considered as an adjunct, as appendant to the arable, and so was the use of woods and of turf. The problem of admeasurement of pasture was regulated in the same way as that of the apportionment of arable strips, by a reference to the proportional holdings, the hides, yardlands and oxgangs of the township, and the only ques tion to be decided was how many heads of cattle and how many sheep each hide and yardland had the right to send to the com mon pasturage grounds.
When in course of time the open-field system and the tenure of arable according to holdings were given up, the right of free holders and copyholders of the old manors in which the ancient townships were, as it were, encased, still held good, but it became much more difficult to estimate and to apportion such rights.
In connection with the individualistic policy of enclosure the old writ of admeasurement of commons was abolished in 1837 (3 & 4 Will. IV.). The ordinary expedient is to make out how much commonable cattle could be kept by the tenements claim ing commons through the winter. It is very characteristic and important that in the leading modern case on sufficiency of com mons—in Robertson v. Hartopp—it was admitted by the Court of Appeal that the sufficiency has to be construed as a right of turning out a certain number of beasts on the common, quite apart from the number which had been actually turned out at any given time. Now a vested right has to be construed from the point of view of the time when it came into existence. The stand ards used to estimate such rights ought not to be drawn from modern practice, which is generally independent of common of pasture, but ought to correspond to the ordinary usages estab lished at a time when the open-field system was in full vigour. The legal view stands thus at present, but we cannot conceal from ourselves that after all the inroads achieved by individual appro priation it is by no means certain that the reference to the rights and rules of a previous period will continue to be recognized. However this may be, in the present commons we have certainly a system which draws its roots from customs as to the origin of which legal memory does not run.
We may, in conclusion, summarize very briefly the principal results of our inquiry as to the history of European village com munities. It seems that they may be stated under the following heads: (I) Primitive stages of civilization disclose in human so ciety a strong tendency towards mutual support in economic mat ters as well as for the sake of defence. (2) The most natural form assumed by such unions for defence and co-operation is that of kinship. (3) In epochs of pastoral husbandry and of the beginnings of agriculture land is mainly owned by tribes, kindreds and enlarged households, while individuals enjoy only rights of usage and possession. (4) In course of time unions of neighbours are substituted for unions of kinsmen. (5) In Germanic societies the community of the township rests on the foundation of effi cient holdings—b61s, hides, hufen—kept together as far as pos sible by rules of united or single succession. (6) The open-field system, which prevailed in the whole of Northern Europe for nearly a thousand years, was closely dependent on the customs of tribal and neighbourly unions. (7) Even now the treatment of commons represents the last manifestations of ancient communal arrangements, and it can only be reasonably and justly interpreted by reference to the law and practice of former times.
An indication of the nature of modern work on this subject will be found in Vinogradoff, Villainage in England (1892), The Growth of the Manor (1905) and English Society in the lith Century (P. Vt.)