VOLUME VI SLICE VII Columbus to Condottiere (continued 4)

The modern Book of Common Order or Euchologion is a compilation drawn from various sources and issued by the Church Service Society, an organization which endeavours to promote liturgical usages within the Established Church of Scotland.

COMMONPLACE, a translation of the Gr. κοινὸς τόπος, i.e. a passage or argument appropriate to several cases; a “common-place book” is a collection of such passages or quotations arranged for reference under general heads either alphabetically or on some method of classification. To such a book the name adversaria was given, which is an adaptation of the Latin adversaria scripta, notes written on one side, the side opposite (adversus), of a paper or book. From its original meaning the word came to be used as meaning something hackneyed, a platitude or truism, and so, as an adjective, equivalent to trivial or ordinary. It was first spelled as two words, then with a hyphen, and so still in the sense of a “common-place book.”

COMMON PLEAS, COURT OF, formerly one of the three English common law courts at Westminster—the other two being the king’s bench and exchequer. The court of common pleas was an offshoot of the Curia Regis or king’s council. Previous to Magna Carta, the king’s council, especially that portion of it which was charged with the management of judicial and revenue business, followed the king’s person. This, as far as private litigation was concerned, caused great inconvenience to the unfortunate suitors whose plaints awaited the attention of the court, for they had, of necessity, also to follow the king from place to place, or lose the opportunity of having their causes tried. Accordingly, Magna Carta enacted that common pleas (communia placita) or causes between subject and subject, should be held in some fixed place and not follow the court. This place was fixed at Westminster. The court was presided over by a chief (capitalis justiciarius de communi banco) and four puisne judges. The jurisdiction of the common pleas was, by the Judicature Act 1873, vested in the king’s bench division of the High Court of Justice.

COMMONS,1 the term for the lands held in commonalty, a relic of the system on which the lands of England were for the most part cultivated during the middle ages. The country was divided into vills, or townships—often, Early history. though not necessarily, or always, coterminous with the parish. In each stood a cluster of houses, a village, in which dwelt the men of the township, and around the village lay the arable fields and other lands, which they worked as one common farm. Save for a few small inclosures near the village—for gardens, orchards or paddocks for young stock—the whole township was free from permanent fencing. The arable lands lay in large tracts divided into compartments or fields, usually three in number, to receive in constant rotation the triennial succession of wheat (or rye), spring crops (such as barley, oats, beans or peas), and fallow. Low-lying lands were used as meadows, and there were sometimes pastures fed according to fixed rules. The poorest land of the township was left waste—to supply feed for the cattle of the community, fuel, wood for repairs, and any other commodity of a renewable or practically inexhaustible character.2 This waste land is the common of our own days.

It would seem likely that at one time there was no division, as between individual inhabitants or householders, of any of the lands of the township, but only of the products. But so far back as accurate information extends the arable land is found to be parcelled out, each householder owning strips in each field. These strips are always long and narrow, and lie in sets parallel with one another. The plough for cultivating the fields was maintained at the common expense of the village, and the draught oxen were furnished by the householders. From the time when the crop was carried till the next sowing, the field lay open to the cattle of the whole vill, which also had the free run of the fallow field throughout the year. But when two of the three fields were under crops, and the meadows laid up for hay, it is obvious that the cattle of the township required some other resort for pasturage. This was supplied by the waste or common. Upon it the householder turned out the oxen and horses which he contributed to the plough, and the cows and sheep, which were useful in manuring the common fields,—in the words of an old law case: “horses and oxen to plough the land, and cows and sheep to compester it.” Thus the use of the common by each householder was naturally measured by the stock which he kept for the service of the common fields; and when, at a later period, questions arose as to the extent of the rights on the common, the necessary practice furnished the rule, that the commoner could turn out as many head of cattle as he could keep by means of the lands which were parcelled out to him,—the rule of levancy and couchancy, which has come down to the present day.

In the earliest post-conquest times the vill or township is found to be associated with an over-lord. There has been much controversy on the question, whether the vill originally owned its lands free from any control, and was subsequently Status of township. reduced to a state of subjection and to a large extent deprived of its ownership, or whether its whole history has been one of gradual emancipation, the ownership of the waste, or common, now ascribed by the law to the lord being a remnant of his ownership of all the lands of the vill. (See Manor.)

At whatever date the over-lord first appeared, and whatever may have been the personal relations of the villagers to him from time to time after his appearance, there can be hardly any doubt that the village lands, whether arable, meadow or waste, were substantially the property of the villagers for the purposes of use and enjoyment. They resorted freely to the common for such purposes as were incident to their system of agriculture, and regulated its use amongst themselves. The idea that the common was the “lord’s waste,” and that he had the power to do what he liked with it, subject to specific and limited qualifying rights in others, was, there is little doubt, the creation of the Norman lawyers.

One of the earliest assertions of the lord’s proprietary interest in waste lands is contained in the Statute of Merton, a statute which, it is well to notice, was passed in one of the first assemblies of the barons of England, before Statutes of Merton and Westminster the Second. the commons of the realm were summoned to parliament. This statute, which became law in the year 1235, provided “that the great men of England (which had enfeoffed knights and their freeholders of small tenements in their great manors)” might “make their profit of their lands, wastes, woods and pastures,” if they left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another statute, that of Westminster the Second, supplemented the Statute of Merton by enabling the lord of the soil to inclose common lands, not only against his own tenants, but against “neighbours” claiming pasture there. These two pieces of legislation undoubtedly mark the growth of the doctrine which converted the over-lord’s territorial sway into property of the modern kind, and a corresponding loosening of the hold of the rural townships on the wastes of their neighbourhood. To what extent the two acts were used, it is very difficult to say. We know, from later controversies, that they made no very great change in the system on which the country was cultivated, a system to which, as we have seen, commons were essential. In some counties, indeed, inclosures had, by the Tudor period, made greater progress than in others. T. Tusser, in his eulogium on inclosed farming, cites Suffolk and Essex as inclosed counties by way of contrast to Norfolk, Cambridgeshire and Leicestershire, where the open or “champion” (champain) system prevailed. The Statutes of Merton and Westminster may have had something to do with the progress of inclosed farming; but it is probable that their chief operation lay in furnishing the lord of the manor with a farm on the new system, side by side with the common fields, or with a deer park.

The first event which really endangered the village system was the coming of the Black Death. This scourge is said to have swept away half the population of the country. The disappearance, by no means uncommon, of a whole The Black Death. family gave the over-lord of the vill the opportunity of appropriating, by way of escheat, the holding of the household in the common fields. The land-holding population of the townships and the persons interested in the commons were thus sensibly diminished.

During the Wars of the Roses the small cultivator is thought to have again made headway. But his diminished numbers, and the larger interest which the lords had acquired in the lands of each vill, no doubt facilitated the determined attack on the common-field system which marked the reigns of Henry VIII. and Edward VI.

This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheep-breeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess a large The Tudor agrarian revolution. body of followers pledged to his interests by their connexion with the land. On the other hand, wool commanded a high price, and the growth of towns and of foreign commerce supplied abundant markets. At the same time the confiscation of the monastic possessions introduced a race of new over-lords—not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. In order to keep large flocks and send many bales of wool to market, each landowner strove to increase his range of pasture, and with this view to convert the arable fields of his vill into grass land. There is abundant evidence both from the complaints of writers such as Latimer and Sir Thomas More, and from the Statutes and royal commissions of the day, that large inclosures were made at this time, and that the process was effected with much injustice and accompanied by great hardship. “Where,” says Bishop Latimer in one of his courageous and vigorous denunciations of “inclosers and rent-raisers,” “there have been many householders and inhabitants, there is now but a shepherd and his dog.” In the full tide of this movement, and despite Latimer’s appeals, the Statutes of Merton and Westminster the Second were confirmed and re-enacted. Both common fields and commons no doubt disappeared in many places; and the country saw the first notable instalment of inclosure. But from the evidence of later years it is clear that a very large area of the country was still cultivated on the common-field system for another couple of centuries. When inclosure on any considerable scale again came into favour, it was effected on quite different principles; and before describing what was essentially a modern movement, it will be convenient to give a brief outline of the principles of law applicable to commons at the present day.

Law.—The distinguishing feature in law of common land is, that it is land the soil of which belongs to one person, and from which certain other persons take certain profits—for example, the bite of the grass by the mouth of cattle, Rights of common. or gorse, bushes or heather for fuel or litter. The right to take such a profit is a right of common; the right to feed cattle on common land is a right of common of pasture; while the right of cutting bushes, gorse or heather (more rarely of lopping trees) is known as a right of common of estovers (estouviers) or botes (respectively from the Norman-French estouffer, and the Saxon botan, to furnish). Another right of common is that of turbary, or the right to cut turf or peat for fuel. There are also rights of taking sand, gravel or loam for the repair and maintenance of land. The persons who enjoy any of these rights are called commoners.

From the sketch of the common-field system of agriculture which has been given, we shall readily infer that a large proportion of the commons of the country, and of the peculiarities of the law relating to commons, are traceable to that system. Thus, common rights are mostly attached to, or enjoyed with, certain lands or houses. A right of common of pasture usually consists of the right to turn out as many cattle as the farm or other private land of the commoner can support in winter; for, as we have seen, the enjoyment of the common, in the village system, belonged to the householders of the village, and was necessarily measured by their holdings in the common fields. The cattle thus commonable are said to be levant and couchant, i.e. uprising and down-lying on the land. But it has now been decided that they need not in fact be so kept. At the present day a commoner may turn out any cattle belonging to him, wherever they are kept, provided they do not exceed in number the head of cattle which can be supported by the stored summer produce of the land in respect of which the right is claimed, together with any winter herbage it produces. The animals which a commoner may usually turn out are those which were employed in the village system—horses, oxen, cows and sheep. These animals are termed commonable animals. A right may be claimed for other animals, such as donkeys, pigs and geese; but they are termed non-commonable, and the right can only be established on proof of special usage. A right of pasture attached to land in the way we have described is said to be appendant or appurtenant to such land. Common of pasture appendant to land can only be claimed for commonable cattle; and it is held to have been originally attached only to arable land, though in claiming the right no proof that the land was originally arable is necessary. This species of common right is, in fact, the direct survival of the use by the village householder of the common of the township; while common of pasture appurtenant represents rights which grew up between neighbouring townships, or, in later times, by direct grant from the owner of the soil of the common to some other landowner, or (in the case of copyholders) by local custom.

The characteristic of connexion with house or land also marks other rights of common. Thus a right of taking gorse or bushes, or of lopping wood for fuel, called fire-bote, is limited to the taking of such fuel as may be necessary for the hearths of a particular house, and no more may be taken than is thus required. The same condition applies to common of turbary, which in its more usual form authorizes the commoner to cut the heather, which grows thickly upon poor soils, with the roots and adhering earth, to a depth of about 9 in. Similarly, wood taken for the repairs of buildings (house-bote), or of hedges (hedge-bote or hey-bote), must be limited in quantity to the requirements of the house, farm buildings and hedges of the particular property to which the right is attached. And heather taken for litter cannot be taken in larger quantities than is necessary for manuring the lands in respect of which the right is enjoyed. It is illegal to take the wood or heather from the common, and to sell it to any one who has not himself a right to take it. So, also, a right of digging sand, gravel, clay or loam is usually appurtenant to land, and must be exercised with reference to the repair of the roads, or the improvement of the soil, of the particular property to which the right is attached.

We have already alluded to the fact that, in Norman and later days, every vill or township was associated with some over-lord,—some one responsible to the crown, either directly or through other superior lords, for the holding of the land and the performance of certain duties of defence and military support. To this lord the law has assigned the ownership of the soil of the common of the vill; and the common has for many centuries been styled the waste of the manor. The trees and bushes on the common belong to the lord, subject to any rights of lopping or cutting which the commoners may possess. The ground, sand and subsoil are his, and even the grass, though the commoners have the right to take it by the mouths of their cattle. To the over-lord, also, was assigned a seignory over all the other lands of the vill; and the vill came to be termed his manor. At the present day it is the manorial system which must be invoked in most cases as the foundation of the curiously conflicting rights which co-exist on a common. (See Manor.)

Within the bounds of a manor, speaking generally, there are three classes of persons possessing an interest Manorial commons. in the land, viz.:—

(a) Persons holding land freely of the manor, or freehold tenants.

(b) Persons holding land of the manor by copy of court roll, or copyhold tenants.

(c) Persons holding from the lord of the manor, by lease or agreement, or from year to year, land which was originally demesne, or which was once freehold or copyhold and has come into the lord’s hands by escheat or forfeiture.

Amongst the first two classes we usually find the majority of the commoners on the wastes or commons of the manor. To every freehold tenant belongs a right of common of pasture on the commons, such right being “appendant” to the land which he holds freely of the manor. This right differs from most other rights of common in the characteristic that actual exercise of the right need not be proved. When once it is shown that certain land is held freely of the manor, it follows of necessity that a right of common of pasture for commonable cattle attaches to the land, and therefore belongs to its owner, and may be exercised by its occupant. “Common appendant,” said the Elizabethan judges, “is of common right, and commences by operation of law and in favour of tillage.”

Now this is exactly what we saw to be the case with reference to the use of the common of the vill by the householder cultivating the arable fields. The use was a necessity, not depending upon the habits of this or that householder; it was a use for commonable cattle only, and was connected with the tillage of the arable lands. It seems almost necessarily to follow that the freehold tenants of the manor are the representatives of the householders of the vill. However this may be, it is amongst the freehold tenants of the manor that we must first look for commoners on the waste of the manor.

Owing, however, to the light character of the services rendered by the freeholders, the connexion of their lands with the manor is often difficult to prove. Copyhold tenure, on the other hand, cannot be lost sight of; and in many manors copyholders are numerous, or were, till quite recently. Copyholders almost invariably possess a right of common on the waste of the manor; and when (as is usual) they exist side by side with freeholders, their rights are generally of the same character. They do not, however, exist as of common right, without proof of usage, but by the custom of the manor. Custom has been defined by a great judge (Sir George Jessel, M.R., in Hammerton v. Honey) as local law. Thus, while the freehold tenants enjoy their rights by the general law of the land, the copyholders have a similar enjoyment by the local law of the manor. This, again, is what one might expect from the ancient constitution of a village community. The copyholders, being originally serfs, had no rights at law; but as they had a share in the tillage of the land, and gradually became possessed of strips in the common fields, or of other plots on which they were settled by the lord, they were admitted by way of indulgence to the use of the common; and the practice hardened into a custom. As might be expected, there is more variety in the details of the rights they exercise. They may claim common for cattle which are not commonable, if the custom extends to such cattle; and their claim is not necessarily connected with arable land.

In the present day large numbers of copyhold tenements have been enfranchised, i.e. converted into freehold. The effect of this step is to sever all connexion between the land enfranchised and the manor of which it was previously held. Technically, therefore, the common rights previously enjoyed in respect of the land would be gone. When, however, there is no indication of any intention to extinguish such rights, the courts protect the copyholders in their continued enjoyment; and when an enfranchisement is effected under the statutes passed in modern years, the rights are expressly preserved. The commoners on a manorial common then will be, prima facie, the freeholders and copyholders of the manor, and the persons who own lands which were copyhold of the manor but have been enfranchised.

The occupants of lands belonging to the lord of the manor, though they usually turn out their cattle on the common, do so by virtue of the lord’s ownership of the soil of the common, and can, as a rule, make no claim to any right of common as against the lord, even though the practice of turning out may have obtained in respect of particular lands for a long series of years. When, however, lands have been sold by the lord of the manor, although no right of common attached by law to such lands in the lord’s hands, their owners may subsequently enjoy such a right, if it appears from the language of the deeds of conveyance, and all the surrounding circumstances, that there was an intention that the use of the common should be enjoyed by the purchaser. The rules on this point are very technical; it is sufficient here to indicate that lands bought from a lord of a manor are not necessarily destitute of common rights.

So far we have considered common rights as they have arisen out of the manorial system, and out of the still older system of village communities. There may, however, be rights of common quite unconnected with the manorial Rights of common not connected with manorial system. system. Such rights may be proved either by producing a specific grant from the owner of the manor or by long usage. It is seldom that an actual grant is produced, although it would seem likely that such grants were not uncommon at one time. But a claim founded on actual user is by no means unusual. Such a claim may be based (a) on immemorial usage, i.e. usage for which no commencement later than the coronation of Richard I. (1189) can be shown, (b) on a presumed modern grant which has been lost, or (c) (in some cases) on the Prescription Act 1832. There are special rules applicable to each kind of claim.

A right of common not connected with the manorial system may be, and usually is, attached to land; it may be measured, like a manorial right, by levancy and couchancy, or it may be limited to a fixed number of animals. Rights of the latter character seem to have been not uncommon in the middle ages. In one of his sermons against inclosure, Bishop Latimer tells us his father “had walk (i.e. right of common) for 100 sheep.” This may have been a right in gross, but was more probably attached to the “farm of £3 or £4 by year at the uttermost” which his father held. A right of common appurtenant may be sold separately, and enjoyed by a purchaser independently of the tenement to which it was originally appurtenant. It then becomes a right of common in gross.

A right of common in gross is a right enjoyed irrespective of the ownership or occupancy of any lands. It may exist by express grant, or by user implying a modern lost grant, or by immemorial usage. It must be limited to a certain number of cattle, unless the right is claimed by actual grant. Such rights seldom arise in connexion with commons in the ordinary sense, but are a frequent incident of regulated or stinted pastures; the right is then generally known as a cattle-gate or beast-gate.

There may be rights over a common which exclude the owner of the soil from all enjoyment of some particular product of the common. Thus a person, or a class of persons, may be entitled to the whole of the corn, grass, underwood, or sweepage, (i.e. everything which falls to the sweep of the scythe) of a tract of land, without possessing any ownership in the land itself, or in the trees or mines. Such a right is known as a right of sole vesture.

A more limited right of the same character is a right of sole pasturage—the exclusive right to take everything growing on the land in question by the mouths of cattle, but not in any other way. Either of these rights may exist throughout the whole year, or during part only. A right of sole common pasturage and herbage was given to a certain class of commoners in Ashdown Forest on the partition of the forest at the end of the 18th century.

We have seen that the common arable fields and common meadows of a vill were thrown open to the stock of the community between harvest and seed-time. There is still to be found, here and there, a group of arable common Rights in common fields. fields, and occasionally a piece of grass land with many of the characteristics of a common, which turns out to be a common field or meadow. The Hackney Marshes and the other so-called commons of Hackney are really common fields or common meadows, and along the valley of the Lea a constant succession of such meadows is met with. They are still owned in parcels marked by metes; the owners have the right to grow a crop of hay between Lady day and Lammas day; and from Lammas to March the lands are subject to the depasturage of stock. In the case of some common fields and meadows the right of feed during the open time belongs exclusively to the owners; in others to a larger class, such as the owners and occupiers of all lands within the bounds of the parish. Anciently, as we have seen, the two classes would be identical. In some places newcomers not owning strips in the fields were admitted to the right of turn out; in others, not. Hence the distinction. Similar divergences of practice will be found to exist in Switzerland at the present day; nieder-gelassene, or newcomers, are in some communes admitted to all rights, while, in others, privileges are reserved to the bürger, or old inhabitant householders.

Some of the largest tracts of waste land to be found in England are the waste or commonable lands of royal forests or chases. The thickets and pastures of Epping Forest, now happily preserved for London under the guardianship Rights in royal forests. of the city corporation, and the noble woods and far-stretching heaths of the New Forest, will be called to mind. Cannock Chase, unhappily inclosed according to law, though for the most part still lying waste, Dartmoor, and Ashdown Forest in Sussex, are other instances; and the list might be greatly lengthened. Space will not permit of any description of the forest system; it is enough, in this connexion, to say that the common rights in a forest were usually enjoyed by the owners and occupiers of land within its bounds (the class may differ in exact definition, but is substantially equivalent to this) without reference to manorial considerations. Epping Forest was saved by the proof of this right. It is often said that the right was given, or confirmed, to the inhabitants in consideration of the burden of supporting the deer for the pleasure of the king or of the owner of the chase. It seems more probable that the forest law prevented the growth of the manorial system, and with it those rules which have tended to restrict the class of persons entitled to enjoy the waste lands of the district.

We have seen that in the case of each kind of common there is a division of interest. The soil belongs to one person; other persons are entitled to take certain products of the soil. This division of interest preserves the common Prevention of inclosure. as an open space. The commoners cannot inclose, because the land does not belong to them. The owner of the soil cannot inclose, because inclosure is inconsistent with the enjoyment of the commoners’ rights. At a very early date it was held that the right of a commoner proceeded out of every part of the common, so that the owner of the soil could not set aside part for the commoner and inclose the rest. The Statutes of Merton and Westminster the Second were passed to get over this difficulty. But under these statutes the burden of proving that sufficient pasture was left was thrown upon the owner of the soil; such proof can very seldom be given. Moreover, the statutes have never enabled an inclosure to be made against commoners entitled to estovers or turbary. It seems clear that the statutes had become obsolete in the time of Edward VI., or they would not have been re-enacted. And we know that the zealous advocates of inclosure in the 18th century considered them worthless for their purposes. Practically it may be taken that, save where the owner of the soil of a common acquires all the lands in the township (generally coterminous with the parish) with which the common is connected, an inclosure cannot legally be effected by him. And even in the latter case it may be that rights of common are enjoyed in respect of lands outside the parish, and that such rights prevent an inclosure.

Modern Inclosure.—When, therefore, the common-field system began to fall out of gear, and the increase of population brought about a demand for an increased production of corn, it was felt to be necessary to resort to parliament The modern Inclosure Act. for power to effect inclosure. The legislation which ensued was based on two principles. One was that all persons interested in the open land to be dealt with should receive a proportionate equivalent in inclosed land; the other, that inclosure should not be prevented by the opposition, or the inability to act, of a small minority. Assuming that inclosure was desirable, no more equitable course could have been adopted, though in details particular acts may have been objectionable. The first act was passed in 1709; but the precedent was followed but slowly, and not till the middle of the 18th century did the annual number of acts attain double figures. The high-water mark was reached in the period from 1765 to 1785, when on an average forty-seven acts were passed every year. From some cause, possibly the very considerable expense attending upon the obtaining of an act, the numbers then began slightly to fall off. In the year 1793 a board of agriculture, apparently similar in character to the chambers of commerce of our own day, was established. Sir John Sinclair was its president, and Arthur Young, the well-known agricultural reformer, was its secretary. Owing to the efforts of this body, and of a select committee appointed by the House of Commons on Sinclair’s motion, the first General Inclosure Act was passed in 1801. This act would at the present day be called an Inclosure Clauses Act. It contained a number of provisions applicable to inclosures, which could be incorporated by reference, in a private bill. By this means, it was hoped, the length and complexity, and consequently the expense, of inclosure bills would be greatly diminished. Under the stimulus thus applied inclosure proceeded apace. In the year 1801 no less than 119 acts were passed, and the total area inclosed probably exceeded 300,000 acres. Three inclosures in the Lincolnshire Fens account for over 53,000 acres. As before, the movement after a time spent its force, the annual average of acts falling to about twelve in the decade 1830-1840. Another parliamentary committee then sat to consider how inclosure might be promoted; and the result was the Inclosure Act 1845, which, though much amended by subsequent legislation, still stands on the statute-book. The chief feature of that act was the appointment of a permanent commission to make in each case all the inquiries previously made (no doubt capriciously and imperfectly) by committees of the two Houses. The commission, on being satisfied of the propriety of an inclosure was to draw up a provisional order prescribing the general conditions on which it was to be carried out, and this order was to be submitted to parliament by the government of the day for confirmation. It is believed that these inclosure orders afford the first example of the provisional order system of legislation, which has attained such large proportions.

Again inclosure moved forward, and between 1845 and 1869 (when it received a sudden check) 600,000 acres passed through the hands of the inclosure commission. Taking the whole period of about a century and a half, when parliamentary inclosure was in favour, and making an estimate of acreage where the acts do not give it, the result may be thus summarized:—

Acres.

From 1709 to 1797 2,744,926

” 1801 to 1842 1,307,964

” 1845 to 1869 618,000

Add for Forests inclosed under Special Acts 100,000

————

4,770,890

The total area of England being 37,000,000 acres, we shall probably not be far wrong in concluding that about one acre in every seven was inclosed during the period in question. During the first period, the lands inclosed consisted mainly of common arable fields; during the second, many great tracts of moor and fen were reduced to severalty ownership. In the third period, inclosure probably related chiefly to the ordinary manorial common; and it seems likely that, on the whole, England would have gained, had inclosure stopped in 1845.

As a fact it stopped in 1869. Before the inclosure commission had been in existence twenty years the feeling of the nation towards commons began to change. The rapid growth of towns, and especially of London, and the awakening Open Space movement. sense of the importance of protecting the public health, brought about an appreciation of the value of commons as open spaces. Naturally, the metropolis saw the birth of this sentiment. An attempted inclosure in 1864 of the commons at Epsom and Wimbledon aroused strong opposition; and a select committee of the House of Commons was appointed to consider how the London commons could best be preserved. The Metropolitan Board of Works, then in the vigour of youth, though eager to become the open-space authority for London, could make no better suggestion than that all persons interested in the commons should be bought out, that the board should defray the expense by selling parts for building, and should make parks of what was left. Had this advice been followed, London would probably have lost two-thirds of the open space which she now enjoys. Fortunately a small knot of men, who afterwards formed the Commons Preservation Society, took a broader and wiser view. Chief amongst them were the late Philip Lawrence, who acted as solicitor to the Wimbledon opposition, and subsequently organized the Commons Preservation Society, George Shaw-Lefevre, chairman of that society since its foundation, the late John Locke, and the late Lord Mount Temple (then Mr W. F. Cowper). They urged that the conflict of legal interests, which is the special characteristic of a common, might be trusted to preserve it as an open space, and that all that parliament could usefully do, was to restrict parliamentary inclosure, and to pass a measure of police for the protection of commons as open spaces. The select committee adopted this view. On their report, was passed the Metropolitan Commons Act 1866, which prohibited any further parliamentary inclosures within the metropolitan police area, and provided means by which a common could be put under local management. The lords of the manors in which the London commons lay felt that their opportunity of making a rich harvest out of land, valuable for building, though otherwise worthless, was slipping away; and a battle royal ensued. Inclosures were commenced, and the Statute of Merton prayed in aid. The public retorted by legal proceedings taken in the names of commoners. These proceedings—which culminated in the mammoth suit as to Epping Forest, with the corporation of London as plaintiffs and fourteen lords of manors as defendants—were uniformly successful; and London commons were saved. By degrees the manorial lords, seeing that they could not hope to do better, parted with their interest for a small sum to some local authority; and a large area of the common land, not only in the county of London, but in the suburbs, is now in the hands of the representatives of the ratepayers, and is definitely appropriated to the recreation of the public.

Moreover, the Commons Preservation Society was able to base, upon the uniform success of the commoners in the law courts, a plea for the amendment of the law. The Statute of Merton, we have seen, purports to enable Amendment of Statue of Merton. the lord of the soil to inclose a common, if he leaves sufficient pasture for the commoners. This statute was constantly vouched in the litigation about London commons; but in no single instance was an inclosure justified by virtue of its provisions. It thus remained a trap to lords of manors, and a source of controversy and expense. In the year 1893 Lord Thring, at the instance of the Commons Preservation Society, carried through parliament the Commons Law Amendment Act, which provided that in future no inclosure under the Statute of Merton should be valid, unless made with the consent of the Board of Agriculture, which was to consider the expediency of the inclosure from a public point of view.

The movement to preserve commons as open spaces soon spread to the rural districts. Under the Inclosure Act of 1845 provision was made for the allotment of a part of the land to be inclosed for field gardens for the labouring Rural commons. poor, and for recreation. But those who were interested in effecting an inclosure often convinced the inclosure commissioners that for some reason such allotments would be useless. To such an extent did the reservation of such allotments become discredited that, in 1869, the commission proposed to parliament the inclosure of 13,000 acres, with the reservation of only one acre for recreation, and none at all for field gardens. This proposal attracted the attention of Henry Fawcett, who, after much inquiry and consideration, came to the conclusion that inclosures were, speaking generally, doing more harm than good to the agricultural labourer, and that, under such conditions as the commissioners were prescribing, they constituted a serious evil. With characteristic intrepidity he opposed the annual inclosure bill (which had come to be considered a mere form) and moved for a committee on the whole subject. The ultimate result was the passing, seven years later, of the Commons Act 1876. This measure, introduced by a Conservative government, laid down the principle that an inclosure should not be allowed unless distinctly shown to be for the benefit, not merely of private persons, but of the neighbourhood generally and the public. It imposed many checks upon the process, and following the course already adopted in the case of metropolitan commons, offered an alternative method of making commons more useful to the nation, viz. their management and regulation as open spaces. The effect of this legislation and of the changed attitude of the House of Commons towards inclosure has been almost to stop that process, except in the case of common fields or extensive mountain wastes.

We have alluded to the regulation of commons as open spaces. The primary object of this process is to bring a common under the jurisdiction of some constituted authority, which may make by-laws, enforceable in a summary way Regulation. before the magistrates of the district, for its protection, and may appoint watchers or keepers to preserve order and prevent wanton mischief. There are several means of attaining this object. Commons within the metropolitan police district—the Greater London of the registrar-general—are in this respect in a position by themselves. Under the Metropolitan Commons Acts, schemes for their local management may be made by the Board of Agriculture (in which the inclosure commission is now merged) without the consent either of the owner of the soil or the commoners—who, however, are entitled to compensation if they can show that they are injuriously affected. Outside the metropolitan police district a provisional order for regulation may be made under the Commons Act 1876, with the consent of the owner of the soil and of persons representing two-thirds in value of all the interests in the common. And under an act passed in 1899 the council of any urban or rural district may, with the approval of the Board of Agriculture and without recourse to parliament, make a scheme for the management of any common within its district, provided no notice of dissent is served on the board by the lord of the manor or by persons representing one-third in value of such interests in the common as are affected by the scheme. There is yet another way of protecting a common. A parish council may, by agreement, acquire an interest in it, and may make by-laws for its regulation under the Local Government Act 1894. The acts of 1894 and 1899 undoubtedly proceed on right lines. For, with the growth of efficient local government, commons naturally fall to be protected and improved by the authority of the district.

It remains to say a word as to the extent of common land still remaining open in England and Wales. In 1843 it was estimated that there were still 10,000,000 acres of common land and common-field land. In 1874 another Statistics. return made by the inclosure commission made a guess of 2,632,772. These two returns were made from the same materials, viz. the tithe commutation awards. As less than 700,000 acres had been inclosed in the intervening period, it is obvious that the two estimates are mutually destructive. In July 1875 another version was given in the Return of Landowners (generally known as the Modern Domesday Book), compiled from the valuation lists made for the purposes of rating. This return put the commons of the country (not including common fields) at 1,542,648 acres. It is impossible to view any of these returns as accurate. Those compiled from the tithe commutation awards are based largely on estimates, since there are many parishes where the tithes had not been commuted. On the other hand, the valuation lists do not show waste and unoccupied land (which is not rated), and consequently the information as to such lands in the Return of Landowners was based on any materials which might happen to be at the disposal of the clerk of the guardians. All we can say, therefore, is that the acreage of the remaining common land of the country is probably somewhere between 1,500,000 and 2,000,000 acres. It is most capriciously distributed. In the Midlands there is very little to be found, while in a county of poor soil, like Surrey, nearly every parish has its common, and there are large tracts of heath and moor. In 1866, returns were made to parliament by the overseers of the poor of the commons within 15 and within 25 m. of Charing Cross. The acreage within the larger area was put at 38,450 acres, and within the smaller at 13,301; but owing to the difference of opinion which sometimes prevails upon the question, whether land is common or not, and the carelessness of some parish authorities as to the accuracy of their returns, even these figures cannot be taken as more than approximately correct. The metropolitan police district, within which the Metropolitan Commons Acts are in force, approaches in extent to a circle of 15 miles’ radius. Within this district nearly 12,000 acres of common land have been put under local management, either by means of the Commons Acts or under special legislation. London is fortunate in having secured so much recreation ground on its borders. But when the enormous population of the capital and its rapid growth and expansion are considered, the conclusion is inevitable, that not one acre of common land within an easy railway journey of the metropolis can be spared.

Authorities.—Marshall, Elementary and Practical Treatise on Landed Property (London, 1804); F. W. Maitland, Domesday Book and Beyond (Cambridge, 1897); Borough and Township (Cambridge, 1898); F. Seebohm, The English Village Community (London, 1883); Williams, Joshua, Rights of Common (London, 1880); C. I. Elton, A Treatise on Commons and Waste Lands (1868); T. E. Scrutton, On Commons and Common Fields (1887); H. R. Woolrych, Rights of Common (1850); G. Shaw-Lefevre, English Commons and Forests (London, 1894); Sir W. Hunter, The Preservation of Open Spaces (London, 1896); “The Movements for the Inclosure and Preservation of Open Lands,” Journal of the Royal Statistical Society, vol. lx. part ii. (June 1897); Returns to House of Commons (1843), No. 325; (1870), No. 326; (1874), No. 85; Return of Landowners (1875); Annual Reports of Inclosure Commission and Board of Agriculture; Revised Statutes and Statutes at large.

(R. H.*)

COMMONWEALTH, a term generally synonymous with commonweal, i.e. public welfare, but more particularly signifying a form of government in which the general public have a direct voice. “The Commonwealth” is used in a special sense to denote the period in English history between the execution of Charles I. in 1649 and the Restoration in 1660. Commonwealth is also the official designation in America of the states of Massachusetts, Pennsylvania, Virginia and Kentucky. The Commonwealth of Australia is the title of the federation of Australian colonies carried out in 1900.

COMMUNE (Med. Lat. communia, Lat. communis, common), in its most general sense, a group of persons acting together for purposes of self-government, especially in towns. (See Borough, and Commune, Medieval, below.) “Commune” (Fr. commune, Ital. comune, Ger. Gemeinde, &c.) is now the term generally applied to the smallest administrative division in many European countries. (See the sections dealing with the administration of these countries under their several headings.) “The Commune” is the name given to the period of the history of Paris from March 18 to May 28, 1871, during which the commune of Paris attempted to set up its authority against the National Assembly at Versailles. It was a political movement, intended to replace the centralized national organization by one based on a federation of communes. Hence the “communists” were also called “federalists.” It had nothing to do with the social theories of Communism (q.v.). (See France: History.)

COMMUNE, MEDIEVAL. Under this head it is proposed to give a short account of the rise and development of towns in central and western continental Europe since the downfall of the Roman Empire. All these, including also the British towns (for which, however, see Borough), may be said to have formed one unity, inasmuch as all arose under similar conditions, economic, legal and political, irrespective of local peculiarities. Kindred economic conditions prevailed in all the former provinces of the Western empire, while new law concepts were everywhere introduced by the Germanic invaders. It is largely for the latter reason that it seems advisable to begin with an account of the German towns, the term German to correspond to the limits of the old kingdom of Germany, comprising the present empire, German Austria, German Switzerland, Holland and a large portion of Belgium. In their development the problem, as it were, worked out least tainted by foreign interference, showing at the same time a rich variety in detail; and it may also be said that their constitutional and economic history has been more thoroughly investigated than any other.

Like the others, the German towns should be considered from three points of view, viz. as jurisdictional units, as self-administrative units and as economic units. One of the chief distinguishing features of early as opposed to modern town-life is that each town formed a jurisdictional district distinct from the country around. Another trait, more in accordance with the conditions of to-day, is that local self-government was more fully developed and strongly marked in the towns than without. And, thirdly, each town in economic matters followed a policy as independent as possible of that of any other town or of the country in general. The problem is, how this state of things arose.

From this point of view the German towns may be divided into two main classes: those that gradually resuscitated on the ruins of former Roman cities in the Rhine and Danube countries, and those that were newly founded at a later date in the interior.1 Foremost in importance among the former stand the episcopal cities. Most of these had never been entirely destroyed during the Germanic invasion. Roman civic institutions perished; but probably parts of the population survived, and small Christian congregations with their bishops in most cases seem to have weathered all storms. Much of the city walls presumably remained standing, and within them German communities soon settled.

In the 10th century it became the policy of the German emperors to hand over to the bishops full jurisdictional and administrative powers within their cities. The bishop henceforward directly or indirectly appointed all officers for the town’s government. The chief of these was usually the advocatus or Vogt, some neighbouring noble who served as the proctor of the church in all secular affairs. It was his business to preside three times a year over the chief law-court, the so-called echte or ungebotene Ding, under the cognizance of which fell all cases relating to real property, personal freedom, bloodshed and robbery. For the rest of the legal business and as president of the ordinary court he appointed a Schultheiss, centenarius or causidicus. Other officers were the Burggraf2 or praefectus for military matters, including the preservation of the town’s defences, walls, moat, bridges and streets, to whom also appertained some jurisdiction over the craft-gilds in matters relating to their crafts; further the customs-officer or teleonarius and the mint-master or monetae magister. It was not, however, the fact of their being placed under the bishop that constituted these towns as separate jurisdictional units. The chief feature rather is the existence within their walls of a special law, distinct in important points from that of the country at large. The towns enjoyed a special peace, as it was called, i.e. breaches of the peace were more severely punished if committed in a town than elsewhere. Besides, the inhabitants might be sued before the town court only, and to fugitives from the country who had taken refuge in the town belonged a similar privilege. This special legal status probably arose from the towns being considered in the first place as the king’s fortresses3 or burgs (see Borough), and, therefore, as participating in the special peace enjoyed by the king’s palace. Hence the terms “burgh,” “borough” in English, baurgs in Gothic, the earliest Germanic designations for a town; “burgher,” “burgess” for its inhabitants. What struck the townless early Germans most about the Roman towns was their mighty walls. Hence they applied to all fortified habitations the term in use for their own primitive fortifications; the walls remained with them the main feature distinguishing a town from a village; and the fact of the town being a fortified place, likewise necessitated the special provisions mentioned for maintaining the peace.

The new towns in the interior of Germany were founded on land belonging to the founder, some ecclesiastical or lay lord, and frequently adjoining the cathedral close of one of the new sees or the lord’s castle, and they were laid out according to a regular plan. The most important feature was the market-square, often surrounded by arcades with stalls for the sale of the principal commodities, and with a number of straight streets leading thence to the city gates.4 As for the fortifications, some time naturally passed before they were completed. Furthermore, the governmental machinery would be less complex than in the older towns. The legal peculiarities distinguishing town and country, on the other hand, may be said to have been conferred on the new towns in a more clearly defined form from the beginning.

An important difference lay in the mode of settlement. There is evidence that in the quondam Roman towns the German newcomers settled much as in a village, i.e. each full member of the community had a certain portion of arable land allotted to him and a share in the common. Their pursuits would at first be mainly agricultural. The new towns, on the other hand, general economic conditions having meanwhile begun to undergo a marked change, were founded with the intention of establishing centres of trade. Periodical markets, weekly or annual, had preceded them, which already enjoyed the special protection of the king’s ban, acts of violence against traders visiting them or on their way towards them being subject to special punishment. The new towns may be regarded as markets made permanent. The settlers invited were merchants (mercatores personati) and handicraftsmen. The land now allotted to each member of the community was just large enough for a house and yard, stabling and perhaps a small garden (50 by 100 ft. at Freiburg, 60 by 100 ft. at Bern). These building plots were given as free property or, more frequently, at a merely nominal rent (Wurtzins) with the right of free disposal, the only obligation being that of building a house. All that might be required besides would be a common for the pasture of the burgesses’ cattle.

The example thus set was readily followed in the older towns. The necessary land was placed at the disposal of new settlers, either by the members of the older agricultural community, or by the various churches. The immigrants were of widely differing status, many being serfs who came either with or without their lords’ permission. The necessity of putting a stop to belated prosecutions on this account in the town court led to the acceptance of the rule that nobody who had lived in a town undisturbed for the term of a year and a day could any longer be claimed by a lord as his serf. But even those who had migrated into a town with their lords’ consent could not very well for long continue in serfdom. When, on the other hand, certain bishops attempted to treat all new-comers to their city as serfs, the emperor Henry V. in charters for Spires and Worms proclaimed that in these towns all serf-like conditions should cease. This ruling found expression in the famous saying: Stadtluft macht frei, “town-air renders free.” As may be imagined, this led to a rapid increase in population, mainly during the 11th to 13th centuries. There would be no difficulty for the immigrants to find a dwelling, or to make a living, since most of them would be versed in one or other of the crafts in practice among villagers.

The most important further step in the history of the towns was the establishment of an organ of self-government, the town-council (Rat, consilium, its members, Ratmänner, consules, less frequently consiliarii), with one, two or more burgomasters (Bürgermeister, magistri civium, proconsules) at its head. (It was only after the Renaissance that the town-council came to be styled senate, and the burgomasters in Latin documents, consules.) As units of local government the towns must be considered as originally placed on the same legal basis as the villages, viz. as having the right of taking care of all common interests below the cognizance of the public courts or of those of their lord.5 In the towns, however, this right was strengthened at an early date by the jus negotiale. At least as early as the beginning of the 11th century, but probably long before that date, mercantile communities claimed the right, confirmed by the emperors, of settling mercantile disputes according to a law of their own, to the horror of certain conservative-minded clerics.6 Furthermore, in the rapidly developing towns, opportunities for the exercise of self-administrative functions constantly increased. The new self-governing body soon began to legislate in matters of local government, imposing fines for the breach of its by-laws. Thus it assumed a jurisdiction, partly concurrent with that of the lord, which it further extended to breaches of the peace. And, finally, it raised funds by means of an excise-duty, Ungeld (cf. the English malatolta) or Accise, Zeise. In the older and larger towns it soon went beyond what the bishops thought proper to tolerate; conflicts ensued; and in the 13th century several bishops obtained decrees in the imperial court, either to suppress the Rat altogether, or to make it subject to their nomination, and more particularly to abolish the Ungeld, as detrimental to episcopal finances. In the long run, however, these attempts proved of little avail.

Meanwhile the tendency towards self-government spread even to the lower ranks of town society, resulting in the establishment of craft-gilds. From a very early period there is reason to believe merchants among themselves formed gilds for social and religious purposes, and for the furtherance of their economic interests. These gilds would, where they existed, no doubt also influence the management of town affairs; but nowhere has the Rat, as used to be thought, developed out of a gild, nor has the latter anywhere in Germany played a part at all similar in importance to that of the English gild merchant, the only exception being for a time the Richerzeche, or Gild of the Rich of Cologne, from early times by far the largest, the richest, and the most important trading centre among German cities, and therefore provided with an administration more complex, and in some respects more primitive, than any other. On the other hand, the most important commodities offered for sale in the market had been subject to official examination already in Carolingian times. Bakers’, butchers’, shoemakers’ stalls were grouped together in the market-place to facilitate control, and with the same object in view a master was appointed for each craft as its responsible representative. By and by these crafts or “offices” claimed the right of electing their master and of assisting him in examining the goods, and even of framing by-laws regulating the quality of the wares and the process of their manufacture. The bishops at first resented these attempts at self-management, as they had done in the case of the town council, and imperial legislation in their interests was obtained. But each craft at the same time formed a society for social, beneficial and religious purposes, and, as these were entirely in accordance with the wishes of the clerical authorities, the other powers could not in the long run be withheld, including that of forcing all followers of any craft to join the gild (Zunftzwang). Thus the official inspection of markets, community of interests on the part of the craftsmen, and co-operation for social and religious ends, worked together in the formation of craft-gilds. It is not suggested that in each individual town the rise of the gilds was preceded by an organization of crafts on the part of the lord and his officers; but it is maintained that as a general thing voluntary organization could hardly have proceeded on such orderly lines as on the whole it did, unless the framework had in the first instance been laid down by the authorities: much as in modern times the working together in factories has practically been an indispensable preliminary to the formation of trade unions. Much less would the principle of forced entrance have found such ready acceptance both on the part of the authorities and on that of the men, unless it had previously been in full practice and recognition under the system of official market-control. The different names for the societies, viz. fraternitas, Brüderschaft, officium, Amt, condictum, Zunft, unio, Innung, do not signify different kinds of societies, but only different aspects of the same thing. The word Gilde alone forms an exception, inasmuch as, generally speaking, it was used by merchant gilds only.7

From an early date the towns, more particularly the older episcopal cities, took a part in imperial politics. Legally the bishops were in their cities mere representatives of the imperial government. This fact found formal expression mainly in two ways. The Vogt, although appointed by the bishop, received the “ban,” i.e. the power of having justice executed, which he passed on to the lesser officers, from the king or emperor direct. Secondly, whenever the emperor held a curia generalis (or general assembly, or diet) in one of the episcopal cities, and for a week before and after, all jurisdictional and administrative power reverted to him and his immediate officers. The citizens on their part clung to this connexion and made use of it whenever their independence was threatened by their bishops, who strongly inclined to consider themselves lords of their cathedral cities, much as if these had been built on church-lands. As early as 1073, therefore, we find the citizens of Worms successfully rising against their bishop in order to provide the emperor Henry IV. with a refuge against the rebellious princes. Those of Cologne made a similar attempt in 1074. But a second class of imperial cities (Reichsstädte), much more numerous than the former, consisted of those founded on demesne-land belonging either to the Empire or to one of the families who rose to imperial rank. This class was largely reinforced, when after the extinction of the royal house of Hohenstaufen in the 13th century, a great number of towns founded by them on their demesne successfully claimed immediate subjection to the crown. About this time, during the interregnum, a federation of more than a hundred towns was formed, beginning on the Rhine, but spreading as far as Bremen in the north, Zürich in the south, and Regensburg in the east, with the object of helping to preserve the peace. After the death of King William in 1256, they resolved to recognize no king unless unanimously elected. This league was joined by a powerful group of princes and nobles and found recognition by the prince-electors of the Empire; but for want of leadership it did not stand the test, when Richard of Cornwall and Alphonso of Castile were elected rival kings in 1257.8 In the following centuries the imperial cities in south Germany, where most of them were situated, repeatedly formed leagues to protect their interests against the power of the princes and the nobles, and destructive wars were waged; but no great political issue found solution, the relative position of the parties after each war remaining much what it had been before. On the part of the towns this was mainly due to lack of leadership and of unity of purpose. At the time of the Reformation the imperial towns, like most of the others, stood forward as champions of the new cause and did valuable service in upholding and defending it. After that, however, their political part was played out, mainly because they proved unable to keep up with modern conditions of warfare. It should be stated that seven among the episcopal cities, viz. Cologne, Mainz, Worms, Spires, Strassburg, Basel and Regensburg, claimed a privileged position as “Free Cities,” but neither is the ground for this claim clearly established, nor its nature well defined. The general obligations of the imperial cities towards the Empire were the payment of an annual fixed tax and the furnishing of a number of armed men for imperial wars, and from these the above-named towns claimed some measure of exemption. Some of the imperial cities lost their independence at an early date, as unredeemed pledges to some prince who had advanced money to the emperor. Others seceded as members of the Swiss Confederation. But a considerable number survived until the reorganization of the Empire in 1803. At the peace in 1815, however, only four were spared, namely, Frankfort, Bremen, Hamburg and Lübeck, these being practically the only ones still in a sufficiently flourishing and economically independent position to warrant such preferential treatment. But finally Frankfort, having chosen the wrong side in the war of 1866, was annexed by Prussia, and only the three seaboard towns remain as full members of the new confederate Empire under the style of Freie und Hansestädte. But until modern times most of the larger Landstädte or mesne-towns for all intents and purposes were as independent under their lords as the imperial cities were under the emperor. They even followed a foreign policy of their own, concluded treaties with foreign powers or made war upon them. Nearly all the Hanseatic towns belonged to this category. With others like Bremen, Hamburg and Magdeburg, it was long in the balance which class they belonged to. All towns of any importance, however, were for a considerable time far ahead of the principalities in administration. It was largely this fact that gave them power. When, therefore, from about the 15th century the princely territories came to be better organized, much of the raison d’être for the exceptional position held by the towns disappeared. The towns from an early date made it their policy to suppress the exercise of all handicrafts in the open country. On the other hand, they sought an increase of power by extending rights of citizenship to numerous individual inhabitants of the neighbouring villages (Pfalbürger, a term not satisfactorily explained). By this and other means, e.g. the purchase of estates by citizens, many towns gradually acquired a considerable territory. These tendencies both princes and lesser nobles naturally tried to thwart, and the mediate towns or Landstädte were finally brought to stricter subjection, at least in the greater principalities such as Austria and Brandenburg. Besides, the less favourably situated towns suffered through the concentration of trade in the hands of their more fortunate sisters. But the economic decay and consequent loss of political influence among both imperial and territorial towns must be chiefly ascribed to inner causes.

Certain leading political economists, notably K. Bücher (Die Bevölkerung von Frankfurt a. M. im 14ten und 15ten Jahrhundert, i., Tübingen, 1886; Die Entstehung der Volkswirtschaft, 5th ed., Tübingen, 1906), and, in a modified form, W. Sombart (Der moderne Kapitalismus, 2 vols., Leipzig, 1902), have propounded the doctrine of one gradual progression from an agricultural state to modern capitalistic conditions. This theory, however, is nothing less than an outrage on history. As a matter of fact, as far as modern Europe is concerned, there has twice been a progression, separated by a period of retrogression, and it is to the latter that Bücher’s picture of the agricultural and strictly protectionist town (the geschlossene Stadtwirtschaft) of the 14th and 15th centuries belongs, while Sombart’s notion of an entire absence of a spirit of capitalistic enterprise before the middle of the 15th century in Europe north of the Alps, or the 14th century in Italy, is absolutely fantastic.9 The period of the rise of cities till well on in the 13th century was naturally a period of expansion and of a considerable amount of freedom of trade. It was only afterwards that a protectionist spirit gained the upper hand, and each town made it its policy to restrict as far as possible the trade of strangers. In this revolution the rise of the lower strata of the population to power played an important part.

The craft-gilds had remained subordinate to the Rat, but by-and-by they claimed a share in the government of the towns. Originally any inhabitant holding a certain measure of land, freehold or subject to the mere nominal ground-rent above-mentioned, was a full citizen independently of his calling, the clergy and the lord’s retainers and servants of whatever rank, who claimed exemption from scot and lot, to use the English formula, alone excepted. The majority of the artisans, however, were not in this happy position. Moreover, the town council, instead of being freely elected, filled up vacancies in its ranks by co-optation, with the result that all power became vested in a limited number of rich families. Against this state of things the crafts rebelled, alleging mismanagement, malversation and the withholding of justice. During the 14th and 15th centuries revolutions and counter-revolutions, sometimes accompanied by considerable slaughter, were frequent, and a great variety of more democratic constitutions were tried. Zürich, however, is the only German place where a kind of tyrannis, so frequent in Italy, came to be for a while established. On the whole it must be said that in those towns where the democratic party gained the upper hand an unruly policy abroad and a narrow-minded protection at home resulted. An inclination to hasty measures of war and an unwillingness to observe treaties among the democratic towns of Swabia were largely responsible for the disasters of the war of the Swabian League in the 14th century. At home, whereas at first markets had been free and open to any comer, a more and more protective policy set in, traders from other towns being subjected more and more to vexatious restrictions. It was also made increasingly difficult to obtain membership in the craft-gilds, high admission fees and so-called masterpieces being made a condition. Finally, the number of members became fixed, and none but members’ sons and sons-in-law, or members’ widows’ husbands were received. The first result was the formation of a numerous proletariate of life-long assistants and of men and women forcibly excluded from following any honest trade; and the second consequence, the economic ruin of the town to the exclusive advantage of a limited number. From the end of the 15th century population in many towns decreased, and not only most of the smaller ones, but even some once important centres of trade, sank to the level almost of villages. Those cities, on the other hand, where the mercantile community remained in power, like Nuremberg and the seaboard towns, on the whole followed a more enlightened policy, although even they could not quite keep clear of the ever-growing protective tendencies of the time. Many even of the richer towns, notably Nuremberg, ran into debt irretrievably, owing partly to an exorbitant expenditure on magnificent public buildings and extensive fortifications, calculated to resist modern instruments of destruction, partly to a faulty administration of the public debt. From the 13th century the towns had issued (“sold,” as it was called) annuities, either for life or for perpetuity in ever-increasing number, until it was at last found impossible to raise the funds necessary to pay them.

One of the principal achievements of the towns lay in the field of legislation. Their law was founded originally on the general national (or provincial) law, on custom, and on special privilege. New foundations were regularly provided by their lord with a charter embodying the most important points of the special law of the town in question. This miniature code would thenceforth be developed by means of statutes passed by the town council. The codification of the law of Augsburg in 1276 already fills a moderate volume in print (ed. by Christian Meyer, Augsburg, 1872). Later foundations were frequently referred by their founders to the nearest existing town of importance, though that might belong to a different lord. Afterwards, if a question in law arose which the court of a younger town found itself unable to answer, the court next senior in affiliation was referred to, which in turn would apply to the court above, until at last that of the original mother town was reached, whose decision was final. This system was chiefly developed in the colonial east, where most towns were affiliated directly or indirectly either to Lübeck or to Magdeburg; but it was by no means unknown in the home country. A number of collections of such judgments (Schöffensprüche) have been published. It is also worth mentioning that it was usual to read the police by-laws of a town at regular intervals to the assembled citizens in a morning-speech (Morgenspraehe).10

To turn to Italy, the country for so many centuries in close political connexion with Germany, the foremost thing to be noted is that here the towns grew to even greater independence, many of them in the end acknowledging no overlord whatever after the yoke of the German kings had been shaken off. On the other hand, nearly all of them in the long run fell under the sway of some local tyrant-dynasty.

From Roman times the country had remained thickly studded with towns, each being the seat of a bishop. From this arose their most important peculiarity. For it was largely due to an identification of dioceses and municipal territories that the nobles of the surrounding country took up their headquarters in the cities, either voluntarily or because forced to do so by the citizens, who made it their policy thus to turn possible opponents into partisans and defenders. In Germany, on the other hand, nobles and knights were carefully shut out so long as the town’s independence was at stake, the members of a princely garrison being required to take up their abode in the citadel, separated from the town proper by a wall. Only in the comparatively few cathedral cities this rule does not obtain. It will be seen that, in consequence of this, municipal life in Italy was from the first more complex, the main constituent parts of the population being the capitani, or greater nobles, the valvassori, or lesser nobles (knights) and the people (popolo). Furthermore, the bishops being in most cases the exponents of the imperial power, the struggle for freedom from the latter ended in a radical riddance from all temporal episcopal government as well. Foremost in this struggle stood the cities of Lombardy, most of which all through the barbarian invasions had kept their walls in repair and maintained some importance as economic centres, and whose popolo largely consisted of merchants of some standing. As early as the 8th century the laws of the Langobard King Aistulf distinguished three classes of merchants (negotiantes), among whom the majores et potentes were required to keep themselves provided with horse, lance, shield and a cuirass. The valley of the Po formed the main artery of trade between western Europe and the East, Milan being besides the point of convergence for all Alpine passes west of the Brenner (the St Gotthard, however, was not made accessible until early in the 13th century). Lombard merchants soon spread all over western Europe, a chief source of their ever-increasing wealth being their employment as bankers of the papal see.

The struggle against the bishops, in which a clamour for a reform of clerical life and a striving for local self-government were strangely interwoven, had raged for a couple of generations when King Henry V., great patron of municipal freedom as he was, legalized by a series of charters the status quo (Cremona, 1114, Mantua, 1116). But under his weak successors the independence of the cities reached such a pitch as to be manifestly intolerable to an energetic monarch like Frederick I. Besides, the more powerful among them would subdue or destroy their weaker neighbours, and two parties were formed, one headed by Milan, the other by Cremona. Como and Lodi complained of the violence used to them by the former city. Therefore in 1158 a commission was appointed embracing four Roman legists as representatives of the emperor, as well as those of fourteen towns, to examine into the imperial and municipal rights. The claims of the imperial government, jurisdictional and other, were acknowledged, only such rights of self-government being admitted as could be shown to be grounded on imperial charters. But when it came to carrying into effect these Roncaglian decrees, a general rising resulted. Milan was besieged by the emperor and destroyed in 1162 in accordance with the verdict of her rivals. Nevertheless, after a defeat at Legnano in 1176, Frederick was forced to renounce all pretensions to interference with the government of the cities, merely retaining an overlordship that was not much more than formal (peace of Constance in 1183). All through this war the towns had been supported by Pope Alexander III. Similarly under Frederick II. the renewal of the struggle between emperor and pope dovetailed with a fresh outbreak of the war with the cities, who feared lest an imperial triumph over the church would likewise threaten their independence. The emperor’s death finally decided the issue in their favour.

Constitutionally, municipal freedom was based on the formation of a commune headed by elected consuls, usually to the number of twelve, representing the three orders of capitani, valvassori and popolo. Frequently, however, the number actually wielding power was much more restricted, and their position altogether may rather be likened to that of their Roman predecessors than to that of their German contemporaries. In all important matters they asked the advice and support of “wise men,” sapientes, discretiores, prudentes, as a body called the credenza, while the popular assembly (parlamentum, concio, consilium generale) was the true sovereign. The consuls with the assistance of judices also presided in the law-courts; but besides the consuls of the commune there were consules de placitis specially appointed for jurisdictional purposes.

In spite of these multifarious safeguards, however, family factions early destroyed the fabric of liberty, especially as, just as there was an imperial, or Ghibelline, and a papal, or Guelph party among the cities as a whole, thus also within each town each faction would allege adherence to and claim support by one or other of the great world-powers. To get out of the dilemma of party-government, resort was thereupon had to the appointment as chief magistrate of a podestà from among the nobles or knights of a different part of the country not mixed up with the local feuds. But the end was in most cases the establishment of the despotism of some leading family, such as the Visconti at Milan, the Gonzaga at Mantua, the della Scala in Verona and the Carrara in Padua.

In Tuscany, the historic rôle of the cities, with the exception of Pisa, begins at a later date, largely owing to the overlordship of the powerful margraves of the house of Canossa and their successors, who here represented the emperor. Pisa, however, together with Genoa, all through the 11th century distinguished itself by war waged in the western Mediterranean and its isles against the Saracens. Both cities, along with Venice, but especially the Genoese, also did excellent service in reducing the Syrian coast towns still in the hands of the Turks in the reigns of Kings Baldwin I. and Baldwin II. of Jerusalem, while more particularly Pisa with great constancy placed her fleet at the disposal of the Hohenstaufen emperors for warfare with Sicily.

Meanwhile communes with consuls at their head were formed in Tuscany much as elsewhere. On the other hand the Tuscan cities managed to prolong the reign of liberty to a much later epoch, no podestà ever quite succeeding here in his attempts to establish the rule of his dynasty. Even when in the second half of the 15th century the Medici in Florence attained to power, the form at least of a republic was still maintained, and not till 1531 did one of them, supported by Charles V., assume the ducal title.

Long before the last stage, the rule of signori, was reached, however, the commune as originally constituted had everywhere undergone radical changes. As early as the 13th century the lower orders among the inhabitants formed an organization under officers of their own, side by side with that of the commune, which was controlled by the great and the rich; e.g. at Florence the people in 1250 rose against the turbulent nobles and chose a capitano del popolo with twelve anziani, two from each of the six city-wards (sestieri), as his council. The popolo itself was divided into twenty armed companies, each under a gonfaloniere. But later the arti (craft-gilds), some of whom, however, can be shown to have existed under consuls of their own as early as 1203, attained supreme importance, and in 1282 the government was placed in the hands of their priori, under the name of the signoria. The Guelph nobles were at first admitted to a share in the government, on condition of their entering a gild, but in 1293 even this privilege was withdrawn. The ordinamenti della giustizia of that year robbed the nobility of all political power. The lesser or lower arti, on the other hand, were conceded a full share in it, and a gonfaloniere della giustizia was placed at the head of the militia. In the 14th century twelve buoni uomini representing the wards (sestieri) were superadded, all these dignitaries holding office for two months only. And besides all these, there existed three competing chief justices and commanders of the forces called in from abroad and holding office for six months, viz. the podestà, the capitano del popolo, and the esecutore della giustizia. In spite of all this complicated machinery of checks and balances, revolution followed upon revolution, nor could an occasional reign of terror be prevented like that of the Signore Gauthier de Brienne, duke of Athens (1342-1343). It was not till after a rising of the lowest order of all, the industrial labourers, had been suppressed in 1378 (tumulto dei Ciompi, the wool-combers), that quieter times ensued under the wise leadership, first of the Albizzi and finally of the Medici.

The history of the other Tuscan towns was equally tumultuous, all of them save Lucca, after many fitful changes finally passing under the sway of Florence, or the grand-duchy of Tuscany, as the state was now called. Pisa, one time the mightiest, had been crushed between its inland neighbour and its maritime rival Genoa (battle of Meloria, 1282).

Apart in its constitutional development from all other towns in Italy, and it might be added, in Europe, stands Venice. Almost alone among Italian cities its origin does not go back to Roman times. It was not till the invasions of Hun and Langobard that fugitives from the Venetian mainland took refuge among the poor fishermen on the small islands in the lagoons and on the lido—the narrow stretch of coast-line which separates the lagoons from the Adriatic—some at Grado, some at Malamocco, others on Rialto. A number of small communities was formed under elected tribunes, acknowledging as their sovereign the emperor at Constantinople. Treaties of commerce were concluded with the Langobard kings, thus assuring a market for the sale of imports from the East and for the purchase of agricultural produce. Just before or after A.D. 700 the young republic seems to have thrown off the rule of the Byzantine dux Histriae et Venetiae and elected a duke (doge) of its own, in whom was vested the executive power, the right to convoke the popular assembly (concio) and appoint tribunes and justices. Political unity was thus established, but it was not till after another century of civil war that Rialto was definitely chosen the seat of government and thus the foundation of the present city laid. After a number of attempts to establish a hereditary dukedom, Duke Domenico Flabianico in 1032 passed a law providing that no duke was to appoint his successor or procure him to be elected during his own lifetime. Besides this two councils were appointed without whose consent nothing of importance was to be done. After the murder by the people of Duke Vitale Michiel in 1172, who had suffered naval defeat, it was deemed necessary to introduce a stricter constitutional order. According to the orthodox account, some details of which have, however, recently been impugned,11 the irregular popular meeting was replaced by a great council of from 450 to 480 members elected annually by special appointed electors in equal proportion from each of the six wards. One of the functions of this body was to appoint most of the state officials or their electors. There was also an executive council of six, one from each ward. Besides these, the duke, who was henceforward elected by a body of eleven electors from among the aristocracy, would invite persons of prominence (the pregadi) in order to secure their assent and co-operation, whenever a measure of importance was to be placed before the great council. Only under extraordinary circumstances the concio was still to be called. The tenure of the duke’s office was for life. The general tendency of constitutional development in Venice henceforward ran in an exactly opposite direction to that of all other Italian cities towards a growing restriction of popular rights, until in 1296 the great council was for all future time closed to all but the descendants of a limited number of noble families, whose names were in that year entered in the Golden Book. It still remained to appoint a board to superintend the executive power. These were the avvogadori di commune, and, since Tiepolo’s conspiracy in 1310, the Consiglio dei Dieci, the Council of Ten, which controlled the whole of the state, and out of which there developed in the 16th century the state inquisition.

While in all prominent Italian cities the leading classes of the community were largely made up of merchants, in Venice the nobility was entirely commercial. The marked steadiness in the evolution of the Venetian constitution is no doubt largely due to this fact. Elsewhere the presence of large numbers of turbulent country nobles furnished the first germ for the unending dissensions which ruined such promising beginnings. In Venice, on the contrary, its businesslike habits of mind led the ruling class to make what concessions might seem needful, while both the masses and the head of the state were kept in due subjection to the laws. Too much stability, however, finally changed into stagnation, and decay followed. The foreign policy of Venice was likewise mainly dictated by commercial motives, the chief objectives being commercial privilege in the Byzantine empire and in the Frankish states in the East, domination of the Adriatic, occupation of a sufficient hinterland on the terra firma, non-sufferance of the rivalry of Genoa, and, finally, maintenance of trade-supremacy in the eastern Mediterranean through a series of alternating wars and treaties with Turkey, the lasting monument of which was the destruction of the Parthenon in 1685 by a Venetian bomb. At last the proud republic surrendered to Napoleon without a stroke.

The cities of southern Italy do not here call for special attention. Several of them developed a certain amount of independence and free institutions, and took an important part in trade with the East, notably so Amalfi. But after incorporation in the Norman kingdom all individual history for them came to an end.

Rome, finally, derived its importance from being the capital of the popes and from its proud past. From time to time spasmodic attempts were made to revive the forms of the ancient republic, as under Arnold of Brescia in the 12th and by Niccolò di Rienzo in the 14th century; but there was no body of stalwart, self-reliant citizens to support such measures: nothing but turbulent nobles on the one hand and a rabble on the other.

In no country is there such a clear grouping of the towns on geographical lines as in France, these geographical lines, of course, having in the first instance been drawn by historical causes. Another feature is the extent to which, in the unruly times preceding the civic movement, serfdom had spread among the inhabitants even of the towns throughout the greater part of the country, and the application of feudal ideas to town government. In some other respects the constitution of the cities in the south of France, as will be seen, has more in common with that of the Italian communes, and that of the northern French towns with those of Germany, than the constitutions of the various groups of French towns have among each other.

In the group of the villes consulaires, comprising all important towns in the south, the executive was, as in Italy, in the hands of a body of consules, whose number in most cases rose to twelve. They were elected for the term of one year and re-eligible only after an interval, and they were supported by a municipal council (commune consilium, consilium magnum or secretum or generale, or colloquium) and a general assembly (parlamentum, concio, commune consilium, commune, universitas civium), which, however, as a rule was far from comprising the whole body of citizens. Another feature which these southern towns had in common with their Italian neighbours was the prominent part played by the native nobility. The relations with the clergy were generally of a more friendly character than in the north, and in some cases the bishop or archbishop even retained a considerable influence in the management of the town’s affairs. Dissensions among the citizens, or between the nobles and the bourgeois, frequently ended in the adoption of a podestat. And in several cities of the Languedoc, each of the two classes composing the population retained its separate laws and customs. It is matter of dispute whether vestiges of Roman institutions had survived in these parts down to the time when the new constitutions sprang into being; but all investigators are pretty well agreed that in no case did such remnants prove of any practical importance. Roman law, however, was never quite superseded by Germanic law, as appears from the statuts municipaux. In the improvement and expansion of these statutes a remarkable activity was displayed by means of an annual correctio statutorum carried out by specially appointed statutores. In the north, on the other hand, the carta communiae, forming as it were the basis of the commune’s existence, seems to have been considered almost as something sacred and unchangeable.

The constitutional history of the communes in northern France in a number of points widely differed from that of these villes consulaires. First of all the movement for their establishment in most cases was to a far greater degree of a revolutionary character. These revolutions were in the first place directed against the bishops; but the position both of the higher clergy and of the nobility was here of a nature distinctly more hostile to the aspirations of the citizens than it was in the south. As a result the clergy and the nobles were excluded from all membership of the commune, except inasmuch as that those residing in the town might be required to swear not to conspire against it. The commune (communia, communa, communio, communitas, conjuratio, confoederatio) was formed by an oath of mutual help (sacramentum, juramentum communiae). The members were described as jurati (also burgenses, vicini, amici), although in some communes that term was reserved for the members of the governing body. None but men of free and legitimate birth, and free from debt and contagious or incurable disease were received. The members of the governing body were styled jurés (jurati), pairs (pares) or échevins (scabini). The last was, however, as in Germany, more properly the title of the jurors in the court of justice, which in many cases remained in the hands of the lord. In some cases the town council developed out of this body; but in the larger cities, like Rouen, several councils worked and all these names were employed side by side. The number of the members of the governing body proper varies from twelve to a hundred, and its functions were both judicial and administrative. There was also known an arrangement corresponding to the German alte und sitzende Rat, viz. of retired members who could be called in to lend assistance on important occasions. The most striking distinction, however, as against the villes consulaires was the elevation of the president of the body to the position of maire or mayeur (sometimes also called prévôt, praepositus). As elsewhere, at first none but the civic aristocracy were admitted to take part in the management of the town’s affairs; but from the end of the 13th century a share had to be conceded to representatives of the crafts. Dissatisfaction, however, was not easily allayed; the lower orders applied for the intervention of the king; and that effectively put an end to political freedom. This tendency of calling in state help marks a most striking difference as against the policy followed by the German towns, where all classes appear to have been always far too jealous of local independence. The result for the nation was in the one case despotism, equality and order, in the other individual liberty and an inability to move as a whole. At an earlier stage the king had frequently come to the assistance of the communes in their struggle with their lords. By-and-by the king’s confirmation came to be considered necessary for their lawful existence. This proved a powerful lever for the extension of the king’s authority. It may seem strange that in France the towns never had recourse to those interurban leagues which played so important a part in Italian and in German history.

These two varieties, the communes and the villes consulaires together form the group of villes libres. As opposed to these stand the villes franches, also called villes prévotales after the chief officer, villes de bourgeoisie or villes soumises. They make up by far the majority of French towns, comprising all those situated in the centre of the kingdom, and also a large number in the north and the south. They are called villes franches on account of their possessing a franchise, a charter limiting the services due by the citizens to their lord, but political status they had little or none. According to the varying extent of the liberties conceded them, there may be distinguished towns governed by an elective body and more or less fully authorized to exercise jurisdiction; towns possessing some sort of municipal organization, but no rights of jurisdiction, except that of simple police; and, thirdly, those governed entirely by seignorial officers. To this last class belong some of the most important cities in France, wherever the king had power enough to withhold liberties deemed dangerous and unnecessary. On the other hand, towns of the first category often come close to the villes libres. A strict line of demarcation, however, remains in the mutual oath which forms the basis of the civic community in both varieties of the latter, and in the fact that the ville libre stands to its lord in the relation of vassal and not in that of an immediate possession. But however complètement assujettie Paris might be, its organization, naturally, was immensely more complex than that of hundreds of smaller places which, formally, might stand in an identical relationship to their lords. Like other villes franches under the king, Paris was governed by a prévôt (provost), but certain functions of self-government for the city were delegated to the company of the marchands de l’eau, mercatores aquae, also called mercatores ansati, that is, the gild of merchants whose business lay down the river Seine, in other words, a body naturally exclusive, not, however, to the citizens as such. At their head stood a prévôt des marchands and four eschevins de la marchandise. Other prud’hommes were occasionally called in, and from 1296 prévôt and échevins, appointed twenty-four councillors to form with themselves a parloir aux bourgeois. The crafts of Paris were organized in métiers, whose masters were appointed, some by the prévôt de Paris, and some by certain great officers of the court. In the tax rolls of A.D. 1292 to 1300 no fewer than 448 names of crafts occur, while the Livre des métiers written in 1268 by Étienne de Boileau, then prévôt de Paris, enumerates 101 organized bodies of tradesmen or women and artisans. Among the duties of these bodies, as elsewhere, was the guet or night-watch, which necessitated a military organization under quartiniers, cinquantainiers and dixainiers. This gave them a certain power. But both their revolutions, under the prévôt des marchands, Étienne Marcel, after the battle of Maupertuis, and again in 1382, were extremely short-lived, and the only tangible result was a stricter subjection to the king and his officers.