absolve no guilty. It is clear, however, that the learned lecturer on the common law was in error on this point, and that this body was in the nature of a jurata delatoria, or jury of accusation, whose verdict went no further than to consign the accused to the triplex ordalium. Again, others have asserted that the modern jury originated with Henry II.; but from Glanville it appears that it must have been of more ancient origin, for he speaks of it as an existing institution in cases of purprestures, nuisances, and trespasses not amounting to disseizins. These were tried, says Glanville, per juratum patriæ sive vicineti coram justiciariis.

In the village communities of Hindustan a form of trial essentially resembling the trial per patriam is yet extant, and happily serves to answer the important question discussed in the antiquarian notes of Blackstone and Starkie. The trial by • jury, as it exists in England and among the Germanic races generally, is directly descended from the trial per patriam, or by the general assembly of heads of families, and was first instituted as a court of appeal in important causes. This is solid ground.

To what extent this primeval institution furnishes the explanation of important historical problems has been cursorily illustrated. It now remains to give a rapid résumé of the facts as they bear upon questions of a practical type.

It is not an unexampled custom even now, though it may represent a transitional stage, for the arable land to be tilled jointly for the common profit; but is usual to find it more or less permanently apportioned out in plots among the households, while the ground left in forest and waste remains in a state of commonty among the villagers. Nor is the principle limited to the Aryan races and to ancient history. The English yeomen colonizing this country in the seventeenth century, and the Tatar tribes of East Russia at the present day, present examples of the same political unit. LeRoy, in his splendid treatise, gives a description of the social economy of the Baskir village communities, on the eastern slopes of the Ural mountaries, which, as belonging to a Tatar race of pastoral no

mades, presents an interesting study of settled life in its first stages. During half the year these Baskirs follow their ancient pastoral habits on the mountains, not wandering at large, but keeping to the summer pasture allotted to their respective villages. The other half is spent in the home village, where the several households have attained to absolute property in their houses and adjacent gardens, while the arable lands and the hay-fields are in the intermediate state, parcelled out among families, it is true, but with a recognition of commonty that permits the village council to grant plots from the village reserve to new families, and to throw back into the reserve plots upon which families have not raised crops for several years. The village council constitutes a patristic court to which all disputes are referred.

The common lands in New England originated in a similar organization, in which, by grant of the General Court, a tract of land was vested in a company of persons, who then proceeded to effect a division and to designate house lots and tracts of meadow to individual proprietors, while the woodland and out-lying pasture remained the common property of the company. But the habits of individuality incident to modern life soon proved fatal to this antique constitution, and in less than half a century the privilege of commonage had to be limited by law to houses already in being, and to those to be afterwards erected with the consent of the town. Thus the commoners became a kind of landed aristocracy that gradually absorbed the common lands-a process analogous to that of feudalization in Europe, and resulting in a similar system of land-tenure, which, as Sir Henry Maine acutely observes, typically illustrates the history of village-communities in ancient Europe and in modern India, and the causes that led to their transformation.

Happily, again, Hylten-Cavalle, the Swedish ethnologist,* has entered into a minute and careful investigation of the ancient land-tenure of the Scandinavians, by which

* Försök i Svensk Ethnologi.

it appears that, while the. Gothic tribes remained nomadie clans, the land occupied by each clan remained as common and undivided clan-land. On the other hand, when permanent agriculture was added to cattle-breeding, that part of the tract which had been tilled in common as odal-land was separated into lots and became the heritage of the several households; but what was not odal remained as common pasture and woodland. The Scandinavian by, or township, is a relic of the ancient Teutonic community. The village commoners were originally one family, which gradually evolved an independent group or tribe, whose whole enclosed tract was the tribe-land, first enjoyed in common, but finally apportioned among the households in lots that became heritable. But long after this had taken place the out-mark of the township was held in common as pasture and woodland. Thus the primitive bys of Sweden took the form, which some of them have kept to this day, of a partly maintained and a partly broken commonty, the undivided outmark remaining in its primitive condition, while the sub-divided in-fields were heritable in families. The word by, as a terminating syllable in the names of towns, springs from this source. The same word, as used to represent the resting-places in the game of goal, confesses a similar origin.

How these relics of ancient Scandinavian land-tenure puzzled that thorough lawyer and antiquary, Sir Walter Scott, is related in his journal of a journey in Shetland. "I cannot," says Sir Walter, "get a distinct idea of the nature of the land rights. The udal proprietors have ceased to exist, yet proper feudal tenures seem ill understood. Districts of ground are in many instances understood to belong to townships or communities, possessing what may be arable in plots, and what is moor as a commonty pro indiviso. But then individuals of such a township often take it upon them to grant fens of particular parts of the property thus possessed pro indiviso. The town of Lerwick is built upon a part of the commonty of Sound, the proprietors of the houses having fen-rights from different heritors of that township, but why from one rather than another seems altogether uncertain."

The word mark (whence, by the way, the feudal title of marquis, and mark as the designation of a money value) involves the fundamental idea of the whole Teutonic land-system. The Tentonic town was, as Sir Henry Maine succinctly observes, an organic, self-acting group of families exercising a common proprietorship over a given tract known as its mark, cultivating the domain on a common system, and sustaining itself by the produce. The mark was divided into three parts -the village mark, the arable or cultivated mark, and the common mark or out-lying waste. The community inhabited the village, cultivated the arable mark in lots appropriated to the several families, and held the ont-mark in common. The organization of the ancient mark has long occupied the minds of German legists and historians; but it is only through the recent investigations of G. L. von Maurer that its important bearing on the facts of modern land-tenure in Germany has been established. The Allmand or Allmende of the Teutonic township is still used for pasture and tillage by the householders, under regulations that have suffered little alteration for a thousand years, and the vestiges of common property are still abundant in some parts of the country. Mr. Mozier's paper in the volume on "Systems of Land Tenure," recently issued under the sanction of the Cobden Club, gives the only summary of von Maurer's conclusions that is accessible to English readers.

It is not creditable to the legal masters of England that it should have been left to a German, Professor Nasse, of Bonn, to collect the evidences of mark land, held as once universal in that country. It is true that English historians like Colgrove, Kemble, and Freeman have always kept this fact in view. But the tendency of legal literature has been to assume that this ancient form of property was extinct. Sir Henry Maine has been the first to confess this palpable blunder on the part of legal authors, who, as a rule, have treated this antique type of landhold as incidental, while in fact it is a relic of the vil lage community system prevalent before the Norman Conquest, and dating from the twilight of ancient history. The common fields, open fields, shuck lands, intermixed lands, etc.,

of English legal text-books, are so many relics of the arable mark of the Saxons. When in grass they are frequently styled lot meadows or lammas lands. It is very common for these fields to be divided by green turf-baulks into three long strips. Each family had its plot in each strip, and the whole was worked on the principle, still traditional in some parts of New England, of three-field husbandry-wheat one year, oats or beans the next, and fallow the third. Individual ownership in these lands only extended from April to October, the whole body of owners having a common pasture right to the fallow and to the baulks. This was known as the right of shack-a word related to the Latin vagare, and signifying to wander. It appears still in the word shack, a beggar, and in shag-bark. The right of shack also pertained to stubble land after the removal of the crops, and to meadow land after thehay-harvest, when individual property ceased and the fences were removed. This was the origin of the old festival day known as Lammas Day, which always occurred on the thirteenth of August, and was celebrated by a general holiday gathering of the community. A few centuries since, according to Marshall, who wrote about the beginning of this century, nearly all the lands of England lay open and commonable. Berkshire, Huntingdonshire, and Wiltshire were the last to give way before feudal tenures. Indeed, the grassy baulks that anciently separated the three fields are still visible in large tracts in the vicinity of Oxford.

In France, again, the old village-community system persisted at points until within the present century, surviving the process of feudalization. In M. Le Play's volume, for example, will be found a description of the village of Les Jaults, the last of several communities that once occupied the Nivernais. Legal writers have regarded them as owing their origin to feudal lords. But in the present state of information they must be accepted as ancient village-settlements, which fell under the authority of feudal lords during the Middle Ages, but persisted after the destruction of the feudal system. In 1840, Les Jaults consisted of seven families,