Brotier, sur Tacite , quoted by M. J. Simonnet, Histoire de la Saisine , p. 54.
7. In Sweden the term Lands almanningar distinguished the common domain of the whole nation from that of thecommunes Bys almanningar .
8. Neque quisquam modum certum aut fines habet proprios, sed magistrates ac principes in annos singulos gentibuscognationibusque hominum, qui una coierunt quantum et quo loco visum est agri ettribuunt; atque anno post alio transirecogunt ( De Bel. Gal . 1. vi. a. 29).
9. Non casus nec fortuita conglobatia turmam aut cuneum facit sed familiae et propinquitates ( Germ . c. vii.). This propinquitas was alike the military and economic unit.
10. The Greek , and the Roman gens, equally with the village of Java or India, and the Russian mir or Slav gmind ,were only patriarchal groups founded on common descent.
11. Pertz, Leg. ix. 10, art. 3.
12. See Sohm, Altdeutscke Reichs- und Gerichtsverfassung .
13. This appears clearly in texts of the middle ages. For example: In hac silva nullus nostrum privatim habebat aliquid, sedcommuniter pertinebat ad omnes villae nostrae incolas . Dipl. of 1173. Bodmann I p. 453, quoted by Von Maurer. Theassociation of inhabitants was called commenitas or communio. LEX Burg. Add. L Tit. 1, c. vi. Sylvarum, montium etpascuorum communionem . DIPLOME of 1284, quoted by v. Maurer, Einleiteng , etc., p. 144, communionem qua vulgaAlmenda vacater . Dipl. of 1291. Id. In communitate villa Merle, quae Alirnend vulgariter appellatur .
14. Com. IV. 1, 3.
15. It seems, however, that, either in certain districts or at a later period, the portion of land depended on the importance of.
the house, for Grimm quotes a curious maxim of ancient German law: "The habitation, tompt , in the mother of the field; itdetermines the portion of arable, the portion of arable determines that of pasture, the portion of pasture that of forest, theportion of forest that of rushes to thatch the roof, the portion of rushes divides the water in the streams."16. M von Maurer, whose profound researches have thrown so much light on this subject, quotes some curious texts in hisbook Einleitung zur Geschichte der Mark- Hof. Dorf- und Stadtverfassung . Thus: Einleitung , p. 278, " In divisionemmansorum more theutonico exerritui zeugitenam vel proconselesrem provinciam funiculo hereditetis divisit ." VictorVitensis, Hist. persec. Vandalicae . Lib. I .c. iv." Henricus comes de Racesbung adduxit multitudinem popeloremn deWestfalia ut incolerent terram Polaborum et divisit eis terrain in funicelo distriubutionis ." Helmod, Chronic. Slav . Lib. I c.
xxxi.
17. Lex Burgond., Add. i. Tit. 1, c. v. Agri communis nullis terminis limiteti exae quationem inter consortes nullo temporedenegandam . Sec also Von Maurer. Einleitung , p. 278: Saxones eam terrain sorte dividentes .
18. M. Fustel de Coulanges recently wrote in the Revue des Deux Mondes of 15 May, 1872: "The word sors was applied toall land that passed by descent. The idea of casting lots was not implied in it." Undoubtedly, at a more recent period, theword sors , or sortes , implied neither casting of lots, nor periodical partition, any more than does the phrase lot of land in thepresent day; but the terms obviously originated in the drawing of lots, customary in early times. All the land of Gaul was notconfiscated and distributed by lot; here M. Fustel is certainly correct. But there is no doubt, that after the conquest it was bymeans of lots that the land taken from the vanquished was apportioned. See Von Maurer, Einleiteng , p. 82. M. Fustel deCoulanges, in an excellent article in the Revue des Deux Mondes , 15 May. 1873, himself quotes several facts which provethat in ancient times the apportionment of the soil was effected by means of lots. " Sors patrimonium significat , says Festusthe grammarian, compare Livy I. 84. This sense of the word sors was a very ancient one in the Latin language; it was thesame with the Greeks, who from a very remote period attributed to the word the double sense of decision by lot andof patrimony. It is clear that the word says, which we meet with in the Merovingian period, had originally the sense ofdecision by lot." "Decision by lot was an old custom, which the population of Greece and Italy had always made use of inthe apportionment of the soil, without which it does not appear how private property could have been established."It is an undoubted fact, that the word sors at a certain period denoted hereditary property; but if there had been anyapportionment by lot, the soil must evidently have been originally common property; for a division by lot is not resorted toexcept to pass out of communism. Originally the portion to be occupied for temporary enjoyment was assigned by periodicaldrawing. Subsequently, portions so obtained were transmitted by descent; private property sprang up in fact from the lastapportionment by lot.
19. The accurate description of these curious customs is due to M. Haussen. See Die Gehörschaften im RegierungebezirkTrier . M. A. Meitzen, in his great work Der Boden des preussischen Staates , has completed the study of them.
20. See Cramer, Wetzlar Nebenst , pp. 854, 864.
21. Mr Blamire, who, in his capacity of commissioner for the commutation of tithes, had a perfect knowledge of the ruralcondition of the country, mentioned these peculiarities at the time of the enquiry, in 1844, on the subject of the partition ofcommons. Report of the Select Committee on Commone inclosure together with the minutes of evidence (1844). Thecustoms regulating the allotment of common pasture varied from village to village, but they can be reduced to two mainsystems. 1. Where they are divided into as many lots as there are inhabitants entitled, which are then assigned by lot. 2.
