Chapter VII: Act 1832: There are special rules applicable to each kind of claim (1)

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 L3 or L4 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.

Rights in common fields.

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 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 _burger_, or old inhabitant householders.

Rights in royal forests.

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 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.

Prevention of inclosure.

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 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.

The modern Inclosure Act.

_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 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.

Open Space movement.

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 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.

Amendment of Statue of Merton.

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 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.

Rural commons.

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 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.

Regulation.

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 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.

Statistics.

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 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.*)

FOOTNOTES:

[1] For the commons (_communitates_) in a socio-political sense see
REPRESENTATION and PARLIAMENT.

[2] There is an entry on the court rolls of the manor of Wimbledon of
the division amongst the inhabitants of the vill of the crab-apples
growing on the common.

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 _Burggraf_[2] 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 fortresses[3] 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, _Ratmanner_, _consules_, less frequently _consiliarii_), with one, two or more burgomasters (_Burgermeister_, _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_, _Bruderschaft_, _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 (_Reichsstadte_), 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, Zurich 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 Lubeck, 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 Hansestadte_. But until modern times most of the larger _Landstadte_ 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'etre_ 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 (_Pfalburger_, 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 _Landstadte_ 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. Bucher (_Die Bevolkerung von Frankfurt a. M. im 14ten und 15ten Jahrhundert_, i., Tubingen, 1886; _Die Entstehung der Volkswirtschaft_, 5th ed., Tubingen, 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 Bucher'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. Zurich, 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 Lubeck or to Magdeburg; but it was by no means unknown in the home country. A number of collections of such judgments (_Schoffenspruche_) 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.