I.

_The theory of Maurer as to community of land amongst the Germanic

nations._

G. L. von Maurer is, if not the earliest, at any rate the chief author

of the theory we are examining.

He presented it with great clearness in a book published in 1854.

In this he maintained that, amongst the Germans, private domains,

villages and towns, all spring alike from a primitive _mark_; that

this primitive mark consisted of an area of land held in common; that

the land was cultivated for a long period without there being any

private property; and that the cultivators formed amongst themselves an

“association of the mark,” a “_markgenossenschaft_.” “All land,” he

said, “was in the beginning common-land, _gemeinland_ or _allmende_”

(page 93). “There was nothing which could be rightly termed private

property” (_ibid_). “The ground was divided into equal lots, and this

division was made afresh each year; every member received a part and

moved each year to a new lot.” “The whole mark, cultivated land as well

as forests, was held in common” (p. 97).

“The idea of property,” he says again, “only came as a result of Roman

law” (p. 103). “Property, as we find it in later times, was produced by

the decomposition of the ancient mark” (p. 10).

Our author re-stated his doctrine in another book published two years

later: “The associations of the mark are bound up with the primitive

cultivation of the soil; they can be traced back to the earliest

German settlements, and in all probability once occupied the whole of

Germany.”[54] We have to consider what are the facts, and what the

authorities on which Maurer builds up this doctrine.

As the question concerns very early times, he naturally begins with

early authorities. The first is Cæsar. Cæsar calls our attention, we

are told, to the fact that amongst the Germans “there are no separate

estates or private boundaries.”[55]

This is explicit; and, although one might say that Cæsar was

unacquainted with the Germans at home,[56] it has great weight as

coming from so clear-headed a writer. Let me, however, call attention

to the fact that the passage from Cæsar is by no means a description

of the mark as Maurer and his disciples conceive it. Cæsar does not

show us a _markgenossenschaft_, an association of peasants cultivating

in common land of which they were the common owners. He describes, and

this is a very different thing, the chiefs of the cantons arbitrarily

disposing of the soil of which they alone appear to be the owners, and

each year moving families and groups of men from one place to another.

These people apparently have no rights, no power of initiative; the

chiefs leave them only “as much land as they think fit,” “where they

think fit,” and they “force them” to move from place to place. All this

is far enough removed from the supposed association of the mark--an

association, that is, of free peasants cultivating land in common, in

virtue of their joint ownership; and it would be difficult to make

Cæsar’s observation fit into such a condition of things.[57]

Next comes Tacitus. Does he introduce the mark into the picture which

he draws of the institutions of the Germans? “Yes,” says Maurer; “for

in his 26th chapter, when he uses the word _agri_ he means the mark.”

And again, “all land held in common and not divided, Tacitus calls

_ager_.” But by what authority does Maurer translate _agri_ in Tacitus,

and further on _ager_, by “common lands,” when the word _common_ is not

to be found there? “Because,” says he, “the word _ager_, in the Roman

sense, signified when used by itself _ager publicus_.” Here we have

an apparently unimportant philological statement, but it is one which

plays a considerable part in Maurer’s book. He repeats it three times

(pages 6, 84, and 93). Indeed, if we look more closely into it, we find

that it is the foundation of his system. It was necessary for his view

that the mark should be found in Tacitus; and therefore the word _ager_

by itself had to mean _ager publicus_, _i.e._, mark, common land,

_Gemeinland_. This is exactly what has to be proved. The true sense of

a word cannot be got at by an effort of imagination, or by turning over

the pages of a pocket-dictionary. It is only to be found by bringing

together a number of examples of its use and comparing them; and the

term _ager_ occurs so often in Latin literature that an attentive

student can hardly make any mistake as to its meaning. Nowhere do

we find it in the sense of public land, unless when accompanied by

the adjective _publicus_ or the genitive _populi_, or some other term

to show clearly the especial meaning it is intended to have.[58] By

itself it never meant public land. Read Cato and Varro; they do not

once mention public lands; and yet the word _ager_ occurs frequently

in their works, each time in the sense of a private estate. Some one

buys an _ager_; the owner makes the lustration of his _ager_ (Cato,

141), that is to say, he perambulates the boundaries of his property.

Columella is continually talking about the _ager_ as the property of a

man whom he calls _dominus_. More than thirty passages in Cicero show

that he drew a distinction between an _ager_, which was the property of

a private citizen, and the _ager publicus_, which was the property of

the state. Even the agrarian laws, whose real object was to transform

an _ager publicus_ into an _ager privatus_, mark clearly the difference

between them.[59]

It is, therefore, in no sense true that the word _ager_ by itself

implied public or common land, or that it was in any way analogous to

the word _mark_. So far was this from being the case, that a Roman

jurisconsult expressly says that the dominant idea conveyed by the word

_ager_ is that of complete ownership.[60]

In fact, what a Roman calls _ager_ was very often what we call an

estate. In Cato, for instance, the _ager_ is not simply a field; it is

a domain of some 60, 75, or 150 acres (c.c. 1, 10), which is cultivated

by ten, twelve or sixteen slaves. Columella mentions, as if it were

not unusual, that an _ager_ might be so extensive that the owner would

have to divide it for purposes of agriculture between several groups of

slaves. _Ager_ and _fundus_ are synonymous terms, and they both mean

an area of land cultivated for an owner’s benefit.[61] Pliny speaks in

his letters of his _agri_; and each of these is a great estate that

he either lets out to farmers, or cultivates by means of a body of

slaves. Each _ager_ included, to judge from his description, arable

land, meadows, vineyards and woods. The jurisconsult Paulus makes use

of the two words, _ager_ and _fundus_, in referring to one and the same

domain.[62] Another jurisconsult says in so many words that the word

_ager_ includes all the land of an estate.[63] Finally, if there were

still any doubt, we need only look at the passage from Ulpian in the

_Digest_, which gives the formula under which estates were enrolled

in the census. We see that such properties are called _agri_, and

that each of them comprises land in tillage, vineyards, meadows, and

forests.[64]

All this has to be borne in mind, if we would know what was the idea

that Tacitus associated with the word _agri_; for no doubt Tacitus

used the language of the Romans of his own times. To suppose that he

attached to this word a meaning it had never had, _viz._, _public_

land, and, going even further, the idea of _common_ land--an idea which

never entered the Roman brain--is pure fancy. And this is the error

with which Maurer and his followers set out to misinterpret the whole

of chapter xxvi. of the Germania.[65]

After Tacitus, we have the early records of German law. Is this where

Maurer discovers the mark? If the system of the mark was in full vigour

in early times, and came down from them to more modern days, proof of

its existence would certainly be found in barbaric law. But the word

_mark_ is not to be met with in these codes. You find it neither in the

laws of the Burgundians nor in those of the Visigoths, nor in those of

the Lombards; nor do you find any term that might be its equivalent or

translation. It is absent, in like manner, from the Salic law.

In the Ripuarian law the _word_ is to be found, but in a sense quite

the opposite of that which Maurer attributes to it. Far from implying

a district of land common to all, it denotes the boundary of a private

estate. This will be seen on reading section 60: “If any one buys

a villa or any small estate, he ought to procure witnesses to the

sale.... If a proprietor encroaches on a neighbouring proprietor

(this is the meaning of the word _consors_), he shall pay fifteen

_solidi_.... The boundary of the two estates, _terminatio_, is

formed by distinct landmarks, such as little mounds or stones.... If

a man overstep this boundary, _marca_, and enters the property of

another,[66] he shall pay the fine mentioned above.” Thus, what the

law calls _terminatio_ in one line and _marca_ in the next is clearly

one and the same thing: it is the boundary which separates two private

properties. A fact like this upsets Maurer’s whole system.

Let us turn to the codes of the Germans who remained in Germany proper.

The word _mark_ is not to be met with throughout the Thuringian,

Frisian and Saxon codes. It does occur in those of the Alamanni and

Bavarians; but, instead of signifying a common territory, as Maurer

would have it, it is used for the boundary of a territory. The laws

of the Alamanni lay down that anyone who seizes a free man and sells

him across the borders, _extra_ _terminos_, shall restore him to his

country and pay a fine of forty solidi; immediately after, in the

following line, comes a similar direction in case of the sale of a free

woman beyond the borders, and the only difference is, that in place of

_extra terminos_ we have the phrase _extra marcam_: the two expressions

are, we see, synonymous, and both denote a frontier.[67]

The Bavarian law indicates still more clearly the meaning of the word.

Speaking of a man who takes a slave over the borders, it expresses it

by _extra terminos hoc est extra marcam_.[68] It is impossible more

clearly to indicate that the German word _mark_ is synonymous with the

Latin word _terminus_. Another passage from the Bavarian laws proves

that _mark_ was also used for the boundary of a private estate. Under

the rubric, _De terminis ruptis_, it says that if two neighbours are

at variance about their boundary, the judges ought first to examine

whether the boundary is indicated by visible landmarks, such as marks

on trees, hillocks or rivers. Now these two neighbours who have a

common boundary are termed in the law _commarcani_.[69] Maurer, it is

true, supposes that by this word is meant “men who dwelt in the same

mark, the same common territory,” but he would not have fallen into

this error had he noticed that the same clause in the very next line

expressly tells us that we have here to do with private property,

with land that has been inherited; for each of the disputants makes a

declaration that he has inherited his lands from his ancestors.[70]

Here we have, then, precisely the opposite of mark in the sense of land

held in common. Two neighbouring landowners are at law about their

boundaries. _Commarcani_ is analogous to _confines_, which we find

elsewhere; it is used of two men who have the same _marca_, the same

_finis_, that is, a common boundary.

That the _mark_ was a district possessed in common by a number of

persons there is not a trace in German law. But are there not, at any

rate, vestiges of some kind of common ownership? Maurer maintains that

there are; and as evidence brings forward three instances, all taken

from the Burgundian law: in section 13 he finds the words _in silva

communi_; in section 31, _in communi campo_; and in section 1 of the

“additamentum,” _silvarum et pascuorum communionem_.[71] This is quite

sufficient to convince some readers. Is not the word _communis_ enough?

And yet, let us make sure of our quotations, and with each of them let

us look at the context.

Article 13 does not in the least refer to a forest common to all,

but to one which happens to be held in common between a Roman and a

Burgundian, probably in consequence of the division of an estate which

had belonged to the former.[72] This is a very different thing from a

system of community. The passage shows, on the contrary, that in this

case the forest was the property of two men. The mention in section 31

of a _campus communis_ has led Maurer to say “that there were still in

Gaul many fields which remained undivided.” This is a mistake; for here

again it is a field belonging to two proprietors that is spoken of; one

which is only undivided so far as these two men are concerned. Anyone

who has planted a vine in a common field shall make up for it to the

other owner by handing over to him an equal extent of ground;[73] but

if the co-proprietor from the first objected to his doing it, and the

other has planted his vine in spite of him, he shall lose his pains and

the vine shall belong to the owner of the field.[74] It is plain that

here we have to do with something very different from a piece of ground

common to an entire village. Maurer has, in this instance, made the

mistake of isolating two words instead of reading the whole passage.

As to his third quotation, section 1 of the _additamentum_, we find

that this does not belong to Burgundian law. It belongs to the _Roman

law_ of the Burgundians; which is a very different thing.[75] It is, in

fact, connected with an arrangement entirely Roman in its character,

which is to be met with also in the code of Theodosius, according to

which forest and pasturage might be held in common by a certain number

of owners of land in tillage. The Roman law enacts that in such a

case each owner should have rights over the forest and pasturage in

proportion to the extent of his cultivated land.[76]

Thus we find that the three passages from German law, which Maurer

believes he has discovered to prove the existence of a system of

common ownership, either belong to Roman law or have no connection

with this supposed common ownership of land, and even give positive

proof of private ownership. In the same way finding somewhere the word

_consortes_, he exclaims: “Here we have the associates of the mark”

(p. 145), and he again quotes a passage from the Burgundian law; but,

as in the instance given above, we find that the passage belongs to

Roman law, and, on looking at it, we see that the word _consortes_ is

used in the Roman sense of co-heirs.[77] The meaning of the clause

is that if two or more co-heirs have not yet divided the estate and

apportioned their shares, and one of them demands a division of the

property, it is not to be refused him.[78] In this case, again, we are

far enough away from a system of community in land.

Such are the four passages which Maurer finds, or thinks he finds,

in German law; and he can only use them in support of his theory by

misinterpreting them. The whole body of German law is, in fact, a law

in which private property reigns supreme. Look at the Burgundian law,

and you will find mention of corn fields which are enclosed, and even

of meadows; the forest itself is an object of private property. “If a

Burgundian or a Roman possess no forest, he may take dead wood _from

the forest of another_, and he _to whom the forest belongs_, shall not

hinder him; but if he takes a tree bearing fruit, he shall pay a fine

to the owner, _domino silvæ_.”[79] A right of use, limited besides

to dead wood, is not the same thing as common ownership. It will be

noticed also that the term used in the code for a country domain is

_villa_, with its boundaries, _termini villæ_.[80] Even the lands given

by the king to his servants are marked off by definite boundaries.[81]

These boundaries are sacred; the Burgundian law-giver lays down that

any one who removes a boundary shall lose his hand. It never for a

moment entered into the minds of the Burgundians to establish agrarian

communism.

In the law of the Visigoths, we find men who own vineyards, fields,

meadows, and even pasturage and forests.[82] Land is hereditary

property; and there is an entire section upon the division of landed

possessions amongst co-heirs, as well as one on the boundaries of

private estates. It is the same throughout the Lombard law; the right

of ownership applies to everything, even to forests.[83] The owner of

the land--_dominus_--has the right of selling it.[84] He can also let

it on lease, _libellario nomine_.

The Salic law is a much less complete code than those we have been

considering. It makes no mention of sale; but it contains the rule of

hereditary succession. Land passes from father to son.[85] We also

find enclosed corn fields and meadows,--a state of things hardly to be

reconciled with community of land;[86] there are even forests which are

one man’s property, and where no one has the right of getting wood.[87]

The Ripuarian law indicates the use of hedges and enclosures; it

recognises the right of hereditary succession to land, and also the

power of disposing of it by sale.[88] All these are unmistakable signs

of the prevalence of private ownership.

The hastiest glance at the law of the Alamanni, makes it absolutely

clear that the soil was an object of private property throughout the

district in which it was in force. We see from the first section that

an individual might be so completely owner of his land that he could,

by a mere act of will, give it away to a church; he had not to ask

the leave of any group of associates. Ownership of land is spoken of

as _proprietas_ and it is “perpetual.”[89] It is also hereditary;

for the same law shows that if this man did not give his land to the

church, it would pass “to his heirs;”[90] and it provides for the case

of one of the heirs objecting to the gift, without mentioning the

possibility that an “association of the mark” might lay claim to the

land. The same code also mentions mills and water courses as objects

of private property.[91] The following clause enlightens us still

more as to the condition of the land: If a dispute arises between two

families concerning the boundary of their lands, the two families

fight in presence of the count; the one to whom God gives the victory

enters into possession of the disputed territory; the members of the

other family pay a fine of 12 solidi “because they have attacked _the

property_ of another.”[92] Here we have a law which cannot apply to

lands common to all. It is clearly dealing with property which is

permanent, and sharply defined; though it is property which belongs not

so much to the individual as to the family. Among the Alamanni, as we

see, traces of family ownership still survived.

In Bavarian law property in land is hereditary. Each domain is

surrounded by a boundary made “either by a bank of earth, or by stones

stuck in the ground, or by trees marked with some particular sign.”[93]

And we must not suppose that these boundaries merely enclosed gardens;

they enclosed fields and vineyards. “He who, whilst tilling his field

or planting his vine, has unwittingly moved a land mark, shall restore

it in the presence of his neighbours.” “When two neighbours having a

common boundary have a dispute, if the land marks are not clear, the

one says, ‘My ancestors possessed the land as far as this line, and

left it me by inheritance:’ and the other protests and maintains that

the land belonged to his ancestors as far as some other line; then the

dispute is settled by judicial combat.”[94] This is a good instance of

individual ownership. Ownership has long been hereditary; since each of

the litigants says he has received his estate from his ancestors, and

the lands have been held by the same families for several generations.

Nor is it only to land under tillage that the right of ownership

applies; it applies equally to forests and pastures; to uncultivated

as well as to cultivated land: “If any one sells his property, whether

cultivated land, or uncultivated, meadows or forests, the sale ought to

be transacted in writing and before witnesses.”[95]

In Thuringian law, land passes from father to son. Saxon law also

recognises the right of private property; and authorises the sale and

gift of land.

The capitularies of the Merovingian kings, again, show that private

property was the normal and regular state of things. An edict of

Chilperic declares that land shall pass not only to the son according

to the ancient rule, but also to the daughter, brother, or sister. In

his treatment of this last point Maurer once more displays singular

inaccuracy. From this law which declares the rule of hereditary

succession, he draws the conclusion that before that time there had

been community of property. The edict of Chilperic says that in no

case shall the neighbours take possession of the land; this appears

to him to mean that, up to the day this law was made, the neighbours

were the real owners, and inherited before the son of the dead man. He

does not notice that it is precisely in the case where a son survives

that Chilperic contents himself with referring to the ancient rule of

hereditary succession. The words _non vicini_ occur in the paragraph

which deals with the case of the death of the owner without children.

To say that if a man dies without children, the nearest heirs must be

sought for, and the neighbours are not to take possession of the land,

is not the same as saying that until that time the neighbours had had

rights over the land. To exaggerate the meaning of a quotation to such

a point as this is really to pervert it.[96] Not a single Frankish

capitulary, not a single law, charter, or formula, mentions this

imaginary “right of the neighbours” over the land. Not one of these

documents even alludes to a village holding its land in common. The

Carolinginian capitularies, which were drawn up for Germany as well as

for Gaul, recognise two methods only of land-holding, the allodial,

_i.e._, complete and heritable ownership; and beneficiary, _i.e._, land

granted by its owner for a time and under certain conditions. They know

nothing of community of ownership.

If one could point anywhere to an annual or periodical division of the

soil this would be a proof of agrarian communism. Maurer accordingly

maintains (page 8) that this annual division was, as a matter of fact,

for a long time practised. In support of so grave an assertion, to

prove an historical fact of such magnitude, we might hope that he would

furnish us with numerous and precise references. He gives but one, a

document of the year 815, printed in Neugart’s _Codex diplomaticus_,

No. 182.[97] Now look at this deed; it is a gift made to a convent

by a certain Wolfin. Read it through; you will not find a single

mention of community, a single mention of a yearly division. Wolfin

is a landowner; the lands he grants are his property; even more than

that, they are his by inheritance; they have descended to him from his

father. Here then we have a deed which from its first word to the last

proves the existence of private property, and shows the very opposite

of common ownership.

How has Maurer managed to find in this a confirmation of his theory?

We have here a striking example of the light-hearted way in which he

works. The donor, in making a list according to custom of the lands he

is giving, writes _terræ anales_, _prata_, _vineæ_, _pascua_. Maurer

lays hold of this word _anales_. Of course, it is not Latin; so he

begins by supposing that the copyist made a mistake, and corrects

it to _annales_. But even the word _annalis_ does not belong to the

language of legal documents; there is not a single other instance

of its use. Maurer supposes that it means “lands that are held for

only one year.” But that is impossible; since, according to this

very deed, they are Wolfin’s property by inheritance. The whole list,

_terræ anales_, _prata_, _vineæ_, _pascua_ relates beyond doubt to

inherited property. The word _anales_ is puzzling; but any one who

is familiar with charters of this kind must have often observed in

those of this period the expression _terræ areales_ taking the place

of _terræ arabiles_,[98] but with the same meaning, _i.e._, arable

lands. It occurs frequently in deeds of gift. When in a number of

documents exactly alike in phraseology you find in eighty _terræ

arabiles_, _prata_, _vineæ_, _silvæ_, _pascua_, and in twenty more

_terræ ariales_, _prata_, _vineæ_, _silvæ_, _pascua_; then, supposing

in a single example you meet with _terræ anales_, _prata_, _vineæ_,

_silvæ_, _pascua_, common sense tells you that this word _anales_,

which, however we take it, is incorrect, was written for _ariales_,

and that either the editor or the copyist made a mistake. There is

no doubt whatever that the donor makes a gift of “lands he possesses

by inheritance,” which include “arable lands, meadows, vineyards and

pasture.” Such is the deed of 815; and it is an illustration of the

method Maurer follows. He cites a deed, which, taken as a whole, proves

the existence of private and heritable property; he does not tell

the reader this, but picks out from its context a single word; alters

it and translates it in his own way; and presenting the reader only

with this one word, tries to make him believe that the deed proves the

annual division and common ownership of land.

When Maurer comes to deal with the barbarian invasions, he takes

great pains to get together a number of quotations which will suggest

the idea of a partition of land (pages 72 _seq._); but if we examine

them, we see that there is absolutely nothing about a _yearly_ or

_periodical_ division. He first quotes from Victor Vitensis, who

tells us that Genseric, directly he was master of the province called

Zeugitana, divided its soil amongst his soldiers “in hereditary

lots.”[99] This is exactly the opposite of a yearly division of land,

and, consequently, of common ownership. Next comes Procopius who writes

that “the Ostrogoths divided amongst themselves the lands which had

before been given to the Heruli.”[100] Here again we have to do with

a division of land among private owners. Then Maurer, with a great

profusion of quotations, points to the divisions of property that many

scholars believe were effected between the Roman proprietors on the

one hand and the Visigoths, Burgundians and Franks on the other. But

this division, in any case, was neither yearly nor periodical. Each

portion became, from the very first day, permanent and hereditary. It

would be childish to maintain that a division of this kind was the sign

of a system of common ownership. It shows on the contrary that the new

comers knew nothing about community in land, and never practised it.

And so we find that Maurer cannot, from all these nations, produce

a single instance of a village holding its land in common or of an

association of the mark. Not a single instance either from writers

of the time, or from codes of law, or from charters, or from legal

formulæ. And it is impossible to reply that this is simply a case of

omission; for in these laws, charters and formulæ, we not only do not

find common ownership, but we do find exactly the opposite; we find

signs everywhere of private property, and of the rights of inheritance,

donation and sale.

There is not even a trace to be found in these codes of law of an

earlier system of non-division. When they lay down that land is

hereditary, or that it can be sold, they do not say that this was a

novelty. It is easy for Maurer to declare that these practices were

borrowed from Roman law; this is a convenient hypothesis, but one for

which there is no proof. The fact is that the earlier condition of

things, of which we can see the traces in German legislation, was not

communism, but the common ownership of the _family_. We find signs of

this in the Salic and in the Ripuarian law, and in the codes of the

Burgundians and Thuringians. The revolution in the land system which

took place at this period was a change not from common ownership to

private ownership, but from the ownership of the family to that of the

individual. The practices of bequest and of sale are the chief marks of

this great change; and it is this alone that we can attribute to the

influence of Roman law: while even here it seems to me that it would be

safer to regard it rather as a natural process of evolution which has

taken place in every nation.

If in German law Maurer can discover no trace of the mark or of

community in land, what are the documents on which he rests his proof

of their existence? If we study his book with some attention, we

shall be surprised to find that he goes for his authorities to the

_Traditiones_, under which title are classed the various collections

of charters of the 8th to the 14th centuries.[101] But all these,

and they number almost ten thousand, are, without exception, deeds of

private property. In fact, they are always either deeds of gift, or of

sale, or of exchange, or of the grant of _precaria_. It is impossible

not to allow that the thousands of deeds of this kind are so many

proofs of private property, since you can neither sell nor give away

what is not already your own. Amongst these collections we also find

judicial decisions, and they all point in the same direction.

Observe, too, that there is absolutely no doubt as to the meaning of

the language employed. Could language be clearer than that of the

following passage taken from a deed of 770? “I, Wicbert, give to the

church of St. Nazarius the farms (_mansi_), lands, fields, meadows and

slaves that belong to me. All these I deliver to the church to be held

for ever, with the right and power of holding, giving, exchanging,

and doing with them as seems to it best.”[102] Or of a deed of 786:

“I, daughter of Theodon, give to St. Nazarius all that I hold by

inheritance in the places here mentioned; and everything that has been

in my possession and ownership, I hand over into the possession and

ownership of St. Nazarius.”[103] And again: “Whatever land belongs to

me I give to the abbot and his successors to hold and possess it for

ever;”[104] and yet again: “I, Wrachaire, give whatever land is mine in

my own right for the abbot henceforward to hold in his own right, _jure

proprio_.”[105] These expressions occur in thousands of documents.

Often the donor or seller adds that he holds the land by inheritance,

that he has received it from his father.[106] Another thing we must

not fail to notice is that ownership is not limited to land under

cultivation; it includes forest, pasture and streams,[107] as we find

over and over again. And it is never a village community or mark which

makes such a gift, but always a single individual.

Such is the character of the records Maurer sets about using in order

to prove the existence of community in land in the Middle Ages. It

is evident that, taken as a whole, they are in direct contradiction

to this theory; but what he does is to separate from the rest about

twenty deeds, take his evidence from them, and ignore the existence of

the rest. What can be said for a proceeding by which, merely for the

sake of propping up a theory, certain isolated cases are picked out,

and the great mass of evidence, which is in opposition to the theory,

is passed over? At the very least, it would have been only fair to

warn the reader that the deeds quoted belonged to an insignificant

minority--eighteen or twenty out of about ten thousand. Readers have

not always volumes of this kind at their elbow; and if they have, it

does not occur to them to verify the references. If you present them

with twenty quotations, they at once suppose that these are the only

ones in existence. They ought to be told that there are ten thousand

other deeds of the same character, written at the same time, drawn up

according to the same forms. You should confess that these ten thousand

deeds say exactly the opposite of the twenty you quote. You should not

leave them in ignorance of the fact that these thousands of gifts,

wills, sales or exchanges of land form an absolute proof of a system

of private property. Only after pointing all this out, would it be

right to tell them that there are perhaps eighteen or twenty deeds in

which some signs of community in land may possibly be seen. No avowal

of this kind was, however, made by Maurer; his followers in Germany

and France have been equally silent. All of them calmly appeal to

the _Traditiones_, as if these fifteen ponderous volumes were not in

themselves an overwhelming refutation of their theory.

We must go further. Are the eighteen or twenty deeds referred to

by Maurer given correctly? Do they really mean what our author

wishes them to mean? Observe that he never quotes more than a single

line, sometimes only one or two words. We must go to the documents

themselves and verify them.[108]

He first of all quotes, on page 47, a deed from the Lorsch collection.

It is a charter of 773, by which Charles the Great grants to that

monastery in perpetuity, the villa of Hephenheim, including lands,

houses, slaves, vineyards, forests, fields, meadows, pasture, water and

streams, with all its appurtenances and dependances, its boundaries and

its marks, _cum terminis et marchis suis_.[109] Here is the mark, says

Maurer. Yes, but not the mark of the village community. It is precisely

the opposite, the march or boundary of a private property. We have here

to do with a villa, a domain which has been the private property of

the king and is now becoming the property of a convent. There is not a

thought here of common ownership, or of a common mark, or of a village

association. There is not even a village. It is a domain, cultivated,

says the charter, by slaves. _Cum terminis et marchis suis_ are both

words meaning the boundaries of the domain; and in a repetition of

this kind there is nothing surprising. The _marca_ is precisely the

same as the _terminus_. We saw above, in the Bavarian law, _terminus

id est marca_. In the same way a charter of Childeric II. describes

the boundary-line of a domain as _fines et marchas_.[110] We must not

suppose that these _marchae_ were a stretch of land separate from the

domain. The expression _dono villam ... cum marchis_ will astonish no

one who is familiar with documents of this class. Any one who has any

acquaintance with them knows that it was the custom in deeds of gift,

or sale of a domain, to add, “with its boundaries.” Charters written

in Gaul have the phrase, _cum omni termino suo_; in Germany, _cum

omni marca sua_ or _cum marcis suis_.[111] In a large number of our

documents _marca_ is used in this sense alone, as, for instance, in the

_Codex Fuldensis_, No. 21, a deed of 760, in which a certain person

makes a gift of a villa _cum marcas et fines_.

Maurer refers to many other documents;[112] a charter of Louis the

Pious, a deed of 748 given by Grandidier, six deeds of 768, 778, 790,

794, 796 and 811 quoted by Schœpflin, and a diploma of 812 in the

collection of Neugart. But what do we gather from all this evidence?

Every one of these documents is a deed of donation in perpetuity; in

every case it is the donation of land situated in a locality described

indifferently as _villa_, _finis_ or _marca_: _in fine vel in villa

Berkheimmarca_; _in fine vel marca Angehisesheim_; _in villa vel in

fine Heidersheim marca_; _in villa Gebunvillare seu in ipsa marca_;

_dono portionem meam quæ est in marca Odradesheim_; _in loco et in

marca Hortheim_; _in curte vel in marca Ongirheim_; _quidquid in

ipso loco et ipsa marca habeo_. All these expressions are synonymous

and recur again and again. In 803 Ansfrid makes a gift of whatever

he owns _in marca vel villa Sodoja_ and also _in villa vel marca

Baldanis_.[113] All these quotations prove no more than this, that the

word _mark_, after being originally used in the sense of a boundary

of a domain, afterwards came to mean the domain itself; a change in

the use of a word, which is familiar enough to students of philology.

The same thing has happened with the synonymous terms _finis_ and

_terminus_. In Gaul, _villa_ Elariacus and _terminus_ Elariacus are

used indifferently; as are Longoviana _villa_ and Longoviana _finis_.

In Germany _villa_ or _marca_ are used in the same way. In the examples

given by Maurer, I recognise the existence of the mark, but of a mark

which was the same thing as a villa, that is a private estate.[114]

Maurer has mistaken private domains for common lands.

In the thousands of documents in the collections of the _Traditiones_

the name of the domain, which the donor owns either in whole or part,

is always given. And we may say that, roughly speaking, out of eight

instances we shall find it called _villa_ seven times and _marca_ once,

and that there is no other difference between the two sets of documents.

Another fact has escaped Maurer’s notice, and that is that these marks

frequently bear the name of their owner. It is well known that this was

the usual custom with the _villæ_ of Gaul,--_villa Floriacus_, _villa

Latiniacus_, _Maurovilla_, _Maurovillare_; and in the same way we have

many instances of names like _marca Angehises_, _marca Baldanis_,

_marca Munefridi_, _marca Warcharenheim_, _Droctegisomarca_. The

resemblance is noteworthy. In the study of history observation is worth

more than all the theories in the world.

Occasionally the word _mark_ denotes something larger than an estate,

and is applied to an entire province. What is the origin of this? In

the documents of the sixth and seventh centuries, in the writings of

Marius of Avenches, in the laws of the Alamanni and in those of the

Bavarians, and later on in the capitularies of Charles the Great,

_marca_ signified the frontier of a country.[115] Little by little

this word began to mean border-country, and so arose the expression

“the marches” of Spain, of Brittany, Carinthia, Austria, Brandenburg;

until almost every country had insensibly grown into a “march.” Must

we suppose from this, as Maurer would maintain, that the whole German

territory was mark-land from the very first? Not at all. We know the

origin of each of these marches, and almost the exact date at which

they came into existence. One belongs to the ninth century, another to

the tenth, and another was not created until the eleventh. To refer

them to a remote period of antiquity is an error which might easily

have been avoided.[116]

We may allow that Maurer proves easily and with abundant evidence that

the word _marca_ was often used; but what he had to prove was that this

_marca_ meant land held in common, and for this he has not, up to this

point, given the slightest evidence.

There are, on the contrary, thousands of documents showing that lands

within the mark were held as private property, and not in common.

In a deed of 711, Ermanrad gives away in perpetuity “thirty acres

which he owns in the _marca Munefred_,” and he adds that this land

is his “by inheritance from his grandmother.”[117] Another makes a

gift “of all he owns in the _marca Bettunis_, whether inherited from

his father or his mother.”[118] Maurer is ready to admit that arable

land was held as private property, but he will not allow that meadows

and forests could be held in the same way. We have seen, however, in

documents of the eighth or ninth centuries, that forests and pastures

were given away or sold in perpetuity, as well as arable land.[119] In

793 Rachilde makes a gift “of all that is his property in the _marca_

Dinenheimer; and this includes _mansi_, fields, meadows, pastures,

waters, and streams.”[120] Meginhaire, to take another case, gives

what he possesses in the villa Frankenheim and mentions “fields,

_mansi_, meadows, pastures, forests and streams.”[121] The same thing

is repeated in thousands of documents;[122] showing that a system of

private ownership was in force in the mark, as well as in the villa,

and that it extended to lands of every description.

This is the conclusion to which we are brought by the twenty documents

from the collections of _Traditiones_ referred to by Maurer. Not one

of them shows a trace of a community of the mark or of any other

community. All the twenty, like the thousands of documents Maurer

passes over, are simply deeds relating to private property.

It is, then, indisputable that all existing documents show us a

system of private property; but Maurer supposes, 1st, that there

must once have been a period of undivided common property; 2nd, that

the “associates of the mark” passed from this to the later system of

private ownership, by dividing the land amongst them. That property

had ever been undivided he has no kind of proof to bring forward. It

is a statement he frequently repeats as if he had already proved it,

but we shall search his book in vain for any such demonstration. It is

certainly very strange for a scholar to heap together evidence for a

host of matters of secondary importance, and neglect to bring forward

a single authority for that on which everything turns, _i.e._, the

existence of the primitive community. His book is rich in references,

but not one bears upon this; so that we might say that everything here

is proved except the very point that was in need of proof.

As evidence of the supposed partition by means of which the “associates

of the mark” passed to a system of private ownership, Maurer refers

to three authorities.[123] The first is the hagiographer Meginarius,

who, in his _Translatio Alexandri_, relates a tradition according

to which the Saxons, on getting possession of Thuringia, at once

divided the country amongst themselves into separate portions to be

held in perpetuity, and handed over parts of them to be cultivated by

_coloni_.[124] Here we certainly have an instance of a division of

land; but this division does not follow upon a condition of undivided

ownership; so far from implying the existence of such a state of

things, it shows rather that to these Saxons the very idea is unknown.

As soon as they are masters of the soil they establish a system

of private property. The same fact is illustrated by the passage

from Helmold, which Maurer quotes, where we are told that certain

Westphalians, on being settled in a conquered country, at once divided

it between them.[125] His third reference is to a Bavarian document

of the year 1247, where we are told that “the fields were divided by

a line, and twelve acres allotted to each house.” Maurer imagines

this refers to an association of free peasants who have for centuries

cultivated the soil in common, and at last divide it amongst themselves

in equal shares. Not at all. If we read the whole document we see that

it refers to a villa, that is to say, a large estate belonging to a

single proprietor, who distributes the soil in holdings amongst his

_rustici_.[126] The document is interesting as illustrating a very

common usage, according to which every peasant received three lots of

land, one in each of the three different kinds.[127] This is, however,

a very different thing from the division among common owners of land

hitherto undivided; it is a division amongst tenants, carried out by

the proprietor. Thus we see that not one of the documents referred to

by Maurer points to a partition amongst “associates of the mark,” or to

a partition which replaced an earlier system of undivided property by

one of private ownership. We must, accordingly, recognise that it is a

mere hypothesis to suppose that land was ever held in common by a group

of associates; that the only established certain fact is the existence

of private property, which rests on the evidence of all the laws and

all the charters; and that there is nothing to suggest that this state

of things was the outcome of a primitive system of community. As far

back as the day when the word _mark_ first appears in documentary

evidence, and throughout that evidence, the system of private property

is everywhere in possession of the field.

We would not say, however, that there are no examples of land held

in common; and we must now see what was the character of this common

ownership. It was of two sorts. Of the first kind an example is

afforded by a document of 815 cited by Maurer, in which occur the words

_silvæ communionem_; a certain Wigbald makes a gift of a _mansus_, and

of his share of a forest.[128] Another example which he refers to is

a forest belonging to three _villæ_ in common.[129] We are told also

of a Count Hugo who bestows all his possessions in the villa of Brunno

as well as “the three quarters of the _marca silvatica_ which make

up his share.”[130] Another less rich can only give a _huba_, but he

gives at the same time the portion of the forest to which his huba has

a right.[131] We might also refer to a case in which a forest was held

in common by two proprietors of two domains down to the year 1184, when

a division was effected by a judicial decision.[132] There were, then,

forests common to several persons; but that does not justify us in

saying that all forests were common to every one; for we have documents

without number in which a man gives away or sells a forest that clearly

belongs to himself alone. We must also remember that when we read

that a forest was common, it does not mean common to everyone, but

only common to a _villa_, or perhaps to two or three _villae_,[133] so

that the owners of these _villae_ alone have any rights over it.[134]

Now, supposing several persons are joint-owners of a forest, this is

a very different thing from a system of community in land. Each of

them has rights over the forest exactly in proportion to the amount of

his property.[135] “So much for every _huba_,” says one document. In

another a man makes a gift of all he has inherited in a villa, together

with his share, a twelfth, of a forest.[136] All the forests here

spoken of are nothing more than appendages to property. We must not

be misled by the expression “common forest;” which means no more than

that the forest was the property of several persons exercising over

it all the rights of ownership, even the right of selling their shares

(as we see in hundreds of documents) without having to ask the leave of

anyone, and without even consulting their fellow proprietors.

To the other class of instances belongs that referred to by Maurer (p.

93) from a document of the end of the eighth century, where again the

words _silva communis_ are to be found. The document relates to a large

estate; and it shows that the estate included a forest, part of which

was reserved for the lord, and the rest was common to the tenants.[137]

We are here far removed from the community “of the associates of the

mark,” for in this instance the cultivators of the soil are merely

tenants under a proprietor. Maurer quotes another deed of 1173, where

we read: “In this forest none of us had anything of his own, but it

was common to all the inhabitants of our villa.”[138] This is another

example, not of community of property, for it is tenants who are

speaking, but of community in tenure. Following upon this are a series

of quotations proving common use. “I give a _curtile_ with rights of

use in the forest, _cum usu silvatico_, that is with the privilege of

gathering dead and broken wood.”[139] “We give such and such _curtilia_

with all the rights of use belonging to these _curtilia_.”[140] Rights

of use, in this instance, included the power of cutting wood for fire

or for the purpose of building, and also of sending in pigs to feed on

the acorns; but a right of use does not imply common ownership.[141]

Maurer’s supposition that the rights of use in certain forests are

survivals from a time when the forest belonged to all, is a mere

theory. Reasoning _a priori_ he does not think it possible that such

rights could have arisen in any other way. It is, however, possible

that they spring from a very different source, and that a careful

examination of a number of documents will show us what that was.

Let us take, for instance, a deed of 863, wherein Count Ansfrid gives

his villa of Geizefurt to the monastery of Lorsch. He gives a detailed

account of this property; which includes a lord’s _mansus_, nineteen

servile tenements and a forest, whose size is measured by the fact that

it can feed a thousand pigs. The donor thinks he ought to put a clause

in the deed to the effect that his peasants have the use of the forest;

a use definitely regulated,--giving, for instance, to some the right to

send ten pigs, to others five, and not including for any of them the

right of cutting wood.[142] It is clear that the forest, as well as the

rest of the domain, belongs to a proprietor; the domain is cultivated

by serfs, and the serfs have a certain limited use of the forest; but

this right of use is only granted them by the favour of the proprietor,

and it is a sort of accessory to the holding which they have received

from him. He gives away the whole domain, including the forest and

including the serfs; but it is understood that the serfs under the new

proprietor shall continue in their holdings and in the enjoyment of

their very limited rights to the use of the forest.

Sometimes the owner of the estate divides the forest into two,

keeps one part for himself and leaves the other for the use of his

tenants.[143] Sometimes, again, he exacts payment in return for these

advantages, and this forms part of the yearly rent.[144] Instances

of this kind make it clear that the common occupation of a part of a

forest does not come down from an earlier custom of joint-ownership,

but is connected with the old system of the private estate and its

servile holdings.

This brings us to the _allmend_. According to Maurer and his followers,

_allmend_ is the land common to all; and they say that at first all

land was _allmend_. But, in the first place, _allmend_ is not to be

found in documents earlier than the beginning of the thirteenth

century; and secondly, the word means no more than the woodland and

pasture over which the peasants had common rights.

The “commons,” which are frequently to be met with in early documents,

are the same thing. Mention is made of them in a Merovingian diploma

of 687 (Pardessus, No. 408, Pertz, No. 56); in three charters in the

chartulary of St. Bertin in the eighth century; in seven formulas

and in miscellaneous documents to be found in various collections of

_Traditiones_.[145] Now, it is easy to see that in all these instances,

without a single exception so far as has yet been found, the “commons”

are spoken of as given, sold, or exchanged by some one to whom they

belong. The commons, therefore, are by no means the collective property

of a group of cultivators of the soil. They form part of a villa, that

is of a large estate; and when this is sold, given away or bequeathed

by the owner, he mentions, in accordance with the usual practice, the

different sorts of land which go to make up the whole estate; as, for

instance, “I, so and so, give to my nephews the property I possess

in such and such a district, which comprises so many _mansi_ with

buildings, lands, forests, fields, meadows, pastures _communia_, all

the serfs dwelling there, and all that I possess and hold.”[146] These

commons, which are the property of a single owner, cannot be common to

others except so far as the enjoyment of them is concerned, and that

only with the goodwill of the owner. As far as we can see, they were

that part of the domain which, not being fit for cultivation, was not

let out to individual tenants, but left to the tenants to use in common

to pasture their animals upon, or for getting wood. But they did not

for that reason cease to be the private property of the owner of the

estate, who sells them or gives them away precisely like any other part.

These documents of the eighth and ninth centuries, which speak of

_communia_, are followed by documents in succeeding centuries which

speak of the _allmende_. The two words are the equivalents one for the

other, and mean the same thing. The following is an example.

One of the most important documents instanced by Maurer is a deed of

the year 1150, in which mention is made of a forest called _allmend_,

“where the peasants often go and which is common to them.” To judge

from this phrase, apart from its context, we might suppose that we

have here to do with a mark, that is to say, with land owned in common

by a group of cultivators. But if we read the whole document we find

that it is a case where an entire villa belongs to three brothers “by

inheritance from their ancestors;” that they are making a gift of it

to a monastery,[147] and at the same time transferring their rights

over a forest adjoining the domain. “This forest,” they say, “called

in the vulgar tongue _allmend_, is frequented by the peasants, and

is used in common by them and us.”[148] But these peasants are their

tenants; though free in 1150, they had once been the _coloni_, serfs or

_villani_ of the proprietor; and what proves this is that the authors

of the deed from which we are quoting, add that one of their ancestors

granted these men “civil rights” and a charter; and they take care to

insert this charter in the deed so that it may be respected by the new

owner.[149] Here, then, is an instance in which peasants have certain

rights of use over a forest, but rights which are assuredly not derived

from a time when these men were owners of the forest. Some generations

before, the whole domain had belonged to a single owner and these

people had been his servants; they enjoyed certain rights in the forest

as tenants, and these were left to them when they became free men.[150]

What strikes one with astonishment in the writings of Maurer and his

disciples is that they omit and leave altogether out of sight a fact

which is of vital importance and rests on abundant evidence: the

existence of great estates in the early centuries of the Middle Ages.

They disregard also the existence of _coloni_ and of slaves. But these

were to be found not only in Gaul, but even in Germany. Tacitus himself

describes the cultivation of the soil in Germany by serfs.[151] He

gives a picture of a society full of inequalities, including rich and

poor, nobles and simple freemen, freedmen and slaves; and he remarks

this peculiar characteristic, that the Germans--those of them who

were free, that is--did not themselves cultivate their land, but left

the work “to the weakest of their slaves.”[152] Later on we see in

the laws of the Burgundians that proprietors of land have _coloni_

to cultivate their estates;[153] they have slaves;[154] they have

on each estate a manager, _actor_, or a farmer, _conductor_.[155]

When the Burgundian king makes a present to one of his warriors,

it is not a small field that he gives him, but “an estate with its

slaves.”[156] The laws of the Alamanni also indicate the existence

of large estates. As to those belonging to the king and the church

the laws give particularly clear information, and show that they were

cultivated by slaves, or by _coloni_ who paid a yearly rent in produce

or labour.[157] We may suppose that lands of the same character were

also in the hands of private persons; for reference is made to their

slaves, and in such a way as to show that they were numerous.[158]

Moreover, the laws speak of slaves holding portions of land, with

house, stable and barn,[159] by the side of the house and barn of the

owner.[160] In the laws of the Bavarians, the same classes of _coloni_

and slaves make their appearance. Amongst the Thuringians, Frisians

and Saxons, there are slaves and _liti_; and neither of these classes

is quick to disappear, for they are still to be found in the documents

of the Middle Ages, and to be found cultivating holdings which belong

to an owner and for which they pay dues.[161] It is also noticeable

in the greater part of these documents, that the owner declares that,

in giving or selling his land, he gives or sells at the same time

the slaves, freedmen, _coloni_, _liti_; in a word, all who actually

worked on the land.[162] The number of slaves is considerable. Thus

in a deed of 863, Ansfrid makes a grant of an estate and sixty-four

slaves.[163] In 786, Warinus presents the Abbey of Fulde with a

_marca_, which contains thirty _hubæ_ and three hundred and thirty

slaves.[164] Some one else, in 787, gives the lands that he owns in the

_marca_ of Wangheim, and, at the same time, the sixty-two slaves who

cultivate them.[165] Walafrid, in another _marca_, gives twenty-eight

slaves.[166] In 815, we find a man of middle rank possessing seven

_mansi_ and five-and-twenty slaves.[167] From all this the conclusion

is inevitable that the _marca_ or _villa_ is an area belonging to one

or more proprietors and cultivated by a much larger number of slaves or

serfs--_mancipia_, _liti_, _coloni_.

Maurer would have done better if, instead of devoting so much ingenuity

to discovering in the collections of _Traditiones_ a few passages in

support of his theory, he had noticed the evidence which is presented,

not in a few scattered lines, but in every page and in every document,

as to the way in which the land was actually distributed. As each

document mentions where the landed property given or sold is situated,

we are able to gather that the geographical unit is the _pagus_,

and the rural unit the _villa_, sometimes called the _marca_. The

customary form is: _res sitas in pago N, in villa quæ dicitur N_. The

word _villa_ is the same word as we find used in Gaul to designate an

estate; the word _marca_ which takes its place in about one out of

every eight instances, is but its synonym. Sometimes the villa belongs

to a single owner, sometimes it is divided amongst several. But, in

the one case as in the other, it preserves its earlier unity. The land

within it falls into two classes, a _dominicum_ and several _mansi_.

The _dominicum_ or _curtis dominicata_ or _mansus dominicatus_ is the

portion that the owner has reserved for his own use; the other _mansi_

or _hubæ_, are the tenant-holdings which he has put into the hands

of his _coloni_ or his serfs. To take an example. Ansfrid in 863 was

owner of the villa of Geizefurt, which comprised a _dominicum_ of three

mansi together with nineteen servile _mansi_.[168] In 868 the _marca_

of Gozbotsheim had a _dominicum_ of three _mansi_, seventeen servile

_mansi_, and serfs to the number of a hundred and forty-six.[169] In

989 a woman represents herself as owning in the marca of Schaffenheim

4 _hubæ dominicales_, 8 _hubæ serviles_, 5 _mansi_, vineyards,

meadowland, woodland and a mill, to all which are attached thirty

slaves.[170] The _dominicum_ is described in the same way in many

other documents.[171] Maurer supposes (p. 137) that this expression

refers to all that part of the ancient common mark which has become

private property. This is a mistake. The _dominicum_ is the land that

the proprietor has not entrusted to tenants.[172] Wherever we find the

_dominicum_, it is an unmistakable sign of a large private estate. A

_dominicum_ necessarily implies a lord and his serfs or _coloni_. With

time the interior organisation of the villa is modified; it is split

up as a consequence of inheritance and sale, and so we see proprietors

owning not more than four or two _mansi_, or perhaps only one. Many

of the peasants may also have become free men. But the _dominicum_

is still there and bears witness that in an earlier age the _villa_

or _marca_ had a single owner who stood out above a numerous body of

serfs. Maurer pays no attention to all these facts; he suppresses them,

and in their stead conjures up a picture of mark associates.

His theory once set up, he wrests the meaning of documents so that

they shall agree with it. Seeing, for instance, in the laws of the

Burgundians that the King Gondebaut commands “all his subjects” to

observe a law, _universitatem convenit observare_, he believes that

the word _universitas_ here relates to a village community;[173] and

it does not occur to him that this is the usual formula by which the

king addresses the whole body of his people. If he sees in the laws

of the Visigoths that when any one wishes to change or restore the

boundaries of a property, he must do it publicly, in the presence of

neighbours, this natural custom becomes in his eyes a right of joint

ownership possessed by the neighbours over the land in question.[174]

Because some forests are common to several owners, he concludes that

all forests are common to all. He maintains that the right of chase

belonged to all; and when you examine the authorities from which he

draws this conclusion, you discover that he quotes only two, and

that these, on the contrary, severely punish the man who has stolen

game.[175] Wherever he turns, he sees the mark. If the King Childebert

speaks of the _centena_, the _centena_ must be the _mark_.[176] The

duty of furnishing the king’s agents with a lodging when they are

travelling falls on the _mark_.[177] If later on you see a church in

every village, it is because, in times even earlier than Christianity,

“the association of the mark was united by religious bonds;” and in

proof of this he quotes a document of the year 1270 after Christ![178]

The “associates of the mark,” he says again, “are bound to support one

another” (page 161), and the only reference he gives is to the laws of

the Alamanni; you turn to the place indicated, and all you see there is

that two men have a quarrel, that one of them kills the other, and that

the friends of the victim pursue the murderer.[179] What connection

has this with an association of the mark? The village, according to

him, formed a free self-governing body, under its own head; and he

then instances the _comes loci_ of the laws of the Burgundians,[180]

though it is certain that the _comes_, far from being a village chief,

was the royal agent who administered a _civitas_. He does not fail to

seize upon the _tunginus_ as a chief elected by the villagers; which,

again, is pure imagination. He even discovers in a formula of Marculf

a _senior communiæ_, “a head of the rural community;” but the passage

in Marculf has a totally different meaning. The document in question

is a letter written in the name of a certain city begging the king

to appoint a bishop, and the expression _seniori communi_ is in the

heading, amongst the titles given to the king himself. It is a strange

mistake to suppose it referred to the principal man of a village

community.[181] These members of the village, he goes on to say, had

their assemblies (page 141); but for this he produces no authority.

“They administered justice amongst themselves;” but how does he explain

the fact that there is not a single document to be found referring

to such an administration of justice? What we do, on the contrary,

frequently find is, that men belonging to a villa or mark are under the

jurisdiction of the proprietor or his representative, his _judex_. To

tell the truth, the _communitas_ in the sense of a group of peasants,

does not make its appearance until the thirteenth century.[182] Then

only, or a little earlier, do the inhabitants of the villa or mark act

together as a sort of association for the common enjoyment of certain

privileges. Nothing of the kind appears in the early part of the Middle

Ages.

The success, therefore, of Maurer’s theory is not to be attributed to

the strength of his evidence. He has not furnished us with a single

proof, a single quotation, in support of the community or association

of the mark that he pictures to himself as existing when history first

begins. Go over the innumerable quotations at the bottom of the pages

of his book: more than two-thirds relate to private property; of the

rest some hundreds are concerned with minor points unconnected with the

subject; not a single one touches the main question; or if there are

any which at first sight appear to do so, the slightest examination

shows that they have been misunderstood and misinterpreted. The book,

nevertheless, has had an enormous influence. It has won many by its

neat consistency, others by its apparent learning. Anything like

verification of its arguments was gladly dispensed with; especially

as this is not an easy thing to do unless you happen to possess the

originals. And so, year after year, for forty years, the same story has

been repeated, the same arguments brought forward, the same authorities

quoted.

I shall not pursue this theory of Maurer’s through the works of all

his disciples; but I ought at least to notice in passing the latest of

them. Dr. K. Lamprecht has published recently a ponderous and learned

work upon the economic life of Germany in the Middle Ages.[183] His

first volume is a description of the rural economy of the basin of

the Moselle, and his principal object of study is Frank life in this

district. Unfortunately, under the influence of the ideas which have

been dominant in history since the time of Maurer, he takes as his

starting point “the association of the mark,” the _Markgenossenschaft_.

“The Frank people,” he says, “grew out of the mark-association; and

that institution has had an influence on the Frank constitution that

cannot be overlooked” (p. 51, cf. p. 42). Yet he brings forward

absolutely no proof, no indication of this primitive community of the

mark, and gives us nothing but the bare assertion.

He says (p. 46) that the mark appears in Frank law as an area of land

held in common; but he does not give a single quotation in which the

mark means an area of common land, and it is certain he could not

produce one. He tells us that he has seen the _marca_ in Ripuarian law,

but he neglects to say that this _marca_ is the boundary of a private

estate, and therefore exactly the opposite of common land.[184] He

also mentions that the word occurs again in an edict of Chilperic, and

he omits to add that the word _marca_ was only introduced into this

edict by a conjecture of Professor Sohm’s, and that in any case it is

impossible to give it in this place the meaning of common land.[185]

“The Frank village,” he says, “was a portion of the mark, and the

mark was the common property of all its inhabitants; everything was

in common--arable land, meadows, forests.”[186] You look at the foot

of the page for the authorities on which this statement is based, and

you find a reference to a document of 786; you turn to this; it is in

Beyer, (_Urkundenbuch zur Geschichte des Mittelrheins_, vol. i. p. 19),

and you see that it has nothing whatever to do with the mark, that

not even the word is to be found in it, and that the document merely

relates to a “villa Sentiacus.”

The absence of the term _mark_, and of all other like terms, from the

Franconian laws, does not trouble our author. He discovers there the

word _vicini_. To every one else this word signifies _neighbours_;

and it is easy to see that every system of law must pay some slight

attention to the mutual relations of persons who live near together. In

the eyes of Dr. Lamprecht, however, _vicini_ stands for _associates_;

neighbourhood and common mark are with him one and the same thing. You

have neighbours; therefore you form with them part of an association;

therefore the land is common to you and to them: such is his process

of reasoning. It would greatly surprise one of our peasants of to-day;

they are by no means accustomed to identify neighbourhood and corporate

union. But a scholar with a theory does not stoop to such small

considerations as this. Perhaps, however, some document has come down

to us from the Frank period, which would suggest that the men of that

time saw a connection between the two things? Not at all; not a single

clause in a law, not a charter, not a document of any kind suggests

that the idea of association was connected with that of neighbourhood.

The _vicini_ of the Salic law are neighbours in the ordinary sense

of the word. But Dr. Lamprecht has a peculiar method of interpreting

authorities. There is a certain Merovingian capitulary which runs as

follows: “If a man has been killed between two neighbouring _villae_,

without its being known who is the murderer, the count must proceed

to the place, call together the neighbours (that is to say, the

inhabitants of the two neighbouring _villae_) to the sound of the

trumpet, and summon them to appear before his tribunal on an appointed

day, for the purpose of declaring on oath that they are innocent of the

murder.” The passage is quite clear, and the method of procedure very

natural. But to Dr. Lamprecht it means that the men were “associates

of the mark” (p. 13, n. 3), and that they lived in a condition of

community. On this he builds up a complete theory of “neighbourhood,”

_Nachbarschaft_, and he maintains “that this ‘neighbourhood’ is one of

the principal factors of the Frank organisation” (p. 19).

He comes upon this word _vicini_, again, in an edict of Chilperic. The

fact is that this edict declares, 1st, that land shall continue to

pass from father to son in accordance with the old rule; 2nd, that in

default of a son the daughter shall inherit; 3rd, that in default of

son and daughter, the collateral relations shall take the land and the

neighbours shall not take it.[187] This Dr. Lamprecht interprets as if

it said that in case of the failure of the direct line the neighbours

formerly had the right of taking the land; but the edict of Chilperic

does not say this, and the opposite is positively proved by the section

on succession (tit. xli.) in the Salic law. Then, starting with this

misinterpretation, he goes on to maintain that the _vicini_ had a

common right to the land, and were, so to speak, the joint-owners of

it; a state of things of which there is not the slightest trace in the

documents.

He finds the word _vicini_ again in section xlv. of the Salic law, and

at once believes that he has discovered a community, and a community

of such a kind that it has the right of excluding every new-comer; so

that a man who has obtained a field by purchase or bequest has not

the right to occupy it without the leave of all the inhabitants. But

read this section xlv. and you will see at once that it does not apply

to a man who has got a field by lawful means.[188] You will notice,

moreover, if you read the entire section--people are always careful

not to quote more than a fragment--that there is no mention of any

community. Not a single word throughout these twenty-two lines means

or suggests the idea of a community or an association.[189] You do not

see a body of inhabitants meeting, deliberating, deciding. What you

do see is a man, who, in his own name, enters a complaint before the

royal functionary, the count, against a certain person who has taken

possession of a piece of land, without any right to it; and the count

expels the intruder, not in virtue of the rights of the community--not

a word of that--but simply in virtue of the rights of private

property, and because the intruder cannot justify his possession by

any legitimate title. Where do you find in all this the action of a

village community, of an association of the mark? If you think you see

it, it is assuredly not because it is in the original, but because your

preconceptions have put it there. We have here one of the most striking

examples of the result of the subjective method. Your theory requires

that a village community should be mentioned in some early document,

and you introduce the community into a document where there is nothing

about it. And still the mistake might easily have been avoided; for we

possess upon this very section xlv. a commentary which was written in

819, and written not by some chance person, but by the counsellors of

Louis the Pious.[190] Now these men, who were most of them judges, who

consequently were in the habit of administering this law and ought to

have known its meaning, saw in it simply this: that if a stranger came

and settled himself without a title on land which did not belong to

him,[191] it needed only that a single inhabitant should inform the

count, and he would put an end to the usurpation. But as there was a

final clause to the effect that this work of giving information ought

to be performed within twelve months, and that, at the expiration

of that term, the intruder could remain on the land and enjoy it in

security,[192] the men of 819 demanded that this last clause should

be abrogated.[193] Nothing could be plainer than the whole affair in

the eyes of every one not under the influence of a preconceived idea.

But Professor Lamprecht chooses to suppose that “the men of 819 did

not understand this document” (p. 47). This is an easy way out of the

difficulty; to understand a document otherwise than Professor Lamprecht

understands it, is to misunderstand it. It is not possible, however,

to overlook the fact that these counsellors of Louis the Pious were

learned men, who spent half their lives in deciding cases of law. It

must also be remembered that article xlv. occurs in the law as amended

by Charles the Great; and that whatever was its original source, it was

still a part of the existing law and actually in force. Copied, as it

had been, by the counsellors of Charles, how can it be supposed that

it was not intelligible to his son’s counsellors? I confess that, for

my own part, I would rather understand it as it was understood by the

men of 819 than as it is understood by Professor Lamprecht. I would

rather translate it literally in all its simplicity than put a village

community into it, which is not otherwise to be found there.

Professor Lamprecht cannot deny that the Salic law mentions enclosures

round corn-fields, meadows, and vineyards, and that this is an

indication of private property. According to him, it was the kings who

altered the old condition of things and introduced these novelties. But

this is mere hypothesis. He maintains that the forest and meadowland

at any rate continued to be common, and refers to article 27 of the

Salic law. You turn to the passage quoted, believing you will there

find a mention of a common forest, a forest where all are free to take

wood. You find exactly the contrary: “If any one has taken wood from

the forest of another, he shall pay a fine of three _solidi_.”[194]

This, then, is a forest which is someone’s private property, a forest

wherein none besides the owner has any rights. But Dr. Lamprecht is

not troubled by this. According to him, the words _silva aliena_ mean

a common forest. But what should lead him to attribute this unusual

meaning to the words? “Because,” says he, “in the Salic law the

word _silva_ is always used in the sense of common forest” (p. 48).

But the word _silva_ occurs nowhere else except in this section. He

then translates _aliena_ as if it signified “foreign.” Here we have,

indeed, to do with a word which recurs as often as thirty-one times

in Salic law; but in each of these thirty-one cases its meaning is

unmistakably “belonging to another.” The law, for instance, speaks of

_messis aliena_, _sepem alienam_, _hortum alienum_, _vinea aliena_,

_servus alienus_, _litum alienum_, _caballus alienus_, _sponsa aliena_,

_uxor aliena_. The word is always synonymous with _alterius_, which is

often found taking its place; and these very words _silva aliena_ are

replaced in several manuscripts by the words _silva alterius_.[195]

We must also notice that the whole of this section 27 concerns theft

committed “in the field of another,” “in the garden of another,” “in

the vineyard of another,” and, finally, “in the forest of another.”

Doubt is impossible. In every case it is a matter of private property;

and the law uses precisely the same expressions about a forest as

about a vineyard or garden. Professor Lamprecht’s reading of the

passage is opposed to all the evidence. But it was necessary for his

argument that the forests should be common; he was only able to find a

single section of the law which bore upon forests, and, although this

section related to a forest belonging to a single owner, he could not

refrain from making use of it; and so he maintains that _silva aliena_

means exactly the opposite of what it does mean.

Again, Professor Lamprecht says (p. 48), that “the meadows were

common;” although nothing of the kind is mentioned in the Salic law or

in any other document. More than that, if it is a fact that the meadows

were common according to the Salic law, how is it that only once in the

Salic law is any reference made to meadows, and then only to punish

with the enormously heavy fine of 1500 denarii the person who takes

a cartload of hay from another man’s field (tit. xxvii., sections 10

and 11)? Professor Lamprecht also maintains that mills were common,

although the law only mentions mills belonging to private owners.[196]

He fastens on authorities which are absolutely opposed to his theory,

and then interprets them according to his liking. If, for instance,

he sees that the Salic law punishes severely “anyone who ploughs or

sows the field of another without the permission of the owner, _extra

consilium domini_,” he maintains that this regulation is in his eyes

an indication of community in land. If he sees in another place that a

man who is unable to pay a fine must swear “that he possesses nothing

upon the earth or under the earth;” this is so much proof that land

is not an object of private ownership. The word _facultas_ occurs

frequently in documents of this period, and it always signifies a man’s

entire property, real and personal without distinction;[197] but, as

the theory requires that real property should not be too prominent in

Salic law, Professor Lamprecht supposes that the word applies only to

personal property.

Such is the character of the method he follows. By the aid of such

so-called scholarship everything is to be traced back to a primitive

community. Although the Frank documents of the Merovingian and

Carlovingian periods make no mention of such a community, although they

show exactly the opposite; the whole rural organisation, the entire

social life must be the outgrowth of this community of the _mark_. “The

_mark_ is the foundation, _substratum_, of everything” (p. 282). An

infallible rule is supposed to have been found; and the whole history

of the Middle Ages, willy nilly, must be made to fit into it.

[54] _Geschichte der Markverfassung_, 1856. The same theory has been

reproduced with slight differences, and sometimes fresh exaggerations

by Waitz, _Deutsche Verfassungsgeschichte_, 3 edit., I., pp. 125-131;

Sohm, _Reichs- und Gerichtsverfassung_, pp. 117, 209-210.

[55] Cæsar, vi., 22.

[56] The expedition upon the right bank of the Rhine lasted only 18

days.

[57] _Neque quisquam agri modum certum aut fines habet proprios; sed

magistratus ac principes in annos singulos gentibus cognationibusque

hominum qui una coierunt, quantum et quo loco visum est, agri

attribuunt, atque anno post alio transire cogunt._

[58] Livy has been cited; but if those who have done so had first read

him, they would have seen that every time that he wishes to speak of

public land, he says _ager publicus_ and not _ager_ by itself. ii. 41:

agrum publicum possideri a privatis criminabatur. ii. 61: Possessores

agri publici. iv. 36: agris publicis. iv. 51: possesso per injuriam

agro publico. iv. 53: possessione agri publici cederent. vi. 5: in

possessione agri publici grassabantur, etc. That it sometimes happens

that in a passage where he has written _ager publicus_, he afterwards

writes _ager_ without the adjective, is natural enough. If he speaks in

one place of _triumvirum agro dando_ or _de agris dividendis plebi_,

he has no need to add the adjective which is obviously understood. In

chapter xxxv. of book vi. he speaks of the _lex Licinia_ “_de modo

agrorum_,” _i.e._, as to the maximum size of rural properties. It has

been conjectured that he made a mistake, and that he meant to speak of

the _ager publicus_; but this is very doubtful. Varro, _de re rustica_

1, 2, and Columella, 1, 3, understand the law as Livy does; they see

in it a limitation of property in general. I cannot, therefore, agree

with M. d’Arbois de Jubainville, who interprets _de modo agrorum_, as

if it were _de modo agri publici_. We must translate literally, and not

change the sense.

[59] See the _Lex dicta Thoria_, in the _Corpus inscriptionum

latinarum_, I., p. 79: “Qui ager publicus populi romani fuit ... ager

privatus esto, ejusque agri emptio venditio uti ceterorum agrorum

privatorum esto.”

[60] Javolenus, in the _Digest_, 50, 16, 115: “Possessio ab agro juris

proprietate distat; quidquid enim adprehendimus cujus proprietas ad

nos non pertinet, hoc possessionem appellamus; possessio ergo usus,

ager proprietas loci est.” Notice that this idea of property is found

even in the expression _ager publicus_, which does not at all mean

common land; it means the property of the state, the public domain.

If Maurer and his German or French disciples had known Latin or Roman

institutions a little better, they would never have identified the

_ager publicus_ with the _allmend_.

[61] As to the synonymous character of these two words, see Varro, _De

re rustica_, 1, 4, where both are used for the same thing; for another

example, see _ibidem_, iii. 2. Similarly Columella, 1, 2 and 1, 4, pp.

27 and 33 of the bipontine edition.

[62] Paul, in the _Digest_, xviii. 1, 40.

[63] _Digest_, L., 16, 211.

[64] Ulpian, in the _Digest_, L., 15, 4: “Forma censuali cavetur ut

agri sic in censum referantur: nomen fundi cujusque, arvum quot jugerum

sit, vinea ... pratum, ... pascua ... silvæ.”

[65] We have shown elsewhere (_Recherches sur quelques problèmes

d’histoire_, pp. 269-289) the mistakes which have been committed as

to the words _agri_, _occupantur_, _cultores_, _arva_, _mutant_,

_superest ager_. On the special meaning of _occupare agrum_, to put

land to account by placing slaves upon it, see Columella, ii. 9; ii.

10; ii. 11; ii. 13; v. 5; v. 10; notice especially these two passages,

Columella, i. 3: occupatos nexu civium aut ergastulis, and _Code_ of

Justinian, ix. 49, 7: quot mancipia in prædiis occupatis teneantur. As

to the meaning of _cultores_, we must remember the _coloni_ of whom

Tacitus has spoken in the previous chapter. For the meaning of _arva_,

see Varro, _De re rustica_, i. 29: arvum est quod aratum est; _ibid._,

i. 13: boves ex arvo reducti; i. 19: ad jugera ducenta arvi, boum jugo

duo; cf. Cicero, _De republ._, v. 2, and especially Digest, L., 15, 4.

_Mutare_ does not mean to exchange among themselves; to express that

meaning _inter se_ would have been needed: _mutare_ by itself is the

frequentative of _movere_, and means to shift. The Germans shifted

their tillage, and tilled now one part, now another of the estate.

If we translate each of the words of Tacitus literally, especially

if we pay attention to the context and read the entire chapter, _nec

pomaria_, _nec hortos_, ... _sola seges_, etc., we see that Tacitus is

describing the method of cultivation among the Germans, and that it

does not occur to him to say whether they were or were not acquainted

with the system of private ownership. Do not forget, moreover, that

chapter xxvi. follows chapter xxv., where Tacitus has said that the

soil is cultivated by slaves, each paying certain dues to his master.

After a sort of parenthesis on the freedmen, he returns to these

_cultores_. He shows how they farm, and he blames their method. The

chapter ought to be closely scanned and translated word for word with

the meaning each word had in the time of Tacitus, and not hastily

rendered to suit some preconceived idea.

[66] _In sortem alterius fuerit ingressus._ In the documents from the

4th to the 8th century the word _sors_ meant a private property: _sors

patrimonium significat_, says the grammarian Festus. The contribution

of corn is proportional, says the Theodosian code, to the extent of

the properties, _pro modo sortium_, xi. 1,15. Cassiodorus, _Letters_,

viii. 26: _sortes propriæ_. Laws of the Visigoths, viii. 8, 5:

_sortem suam claudere_, x. 1, 7: _terra in qua sortem non habet_.

Salic law, Behrend, p. 112: _Si quis in mansionem aut sortem_. Law

of the Burgundians, xlvii. 3: _Filii sortem parentum vel facultatem

vindicabunt_; lxxviii.: _Si pater cum filiis sortem suam diviserit_. In

all these examples _sors_ signifies property or inheritance.

[67] _Lex Alamannorum_, xlv. and xlvi. edit. Pertz, p. 61; edit.

Lehmann, pp. 105-106.

[68] _Lex Baiuwariorum_, xiii, 9, Pertz, p. 316.

[69] _Ibidem_, xii, 8, Pertz, p. 312.

[70] _Ibidem_: “Hucusque antecessores mei tenuerunt et in alodem mihi

reliquerunt.” The word _alodis_ in the language of this period has no

other meaning but inheritance. [On the meaning of _alod_ see chap. iv.

in the author’s work _L’Alleu et le Domaine Rural_, which has appeared

since his death.]

[71] Maurer, _Einleitung_, pp. 87, 88 and 145.

[72] “Si quis tam burgundio quam romanus in silva communi exartum

fecerit, aliud tantum spatii de silva hospiti suo consignet, et exartum

quod fecit, remota hospitis communione, possideat.”

[73] “Quicumque in communi campo vineam plantaverit, similem campum

illi restituat _in cujus campo_ vineam posuit.”

[74] “Si vero post interdictum in campo alterius vineam plantare

præsumpserit, laborem suum perdat, et vineam _cujus est campus_

accipiat.”

[75] See the note in the edition of Pertz, p. 607; see also Binding, in

the _Fontes rerum Bernensium_, I. p. 142.

[76] “Silvarum, montium, et pascui unicuique pro rata possessionis

suppetit esse commune.” The same rule is to be found in another form

in the law of the Burgundians, tit. 67: “Quicumque agrum vel colonicas

tenent, secundum terrarum modum vel possessionis suæ ratam, sic silvam

inter se noverint dividendam.” Neither in the one passage nor in the

other is there any reference to a forest common to all.

[77] _Lex romana Burgund._, ed. Pertz, p. 607, Binding p. 142; “Agri

communis, nullis terminis limitati, exequationem inter consortes nullo

tempore denegandam.” As to the synonymous use of _consortes_ and of

_cohœredes_, see Cicero, _in Verrem_, III., 23; Paul, in the _Digest_,

xxvii, I., 31; Sidonius, _Letters_ iv., 24; and many other examples.

[78] Compare the sections _De familia herciscunda_ in the _Digest_, x.

2, and in the _Code_ of Justinian, iii. 36; see also in the _Code_ of

Justinian, the section iii. 37, _de communi dividundo_, and especially

the law No. 5.

[79] _Lex Burgundionum_, xxvii. and xxviii., 1-2.

[80] _Ibidem_, xxxviii. 4; cf. xlix. 3; “dominus extra fines suos.”

[81] _Ibidem_, lv.; “ex ejus agri finibus quem barbarus cum mancipiis

publica largitione percepit.” _Publica largitione_, by the gift of the

king. This is the meaning of the word _publicus_ in the language of the

time.

[82] _Lex Wisigothorum_, viii. 3, 15; viii. 5, 1; viii. 4, 27; “silvæ

dominus; is cujus pascua sunt.”

[83] _Lex Langobardorum_, Rotharis, 240.

[84] _Ibidem_, Liutprand, 116; Rotharis, 173.

[85] _Lex salica_, 59; “Si quis mortuus fuerit et filios non

dimiserit.” These words, with which the chapter begins, manifestly

imply that the inheritance goes first to the son; sect. 5; “De terra

nulla in muliere hereditas; ad virilem sexum tota terra pertineat.”

[86] _Ibidem_, ix. 4; Wolfenbüttel MS., ix. 9; cf. xvi. 5; xxxiv. 1.

[87] _Ibidem_, xxvii. 18.

[88] _Lex Ripuaria_, 43, 56, 60, 82.

[89] _Lex Alamannorum_ 1; proprietas in perpetuo permaneat.

[90] _Ibidem_, 2; si ipse qui dedit vel aliquis de heredibus suis....

Cf. _ibid._, 57.

[91] _Ibidem_, 80 (83), edit. Lehmann, pp. 144, 145.

[92] _Lex Alamannorum_, art. 81 (84), edit. Lehmann, pp. 145, 146.

Pertz, 113 and 163.

[93] _Lex Baiuwariorum_, xii, 4.

[94] _Ibidem_, xii, 4, Pertz, p. 311.

[95] _Ibidem_, xvi., 2. Pertz, p. 321; cf. _ibid._ 15, and xxii. p. 332.

[96] M. Viollet copies Maurer, but forces the meaning still further:

“King Chilperic,” says he, “was obliged to declare that the neighbours

should not succeed and that the sons should” (_Bibl. de l’École des

Chartes_, 1872, p. 492). Such an interpretation is the very opposite of

the original.

[97] Neugart, i. p. 153.

[98] The words _terræ areales_ or _ariales_ are to be found especially

in the _Codex Fuldensis_ of Dronke, Nos. 16, 78, 155, etc., and in the

_Traditiones possessionesque Wissemburgenses_ of Zeuss, Nos. 9, 35, 52,

etc.

[99] Victor Vitensis, i. 4; “Exercitui provinciam Zeugitanam funicuo

hereditates divisit.”

[100] Procopius, _Gothic War_, i. 1.

[101] The chief of these collections are the _Codex Diplomaticus_

and the _Syllogi_ of Guden, 1728, 1743; the _Codex traditionum

Corbeiensium_ of Falke, 1752; the _Monumenta Boica_, beginning

in 1763; the _Codex Laureshamensis abbatiæ diplomaticus_, 1768;

the _Subsidia_ and the _Nova Subsidia diplomatica_ of Wurdtwein,

1772-1781; the _Codex diplomaticus Alemanniæ_ of Neugart, 1791;

the _Urkundenbuch_ for the history of the Lower Rhine district by

Lacomblet, 1840; the _Traditiones Wissemburgenses_ of Zeuss, 1842;

the _Traditiones Fuldenses_ of Dronke, 1844; and by the same editor,

the _Codex diplomaticus Fuldensis_, 1850. Add to these certain works

wherein a great number of similar documents have been printed:

Meichelbeck, _Historia Frisingensis_, 1724; Hontheim, _Historia

Trevirensis diplomatica_, 1750; Schœpflin, _Alsatia diplomatica_,

1772; Wigand, _Archiv für Geschichte Westphalens_, 1825; Bodmann,

_Rheingauische Alterthümer_, 1819; Mone, _Zeitschrift für die

Geschichte des Oberrheins_, 1850. Since Maurer wrote, several other

collections have been printed, especially those of Beyer, _Urkundenbuch

..., mittelrheinischen Territorien_, 1860; Binding, _Fontes rerum

Bernensium_, 1883; and the _Urkundenbuch der Abtei S. Gallen_, 1863.

[102] _Codex Laureshamensis_ No. 11, p. 25-26: “Ego Wigbertus dono

ad Sanctum Nazarium, ... in mansis, terris, campis, pratis, ...

quantumcunque in his locis proprium habere videor ... dono trado atque

transfundo perpetualiter ad possidendum, jure et potestate habendi,

tenendi, donandi, commutandi, vel quidquid exinde facere volueritis

liberam ac firmissimam habeatis potestatem.”

[103] _Codex Laureshamensis_, No. 12: “Dono ad Sanctum Nazarium ...

de propria alode nostra in locis nuncupatis ... ubicunque moderno

tempore mea videtur esse possessio vel dominatio, de jure meo in jus ac

dominationem S. Nazarii dono trado atque transfundo.”

[104] Neugart, p. 401, anno 879: “Donamus ... ut perpetualiter teneant

atque possideant.” Meichelbeck, pp. 48 and 53 of the _Instrumenta_:

“Donamus ... rem propriam nostram;” p. 67: “propriam alodem;” p. 36:

“rem propriam ... in possessionem perpetuam.”

[105] Lacomblet, No. 4.

[106] Meichelbeck, _Instrumenta_, p. 27: “Ego Chunipertus propriam

hereditatem quam genitor meus mihi in hereditatem reliquit.” Lacomblet,

No. 8, anno 796: “Omne quod mihi jure hereditario legibus obvenit in

villa Bidnengheim.” Neugart, No. 305, anno 843: “Quidquid proprietatis

in Alemannia visus sum habere, sive ex paterna hereditate seu ex

acquisito, sive divisum habeam cum meis coheredibus seu indivisum

... id est domibus, edificiis, mancipiis, campis, pomiferis, pratis,

pascuis, silvis, viis, aquis, cultis et incultis.”

[107] Meichelbeck, p. 27, document of the 8th century: “Tradidi

territorium, prata, pascua, aquarum decursibus, silvis, virgultis, omne

cultum aut non cultum, in possessionem perpetuam.” Lacomblet, No. 4,

anno 794: “Terram proprii juris mei ... cum silvis, pratis, pascuis,

perviis, aquis.”

[108] Not unduly to prolong this discussion we will leave on one side

the documents of the 14th and 15th century. It will be enough to

examine those of an earlier date.

[109] _Codex Laureshamensis_, No. 6, vol. i. p. 15.

[110] _Diplomata_, edit. Pardessus, No. 341.

[111] See especially the charters of the Abbey of St. Gall, Nos. 185,

186, 187, etc.

[112] Maurer, _Einleitung_, pp. 41, 42, 45.

[113] _Codex Laureshamensis_, No. 34, i., pp. 70, 71.

[114] Sometimes a great _marca_ contains several hamlets (dörfer); as

in Gaul the _villa_ sometimes contains several _vici_. This will not

surprise anyone who has examined the nature and extent of rural estates

in the 6th century. In a document in the _Codex Laureshamensis_, vol.

iii. p. 237, a _marca_ includes several _villæ_. This case is rare, and

does not change the nature of the mark.

[115] _Marii Aventici chronicon_, ed. Arndt, p. 15. _Lex Alamannorum_,

xlvii. _Lex Baiuwariorum_, xiii., 9, Pertz, p. 316. _Capitulary_ of

799, art. 19; of 808; of 811; edit. Borétius, pp. 51, 139, 167.

[116] Maurer seems to me to have made another mistake in identifying

_mark_ with _gau_ (p. 59). No document gives the two terms as

synonymous: on the contrary, there are hundreds of documents which tell

us that such and such a _mark_ is situated in such and such a _pagus_,

which shows clearly enough that _marca_ and _pagus_ are not the same

thing.

[117] _Diplomata_, ed. Pardessus, ii. p. 434.

[118] _Ibidem_, ii. 440.

[119] Schœpflin, _Alsat. diplom._, i. p. 13, a charter of the year 730,

wherein Theodo sells all that he possesses in the _marca_ Hameristad,

“quantum in ipso fine est, ea ratione ut ab hac die habeatis ipsas

terras et silvas ... et quidquid exinde facere volueritis liberam

habeatis potestatem.”

[120] _Codex Laureshamensis_, No. 15, v. i. p. 34.

[121] _Tradit. Wissemburgenses_, No. 127.

[122] See for example a charter of the 8th century, where we read: “Ego

Oda dono in Pingumarca quidquid proprietatis habeo, id est, terris,

vineis, pratis, silvis, totum et integrum.” (_Codex Fuldensis_, No. xv.

p. 11.)--Neugart, i. p. 301, an exchange of 858: “Dedit 105 juchos de

terra arabili et de silva 140 juchos, et accepit a Willelmo in eadem

marcha quidquid ex paterno jure habebat, id est 105 juchos de terra

arabili cum omnibus appenditiis, silvis, viis, alpibus, aquis.”

[123] Maurer, _Einleitung_, pages 73, and 80.

[124] Read the whole passage. _Translatio S. Alexandri_, in Pertz,

vol. ii. p. 675, “Eo tempore quo Theodoricus rex Francorum, contra

Irmenfredum, ducem Thuringorum, dimicans ... conduxit Saxones in

adjutorium, promissis pro victoria habitandi sedibus.... Terram

juxta pollicitationem suam iis delegavit. Qui eam sorte dividentes,

partem illius colonis tradiderunt, singuli pro sorte sua sub tributo

exercendam; cetera vero loca ipsi possederunt.” Do not forget that

the word _sors_ is the usual term in the language of the period for

property. The narrative shows clearly that it is a division made for

ever that is here described.

[125] Helmold, _chr. Slav._ i. c. 91: “Adduxit multitudinem populorum

de Westphalia, ut incolerent terram Polaborum, et divisit eis terram in

funiculo distributionis.”

[126] Charter of 1247 in the _Monumenta Boica_, vol. xi. p. 33. The

estate in question is the _villa_ Yserhofen. Its owner is the Abbot

of Niederalteich: “Cum ad hoc devenisset quod agros et prata, quia

diu sine colonis exstiterant, nullus sciret ... rustici ecclesiæ

pro quantitate et limitibus contenderent. Ego Hermannus abbas ...

compromissum fuit ut maximus campus per funiculos mensuraretur et

cuilibet hubæ 12 jugera deputarentur ... in totidem partes secundus

campus et tertius divideretur.... Inchoata est ista divisio per Alwinum

monachum scribentem et fratrem Bertholdum prepositum et Rudolfum

officialem cum funiculis mensurantes.”

[127] [M. Fustel uses the term “les trois catégories;” but the

_maximus campus_, _secundus_, and _tertius_, would point rather to the

“three-field system.”]

[128] _Codex Laureshamensis_, No. 106, p. 164.

[129] Wigand, _Archiv_, i. 2, p. 86.

[130] _Codex Lauresh._, No. 69, p. 74: “Quidquid de rebus propriis

habere videbatur in villa Brunnon et tres partes de illa marca

silvatica, portione videlicet sua.” I will explain elsewhere the

meaning of _portio_. All I need say at present is that this word,

which occurs more than three hundred times in our authorities, always

means a part belonging to an owner. A _portio_ is spoken of as _sold_,

_bequeathed_, and _given_.

[131] Lacomblet, No. 7: “Hovam integram et scara in silva juxta formam

hovæ plenæ ... jure hereditario.”

[132] To be found in Mone, _Zeitschrift für Geschichte des Oberrheins_,

vol. i. pp. 405-406.

[133] [As late as the 13th century in England “the typical struggle as

to common rights was not a struggle between lords and commoners, but

a struggle between the men or the lords of two different townships.”

Maitland, _Bracton’s Note-Book_, I., 136.]

[134] This is to be found even in Roman law. See Scævola, in the

_Digest_, viii. 5, 20: “Plures ex municipibus, qui diversa prædia

possidebant, saltum communem, ut jus compascendi haberent, mercati

sunt, idque etiam a successoribus eorum observatum est.”

[135] Deed of exchange of the year 871 in Neugart, No. 461, vol.

i. p. 377: “Dedimus illi in proprietatem jugera 105 et de communi

silva quantum ad portionem nostram pertinet.... Et de silva juxta

estimationem nostræ portionis in communi silva.”

[136] Lacomblet, No. 22, document of 801: “Tradidi particulam

hereditatis meæ in villa Englandi ... et duodecimam partem in silva

Braclog.”

[137] Kindlinger, _Münsterische Beiträge_, ii. 3: “Est ibi silva

communis.... Silva domini quæ singularis est.”

[138] Maurer, _Einleitung_, p. 115, following Bodmann, _Rheingauische

Alterthümer_, i. 453: “In hac silva nullus nostrum privatum habebat

quidquid, sed communiter pertinebat ad omnes villæ nostræ incolas.”

[139] Deed of exchange of the year 905, Neugart, No. 653, vol. i. p.

539: “Curtile unum ... cum tali usu silvatico ut qui illic sedent,

sterilia et jacentia ligna licenter colligant.” Cf. _Lex Burgundionum_,

xxviii. 1.

[140] Neugart, No. 624, vol. i. p. 511, acte de 896: “Curtilia quæ sunt

sex et inter arvam terram et prata juchos 378, cum omnibus usibus ad

ipsa curtilia in eadem marcha (Johannisvillare) pertinentibus.”

[141] Alamannic formula, Rozière, No. 401: “In silva lignorum

materiarumque cæsuram pastumque vel saginam animalium.” Lacomblet, No.

20: “Cum pastu plenissimo juxta modulum curtilis ipsius.” Neugart,

No. 462: “Tradidi quinque hobas et quidquid ad illas pertinet et ad

unamquamque hobam decem porcos saginandos in proprietate mea in silva

Lotstetin quando ibi glandes inveniri possunt.” Mone, _Zeitschrift_,

i. 395: “Eodem jure quo licitum est villanis ... possunt oves suas vel

alia animalia pascere in communibus pascuis dictæ villae.” Schœpflin,

_Alsatia dipl._, ii. 49: “Jus utendi lignis in silva Heingereite.”

_Codex Laureshamensis_, No. 105, i. p. 164, anno 815: “Tradidit Alfger

terram ad modia 10 sementis, et prata, et in illam silvam porcos duos,

et in Rosmalla mansum plenum cum pratis et in silvam porcos sex.”

Guden, _Codex dipl._, i. 920: “Universitas rusticorum habet jus (in ea

villa) secandi ligna pro suis usibus et edificiis.”

[142] _Codex Laureshamensis_, No. 34, vol. i. p. 68: “Ego Ansfridus ...

trado res proprietatis meæ in Odeheimero marca, in villa Geizefurt,

hoc est, mansum indominicatum habentem hobas 3, et hubas serviles 19,

et silvam in quam mittere possumus mille porcos saginari, et quidquid

in eadem marca villave habeo proprietatis, exceptis tribus hobis quam

habet Wolfbrat et in eamdem silvam debet mittere porcos 10, alteram

habet Thudolf, tertiam Sigebure et debent mittere in silvam uterque

porcos 10, et nullam aliam utilitatem sive ad extirpandum sive in

cesura ligni. Unusquisque autem de servis de sua huba debet mittere in

silvam porcos 5.... Hæc omnia de jure meo in jus et dominium S. Nazarii

perpetualiter possidendum.”

[143] Example in Lacomblet, vol. ii., p. 42.

[144] _Ibidem_: “Homines ... ex communione silvæ ... persolvunt censum

32 denariorum. Homines in hac silva communionem habentes persolvunt

tres modios avenæ. Homines de communi silva quam vocant Holzmarca

persolvunt curti adjacenti duos modios avenæ.”

[145] Lacomblet, _Urk. für die Gesch. des Niederrheins_, No. 3, anno

793. Zeuss, _Tradit. Wissemburgenses_, No. 200. Beyer, _Urkundenbuch

zur Gesch. der Mittelrheinischen Territorien_, No. 10, anno 868.

[146] _Formulæ_, ed. Rozière, No. 172, ed. Zeumer, p. 276: “Dulcissimis

nepotibus meis ... dono rem meam, id est, mansos tantos cum ædificiis,

una cum terris, silvis, campis, pratis, pascuis, communiis, mancipiis

ibidem commanentibus, et quidquid in ipso loco mea est possessio vel

dominatio.” The word _dominatio_, which is found more than 500 times in

charters, has never any other sense than private property, _dominium_.

[147] In Wurdtwein, _Nova subsidia diplomatica_, vol. xii., p. 88:

“Tradidimus fundum Uterinæ vallis ... quem habemus a progenitoribus.”

This _fundus_ has well-marked bounds, and the charter mentions them

all. “His terminis fundus tenetur inclusus, certis indiciis designatur.”

[148] “Silvæ quoque adjacentis eidem fundo, quæ vulgari lingua almenda

nominatur, quam rustici frequentant, quæ juris nostri sicut et illorum

esse dinoscitur communione ad omnem utilitatem....”

[149] “Jura etiam civilia eidem fundo competentia, a progenitoribus

nostris tradita, huic cartæ dignum duximus inserenda, ne forte

succedente tempore excidant a memoria.”

[150] The same position of affairs is found in a document of 1279, in

Wurdtwein, _ibidem_, p. 218, which Maurer cites, without mentioning

that it refers to an arrangement between an abbot and his _villani_.

[151] Tacitus, _Germania_, 25: “Servis ... frumenti modum dominus aut

pecoris aut vestis, ut colono, injungit; et servus hactenus paret.”

[152] Tacitus, _Germania_, 15: “Delegata domus et penatium et agrorum

cura feminis senibusque et infirmissimo cuique ex familia. Ipsi

hebent.” In Latin _familia_ means the whole body of slaves belonging to

one man.

[153] _Lex Burgund._, 68: “Quicumque agrum aut colonicas tenent.”

[154] _Ibidem_, 38, 10: “De Burgundionum colonis et servis.”

[155] _Ibidem_, 50, 5: “Si privati hominis actorem occiderit.” 38, 9:

“Si in villa conductor....”

[156] _Ibidem_, 55: “Quicumque agrum cum mancipiis largitione nostra

percepit.”

[157] _Lex Alamann._, _pactus_, 8, 19, 20, 21; _lex_, 22-23.

[158] _Ibid._, 79: edit. Lehmann, pp. 138-139. “Si pastor porcorum....

Si pastor ovium qui 80 capita in grege habet domini sui.... Si

seniscalcus qui servus est et dominus ejus 12 vassos infra domum

habet.... Si mariscalcus qui super 12 caballos est.”

[159] _Lex. Alam._, 81, edit. Lehmann, 77, p. 141: “Si servi domum

incenderit ... scuriam vel graneam servi si incenderit.”

[160] _Ibidem_, art. 4 (6): “Si spicariam servi incenderit, 3 solidis;

et si domini, sex solidis.”

[161] See, for example, a document of 797 in Lacomblet, No. 9: “Dono

... unam hovam quam proserviunt liti mei; No. 4: terram quam Landulfus

litus meus incolebat et proserviebat.” [As to the _liti_, see also

Fustel de Coulanges, _L’Alleu_, p. 342, and Schmid, _Gesetze der

Angelsachsen_, pp. 5 (Aethelbirht, 26), 409 (Formula).]

[162] The usual formula runs: “Dono curtem cum domibus accolabus,

mancipiis, vineis, campis, silvis, etc.” Lacomblet, No. 1 _et

seq._; Meichelbeck, pp. 27, 34, 36, 49, 51, etc.; Neugart, passim.

_Laureshamensis_, No. 1: “Villam nostram cum omni integritate sua,

terris, domibus, litis, libertis, conlibertis, mancipiis.” _Monumenta

Boica_, viii. 365: “Colonos seu tributales;” xi. pp. 14 et 15: “Dedit

mansos 26 et vineas cum cultoribus suis.” Zeuss, No. 21: “villam ...

cum hominibus commanentibus.” Zeuss, 36: “Ipsi servi qui ipsas hobas

tenent.”

[163] _Codex Laureshamensis_, No. 33.

[164] Dronke, _Codex Fuldensis_, No. 84.

[165] _Ibidem_, No. 88.

[166] _Ibidem_, No. 163.

[167] _Codex Laureshamensis_, No. 105. Cf. Zeuss, No. 26, where an

owner sells an estate with twenty-two slaves, whose names he gives.

[168] _Codex Laureshamensis_, No. 33.

[169] _Ibidem_, No. 37.

[170] _Ibidem_, No. 83.

[171] Thus in the villa Frankenheim there is a _curtile dominicatum_,

Zeuss, _Traditiones Wissemb._, No. 127; in the villa Cazfeldes a _terra

indominicata_, _ibid._, No. 3; in the villa Oterefheim a _curtile

indominicatum_, _ibid._, No. 19; in the villa or marca Bruningsdorf, a

_curtis indominicata_, comprising houses, stables and barns, and having

attached to it about 100 acres in meadows, fields, vineyards, and

woods, _ibidem_, No. 25.

[172] The _dominicum_ is mentioned in the laws of the Alamanni, 22:

“servi faciant tres dies sibi et tres in dominico;” and in the law

of the Bavarians, 1, 14: “servus tres dies in hebdomada in dominico

operetur, tres vero sibi faciat.” It is generally known that it was the

almost universal practice for the _dominicum_ to be tilled and reaped

by the tenants.

[173] Maurer, _Einleitung_, p. 138. _Lex Burgundionum_, xlix. 3: “Quod

prius statutum est, universitatem convenit observare.” Cf. the frequent

phrase: “noverit universitas fidelium nostrorum.”

[174] _Lex Wisigothorum_, x. 3, 2.

[175] Salic law, 33; Ripuarian law, 42. Cf. the anecdote told by

Gregory of Tours, _Hist._, x. 10, which is the opposite of what Maurer

here maintains.

[176] Maurer, _Einleitung_, p. 164.

[177] _Ibid._, pp. 165-166.

[178] _Ibid._, p. 167.

[179] _Lex Alamann._, xlv. Pertz, p. 60; edit. Lehmann, pp. 104-105.

It is the word _pares_ which deceives him. He believes he sees in this

word the “markgenossen”; but _pares_ means the companions, the friends,

those who have adopted the cause of one or other of the adversaries.

Similarly article 93 of the same law punishes the man who, while with

the army, deserts _parem suum_, _i.e._, his comrade in the battle.

[180] Maurer, p. 140.--Cf. _Lex Burgund._, xlix, 1: “locorum comites

atque præpositi.”

[181] Maurer, p. 140. Marculf, i, 7: “Consensus civium pro episcopatu.

Piissimo ac precellentissimo domno illo rege (regi) vel, (remember that

_vel_ meant _and_) seniori commune illo.” _Commune_ is for _communi_;

and the meaning of the whole is, “To our most pious and excellent king,

chief of all the land.” The words which follow show clearly that the

letter is addressed to the king. “Principalis vestræ clementia novit

... etc., suppliciter postulamus ut instituere dignetis inlustrem virum

illum cathedræ illius successorem.”

[182] Documents of 1279 and 1290 in Wurdtwein, _Novia subsidia_, xii.

218 and 261: “pratum spectans ad Almeindam nostræ communitatis.”

Document of 1231 in Guden, _Codex dipl._, iii. p. 1102: “contulerunt

pascua communitatis quæ vulgariter Almeina vocantur.”

[183] Karl Lamprecht, _Deutsches Wirthschaftsleben im Mittelalter_,

Leipzig, 1886. [Summary in _Zeitsch. f.d. gesamte Staatswissenschaft_,

XLVI., 527 seq.]

[184] _Lex Ripuaria_, lx. 5; cf. lxxv.

[185] _Edictum Chilperici_, 8.

[186] K. Lamprecht, _Wirthschaft und Recht der Franken zur Zeit der

Volksrechte_, in the _Historisches Taschenbuch_, 1883, p. 57.

[187] _Edictum Chilperici_, art. 3: “Filii terram habeant sicut et lex

salica habet; si filii defuncti fuerint, filia accipiat terras.... Et

si moritur, frater terras accipiat, non vicini. Et si frater moriens

non derelinquerit superstitem, tunc soror ad ipsa terra accedat

possidenda.”

[188] This is expressed by the words _super alterum_, which mean, “on

another man’s land.” It is also expressed by the heading in more than

half the MSS., _de eo qui villam alterius occupaverit_.

[189] It is puerile to maintain that _si unus vel aliqui qui in villa

consistunt_ means a village community. Where, then, is the word which

does mean community?

[190] Pertz, i. 226; Behrend, p. 115, art. 9.

[191] “De eo qui villam alterius occupaverit.”

[192] “Si infra 12 menses nullus testatus fuerit, securus sicut et alii

vicini maneat.”

[193] “De hoc capitulo judicaverunt ut nullus villam aut res alterius

migrandi gratia per annos tenere possit, sed in quacumque die invasor

illarum rerum interpellatus fuerit, aut easdem res quærenti reddat aut

eas si potest juxta legem se defendendo sibi vindicet.”

[194] _Lex Salica_, xxvii. 18, ed. Behrend: _Si quis ligna aliena in

silva aliena furaverit, solidos 3 culpabilis judicetur_. This is the

reading of the Paris MS. 4404. MS. 9653 runs: _Si quis ligna in silva

aliena furaverit, solidos 45 culpabilis judicetur_. MS. 4627 runs: _in

silva alterius_.

[195] _In silva alterius_, MSS. Paris 4627, Montpellier 136, Saint-Gall

731, Paris 4626, etc.

[196] _Lex salica_, xxii. The Munich MS. has _in mulino alieno_.

Further on, _molinarius_ is replaced in the Wolfenbüttel MS. by _is cui

molinus est_.

[197] See the _Formulæ of Marculfus_ I. 35; II. 8; _Andegavenses_, 36

(37); Rozière, No. 252; _Turonenses_, 17.