Chapter III: Part 3

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.