Chapter IV: Part 4

[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.

II.

_M. Viollet’s theory as to community of land amongst the Greeks._

M. Viollet is a disciple of Maurer who copies and exaggerates his master. The system that Maurer was able with some show of probability to build up in relation to the Germanic peoples, M. Viollet supposes he can extend to all nations ancient or modern. What is quite fresh in his writings and exclusively his own, is, that he attributes to the ancient Greeks a system of community in land which the most profound students of Greek history had, up to this time, failed to discover. We must not suppose that in laying down such a proposition, he is speaking of some primitive age when the Greeks may be supposed to have been ignorant of agriculture, and consequently of landed property. He is speaking of the times when the Greeks were agriculturists, when they lived in organised societies; he is speaking of Greek cities; and he declares that the soil was for a long time cultivated by the city in common, without its occurring to the family or the individual to appropriate it. All the land, according to him, for a long time belonged not to the individual, not to the family, but to the city.[198]

He states that “his theory is supported by authorities of considerable weight” (p. 463); and he refers to eleven passages taken from Plato, Virgil, Justin, Tibullus, Diodorus on the Lipari Isles, Diogenes Laertius on Pythagoras, Aristotle on the town of Tarentum, Athenæus on Spartan meals, Diodorus on the “klêrouchia,” and lastly, Theophrastus on the sale of real property. Let us look at the originals. Let us see at any rate whether M. Viollet’s references are altogether exact.

1. The first author quoted is Plato, “who still saw here and there the vestiges of primitive community,” and M. Viollet tells us that he finds this in the Laws of Plato (Book III.). I turn to the passage mentioned, and this is what I find: “In very early times men lived in a pastoral state, supporting themselves by their herds of cattle and by hunting. At that time they had no laws. As to government, they knew no other than the δυναστεία, the authority, that is, of the master over his family and slaves. Like the Cyclops of Homer, they had neither public assemblies nor justice; they lived in caverns; and each ruled over his wife and children without troubling himself about his neighbours.” This is what Plato says, describing from imagination a primitive savage state. It must be some strange illusion which makes M. Viollet suppose that this passage describes men as cultivating the land in common. Plato says that they did not cultivate it at all. Where does he see that the land belonged to the people? Plato says that at this time there did not even exist a people. Where does he see that men were associated for purposes of cultivation? Plato says that each family lived apart, “without troubling itself about its neighbours.” M. Viollet then has taken this passage in precisely the opposite sense to the right one. Go through all the writings of the philosopher and you will find that he has nowhere said “that in his time he still saw the ruins of a primitive community.” Plato has, it is true, endowed his ideal city with a particular system of community in land; but he never says that it was practised in any actually existing city. Our first authority, then, is proved to have been misrepresented.

2. M. Viollet next refers to Virgil, who, in the Georgics (i. 125), describes a time “when the soil was neither divided nor marked out by boundaries, and when everything was common.” This at first sight seems convincing. The poet’s verse is correctly quoted.[199] But observe the context. The whole passage is an imaginary description of a time when men did not cultivate the soil: _Ante Jovem nulli subigebant arva coloni.... Ipsa tellus omnia liberius, nullo poscente, ferebat_. So long as men did not cultivate the ground, there could be no question of dividing it among them as private property. Virgil goes on to say that afterwards man learnt to till the ground, _ut sulcis frumenti quæreret herbam_; but he no longer says that everything was in common. It appears, then, that if M. Viollet had given it a little more attention, he would have dispensed with the use of this passage; for it describes savage life and has no connection at all with community of land in the agricultural state. What can the golden age, whether it existed or not, prove concerning the social life of Greek cities?

3. Next comes a quotation from Justin out of Trogus Pompeius. This Gaul, trying to describe the remotest ages of Italy, says that there was a time “when slavery and private property were unknown, and everything was undivided.” The quotation is correct; but what is the time referred to? The age before Jupiter, _ante Jovem_. This is as much as to say, the golden age, or, if you prefer it, the savage state.

4. It is the same with the quotation from Tibullus; it applies “to the time of King Saturn,” that is, to the præ-agricultural age, the golden age of the imagination. If M. Viollet wished to prove that in the golden age private property did not exist, he has succeeded pretty well. But what has this to do with the Greek cities? M. Viollet supposes that legends of this kind represent traditions of an earlier state. This is exceedingly doubtful; and in any case they would be traditions of a time when agriculture was unknown, and when there were neither organised nations nor cities. If there were long ages when mankind did not know how to till the ground, what does that prove in relation to the time when they did cultivate it? We must not lose sight of the proposition our author wishes to establish; it is that men, even after they had entered into city life, cultivated the soil in common instead of appropriating it individually. There is a certain want of caution in thinking that you can prove a system of common cultivation from legends which show the absence of all cultivation.

5. M. Viollet at last comes down to historical times and quotes a passage from Diodorus Siculus. Let us first give his translation as if it were scrupulously exact: “Certain Cnidians and Rhodians colonised the Lipari Isles. As they had much to endure at the hands of Tyrrhenian pirates, they armed some barks wherewith to defend themselves, and divided themselves into two separate _classes_; one was intrusted with the cultivation of the islands, which they _declared common property_; to the other was committed the care of the defence. _Having thus thrown together all their possessions_, and eating together at public meals, they lived in common during several years; but after a time they divided amongst themselves the land of Lipara on which was their town; as to the other islands they continued for some time to be cultivated in common. At last they divided all the islands for a period of twenty years; and at the expiration of this term, they drew lots for them anew.”

Much might be said about this translation, but we wish to be brief.[200] M. Viollet ought, in the first place, to have mentioned the date of this event, since Diodorus gives it: it happened in the fiftieth Olympiad, that is about the year 575. Now, long before this, Cnidus and Rhodes had had a system of private property, and had no trace of common ownership. So these Cnidians and Rhodians may, very likely, have made an experiment of this kind; but it is impossible that their action should illustrate a survival of primitive community as M. Viollet maintains.[201]

The account of the Greek historian also plainly shows the motive which determined these men to leave the land for some time undivided: it was because the Tyrrhenian pirates ravaged the islands to such an extent that the Greeks were obliged to separate into two divisions, the one fighting, the other tilling the ground.[202] But Diodorus goes on to say that this manner of life only lasted a few years. So soon as they had freed themselves from the pirates, the Greeks made a regular settlement in the island of Lipara, that is in the largest and most important island of the little group. They built a town there; and at the same time “they made a partition of the soil.” Now, this partition was never made over again; it was a distribution of shares to be held in perpetuity, that is, as private property. M. Viollet passes over this too hastily; it is of the utmost importance, for it shows us that private property was established directly the Greeks were in anything like a settled condition. The fact that the other islets, more difficult to cultivate and less securely held, remained for some time longer undivided, does not imply that these people lived in a state of agrarian communism. Each of them was a landed proprietor in the main island, and enjoyed certain rights over one of the islets.[203] But even this arrangement did not last long, and the small islands were parcelled out in their turn. There was, it is true, a provisional partition at first, to last for twenty years; there are several very likely explanations for this precautionary measure. Whatever the reason may have been, at the end of twenty years the partition was made over again, and this time it was permanent; for Diodorus never says that a division took place periodically down to his own time.[204]

The whole account of the Greek historian points to the fact that the Greek emigrants established what was customary throughout Greece, a system of private ownership. In order to thoroughly understand it, we must compare this with similar passages in which the same historian shows us Greek colonists dividing the soil amongst themselves from the very first day of their settlement.[205] The settlement of these Cnidians and Rhodians differs from other instances only in this, that it was necessary, for reasons which Diodorus indicates, to postpone the partition for some years. This is what the historian wished to tell us; he never says that these people thought of establishing common ownership: they had no more disposition for it than other Greeks. Whatever communism they may have practised was not an institution, but a temporary condition of things, lasting for a brief period, with no past and no future. Private property was with them, as with all other Greeks, the normal state of things. The account of Diodorus is, we see, the reverse of M. Viollet’s statement; and it is startling to find M. Viollet writing, that “as late as _the time of the Emperor Augustus_, private property was not yet established amongst these Greeks, at the very gates of Rome” (p. 468).

6. M. Viollet now passes on to Pythagoras. On the evidence of a biography of the philosopher written eight hundred years after his death, he relates that Pythagoras got together as many as two thousand disciples, and induced them to live in common. This may be true; but does the fact that a philosopher succeeded in founding a phalanstery, which did not outlast himself, prove that it was habitual at that time for people to live together in common? It seems to me that it proves exactly the opposite. If the disciples of Pythagoras were forced to leave their towns in order to found a communistic settlement, it was because the life in the towns was not communistic. It is certain that this institution of Pythagoras was something exceptional, which left no trace behind it. The story itself, when we look at it, has no connection with a primitive community in land. But notice M. Viollet’s method of proceeding. Just because he comes across these two thousand (others say six hundred) disciples of Pythagoras, he concludes that “we have here the origin of many of the towns in Greater Greece; this shows that these towns were founded and settled under a system of undivided property.” Nothing of the kind. They were all founded before Pythagoras, and outlived him; and neither before nor after his time did they recognise a system of undivided property.[206]

7. We now come to an instance which would appear to be more historical. “The citizens of Tarentum,” says M. Viollet, “seem to have preserved something of their old community in land down to the time of Aristotle.” And he refers to the _Politics_ vi. 3, 5. You turn to the passage quoted and you read as follows: “It is the duty of an intelligent aristocracy to watch over the poor and to furnish them with employment. We should do well to imitate the men of Tarentum; they have portions of land whereof they leave to the poor the common enjoyment (literally, which they make common to the poor for their enjoyment[207]), and in this way they secure the attachment of the lower people.” We see how far removed the original is from M. Viollet’s interpretation of it. Aristotle says nothing whatever of a communistic system. He places Tarentum amongst aristocratic States, and shows that there were poor people, ἄποροι, in it; only he points out that the rich took care to set apart certain land _for the use_ of these poor, in order to win their attachment.[208] M. Viollet has mistaken a charitable institution for a communistic one, though it is perfectly clear that what Aristotle describes was merely a concession made by the rich to the poor; that is to say, it was precisely the opposite of communism.

8. M. Viollet tells us that there are “other survivals which enable us to travel back in thought to primitive common-ownership: there are the common meals;” and he devotes fully three pages to the common meals of the Greeks. He begins with the meal which the Spartans called _Copis_; describes it in detail from Athenæus, and concludes (p. 471): “All this is primitive, and we have here the common meal in all its early simplicity.” Now, it unluckily happens that the meal called _copis_ was in no way a common meal. Ancient writers tell us that the Spartans had some private meals;[209] the _copis_ was one of them. Read the page from Athenæus which M. Viollet has translated; read it in the original;[210] and not only will you not find a word which suggests that the copis was a public meal, but you will find clear evidence to the contrary. “Whoever likes gives the copis, κοπιζει ὁ βουλόμενος,” and he who gives it invites to it whomsoever he pleases, “whether Spartan or stranger.” Such are not the characteristics of public meals ordered and arranged by the State. Let us add that the Greek writer lays stress upon the religious character of this meal; it ought to be celebrated before the god παρὰ τὸν θεὸν, _i.e._, in front of a temple and in presence of the image of the divinity. Ancient rites are observed; a tent must first be built with branches of trees, and the ground strewn with boughs for the company to recline upon; the only meat which may be used is goats’ flesh; and each guest must be presented with a particular kind of loaf, made according to a fixed rule both as to its ingredients and shape. These rites will not surprise anyone who is familiar with early Greek life. Every Spartan could give this repast when he pleased; but the usual custom in the town was to give it “at the festival called Tithenidia, celebrated to secure the health of children;” and the nurses used to bring the little boys to it. The description of Athenæus is perfectly clear. M. Viollet has committed the error of mistaking a private and religious meal for a common meal, and of supposing that he sees in it a sign of community in land.

There still remain the true common meals, which took place daily or almost daily at Sparta, and which were called συσσίτια. M. Viollet says at once that they are evidence of community. It seems reasonable to argue: “If men eat the fruits of the earth in common, it is because in primitive times the earth itself was common;” but we think that M. Viollet ought to have distrusted this apparently logical process of reasoning. If he had studied this institution of common meals at Sparta in the original writers, he could not have failed to notice four circumstances: 1. It does not date from the earliest period of the city; and far from being connected with a time when land may have been common, it is later than the institution at Sparta of private property.[211] 2. These common meals did not constitute a common life; for in the first place the men alone partook of them, not the women nor the children;[212] and in the second place, the men did not take all the meals of the day together, but only one, that of the evening. 3. The expenses of the meal were not defrayed by the community, by the State, but each man had to bring his contribution, which was fixed at a _medimnus_ of flour a month, eight _congii_ of wine, some fruit, and a sum of money for the purchase of meat.[213] This is something very different from citizens being fed in common by the State; they had to eat in common, but each ate at his own expense, because each was the owner of property. 4. The common meals were so far from representing community in goods, that poor Spartans were not admitted to them; a fact which is distinctly mentioned by Aristotle, who goes on to say that these meals were the least democratic things in the world.[214]

It is the greatest mistake to imagine all the Spartans eating of the same dishes at the same table. The so-called common meals were taken in small groups of fifteen members each, in separate houses. Every one was free to choose the group which he wished to join; but he was not admitted except by the unanimous vote of the members composing it.[215] We also know that the meals were somewhat luxurious, and that the famous black broth, μελάς ζῶμος, was merely the prelude to them.[216] It is, then, very evident that these common repasts, whose meaning or object we need not here try to discover, have not the slightest connection with a common life and certainly not with community in land.[217]

M. Viollet also refers to the feasts which the fifty Athenian _prytanes_ used to celebrate near the sacred hearth; reminds us that when the young Athenian was received into the _phratria_, the _phratria_ performed a sacrifice which was followed by a feast; and refers to the feasts which the Roman _curiae_ celebrated before an altar on certain festivals. But one must indeed be dominated by a fixed idea to suppose that these three different kinds of feasts are a proof of community in land. It is exceedingly ingenious to say that “these meals are the lingering evidence of a primitive nomad life and of community in the soil;”[218] but the fact is that they were simply religious ceremonies. They were celebrated around an altar, according to prescribed rites. The custom of a common meal in the presence of the divinity is found in many religions.

9. For his ninth proof, M. Viollet sets before us “a widespread tradition which represents the inhabitants of a country as dividing its soil amongst themselves;” and in support of this he gives a few references to Diodorus. He might have given many more, and to other writers also.[219] What he takes for a vague tradition is an historical fact perfectly well known and authenticated. We know that every Greek city preserved the memory of its foundation, which was the occasion of a yearly festival. This tradition was handed down either by means of religious songs repeated from year to year without any change, or on bronze inscriptions kept in a temple. It is from these sacred records that we obtain such exact evidence as to the founding and founder of each city. Now these records lay stress on two circumstances; the founding of the town on a given day by the performance of a religious ceremony; and the division of the land amongst the citizens,--a division which was effected by a drawing of lots, called κληρουχία or κληροδοσία. These two operations took place at the same time; we might almost say on the same day. Where M. Viollet makes the mistake is in saying that “this division presupposes primitive community, and puts an end to an era of non-division” (p. 473). It is precisely the contrary; for whenever we see Greek emigrants making settlements on territory either previously unoccupied or else conquered by them, we find them _immediately_ founding a town and _immediately_ dividing the soil.[220] The soil may have been conquered in common, but not for one single year is it cultivated in common. They do not divide it “in order to get out of a system of non-division”; but they make haste to divide the country that they have just found unoccupied or have just conquered, so that it shall not remain for one moment undivided.

In those cities, indeed, which date from very early times, there was no occasion for a division. We do not find it in Athens. Why? Because we know that Attica was at first occupied by some hundreds of independent families, γένη; and that these families afterwards were grouped into phratries, and finally into a city. There is no partition here, for each family keeps the land which has belonged to it for centuries. But when it is a case of a colony, a body of people who emigrate and take possession of fresh territory, a division is quite needful. Only this division does not, as M. Viollet would suppose, come at the end of a period of non-division; it is the first step in the establishment of the colony. The practice is one of the most re-markable, and one of the best authenticated of those early times. It proves that the Greek city never cultivated its land in common; that it had no wish for a common ownership of the soil; that the very idea of such a system was unknown to it. If M. Viollet had studied the κληρουχία in all the authorities which refer to it, he would not have supposed for a moment that it could be a proof of community in land, and he would have taken care not to bring it forward in support of a theory of which it is in reality the refutation.

10. I shall not dwell long upon another argument of M. Viollet’s (p. 481). I have elsewhere pointed out that in the most ancient Greek law, as well as in early Hindoo law and with many other peoples, the land originally attached to a family was so closely bound up with it that it could neither be sold, nor transferred to another family, either by bequest or as dower.[221] This rule is clearly explained in many Greek writings; it is the result of the conception of property not as an individual right, but as a family right. A father was compelled to leave it to his sons. Even if there were no son, he could not bequeath or sell it; it must pass to the nearest relation. M. Viollet imagines that there is another explanation. The prohibition of sale and bequest results, according to him, from the circumstance that land was originally common to all. I do not follow the argument. If the soil was originally the common property of the people, and the people maintained a kind of eminent domain over it (which is M. Viollet’s theory), one cannot see why the law should have forbidden the sale of land to another member of the same people; one cannot see why the law should have prohibited any family from parting with it, even in favour of the people itself. The old rule, or rather the ancient custom which forbids a family to separate itself from its land, cannot be a proof of community in land. It only proves the ownership of property by the family. As Plato says, in a passage where he expresses not his own private utopias but the ideas of the men of his time: “You cannot leave your property to whomsoever you please, because your property belongs to your family, that is, to your ancestors and your descendants.”[222] The hypothesis that M. Viollet sets against this is purely fanciful. He appears to believe that the restriction as to sale and bequest weakened the rights of property; he does not observe that it renders inheritance more absolute, and secures the rights of the family. One may search through the whole of Greek law and the whole of Greek literature without finding either the “eminent domain” of the State, or a restoration of the land to a supposed ownership common.

11. M. Viollet’s last argument is taken from a passage of Theophrastus. When Greek law at last authorised the sale of land--property being from that time onwards looked upon as an individual right,--it required that the sale should take place under certain conditions of publicity. “Many legislators,” says Theophrastus, “require that sales should be made by a public crier, and that they should be announced several days beforehand; others prefer that they should take place in the presence of a magistrate; while some lay down that notice of sale must be posted up for sixty days. There are two motives for all this: in the first place that claims may be presented against the seller, and secondly, that all may know who is the new owner.” This sentence is perfectly clear; it tells us that a sale ought to be made publicly, so that it may be surrounded by all possible guarantees; but M. Viollet sees in it something different from this. “If the public are present,” he says, “it is because the land belongs to the people” (pp. 484-485). This is drawing a conclusion of which Theophrastus never dreamt. When he described the various kinds of publicity which were enjoined in the matter of sale, and when he explained in such a natural manner the reasons for this publicity, he did not suppose that his meaning would be so far distorted as to lead to the conclusion that the land had once been common. But M. Viollet has a fixed idea and follows it. If he reads that neighbours act as witnesses to a sale, he adds that their consent had doubtless to be asked, since the land properly belonged to all. If he reads in another passage that it was the custom in a certain town for the purchaser to present three of the neighbours with a small piece of money, so that they might afterwards remember the act and be able to vouch for it, he at once adds that “this piece of money is the price which the purchaser pays to the three neighbours for their original rights over the land.” All this is pure imagination. The Greeks certainly did not connect any idea of community in land with these simple customs.

Such, then, are the eleven authorities by whose help M. Viollet tries to prove that the early Greek cities held their land in common during a period more or less protracted. M. Viollet does not give a single other reference. Now the first taken from Plato, the fifth from Diodorus, and the seventh about Tarentum are absolutely incorrect; the second, third and fourth from Virgil, Trogus Pompeius and Tibullus are beside the subject, since they apply to the tradition of a savage state which does not here concern us; the sixth, the one about Pythagoras, points to an exceptional episode, only lasting for a brief period, and clearly not in harmony with Greek habits; the eighth, about public meals, has been misunderstood; the ninth about the κλερουχίαι, and the tenth concerning the primitive inalienability of land belonging to the family, are absolutely opposed to M. Viollet’s theory; the eleventh points to publicity of sale, not community in land. And so out of eleven quotations or arguments there is not a single one which on examination stands firm.

And this is not all. Supposing that there could be found in the whole of Greek literature two or three, or even eleven, quotations, which seemed to imply community in land, it would still be the duty of every serious historian to look at the evidence on the other side; to search, that is, for other passages or other facts which point to an opposite conclusion. It did not occur to M. Viollet to do this. If he should ever think of undertaking the task, I venture to point out to him four classes of authorities or of facts: 1st, Those to be found in Homer, Hesiod and the most ancient documents, which show us the land held as private property, with no mention or trace of community. 2nd, Those vestiges of the oldest Greek law which have come down to us, which do not contain the slightest trace of a state of things in which the land belonged to the people, and which do contain, on the contrary, precise rules as to family property. 3rd, The rites of ancient religions, which show the worship of land and of consecrated bounds; and this side by side with the worship of the dead. 4th, and finally, the records of all the κληρουχίαι; that is, the division of the soil into hereditary portions, a division which was made on the very day of the founding of each city, and almost implies an actual inaptitude for common ownership. Here will be found, not eleven imaginary pieces of evidence, but a whole body of evidence and of facts; and this mass of evidence proves precisely the opposite of a system of community. History would be too easy a science if it were enough to pick out here and there isolated lines and interpret them as one liked. _Every_ authority ought to be consulted, the _whole_ of Greek literature ought to be studied, in treating of such a problem as M. Viollet’s. One cannot judge of the whole Greek world from a chance occurrence in the Lipari isles. Eleven quotations, which, even if they were exact, would be insignificant in comparison with the rest of Greek literature, are not enough to build a system upon. What is especially surprising is that the author of such a theory should not have thought of studying either the law, or the beliefs, or the permanent institutions of the Greeks. He has solved the question without so much as setting himself to investigate it.

May I add that I am sorry to find myself taken to task by M. Viollet? “M. Fustel,” he says (p. 464), “was unable to recognise this great historical fact (_i.e._, the supposed community in land), because he saw that every family had its own hearth, its own worship, its own ancestors.” This is true. I willingly grant that the facts which I saw, and which I have completely proved, prevented me from seeing the imaginary facts that M. Viollet thought he descried in his eleven quotations. He further adds (p. 465), that since I admitted the existence of property common to the family, it was an easy thing to go a little further and recognise, as he did, the common-ownership of the people. Here M. Viollet throws a little too much light upon his own method of proceeding. According to him, an historian who recognises one fact or institution ought to guess at another fact or institution, merely because there is an apparent analogy between them; in this way logic takes the place of evidence, and the imagination can construct all the systems it chooses. I am not bold enough for this; I do not find in history what I wish to find, but only what is there. I am careful not to insert anything I do not find. I saw in ancient law and ancient religion the co-proprietorship of the family, and I said so. I did not see the common ownership of the whole people, and I did not say I did. History is not a science of speculation; it is a science of observation.

No one, moreover, but M. Viollet, considers that the co-proprietorship of the family and the common ownership of the whole people “are two things which resemble one another.” It is clear to every careful observer that they are essentially different, both in character and in results. The co-proprietorship of the family is an ownership which is complete, absolute, hereditary, independent even of the State. If it is undivided, it is because the family at this time is itself still undivided. It is, besides, legally in the hands of the head of the family, the real owner, who is absolute master of it, and does what he likes with it; but who can neither transfer it or bequeath it “because he owes it to his descendants such as he has received it from his ancestors.” What resemblance is there between such a system and one under which the land would be common to all, and belong to a whole nation?