The theory of Maurer

From: Origin of Property in Land
by: Fustel de Coulanges

I. The theory of Maurer as to community of land amongst the Germanic nations.

G. L. von Maurer is, if not the earliest, at any rate the chief author of the theory we are examining.

He presented it with great clearness in a book published in 1854. In this he maintained that, amongst the Germans, private domains, villages and towns, all spring alike from a primitive mark; that this primitive mark consisted of an area of land held in common; that the land was cultivated for a long period without there being any private property; and that the cultivators formed amongst themselves an “association of the mark” a “markgenossenschaft.” “All land” he said, “was in the beginning common-land, gemeinland or allmende” (page 93). “There was nothing which could he rightly termed private property” (ibid).

“The ground was divided into equal lots, and this division was made afresh each year; every member received a part and moved each year to a new lot.”

“The whole mark, cultivated land as well as forests, was held in common” (p. 97).

“The idea of property” he says again, “only came as a result of Roman law” (p. 103). “Property, as we find it in later times, was produced by the decomposition of the ancient mark” (p. 10).

Our author re-stated his doctrine in another book published two years later: “The associations of the mark are bound up with the primitive cultivation of the soil; they can be traced back to the earliest German settlements, and in all probability once occupied the whole of Germany.”[1] We have to consider what are the facts, and what the authorities on which Maurer builds up this doctrine.

As the question concerns very early times, he naturally begins with early authorities. The first is Caesar. Caesar calls our attention, we are told, to the fact that amongst the Germans “there are no separate estates or private boundaries.”[2]

This is explicit; and, although one might say that Caesar was unacquainted with the Germans at home,[3] it has great weight as coming from so clear-headed a writer. Let me, however, call attention to the fact that the passage from Caesar is by no means a description of the mark as Maurer and his disciples conceive it. Caesar does not show us a markgenossenschaft, an association of peasants cultivating in common land of which they were the common owners. He describes, and this is a very different thing, the chiefs of the cantons arbitrarily disposing of the soil of which they alone appear to be the owners, and each year moving families and groups of men from one place to another. These people apparently have no rights, no power of initiative; the chiefs leave them only “as much land as they think fit” “where they think fit” and they ” force them” to move from place to place. All this is far enough removed from the supposed association of the mark—an association, that is, of free peasants cultivating land in common, in virtue of their joint ownership; and it would be difficult to make Caesar’s observation fit into such a condition of things.[4]

Next comes Tacitus. Does he introduce the mark into the picture which he draws of the institutions of the Germans? “Yes” says Maurer; “for in his 26th chapter, when he uses the word agri he means the mark.” And again, “all land held in common and not divided, Tacitus calls ager.” But by what authority does Maurer translate agri in Tacitus, and further on ager, by “common lands” when the word common is not to be found there? “Because” says he, “œthe word ager, in the Roman sense, signified when used by itself ager publicus.” Here we have an apparently unimportant philological statement, but it is one which plays a considerable part in Maurer’s book. He repeats it three times (pages 6, 84, and 93). Indeed, if we look more closely into it, we find that it is the foundation of his system. It was necessary for his view that the mark should be found in Tacitus; and therefore the word ager by itself had to mean ager publicus, i.e., mark, common land, Gemeinland. This is exactly what has to be proved. The true sense of a word cannot be got at by an effort of imagination, or by turning over the pages of a pocket-dictionary. It is only to be found by bringing together a number of examples of its use and comparing them; and the term ager occurs so often in Latin literature that an attentive student can hardly make any mistake as to its meaning. Nowhere do we find it in the sense of public land, unless when accompanied by the adjective publicus or the genitive populi, or some other term to show clearly the especial meaning it is intended to have.[5] By itself it never meant public land. Read Cato and Varro; they do not once mention public lands; and yet the word ager occurs frequently in their works, each time in the sense of a private estate. Some one buys an ager; the owner makes the lustration of his ager (Cato, 141), that is to say, he perambulates the boundaries of his property.

Columella is continually talking about the ager as the property of a man whom he calls dominus. More than thirty passages in Cicero show that he drew a distinction between an ager, which was the property of a private citizen, and the ager publicus, which was the property of the state. Even the agrarian laws, whose real object was to transform an ager publicus into an ager privatus, mark clearly the difference between them.[6]

It is, therefore, in no sense true that the word ager by itself implied public or common land, or that it was in any way analogous to the word mark. So far was this from being the case, that a Roman jurisconsult expressly says that the dominant idea conveyed by the word ager is that of complete ownership.[7]

In fact, what a Roman calls ager was very often what we call an estate. In Cato, for instance, the ager is not simply a field; it is a domain of some 60, 75, or 150 acres (c.c. 1, 10), which is cultivated by ten, twelve or sixteen slaves. Columella mentions, as if it were not unusual, that an ager might be so extensive that the owner would have to divide it for purposes of agriculture between several groups of slaves. Ager and fundus are synonymous terms, and they both mean an area of land cultivated for an owner’s benefit.[8] Pliny speaks in his letters of his agri; and each of these is a great estate that he either lets out to farmers, or cultivates by means of a body of slaves. Each ager included, to judge from his description, arable land, meadows, vineyards and woods. The jurisconsult Paulus makes use of the two words, ager and fundus, in referring to one and the same domain.[9] Another jurisconsult says in so many words that the word ager includes all the land of an estate.[10] Finally, if there were still any doubt, we need only look at the passage from Ulpian in the Digest, which gives the formula under which estates were enrolled in the census. We see that such properties are called agri, and that each of them comprises land in tillage, vineyards, meadows, and forests.[11]

All this has to be borne in mind, if we would know what was the idea that Tacitus associated with the word agri; for no doubt Tacitus used the language of the Romans of his own times. To suppose that he attached to this word a meaning it had never had, viz., public land, and, going even further, the idea of common land—an idea which never entered the Roman brain—is pure fancy. And this is the error with which Maurer and his followers set out to misinterpret the whole of chapter xxvi. of the Germania.[12]

After Tacitus, we have the early records of German law. Is this where Maurer discovers the mark? If the system of the mark was in full vigour in early times, and came down from them to more modern days, proof of its existence would certainly be found in barbaric law. But the word mark is not to be met with in these codes. You find it neither in the laws of the Burgundians nor in those of the Visigoths, nor in those of the Lombards; nor do you find any term that might be its equivalent or translation. It is absent, in like manner, from the Salic law.

In the Ripuarian law the word is to be found, but in a sense quite the opposite of that which Maurer attributes to it. Far from implying a district of land common to all, it denotes the boundary of a private estate. This will be seen on reading section 60: “If any one buys a villa or any small estate, he ought to procure witnesses to the sale. … If a proprietor encroaches on a neighbouring proprietor (this is the meaning of the word consors), he shall pay fifteen solidi… The boundary of the two estates, terminatio, is formed by distinct landmarks, such as little mounds or stones. … If a man overstep this boundary, marca, and enters the property of another,[13] he shall pay the fine mentioned above.” Thus, what the law calls terminatio in one line and marca in the next is clearly one and the same thing: it is the boundary which separates two private properties. A fact like this upsets Maurer’s whole system.

Let us turn to the codes of the Germans who remained in Germany proper. The word mark is not to be met with throughout the Thuringian, Frisian and Saxon codes. It does occur in those of the Alamanni and Bavarians; but, instead of signifying a common territory, as Maurer would have it, it is used for the boundary of a territory. The laws of the Alamanni lay down that anyone who seizes a free man and sells him across the borders, extra terminos, shall restore him to his country and pay a fine of forty solidi; immediately after, in the following line, comes a similar direction in case of the sale of a free woman beyond the borders, and the only difference is, that in place of extra terminos we have the phrase extra marcam: the two expressions are, we see, synonymous, and both denote a frontier.[14]

The Bavarian law indicates still more clearly the meaning of the word. Speaking of a man who takes a slave over the borders, it expresses it by extra terminos hoc est extra marcam.[15] It is impossible more clearly to indicate that the German word mark is synonymous with the Latin word terminus. Another passage from the Bavarian laws proves that mark was also used for the boundary of a private estate. Under the rubric, De terminis ruptis, it says that if two neighbours are at variance about their boundary, the judges ought first to examine whether the boundary is indicated by visible landmarks, such as marks on trees, hillocks or rivers. Now these two neighbours who have a common boundary are termed in the law commarconi.[16] Maurer, it is true, supposes that by this word is meant “men who dwelt in the same mark, the same common territory” but he would not have fallen into this error had he noticed that the same clause in the very next line expressly tells us that we have here to do with private property, with land that has been inherited; for each of the disputants makes a declaration that he has inherited his lands from his ancestors.[17] Here we have, then, precisely the opposite of mark in the sense of land held in common. Two neighbouring land-owners are at law about their boundaries. Gommarcani is analogous to confines, which we find elsewhere; it is used of two men who have the same marca, the same finis, that is, a common boundary.

That the mark was a district possessed in common by a number of persons there is not a trace in German law. But are there not, at any rate, vestiges of some kind of common ownership? Maurer maintains that there are; and as evidence brings forward three instances, all taken from the Burgundian law: in section 13 he finds the words in silva cornmuni; in section 31, in communi cavipo; and in section 1 of the “additamentum” silvarum et pascuorum communionem.[18] This is quite sufficient to convince some readers. Is not the word communis enough? And yet, let us make sure of our quotations, and with each of them let us look at the context.

Article 13 does not in the least refer to a forest common to all, but to one which happens to be held in common between a Roman and a Burgundian, probably in consequence of the division of an estate which had belonged to the former.[19] This is a very different thing from a system of community. The passage shows, on the contrary, that in this case the forest was the property of two men. The mention in section 31 of a campus communis has led Maurer to say “that there were still in Gaul many fields which remained undivided.” This is a mistake; for here again it is a field belonging to two proprietors that is spoken of; one which is only undivided so far as these two men are concerned. Anyone who has planted a vine in a common field shall make up for it to the other owner by handing over to him an equal extent of ground;[20] but if the co-proprietor from the first objected to his doing it, and the other has planted his vine in spite of him, he shall lose his pains and the vine shall belong to the owner of the field.[21] It is plain that here we have to do with something very different from a piece of ground common to an entire village. Maurer has, in this instance, made the mistake of isolating two words instead of reading the whole passage. As to his third quotation, section 1 of the additamentum, we find that this does not belong to Burgundian law. It belongs to the Roman law of the Burgundians; which is a very different thing.[22] It is, in fact, connected with an arrangement entirely Roman in its character, which is to be met with also in the code of Theodosius, according to which forest and pasturage might be held in common by a certain number of owners of land in tillage. The Roman law enacts that in such a case each owner should have rights over the forest and pasturage in proportion to the extent of his cultivated land.[23]

Thus we find that the three passages from German law, which Maurer believes he has discovered to prove the existence of a system of common ownership, either belong to Roman law or have no connection with this supposed common ownership of land, and even give positive proof of private ownership. In the same way finding somewhere the word consortes, he exclaims “Here we have the associates of the mark” (p. 145), and he again quotes a passage from the Burgundian law; but, as in the instance given above, we find that the passage belongs to Roman law, and, on looking at it, we see that the word consortes is used in the Roman sense of co-heirs.[24] The meaning of the clause is that if two or more co-heirs have not yet divided the estate and apportioned their shares, and one of them demands a division of the property, it is not to be refused him.[25] In this case, again, we are far enough away from a system of community in land.

Such are the four passages which Maurer finds, or thinks he finds, in German law; and he can only use them in support of his theory by misinterpreting them. The whole body of German law is, in fact, a law in which private property reigns supreme. Look at the Burgundian law, and you will find mention of corn fields which are enclosed, and even of meadows; the forest itself is an object of private property. “If a Burgundian or a Roman possess no forest, he may take dead wood from the forest of another, and he to whom the forest belongs, shall not hinder him; but if he takes a tree bearing fruit, be shall pay a fine to the owner, domino silvce.”[26] A right of use, limited besides to dead wood, is not the same thing as common ownership. It will be noticed also that the term used in the code for a country domain is villa, with its boundaries, termini villoe.[27] Even the lands given by the king to his servants are marked off by definite boundaries.[28] These boundaries are sacred; the Burgundian lawgiver lays down that any one who removes a boundary shall lose his hand. It never for a moment entered into the minds of the Burgundians to establish agrarian communism.

In the law of the Visigoths, we find men who own vineyards, fields, meadows, and even pasturage and forests.[29] Land is hereditary property; and there is an entire section upon the division of landed possessions amongst co-heirs, as well as one on the boundaries of private estates. It is the same throughout the Lombard law; the right of ownership applies to everything, even to forests.[30] The owner of the land—dominus—has the right of selling it.[31] He can also let it on lease, libellario nomine.

The Salic law is a much less complete code than those we have been considering. It makes no mention of sale; but it contains the rule of hereditary succession. Land passes from father to son.[32] We also find enclosed corn fields and meadows,—a state of things hardly to be reconciled with community of land;[33] there are even forests which are one man’s property, and where no one has the right of getting wood.[34]

The Ripuarian law indicates the use of hedges and enclosures; it recognises the right of hereditary succession to land, and also the power of disposing of it by sale.[35] All these are unmistakable signs of the prevalence of private ownership.

The hastiest glance at the law of the Alamanni, makes it absolutely clear that the soil was an object of private property throughout the district in which it was in force. We see from the first section that an individual might be so completely owner of his land that he could, by a mere act of will, give it away to a church; he had not to ask the leave of any group of associates. Ownership of land is spoken of as proprietas and it is “perpetual.” [36] It is also hereditary; for the same law shows that if this man did not give his land to the church, it would pass “to his heirs;”[37] and it provides for the case of one of the heirs objecting to the gift, without mentioning the possibility that an “association of the mark” might lay claim to the land. The same code also mentions mills and water courses as objects of private property.[38] The following clause enlightens us still more as to the condition of the land: If a dispute arises between two families concerning the boundary of their lands, the two families fight in presence of the count; the one to whom God gives the victory enters into possession of the disputed territory; the members of the other family pay a fine of 12 solidi “because they have attacked the property of another.” [39] Here we have a law which cannot apply to lands common to all. It is clearly dealing with property which is permanent, and sharply defined; though it is property which belongs not so much to the individual as to the family. Among the Alamanni, as we see, traces of family ownership still survived.

In Bavarian law property in land is hereditary. Each domain is surrounded by a boundary made “either by a bank of earth, or by stones stuck in the ground, or by trees marked with some particular sign.”[40] And we must not suppose that these boundaries merely enclosed gardens; they enclosed fields and vineyards “He who, whilst tilling his field or planting his vine, has unwittingly moved a land mark, shall restore it in the presence of his neighbours.” “When two neighbours having a common boundary have a dispute, if the land marks are not clear, the one says, ‘My ancestors possessed the land as far as this line, and left it me by inheritance:’ and the other protests and maintains that the land belonged to his ancestors as far as some other line; then the dispute is settled by judicial combat.”[41] This is a good instance of individual ownership. Ownership has long been hereditary; since each of the litigants says he has received his estate from his ancestors, and the lands have been held by the same families for several generations. Nor is it only to land under tillage that the right of ownership applies; it applies equally to forests and pastures; to uncultivated as well as to cultivated land: “If anyone sells his property, whether cultivated land, or uncultivated, meadows or forests, the sale ought to be transacted in writing and before witnesses.”[42]

In Thuringian law, land passes from father to son. Saxon law also recognises the right of private property; and authorises the sale and gift of land.

The capitularies of the Merovingian kings, again, show that private property was the normal and regular state of things. An edict of Chilperic declares that land shall pass not only to the son according to the ancient rule, but also to the daughter, brother, or sister. In his treatment of this last point Maurer once more displays singular inaccuracy. From this law which declares the rule of hereditary succession, he draws the conclusion that before that time there had been community of property. The edict of Chilperic says that in no case shall the neighbours take possession of the land; this appears to him to mean that, up to the day this law was made, the neighbours were the real owners, and inherited before the son of the dead man. He does not notice that it is precisely in the case where a son survives that Chilperic contents himself with referring to the ancient rule of hereditary succession. The words non vicini occur in the paragraph which deals with the case of the death of the owner without children. To say that if a man dies without children, the nearest heirs must be sought for, and the neighbours are not to take possession of the land, is not the same as saying that until that time the neighbours had had rights over the land. To exaggerate the meaning of a quotation to such a point as this is really to pervert it.[43] Not a single Frankish capitulary, not a single law, charter, or formula, mentions this imaginary “right of the neighbours” over the land. Not one of these documents even alludes to a village holding its land in common. The Carolinginian capitularies, which were drawn up for Germany as well as for Gaul, recognise two methods only of land-holding, the allodial, i.e., complete and heritable ownership; and beneficiary, i.e., land granted by its owner for a time and under certain conditions. They know nothing of community of ownership.

If one could point anywhere to an annual or periodical division of the soil this would be a proof of agrarian communism. Maurer accordingly maintains (page 8) that this annual division was, as a matter of fact, for a long time practised. In support of so grave an assertion, to prove an historical fact of such magnitude, we might hope that he would furnish us with numerous and precise references. He gives but one, a document of the year 815, printed in Neugart’s Code x diplomatics, No. 182.[44] Now look at this deed; it is a gift made to a convent . by a certain Wolfin. Read it through; you will not find a single mention of community, a single mention of a yearly division. Wolfin is a land-owner; the lands he grants are his property; even more than that, they are his by inheritance; they have descended to him from his father. Here then we have a deed which from its first word to the last proves the existence of private property, and shows the very opposite of common ownership.

How has Maurer managed to find in this a confirmation of his theory? We have here a striking example of the light-hearted way in which he works. The donor, in making a list according to custom of the lands he is giving, writes terree anales, prata, vinece, pascua. Maurer lays hold of this word anales. Of course, it is not Latin; so he begins by supposing that the copyist made a mistake, and corrects it to annales. But even the word annalis does not belong to the language of legal documents; there is not a single other instance of its use. Maurer supposes that it means “lands that are held for only one year.” But that is impossible; since, according to this very deed, they are Woltin’s property by inheritance. The whole list, terræ anales, prata, vinece, pascua relates beyond, doubt to inherited property. The word anales is puzzling; but any one who is familiar with charters of this kind must have often observed in those of this period the expression terræ areales taking the place of terræ arabiles,[45] but with the same meaning, i.e., arable lands. It occurs frequently in deeds of gift. When in a number of documents exactly alike in phraseology you find in eighty terræ crabiles, prata, vinece, silvce, pascua, and in twenty more terræ ariales, prata, vinece, silvce, pascua; then, supposing in a single example you meet with terræ anales, prata, vinece, silvce, pascua, common sense tells you that this word anales, which, however we take it, is incorrect, was written for ariales, and that either the editor or the copyist made a mistake. There is no doubt whatever that the donor makes a gift of “lands he possesses by inheritance” which include “arable lands, meadows, vineyards and pasture.” Such is the deed of 815; and it is an illustration of the method Maurer follows. He cites a deed, which, taken as a whole, proves the existence of private and heritable property; he does not tell the reader this, but picks out from its context a single word; alters it and translates it in his own way; and presenting the reader only with this one word, tries to make him believe that the deed proves the annual division and common ownership of land.

When Maurer comes to deal with the barbarian invasions, he takes great pains to get together a number of quotations which will suggest the idea of a partition of land (pages 72 seq.); but if we examine them, we see that there is absolutely nothing about a yearly or periodical division. He first quotes from Victor Vitensis, who tells us that Genseric, directly he was master of the province called Zeugitana, divided its soil amongst his soldiers “in hereditary lots.”[46] This is exactly the opposite of a yearly division of land, and, consequently, of common ownership. Next comes Procopius who writes that “the Ostrogoths divided amongst themselves the lands which had before been given to the Heruli.”[47] Here again we have to do with a division of land among private owners. Then Maurer, with a great profusion of quotations, points to the divisions of property that many scholars believe were effected between the Roman proprietors on the one hand and the Visigoths, Burgundians and Franks on the other. But this division, in any case, was neither yearly nor periodical. Each portion became, from the very first day, permanent and hereditary. It would be childish to maintain that a division of this kind was the sign of a system of common ownership. It shows on the contrary that the new comers knew nothing about community in land, and never practised it.

And so we find that Maurer cannot, from all these nations, produce a single instance of a village holding its land in common or of an association of the mark. Not a single instance either from writers of the time, or from codes of law, or from charters, or from legal formulae. And it is impossible to reply that this is simply a case of omission; for in these laws, charters and formulae, we not only do not find common ownership, but we do find exactly the opposite; we find signs everywhere of private property, and of the rights of inheritance, donation and sale.

There is not even a trace to be found in these codes of law of an earlier system of non-division. When they lay down that land is hereditary, or that it can be sold, they do not say that this was a novelty. It is easy for Maurer to declare that these practices were borrowed from Roman law; this is a convenient hypothesis, but one for which there is no proof. The fact is that the earlier condition of things, of which we can see the traces in German legislation, was not communism, but the common ownership of the family. We find signs of this in the Salic and in the Ripuarian law, and in the codes of the Burgundians and Thuringians. The revolution in the land system which took place at this period was a change not from common ownership to private ownership, but from the ownership of’ the family to that of the individual. The practices of bequest and of sale are the chief marks or this great change; and it is this alone that we can attribute to the influence of Roman law: while even here it seems to me that it would be safer to regard it rather as a natural process of evolution which has taken place in every nation.

If in German law Maurer can discover no trace of the mark or of community in land, what are the documents on which he rests his proof of their existence? If we study his book with some attention, we shall be surprised to find that he goes for his authorities to the Traditiones, under which title are classed the various collections of charters of the 8th to the 14th centuries.[48] But all these, and they number almost ten thousand, are, without exception, deeds of private property. In fact, they are always either deeds of gift, or of sale, or of exchange, or of the grant of precaria. It is impossible not to allow that the thousands of deeds of this kind are so many proofs of private property, since you can neither sell nor give away what is not already your own. Amongst these collections we also find judicial decisions, and they all point in the same direction.

Observe, too, that there is absolutely no doubt as to the meaning of the language employed. Could language be clearer than that of the following passage taken from a deed of 770 ? “I, Wicbert, give to the church of St. Nazarius the farms (mansi), lands, fields, meadows and slaves that belong to me. All these I deliver to the church to be held for ever, with the right and power of holding, giving, exchanging, and doing with them as seems to it best.”[49] Or of a deed of 786: “I, daughter of Theodon, give to St. Nazarius all that I hold by inheritance in the places here mentioned; and everything that has been in my possession and ownership, I hand over into the possession and ownership of St. Nazarius.”[50] And again: “Whatever land belongs to me I give to the abbot and his successors to hold and possess it for ever;”[51] and yet again: “I, Wrachaire, give whatever land is mine in my own right for the abbot henceforward to hold in his own right, jure proprio.” [52] These expressions occur in thousands of documents. Often the donor or seller adds that he holds the land by inheritance, that he has received it from his father.[53] Another thing we must not fail to notice is that ownership is not limited to land under cultivation; it includes forest, pasture and streams,[54] as we find over and over again. And it is never a village community or mark which makes such a gift, but always a single individual.

Such is the character of the records Maurer sets about using in order to prove the existence of community in land in the Middle Ages. It is evident that, taken as a whole, they are in direct contradiction to this theory; but what he does is to separate from the rest about twenty deeds, take his evidence from them, and ignore the existence of the rest. What can be said for a proceeding by which, merely for the sake of propping up a theory, certain isolated cases are picked out, and the great mass of evidence, which is in opposition to the theory, is passed over? At the very least, it would have been only fair to warn the reader that the deeds quoted belonged to an insignificant minority—eighteen or twenty out of about ten thousand. Readers have not always volumes of this kind at their elbow; and if they have, it does not occur to them to verify the references. If you present them with twenty quotations, they at once suppose that these are the only ones in existence.* They ought to be told that there are ten thousand other deeds of the same chai’acter, written at the same time, drawn up according to the same forms. You should confess that these ten thousand deeds say exactly the opposite of the twenty you quote. You should not leave them in ignorance of the fact that these thousands of gifts, wills, sales or exchanges of land form an absolute proof of a system of private property. Only after pointing all this out, would it be right to tell them that there are perhaps eighteen or twenty deeds in which some signs of community in land may possibly be seen. No avowal of this kind was, however, made by Maurer; his followers in Germany and France have been equally silent. All of them calmly appeal to the Traditicmes, as if these fifteen ponderous volumes were not in themselves an overwhelming refutation of their theory.

We must go further. Are the eighteen or twenty deeds referred to by Maurer given correctly? Do they really mean what our author wishes them to mean? Observe that he never quotes more than a single line, sometimes only one or two words. We must go to the documents themselves and verify them.[55]

He first of all quotes, on page 47, a deed from the Lorsch collection. It is a charter of 773, by which Charles the Great grants to that monastery in perpetuity, the villa of Hephenheim, including lands, houses, slaves, vineyards, forests, fields, meadows, pasture, water and streams, with all its appurtenances and dependances, its boundaries and its marks, cum terminis et marches suis.[56] Here is the mark, says Maurer. Yes, but not the mark of the village community. It is precisely the opposite, the mark or boundary of a private property. We have here to do with a villa, a domain which has been the private property of the king and is now becoming the property of a convent. There is not a thought here of common ownership, or of a common mark, or of a village association. There is not even a village. It is a domain, cultivated, says the charter, by slaves. Cum terminis et marehis suis are both words meaning the boundaries of the domain; and in a repetition of this kind there is nothing surprising. The marca is precisely the same as the terminus. We saw above, in the Bavarian law, terminus id est marca. In the same way a charter of Childeric II. describes the boundary-line of a domain as fines et marchas.[57] We must not suppose that these marchae were a stretch of land separate from the domain. The expression dono viltam cum marchis will astonish no one who is familiar with documents of this class. Any one who has an acquaintance with them knows that it was the custom in deeds of gift, or sale of a domain, to add, “with its boundaries.” Charters written in Gaul have the phrase, cum omni termino suo; in Germany, cum omni marca sua or cum marcis suis.[58] In a large number of our documents marca is used in this sense alone, as, for instance, in the Codex Fuldensis, No. 21, a deed of 760, in which a certain person makes a gift of a villa cum marcas et fines.

Maurer refers to many other documents;[59] 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 Schoepflin, 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 Angehises-heim; in villa vel in fine Heidersheim marca; In villa Gebunvillare seu in ipsa marca; dono pm’- tionem meam quce 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.[60] 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.[61] 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.[62] 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.[63]

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.”[64] Another makes a gift “of all he owns in the marca Bettunis, whether inherited from his father or his mother.”[65] 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.[66] 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.”[67] Meginhaire, to take another case, gives what he possesses in the villa Frankenheim and mentions “fields, mansi, meadows, pastures, forests and streams.”[68] The same thing is repeated in thousands of documents;[69] 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.[70] 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.[71] 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.[72] 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.[73] 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.[74] 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 Ins share of a forest.[75] Another example which he refers to is a forest belonging to three villæ in common.[76] We are told also of a Count Himo 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.”[77] 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.[78] 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.[79] 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,[80] so that the owners of these villae alone have any rights over it.[81] 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.[82] “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.[83] 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, und the rest was common to the tenants.[84] 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.”[85] 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 ir the forest, cum usu silvatico, that is with the privilege of gathering dead and broken wood.”[86] “We give such and such curtilia with all the rights of use belonging to these curtilia.”[87] 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.[88] 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 868, 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.[89] 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.[90] Sometimes, again, he exacts payment in return for these advantages, and this forms part of the yearly rent.[91] 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 he found in various collections of Traditiones.[92] 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.” [93] 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. Rut 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,[94] 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.” [95] 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.[96] 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.[97]

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.*2[98] 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.” [99] Later on we see in the laws of the Burgundians that proprietors of land have coloni to cultivate their estates;[100] they have slaves;[101] they have on each estate a manager, actor, or a farmer, conductor[102] 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.”[103] 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.[104] 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.[105] Moreover, the laws speak of slaves holding portions of land, with house, stable and barn,[106] by the side of the house and barn of the owner.[107] 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.[108] 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.[109] The number of slaves is considerable. Thus in a deed of 863, Ansfrid makes a grant of an estate and sixty-four slaves.[110] In 786, Warinus presents the Abbey of Fulde with a marca, which contains thirty hubce and three hundred and thirty slaves.[111] 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.[112] Walafrid, in another marca, gives twenty-eight slaves.[113] In 815, we find a man of middle rank possessing seven mansi and five-and-twenty slaves.[114] 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 hubce, 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.[115] 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.[116] In 989 a woman represents herself as owning in the marca of Schaffenbeim 4 hubæ dominicales, 8 hubæ serviles, 5 mansi, vineyards, meadowland, woodland and a mill, to all which are attached thirty slaves.[117] The dominicum is described in the same way in many other documents.[118] 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.[119] 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;[120] 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.[121] 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.[122] Wherever he turns, he sees the mark. If the King Childebert speaks of the centena, the centena must he the mark.[123] The duty of furnishing the king’s agents with a lodging when they are travelling falls on the mark.[124] 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![125] 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.[126] 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,[127] 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.[128] 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.[129] 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.[130] 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.[131] 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.[132]

“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.”[133] 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.[134] 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 newcomer; 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.[135] 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.[136] 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.[137] 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,[138] 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,[139] the men of 819 demanded that this last clause should be abrogated.[140] 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 cornfields, 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.[141] 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.[142] 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.[143] 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;[144] but, as the theory requires that real property shou<ld 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.


[1] 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.

[2] Cæsar, vi., 22.

[3] The expedition upon the right bank of the Rhine lasted only 18 days.

[4] Neque quisquam agri modum certum aut fines habet proprios; sed magistratus ac principes in annos singulos gent ibus cognationi-busqne hominum qui una coiernnt, quantum et quo loco visum est, agri attribuunt, atque anno post alio transire cogunt.

[5] 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 whicli 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.

[6] See the Lex dicta Thoria, in the Corpus inscriptionum latina- rum, I., p. 79 : “Qui ager publicus populi romani fuit … ager privatus esto, ejusque agri emptio venditio uti ceterorura agrorum privatorum esto.”

[7] 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 F rench disciples had known Latin or Roman institutions a little better, they would never have identified the ager publicus with the allmend.

[8] As to the synonymous character of these two words, see Yarro, 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.

[9] Paul, in the Digest, xviii. 1, 40.

[10] Digest, L., 16, 211.

[11] Ulpian, in the Digest, L , 15, 4 : “Forma censuali cavetur at agri sic in censum referantur: nomen fundi cujusque, arvum quot jugerum sit, vinea. . pratum,. . . pascua. . . silvæ.”

[12] 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. JO; notice especially these two passages, Columella, i. 3: occupatos nexu civium aut ergasulis, and Code of Justinian, ix. 49, 7. quot mancipia in prtediis 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 ana, see Yarro, De re rustica, i. 29: arvum est quod aratum est; ibid., i. 13: boves ex arvo re- ducti, i. 19: ad jugera ducenta arvi, bourn jugo duo; cf. Cicero, De vepubl., 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 mover e, 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, nee 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.

[13] In sortem alterius fuerit ingressus. In the documents from the 4th to the 8th century the word sors meant a private property: sors patrimonium significant, 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 proprice. 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 cumfiliis sortem suam diviserit. In all these examples sors signifies property or inheritance.

[14] Lex Alamannorum, xlv. and xlvi. edit. Pertz, p. G1; edit. Lehmann, pp. 105-106.

[15] Lex Baiuwariorum, xiii, 9, Pertz, p. 316.

[16] Ibidem, xii, 8, Pertz, p. 312.

[17] Ibidem: “Hucusque antecessorea mei tenuerunt et in alodem mihi reliquerunb.” 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’ Alien et le Domaine Rural , which has appeared since his death.]

[18] Maurer, Einleitung, pp. 87, 88 and 145.

[19] “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.”

[20] “Quicumque in communi campo vineam plantaverit, similem campum illi restituat in cujns campo vineam posuit.”

[21] “Si vero post interdictum in campo alterius vineam plantare praesumpserit, laborem suum perdat, et vineam cvjus est campus accipiat.

[22] See the note in the edition of Pertz, p. 607; see also Binding, in the Fontes rerum Bernensium, I. p. 142.

[23] “Silvaruin, montium, et pascui unicuique pro rata posses- sionis suppetit esse commune.” The same rule is to be found in another form in the law of the Burgundians, tic. 67: “Quicumque agrum vel colonicas tenent, secundum terrarum modum vel possessionis suae 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.

[24] 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 cohceredes , see Cicero, in Verrem, III., 23; Paul, in the Digest, xxvii, I., 31; Sidonius, Letters iv., 24; and many other examples.

[25] Compare the sections I)e 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.

[26] Lex Burgundionum, xxvii and xxviii., 1-2.

[27] Ibidem, xxxviii. 4; cf. xiix. 3; “dominus extra fines suos.”

[28] 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 pnblicus in the language of the time.

[29] Lex Wisigothorum, viii. 3,15; viii. 5, 1; viii. 4, 27; “silvse dominus; is cujus pascua sunt.”

[30] Lex Langobardorum, Rotharis, 240.

[31] Ibidem, Liutprand, 116; Rotharis, 173.

[32] Lex salied, 59; “Si quis mortuus fuerit et filios non dim- iserit.” 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 seium tota terra pertineat.”

[33] Ibidem, ix. 4; Wolfenbiittel MS., ix. 9; cf. xvi. 5; xxxiv. 1.

[34] Ibidem, xxvii., 18.

[35] Lex Bipuaria, 43, 56, 60, 82.

[36] Lex Alamannorum 1; proprietas in perpetuo permaneat.

[37] Ibidem, 2; si ipse qui dedit vel aliquis de heredibus suis. . . Cf. ibid., 57-

[38] Ibidem, 80 (83), edit. Lehmann, pp. 144, 145.

[39] Lex Alamannorum, art. 81 (84), edit Lehmann, pp. 145, 140. Pertz. 113 and 163.

[40] Lex Baixiwariorum, xii, 4.

[41] Ibidem , xii, 4, Pertz, p. 311.

[42] Ibidem , xvi., 2. Pertz, p. 32l; cf. ibid. 15, and xxii. p. 332.

[43] 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’Ecole des Chartes, 1872, p. 492). Such an interpretation is the very opposite of the original.

[44] Neuyart, i. p. 153.

[45] The words terras areales or ariales are to be found especially in the Codex Fiddensis of Dronke, Nos. 16, 78, 155, etc., and in the Traditiones possessioncsque Wissemburgenscs of Zeuas. Nos. 9 35, 52, etc.

[46] Victor Vitensis, i. 4; “Exercitui provinciam Zeugitanam funicuo hereditates divisit.

[47] Procopius, Gothic War, i. 1.

[48] 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 Code x Laureshamensis abbatice diplomaticus, 1768; the Subsidia and the Nova Subsidia diplomatica of Wurdtwein, 1772-1781; the Codex diplomaticus Alemannice 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 Code x 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; Schoepflin, Alsatia diplomatica, 1772; Wigand, Archiv fur Geschichte Westphalens, 1825; Bodmann, Rheingauische Alterthümer, 1819; Mone, Zeitschrift fur die Geschichte des Oberrheins, 1850. Sine Maurer wrote, several other collections have been printed, especially those of Beyer, Urkundenbuch. . . ., miltelrheinischen Territorien, 1860; Binding, Fontes rerum Bernensium, 1883; and the Urkundenbuch der Abtei S. Gallen, 1863.

[49] 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.”

[50] 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.”

[51] 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.”

[52] Lacomblet, No. 4.

[53] 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, pas- cuis, silvis, viis, aquis, cultis et incultis.”

[54] 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.”

[55] 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.

[56] Codec c Laureshamensis, No. 6, vol. i. p. 15.

[57] Diplomata, edit. Pardessus, No. 341.

[58] See especially the charters of the Abbey of St. Gall, Nos 185, 186, 187, etc.

[59] Maurer, Einleitung, pp. 41, 42, 45.

[60] Codex Laureshamensis, No. 34, i., pp. 70, 71.

[61] 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.

[62] Marii Aventici chronicon, ed. Arndt, p. 15. Lex Alaman-norum, xlvii. Lex Lainwariorum, xiii., 9, Pertz, p. 316. Capitulary of 799, art. 19; of 808; of 811; edit. Bortius, pp. 51, 139, 167.

[63] 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 paqus are not the same thing.

[64] Diplomata , ed. Pardessus, ii. p. 434.

[65] Ibidem, ii. 440.

[66] Schcepflin, Alsat. diplom., i. p. 13, a charter of the year 730, wherein Theodo sells all that he possesses in the marca Hameris- tad, “quantum in ipso fine est, ea ratione ut ab hac die habeatis ipsas terras et silvas. … et quidquid exinde facere volueritis hberam habeatis potestatem.”

[67] Codex Lanreshamensis, No. 15, v. i. p. 34.

[68] Tradit. Wissemburgenses, No. 127.

[69] 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 Fiddensis, 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.”

[70] Maurer, Einleitung, pages 73, and 80.

[71] 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 liabitandi sedibus. . . . Terrain juxta pollicitationem suam iis delegavit. Qui earn sorte dividentes, partem illius colonis tradiderunt, singuli pro sorte sua sub tributo exercendam; cetera vero loca ipsi possederunt.” Do not forget that the word soi’s 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.

[72] Helmold, chr. Slav. i. c. 91: “Adduxit multitudinem populorum de Westphalia, ut incolerent terrain Polaborum, et divisit eis terrain in funiculo distributionis.”

[73] 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 ecclesim pro quantitate et limitibus contenderent. Ego Hermannus abbas. … compromissum fuit ut maximus campus per funiculos mensuraretur et cuilibet hubse 12 jugera deputarentur … in totidem partes seaundus campus et tertius divideretur… Inchoata est ista divisio per Alwinum monachum scribentem et fratrem Bertholdum prepositum et Rudolfum officialem cum funiculis mensurantes.”

[74] [M. Fustel uses the term “les trois categories;” but the maximus campus, secundus, and tertius, would point rather to the “three-field system.”]

[75] Codex Lauresharnensis, No. 106, p. 164.

[76] Wigand, Archiv, i. 2, p. 86.

[77] Codex Lauresh., No. 69, p. 74 : “Quidquid de rebus propriis habere videbatur in villa Brunnon et tres partes de ilia 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.

[78] Lacomblet, No. 7: “Hovam integram et scara in silva juxta formam hovse plense. . . jure hereditario.”

[79] To be found in Mone, Zeitschrift fur Geschichte des Oberheins, vol. i. pp. 405-406.

[80] [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.]

[81] This is to be found even in Roman law. See Scaevola, in the Digest, viii. 5, 20: “Plures ex municipibus, qui diversa praedia possidebant, saltum communem, ut jus compascendi haberent, mercati sunt, idque etiam a successoribus eorum observatum est.”

[82] Deed of exchange of the year 871 in Neugart, No. 461, vol. i. p. 377: “Dedimus illi in proprietatem jugera 105 et de coramuni silva quantum ad portionem nostram pertinet. … Et de silva juxta estimationem nostrae portionis in communi silva.”

[83] Lacomblet, No. 22, document of 801: “Tradidi particulam hereditatis mese in villa Englandi … et duodecimam partem in silva Braclog.”

[84] Kindlinger, Miinderische Beitrcige, ii 3: “Est ibi silva communis. … Silva domini quae singularis est.”

[85] Maurer, Einleitung, p. 115, following Bodmann, Bheinganische Alterthümer, i. 453: “In hac silva nullus nostrum privatum habebat quidquid, sed communiter pertinebat ad omnes villae nostrae incolas.”

[86] 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.

[87] Neugart, No. 624, vol. i. p. 511, acte de 896 : “Curtilia quae sunt sex et inter arvam terrain et prata juchos 378, cum omnibus usibus ad ipsa curtilia in eadem marcha (Johannis-villare) pertinentibus.”

[88] Alamannic formula, Roziere, No. 401 : “In silva lignorum materiarumque csesurain pastumque vel saginam animalium.” Lacomblet, No. 20 : “Cum pastu plenissimo juxta modulum curtilia ipsius.” Neugart, No. 462 : “Tradidi quinque hobas et quidquid ad illas pertinet et ad unamquamque hobam decern porcos saginandos in proprietate mea in silva Lotstetin quando ibi gla rides inveniri possunt.” Mone, Zeitschrifb, i. 395: “Eodem jure quo licitum est villanis. . . possunt oves suas vel alia ani- malia pascere in communibus pascuis dictm villae.” Schoepflin, Alsatia dipt., ii. 49: “Jus utendi lignis in silva Heingereite.” Codex Laureshamensis, No. 105, i. p. 164, anno 815 :”˜”˜ Tradidit Alfger terrain 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 dipt., i. 920: “Universitas rustieorum habet jus (in ea villa) secandi ligna pro suis usibus et edificiis.”

[89] Codex Laureshamensis, No. 34, vol. i. p. 68: “Ego Ansfridus . . . trado res proprietatis mese 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 eam- dem 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. . . . Hsec omnia de jure meo in jus et dominium S. Nazarii perpetualiter possidendum.”

[90] Example in Lacomblet, vol. ii., p. 42

[91] Ibidem: “Homines … ex communione silvse … persolvunt censum 32 denariorum. Homines in hac silva communionem habentes persolvunt tres modios avense. Homines de communi silva quam vocant Holzmarca persolvunt curti adjacenti duos modios avense.”

[92] Lacomblet, Urk fur die Gesch. des Niederrheins, No. 3, anno 793. Zeuss, Tradit. Wissemburgenses, No. 200. Beyer, Urkundenbuch zur Gesch. der Mittelrheinischen Territorien, No. 10, anno 868.

[93] Formula, ed. Rozière, No. 172, ed. Zeumer, p. 276 : “Dulcissimis nepotibus meis . . . dono rem meam, id est, mansos tantos cum sedificiis, una cum terris, silvis, campis, pratis, pascuis, communiis, mancipiis ibidem commanentibus, et quid- quid 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.

[94] In Wurdtwein, Nova subsidia diplomatica, vol. xii., p. 88 : “Tradidimus fundum Uterinse 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.”

[95] “Silvse quoque adjacentis eidem fundo, quae vulgari lingua almenda nominatur, quam rustici frequentant, quae juris nostri sicut et illorum esse dinoscitur communione ad omnem utilitatem. …”

[96] “Jura etiam civilia eidem fundo competentia, a progenitoribus nostris tradita, huic cartse dignum duximus inserenda, ne forte succedente tempore excidant a memoria.”

[97] 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.

[98] Tacitus, Germania, 25: “Servis … frumenti modum dominus aut pecoris aut vestis, ut colono, injungit; et servus hactenus paret.

[99] Tacitus, Germania, 15: “Delegata domus et penatium et agroruin cura feminis senibusque et infirmissimo cuique ex familia. Ipsi hebent.” In Latin familia means the whole body of slaves belonging to one man.

[100] Lex Burgund., 68: “Quicumque agrum aut colonicas tenent.”

[101] Ibidem, 38, 10 : “De Burgundionum colonis et servis.”

[102] Ibidem, 50, 5: “Si privati hominis actorem occiderit.” 38, 9: “Si in villa conductor. …”

[103] Ibidem, 55: “Quicumque agrum cum mancipiis largitione nostra percepit.”

[104] Lex Alamann, pactus, 8, 19, 20, 21; lex, 22-23.

[105] 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.”

[106] Lex. Alam., 81, edit. Lehmann, 77, p. 141: “Si servi domum incenderit … scuriam vel graneam servi si incenderit.”

[107] Ibidem, art. 4 (6): “Si spicariam servi incenderit, 3 solidis; et si domini, sex solidis.”

[108] 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’Alien, p. 342, and Schmid, Gesetze der Angelsachsen, pp. 5 (Aethelbirht, 26), 409 (Formula).]

[109] The usual formula runs: “Dono curtem cum domibus acco-labus, mancipiis, vineis, campis, silvis, etc.” Lacomblet, No. 1 et seq.; Meichelbeck, pp. 27, 34, 36, 49, 51, etc.; Neugart, passim. Laureshamensis, No. 1: “Viliam 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 cominanenti bus.” Zeuss, 36 : “Ipsi servi qui ipsas hobas tenent.”

[110] Codex Laureshamensis, No. 33.

[111] Dronke, Codex Fuldensis, No. 84.

[112] Ibidem, No. 88.

[113] Ibidem, No. 163.

[114] Codex Laureshamensis, No. 105. Cf. Zeuss, No. 26, where an owner sells an estate with twenty-two slaves, whose names he gives.

[115][115] Codex Laureshamensis, No. 33.

[116] Ibidem, No. 37.

[117] 3 Ibidem, No. 83.

[118] 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.

[119] 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.

[120] Maurer, Einleitung, p. 138. Lex Burgundionum, xlix. 3: “Quod prius statutum est, universitatem convenit observare.” Cf. the frequent phrase : “noverit universitas fidelium nostrorum.”

[121] Lex Wisigothorum, x. 3, 2.

[122] 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.

[123] Maurer, Einleitung, p. 164.

[124] Ibid., pp. 165-166.

[125] Ibid., p. 167.

[126] 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.

[127] Maurer, p. 140.—Cf. Lex Bwrgund., xlix. 1: “locorum comites atque præpositi.”

[128] 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 vestrae dementia novit …. etc., sup- pliciter postulamus ut instituere dignetis inlustrem virum ilium cathedrae illius successorem.”

[129] Documents of 1279 and 1290 in Wurdtwein, Novia subsidia, xii. 218 and 261: “pratum spectans ad Almeindam nostra communitatis.” Document of 1231 in Guden, Codex dipl., iii. p. 1102: “contulerunt pascua communitatis qua; vulgariter Almeina vocantur.”

[130] Karl Lamprecht, Deutsches Wirthschaftsleben irn Mittelalter, Leipzig, 1886. [Summary in Zeitsch. f.d. gesante Staatswissenschaft, XLVI., 527 seq.]

[131] Lex Ripuaria, lx. 5; cf. lxxv.

[132] Edictum Chilperici, 8.

[133] Lamprecht, Wirthschaft und Recht der Frcmken zur Zeit der Volksrechte, in the Historisches Taschenbuch, 1883, p. 57.

[134] Edidum 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.”

[135] 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.

[136] 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?

[137] Pertz, i. 226; Behrend, p. 115, art. 9.

[138] “De eo qui villam alterius occupaverit.”

[139] “Si infra 12 menses nullus testatus fuerit, securus sicut et alii vicini maneat.”

[140] “De hoc capifculo judicaverunt ut nullus villam aut res alterius migrandi gratia per annos tenere possit, sed in quacum- que die invasor illarum rerum interpellatus fuerit, aut easdem res queerenti reddat aut eas si potest juxta legem se defendendo sibi vindicet.”

[141] Lex Salica, xxvii. 18, ed. Behrend: Si quis ligna aliena in silva aliena fur aver it, soliclos 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.

[142] In silva alterius, MSS. Paris 4627, Montpellier 136, Saint-Gall 731, Paris 4626, etc.

[143] Lex salica, xxii. The Munich MS. has in mulino alieno. Further on, molinarius is replaced in the Wolfenbüttel MS. by is cui molinus est.

[144] See the Formula of Marculfus I. 35; II. 8; Andegavenses, 36 (37); Roziere, No. 252; Turonenses, 17.