THE ORIGIN OF PROPERTY
  IN LAND

  BY
  FUSTEL DE COULANGES

  TRANSLATED BY MARGARET ASHLEY

  _WITH AN INTRODUCTORY CHAPTER ON_
  THE ENGLISH MANOR
  BY
  W. J. ASHLEY, M.A.
  PROFESSOR OF POLITICAL ECONOMY IN THE UNIVERSITY OF TORONTO,
  LATE FELLOW OF LINCOLN COLLEGE, OXFORD

  [Illustration: Decorative image]

  LONDON
  SWAN SONNENSCHEIN & CO.
  PATERNOSTER SQUARE
  1891




PREFACE.


The Essay by the late M. Fustel de Coulanges, here translated,
appeared in the _Revue des Questions Historiques_ for April, 1889.
It seemed especially suitable for translation; since it presented in
a comparatively brief compass all the main arguments of that great
historian against the various attempts which have been made to support
the theory of primitive agrarian communism by an appeal to historical
records. The translation has been made with the consent of Madame
Fustel de Coulanges; and it has benefited by the suggestions of M.
Guiraud, an old pupil of the author, and now “Chargé de Cours” at the
Sorbonne. The presentation of the Essay in an English dress has been
deemed a suitable occasion to estimate the bearing of its arguments
on early English social history, and to review in the light of it the
evidence now accessible as to the origin of the English manor.

  W. J. A.
  M. A.

  TORONTO,
  _January 21, 1891_.




  CONTENTS.


                                                  Page

  THE ENGLISH MANOR                                vii

  THE ORIGIN OF PROPERTY IN LAND                     1

  THE THEORY OF MAURER AS TO COMMUNITY OF
  LAND AMONGST THE GERMANIC NATIONS                  3

  THE THEORY OF M. VIOLLET AS TO COMMUNITY
  OF LAND AMONGST THE GREEKS                        73

  THE THEORY OF M. MOMMSEN AS TO COMMUNITY
  OF LAND AMONGST THE ROMANS                       100

  OF THE COMPARATIVE METHOD                        106

  THE THEORY OF M. DE JUBAINVILLE AS TO COMMUNITY
  OF LAND AMONG THE GAULS                          132

  CONCLUSION                                       149




INTRODUCTORY CHAPTER.

THE ENGLISH MANOR.


In spite of all the labour that has been spent on the early history
of England, scholars are at variance upon the most fundamental of
questions: the question whether that history began with a population of
independent freemen or with a population of dependent serfs. Nothing
less than this is at issue in the current discussions as to the
existence of the “mark” and the origin of the manor; as well as in the
discussions, at first sight of less significance, as to the character
of our mediæval constitution. Neither for the government of the parish
nor for the government of the nation is it possible to construct an
historical theory which does not rest, consciously or unconsciously, on
some view as to the position of the body of the people.

The opinion almost universally accepted four or five years ago was
to this effect: that the English people, when it came to Britain,
was composed of a stalwart host of free men, who governed themselves
by popular national councils, administered justice by popular local
assemblies, and lived together in little village groups of independent
yeomen. It was, indeed, recognised that there were gradations of
rank--_eorl_ and _ceorl_, and the like,--and that some individuals
were unfortunate enough to be slaves. But these and similar facts
were not supposed to affect the general outlines of the picture; and
even those writers who expressed themselves most guardedly as to this
“primitive Teutonic polity,” proceeded by the subsequent course of
their narrative to assume it as their starting point. And looking back
on the intellectual history of the last fifty years, we can easily
trace the forces which assisted in giving this view currency. To begin
with, the historical movement of this century was undoubtedly the
offspring of Romanticism; and with Romanticism the noble independence
of the unlettered barbarian was an article of faith. Moreover, the
discovery of modern constitutionalism “in the forests of Germany”
harmonised with a comfortable belief, which was at one time very
common. This was the belief to which Kingsley gave such eloquent
expression, that the barbarian invasions were the predestined means of
bringing into the effete civilisation of Rome the manly virtues of the
North. For England the theory had the additional charm, during a period
of democratic change, of satisfying that most unscientific but most
English desire, the desire for precedent. An extension of the suffrage
rose far above mere expediency when it became a reconquest of primitive
rights.

But, though we can understand how it was that historians came to
discover the imposing figure of the free Teuton, it does not
necessarily follow that they were mistaken. The disproof must be
accomplished, if at all, by erudition equal to that by which the
doctrine has been supported; and it has been the task of M. Fustel de
Coulanges to assail with enormous learning and a cogent style almost
every one of those propositions as to early mediæval constitutional
history, which we were beginning to deem the secure achievements of
German science.

There was a great contrast, both in their character and in the
reception afforded to them, between the earlier and the later
works of M. Fustel. He gained his reputation, in 1864, by his
_Cité Antique_, a book wherein, unlike his later insistence on the
complexity of institutions, he used one simple idea--that of the
religion of the family--to solve most of the problems presented by
ancient civilisation. It gained immediately an extraordinary success;
especially in England, where it fell in with all that current of
thought which was then beginning to turn into the direction of social
evolution, comparative politics, and the like. For a year or so, the
final piece of advice which schoolmasters gave to men who were going up
for scholarships at the Universities was to read the _Cité Antique_.

Then for several years M. Fustel was not heard from, at any rate in
England; although it might have been seen by occasional articles in the
_Revue des Deux Mondes_ and elsewhere that he was devoting himself
to the early Middle Ages. In 1875 appeared the first volume of a
_Histoire des Institutions politiques de l’ancienne France_, reaching
to the end of the Merovingian period. But further investigation and
the controversy to which the book gave rise made him resolve to go
over the ground again more minutely in a series of volumes. Meanwhile
he issued in 1885 his _Recherches sur quelques problèmes d’histoire_.
With the modest declaration that before attempting to write the history
of feudalism--“un corps infiniment vaste, à organes multiples, à
faces changeantes, à vie complexe”--it was necessary to consider some
preliminary questions, he threw down the gauntlet to the dominant
school. He challenged the whole theory of primitive German life which
was fondly supposed to rest on the authority of Cæsar and Tacitus;
he showed how little evidence there was for the supposed existence
of popular courts of justice; he traced the growth of the class of
_coloni_ or semi-servile peasants under the later Roman empire, in a
way which suggested that they must have played a far more important
part in subsequent social development than is usually assigned to
them; and, finally, he denied altogether the existence of that free,
self-governing village community with common ownership of the village
lands, which Maurer had made familiar to us as the _mark_. His
antagonism to German scholars was evidently sharpened by national
antipathy: like his countrymen in many other departments of science,
he was bent on proving that France could beat Germany with its own
peculiar instruments of patient scholarship and minute research. It
is turning the tables with a vengeance, when the Frenchman shakes his
head, with much apparent reason, over the inexplicable rashness of his
German brethren.

Having thus cleared the way, M. Fustel began to put together
his materials for the great work of his life, the _Histoire des
Institutions Politiques_, in its new form. He had issued one volume
and prepared for publication a second when he was prematurely lost to
the world. His pupils have, indeed, been able to put together a third
volume from his manuscript and from earlier articles; and a fourth
and fifth are promised us. But these fragmentary sketches, written
many of them under the shadow of approaching death, are only slight
indications of what M. Fustel might have done for mediæval history.
Nevertheless, his work, incomplete as it is, is of the utmost weight
and significance; in my opinion, it has done more than that of any
other scholar to bring back the study of mediæval society, after
long aberrations, to the right lines. We have to continue the work
of inquiry along those lines, and in his spirit. “It is now,” said
he, in the Preface to the _Recherches_, “twenty-five years since I
began to teach; and each year I have had the happiness to have four
or five pupils. What I have taught them above everything else has
been to _inquire_. What I have impressed upon them is not to believe
everything easy, and never to pass by problems without seeing them. The
one truth of which I have persistently endeavoured to convince them
is that history is the most difficult of sciences.” And again, in the
Introduction to _L’Alleu_, “Of late years people have invented the word
_sociology_. The word _history_ had the same sense and meant the same
thing, at least for those who understood it. History is the science of
social facts; that is to say, it is sociology itself.” “The motto he
had chosen, a motto,” says one of his pupils, “which sums up his whole
scientific life, was _Quaero_.”

It is curious to observe how slow English scholars have been to
realise the importance of these recent volumes. Is it because theories
of mediæval history, which are not more than twenty or thirty years
old, have already hardened into dogma, and we shrink from the
reconstruction which might be necessary were we to meddle with any
of the corner-stones? Some consolation, however, may be found in the
fact that a considerable effect has been produced by the work of an
English investigator, who was quite independently arriving, though from
a different point of view, at very similar conclusions. Mr. Seebohm’s
_English Village Community_, it is no exaggeration to say, revealed
to us, for the first time, the inner life of mediæval England. By
making us realise not only how uniform was the manorial system over the
greater part of England, but also how burdensome were the obligations
of the tenants, it forced us to reconsider the accepted explanation of
its origin. For the explanation generally accepted was that manors had
come into existence piecemeal, by the gradual subjection, here in one
way, there in another, of the free landowners to their more powerful
neighbours. Mr. Seebohm made it appear probable that the lord of the
manor, instead of being a late intruder, was from the first, so far as
England was concerned, the owner of the soil and the lord of those who
tilled it; that the development has been in the main and from the first
an advance from servitude to freedom; and not an elevation after long
centuries of increasing degradation.

Mr. Seebohm has not, perhaps, been so convincing in the explanation
he has to offer of the origin of the manor; but there is now a marked
tendency to accept what is, after all, his main contention--that the
manorial system was in existence, not as an exceptional phenomenon,
but as the prevailing form of social organisation _very soon_, at
any rate, after the English Conquest. There is absolutely no clear
documentary evidence for the free village community in England. As to
the word _mark_, not even Kemble, who first introduced it to English
readers, could produce an example of its use in English documents in
the sense of land owned by a community; and Anglo-Saxon scholars now
point out that his one doubtful instance of _mearcmót_ [A.D. 971] and
his three examples of _mearcbeorh_ are most naturally explained as
having to do with _mark_ merely in the sense of a boundary.[1] Not only
is there no early evidence; the arguments based on supposed survivals
into later times seem to melt away on close examination. It has, for
instance, been maintained that even in the Domesday Survey there are
traces of free communities. But the supposed Domesday references are
of the scantiest, and certainly would not suggest the mark to anyone
who was not looking for it. Most of them seem easily susceptible of
other interpretations; in some of them we probably have to do with two
or three joint-owners, in others very possibly with villages where the
lord has been bought out.[2] Another and more usual argument is derived
from the Court Baron, which was described by later legal theory as
absolutely essential to a manor, and yet of such a constitution that it
could not be held unless there were at least two free tenants to attend
it. But legal historians are beginning to regard the Court Baron as
not at all primitive, but rather as a comparatively late outcome of
feudal theory.[3]

It must be granted that there is little direct evidence prior to the
9th century in disproof of the free community; but all the indirect
evidence seems to tell against it. Gibbon long ago pointed out that the
grant by the King of the South Saxons to St. Wilfrid, in the year 680,
of the peninsula of Selsey (described as “the land of 87 families”),
with the persons and property of all its inhabitants, showed that
there, at any rate, there was a dependent population; especially as
Bede goes on to tell us that among these inhabitants there were 250
slaves. And there are two still more considerable pieces of evidence
to which due attention has hardly been given. The one is that the
great majority of the early grants of land, beginning as early as 674,
expressly transfer with the soil the cultivators upon it, and speak of
them by precisely the same terms, _cassati_ and _manentes_, as were in
contemporary use on the Continent to designate prædial serfs.[4] The
other is that, as in the rest of Western Europe the whole country was
divided into _villæ_, each _villa_ being a domain belonging to one or
more proprietors, and cultivated by more or less servile tenants,[5]
so in Bede’s _Ecclesiastical History_, written in 731, the ordinary
local division is also _villa_, often specifically described as _villa
regia_ or _villa comitis_. He does indeed use _vicus_ or _viculus_ a
dozen times; but in three of these cases the word _regis_ or _regius_
is added, and in two the term _villa_ is also used in the same chapter
for the same place.[6] These five examples, it may further be noticed,
occur in a narrative of the events of the middle of the seventh
century,--a period near enough to Bede’s own time for his evidence to
be valuable, and yet within a century and a half after the conquest of
the districts in question.

The absence, however, of direct evidence in proof of the original free
community in England, and the presence of much indirect evidence in
its disproof, have hitherto been supposed to be counterbalanced by
the well-ascertained existence of the mark among our German kinsfolk,
and by the results of “the comparative method,” especially as applied
to India. Let us take the _markgenossenschaft_ first. It is a little
difficult to discover the exact relation between Kemble and Maurer;
but the obvious supposition is that it was from Maurer that Kemble
derived his main idea; and it has usually been supposed that however
Kemble may have exaggerated the action of the mark in England, in
Germany it could be traced with unhesitating certainty. This is what,
to Englishmen, gives especial interest to the essay of M. Fustel de
Coulanges translated in the present volume.

M. Fustel begins with the ironical announcement that he does not intend
to criticise the theory of the mark in itself, but only to examine the
documentary evidence alleged in its favour, and to determine whether
such evidence can fairly be given the construction that Maurer puts
upon it. But here M. Fustel does some injustice to himself; for in
following a detailed criticism of this character the reader is apt
to overlook or forget the really important points which the writer
succeeds in establishing. It may be well to state these points in our
own way and order, as follows: (1) That the mark theory derives no
direct support from the language of Cæsar and Tacitus; (2) That the
word _mark_ in early German law means primarily a boundary, usually the
boundary of a private property; and then, in a derivative sense, the
property itself, a domain such as in Gaul was called a _villa_; (3)
That early German law is throughout based on the assumption of private
property in land, and never upon that of common ownership, whether
by a whole people or by a village group; and that whatever traces
there may be of earlier conditions point to rights possessed by the
_family_ and not by any larger body; (4) That the one direct proof of
a custom of periodical redistribution of the village lands is derived
from an evident blunder on the part of a copyist; and that the rest of
the evidence has nothing at all to do with periodical divisions; (5)
That the term _common_ as applied to fields and woods in early German
law means common to, or shared by two or more individual owners; (6)
That the _commons_, _allmende_, _common of wood_ and similar phrases,
which occur frequently in documents of the ninth and succeeding
centuries, point to a customary right of use enjoyed by tenants over
land belonging to a lord; and that there is no evidence that the
tenants were once joint _owners_ of the land over which they enjoyed
such rights; (7) That there is no evidence in the early Middle Ages of
mark assemblies or mark courts; and finally, the most important point
of all, (8) That to judge from the earliest German codes, great states
cultivated by slaves or by various grades of semi-servile tenants were
the rule rather than the exception even at the beginning of the Middle
Ages. Professor Lamprecht, whom M. Fustel treats as a mere follower of
Maurer, is naturally sore at the treatment he here receives; and indeed
his great work on German economic history is of the utmost utility
as a collection of facts relative to later centuries, even though he
does start with the assumption of the mark. But it is scarcely an
answer to M. Fustel to argue, as Professor Lamprecht does,[7] that
nothing depends on the _word_ “mark;” and that the chance absence of
a modern technical term from our meagre evidence does not prove the
non-existence of the thing it is used to designate. For our evidence is
not meagre; and M. Fustel proves not only the absence of the name, but
also the absence of all the alleged indications of the existence of the
thing.

The second line of defence is the evidence of “comparative custom.”
India, at any rate, it is urged, displays the village community: there
we may see, crystallised by the force of custom, conditions which in
Europe have long since passed away. Now it is, of course, true that
the village is “the unit of all revenue arrangements in India;”[8]
that, over large districts, cultivation is carried on by village
groups; and that in some provinces, notably the Punjab, this village
group is at present recognised as the joint owner of the village
lands. But it is a long step from this to the proposition that “the
oldest discoverable forms of property in land,” in India, “were forms
of collective property;”[9] and that all existing rights of private
ownership have arisen from the break-up or depression of the original
communities. The truth is, that of late years Indian facts have been
looked at almost exclusively through the spectacles of European theory.
Now that the mark is receding into improbability, it is urgently to be
desired that Indian economic history should be looked at for what it
will itself reveal.[10] It would be unwise to anticipate the results
of such an investigation. But there is one preliminary caution to be
expressed; we must take care not to exaggerate the force of custom.
Professor Marshall, in his recent great work, has indicated some of the
reasons for believing that custom is by no means so strong in India as
is generally supposed;[11] and it is to be hoped that he will see his
way to publishing the not-inconsiderable mass of evidence that he has
accumulated.

As to supposed analogies with the mark in the practices of other
peoples, all that can be said at this stage is that most of them prove
only a joint-cultivation and not a joint-ownership. Thus, the Russian
_mir_, which is often referred to in this connection, has always
in historical times been a village group in serfdom under a lord:
the decree of Boris Godounoff, frequently spoken of as the origin
of serfdom, in that it tied the cultivators to the soil, may much
more readily be explained as an attempt to hinder a movement towards
freedom. It was indeed in all probability a measure somewhat similar
in character to the English “statutes of labourers.”[12] With regard to
the various more or less savage peoples, who are said to live under a
system of common village ownership, the bulk of the evidence is, as M.
Fustel observes, of the most unsubstantial character. There are lessons
in the work of M. Emile de Laveleye which M. Fustel fails to recognise;
and to these we shall return; but to the main proposition which it was
intended to prove, M. de Laveleye’s book can hardly be regarded as
adding much strength.

We see, then, that there is no very adequate reason, either in German,
Indian, Russian, or any other supposed analogies, why we should not
suffer ourselves to be guided in our judgment as to England by English
evidence. And this evidence, as we have seen, would lead us to the
conclusion that very soon after the English Conquest, if not before,
the manor was the prevailing type of social organisation. The further
question still remains, what was its origin? This is a question which
cannot as yet be answered with certainty; but we are able to point
out the possible alternatives. For this purpose we must look for a
moment at each of the peoples that have successively occupied England.
Fortunately, there is no need to go back to the very beginning, to the
palæolithic inhabitants of Britain who dwelt in the caves and along
the river-shores. Scanty in number, they were extirpated by the more
numerous and warlike race that followed; very much as the Esquimaux,
the kinsfolk, as it would seem, of prehistoric cave-men, are being
harried out of existence by the North American Indians. There seems
no reason to suppose that these people contributed in any measure to
the formation of the later population of England.[13] But with the
race that took their place, a race of small stature and long heads,
the case is different. Ethnologists have long been of opinion that
these pre-Aryans were to a large extent the ancestors of the present
inhabitants of Western Europe; and they have of late won over to their
side a rising school of philologers,[14] some of whom go so far as
to explain the whole of modern history as the outcome of a struggle
between a non-Aryan populace and a haughty Aryan aristocracy.[15]
Without admitting any such hazardous deductions, we may accept the
statement that the blood of these pre-Aryan people--_Iberians_, as it
has become usual to call them--is largely represented in the English
nation of to-day. Mr. Gomme has accordingly hazarded the supposition
that our later rural organisation is in part derived from the
Iberian race. He maintains that the traces of “terrace-cultivation,”
which we come across here and there in England and Scotland, point
to a primitive Iberian hill-folk, whose “agricultural system,” in
some unexplained way, “became incorporated with the agricultural
system of the,” later Aryan, “village community.”[16] His argument
turns chiefly on certain alleged Indian parallels. But even if his
examples proved the point for India, which is hardly the case, there
is in Britain certainly no evidence for Mr. Gomme’s contention. If
the terrace-cultivation is to be assigned to a prehistoric people,
the archæological data would apparently place it in the bronze
period[17]--an age long subsequent to the Celtic immigration. And it
will be seen from what we have to say of the Celtic inhabitants at
a much later period that it is hardly worth while to dwell upon the
possibilities connected with their predecessors.

For, to judge from the account given by Cæsar[18]--who had abundant
opportunities of observation--the Britons, at the time of his invasion,
were still, except in Kent, in the pastoral stage. After speaking of
the inhabitants of Kent as far more civilised than the rest, he goes
on to say, “most of those in the interior sow no corn, but live on
flesh and milk.” Even if his statement is not to be taken literally,
there is this further reason for believing that the village community
was not in existence among the Britons, _viz._, that it did not appear
in those parts of the British Isles of which the Celts retained
possession until after they became subject to external influences at
a much later date. Neither in Wales, nor in the Highlands, nor in
Ireland, can we find the village community until modern times.[19]
There was, indeed, some agriculture even when the life was most
pastoral. This agriculture was carried on upon the “open-field” plan.
There was, moreover, a large number of dependent cultivators. But there
was nothing like the village group as it was to be found in mediæval
England.

When, however, we pass to the three centuries and a half of Roman
rule, we can hardly help coming to the conclusion that it was during
that period that England became an agricultural country; nor is it
easy to avoid the further conclusion that the agricultural system
then established remained during and after the barbarian invasions.
Take first the evidence for the extension of agriculture. Some thirty
years after Claudius first set about the conquest of Britain, and
but seventeen years after the suppression of the rebellion of the
southern tribes led by Boadicea, Agricola became proconsul of Britain.
Now, it appears from the account given by his biographer, Tacitus,
that even as early as this the Roman tribute was collected in the
form of corn. But we may gather that the cultivation of corn was only
gradually spreading over the country; for we are told that Agricola
had to interfere to prevent extortionate practices on the part of the
revenue officers, who were in the habit of forcing the provincials
to buy corn at an exorbitant rate from the Government granaries, in
order to make up the prescribed quantity.[20] We may conjecture that
the extension of agriculture was itself largely owing to the pressure
of the Roman administration. But to whatever it may have been due,
before the Roman rule had come to an end Britain had become celebrated
for its production of corn. On one occasion, A.D. 360, the Emperor
Julian had as many as eight hundred vessels built to carry corn
from Britain to the starving cities on the Rhine. But by whom was
the corn grown? We can hardly doubt that it was raised in Britain,
as in other Roman provinces, on great private estates, surrounding
the _villas_ of wealthy landowners, and cultivated by dependants of
various grades--_coloni_, freedmen, slaves. Remains of Roman villas
are scattered all over the southern counties of England,[21] far
too closely adjacent one to another to allow us to think of the life
of Britain as “mainly military,” or to look upon Britain as “a Roman
Algeria.”[22] It would be absurd to suppose that these villas were
all the residences of wealthy officers or of provincials who derived
their income from official emoluments. We should be justified, even
if we had no direct information, in supposing that the _villa_ meant
in Britain very much what it meant in Gaul and elsewhere; but, as it
chances, a decree of Constantine of the year 319 does actually mention
_coloni_ and _tributarii_ as present in England;[23] and both these
terms indicate classes which, whether technically free or not, were
none the less dependent on a lord and bound to the soil. And we can
readily see how such a class would grow up. Some of the _coloni_ may,
as in Italy, have originally been free leaseholders, who had fallen
into arrears in the payment of their rent. But there is no necessity
for such a supposition. Among the Gauls, as Cæsar tells us, the only
classes held in honour were the druids and the knights (equites). “The
people” (plebes), he says, “are regarded in much the same light as
slaves, without any initiative or voice in public affairs; and many
of them are forced by debt, or the pressure of taxation, or even by
violence, actually to become the slaves of the more powerful.”[24] In
all probability the Romans found “knights” and “people” in the same
relative position in Britain; and, indeed, when the unconquered tribes
of Ireland and Wales come within the ken of history we find among them
a large class of servile cultivators below the free tribesmen.[25]
Whatever may have happened to the “knights,” the “people” would easily
become serfs bound to the soil on the various villas. Then, again, it
must be noticed that it was the constant policy of the Roman emperors
to provide for the needs both of agriculture and of military service by
transporting conquered barbarians to distant provinces, and settling
them on vacant or uncultivated lands. M. Fustel de Coulanges in his
_Recherches_[26] shows that these barbarians were by no means turned
into peasant proprietors; they became tenants, bound to the soil, upon
the imperial domains or the estates of great proprietors. Britain
enjoyed its share of the fruits of this policy; for in the later part
of the second century Antoninus sent to Britain a number of Marcomanni;
a century later, Probus transported hither a number of Burgundians and
Vandals; and Valentinian, still a century later, sent a tribe of the
Alamanni.[27] There is, therefore, no difficulty in accounting for the
growth of a population of prædial serfs during the period of Roman rule.

If, however, we suppose that Southern Britain was divided during the
period of Roman rule into estates cultivated by dependent tenants and
slaves, there is much that would lead us to believe that the Roman
agricultural system was retained by the English conquerors; even
though, in the present state of our knowledge, we cannot directly
prove continuity. The first and most important consideration is this:
the English manorial system was substantially, and, indeed, in most
of its details, similar to that which prevailed during the Middle
Ages in Northern France and Western Germany. But these Continental
conditions--it has, I think, conclusively been proved--were the direct
continuation of conditions that had prevailed under Roman rule.[28]
The natural conclusion is that what is true of the Continent is
true also of England. This conviction is confirmed by looking at
two of the fundamental characteristics of the English manor. The
distinction between land _in villenage_ and land _in demesne_--the
latter cultivated by the tenants of the former, but yet kept in the
lord’s hands--is to be found in the mediæval manor, and in the
Roman villa.[29] It is not to be found either in the tribal system
of Wales,--which we may look upon as indicating the condition to
which the Celtic inhabitants of Britain might have arrived if left
to themselves; nor in Tacitus’ account of the ancient Germans, which
probably furnishes us in general outline with a picture of the social
organisation which the English brought with them. Both in Wales and
among the ancient Germans there were slaves working in their masters’
houses, or on their farms, and there were also servile tenants paying
dues in kind; but in neither case was there an obligation on the part
of a tenant to labour on any other land than his own holding.

Another feature of the English manor was the division of its arable
lands into three fields, with a regular rotation of crops, and with
one field out of the three always fallow. Occasionally only two fields
are to be found, sometimes as many as four; but by far the most usual
number was three.[30] Now it is a very significant fact that the
three-field system has never been at all general in North-Western
Germany, or in Jutland, the regions from which the English undoubtedly
came; and it is for this reason that Professor Hanssen--who has given
his whole life to the study of the agrarian history of Germany,
and who is certainly not biassed by any antipathy to the mark
theory--declares that the English cannot have brought the three-field
system with them to Britain. Two hypotheses are tenable: either that it
grew up in later centuries to meet the special needs of the country;
or that it was found there when the English came. That this latter
hypothesis is most probable would seem to be indicated by the fact
that the region in Germany where it has been most widely prevalent is
precisely that which was most Romanised, _viz._, the South West.[31]
We need not follow Mr. Seebohm in his ingenious attempt to show how it
grew up in Southern Germany; it is sufficient for our present purpose
to point out that the fact, however it may be explained, strengthens
the probability that Roman influence had a good deal to do, in Britain
also, with the creation of the conditions which we find in after times.

There are, therefore, many reasons for maintaining the permanence in
Britain of the _villa_ organisation; and we have seen above that while
there are no clear traces of the _free_ community, there are traces
of what is afterwards called the manor, within a couple of centuries
after the English conquest. These two lines of argument converge toward
the conclusion that the manorial system dates in the main from the
period of Roman rule. But this conclusion does not absolutely determine
the other question, which has been so warmly debated, as to the race
to which we are to assign the mass of the later population. It is
expedient to narrow our inquiry to the southern and midland shires of
England; leaving out of consideration not only Wales, but also the
south-western peninsula, in which there is undoubtedly a preponderance
of Celtic blood, and those eastern and northern counties in which there
was a considerable Danish settlement. When we have solved the main
problem, it will be early enough to consider these lesser difficulties.
Unfortunately, even on the main problem there is much to be done before
we can venture on a positive answer; and there need be no haste to
come to a decision. For the economic historian the question is one
of subordinate importance. If he is allowed to take for his starting
point, as the result of recent discussion, that English social history
began with (1) the manor, (2) a population of dependent cultivators,
it matters but little to him what may have been the origin of the
population. The present position of the question may, however, be
stated in some such way as this. We can hardly suppose a continuity in
system unless a considerable number of the old cultivators were left to
work it. The reasonableness of such a supposition has been obscured
by its unfortunate association by certain writers with the wild
idea that the whole fabric of Roman society and political machinery
survived the English conquest. There is absolutely no good evidence
for such a survival; and Mr. Freeman has justly pointed out[32] that,
had it been the case, the subsequent history of Britain would have
resembled that of Gaul, instead of forming a marked contrast to it.
But the disappearance of the Roman political organisation, and the
destruction on the battlefield of Roman or Romanised land-_owners_,
is not inconsistent with the undisturbed residence upon the rural
estates of the great body of actual labourers. The English had been
far less touched by Roman civilisation than the Franks; they met with
a resistance incomparably more determined than that offered by the
Provincials to the barbarians in any other part of the empire; and they
remained Pagan for more than a century after the invasion. These facts
sufficiently explain the savagery which distinguished the English from
the Frankish invasion. But however terrible the English may have been
in their onslaught, it was obviously for their interest, while taking
the place of the landlords, to avail themselves of the labour of the
existing body of labourers. And if the Roman upper class was killed
out in England and not in Gaul, this would furnish a fairly adequate
explanation of the fact that in Gaul the language of the conquered is
spoken, and in England that of the conquerors.

It is reassuring to find, on referring to Gibbon’s chapter on the
English conquest of Britain, that this conclusion agrees with the
judgment of one “whose lightest words are weighty.”[33] Gibbon dwells
as strongly as anyone could wish on the thorough character of the
English operations: “Conquest has never appeared more dreadful or
destructive than in the hands of the Saxons.” He lays due stress on the
fate of Andredes-Ceaster: “the last of the Britons, without distinction
of age or sex, was massacred in the ruins of Anderida; and the
repetition of such calamities was frequent and familiar under the Saxon
heptarchy.” He asserts, with vigorous rhetoric, that a clean sweep was
made of the Roman administrative organisation:

 “The arts and religion, the laws and language, which the Romans had
 so carefully planted in Britain, were extirpated by their barbarous
 successors.... The kings of France maintained the privileges of
 their Roman subjects, but the ferocious Saxons trampled on the laws
 of Rome and of the emperors. The proceedings of civil and criminal
 jurisdiction, the titles of honour, the forms of office, the ranks of
 society ... were finally suppressed.... The example of a revolution,
 so rapid and so complete, may not easily be found.”

Nevertheless, he does not agree with those who hold that such a
revolution involved either the “extirpation” or the “extermination” or
even the “displacement” of the subject population.

 “This strange alteration has persuaded historians, _and even
 philosophers_” (an amusing touch) “that the provincials of Britain
 were totally exterminated; and that the vacant land was again peopled
 by the perpetual influx and rapid increase of the German colonies....
 But neither reason nor facts can justify the unnatural supposition
 that the Saxons of Britain remained alone in the desert which they had
 subdued. After the sanguinary barbarians had secured their dominion,
 and gratified their revenge, _it was their interest to preserve the
 peasants as well as the cattle_ of the unresisting country. In each
 successive revolution the patient herd becomes the property of its
 new masters; and the salutary compact of food and labour is silently
 ratified by their mutual necessities.”[34]

A weightier argument than that of language has been based on the
history of religion. Little importance, indeed, can be attached to
the fact that in Gaul there was no break in the episcopate or in the
diocesan system, while in England both needed to be re-established by
Augustine and Theodore. For even if the diocesan system had existed
in Britain before the English invasion--which is doubtful[35]--it
would disappear with the destruction of the governing classes. It is
a more important consideration that if Britain had been thoroughly
Christianised, and if a large Christian population had continued to
dwell in the country, we should surely have had some reference to
these native Christians in the accounts we subsequently obtain of
the conversion of the English. But we know very little of British
Christianity; it might have been strong in the cities, and even among
the gentry in the country, without having any real hold upon the
rural population--the _pagani_ as they were called elsewhere. Dr.
Hatch, speaking of the condition of Gaul when the Teutonic invasions
began, has told us that the mass of the Celtic peasantry was still
unconverted.[36] And this is still more likely to be true of Britain.
Even if nominally Christian, half-heathen serfs, left without churches
or priests, would soon relapse into paganism; especially as it would be
their interest to accept the religion of their conquerors. The exact
force of the argument as to religion must be left as undetermined.

There is another source of information to which we might naturally
turn, considering how much has been heard of it of late years. We might
expect some assistance from “craniology:” the character of the skulls
found in interments of the period of the English settlement ought to
tell something as to the races to which they belonged. But although
much attention has been given to _pre_-historic barrows, there has
been comparatively little scientific examination of cemeteries of a
later date. There are, at present, not enough ascertained facts to
speak for themselves; and such facts as have been gathered have usually
been interpreted in the light of some particular theory. When we find
the late Professor Rolleston telling us that there are as many as
five distinct types of skull belonging to inhabitants of Britain just
before the English invasion, as well as two separate types of English
skulls,[37] we see how wide a room there is for conjecture. Yet from
his careful investigation of a Berkshire cemetery, which was probably
characteristic of mid-England as a whole, there are two results on
which we may venture to lay stress. One is that such evidence as it
furnishes runs counter to the theory of intermarriage,[38] which has
been so frequently resorted to in order to temper the severity of the
pure Teutonic doctrine. This is intelligible enough. If the mass of
the lower people were allowed to remain, while the place of the upper
classes was taken by the English invaders, intermarriage would seldom
take place. The other is that there are abundant relics, among the
English graves, of a long-headed race, which can fairly be identified
with the Iberian type as modified by increasing civilisation; and
but scanty relics of the broad-headed Celt.[39] This fits in very
readily with the supposition that under the Celtic, and therefore
under the Roman rule, the cultivating class was largely composed of
the pre-Celtic race; and allows us to believe that the agricultural
population was but little disturbed.

But though the cultivators already at work were probably left as they
were, it is very likely that they were joined by many new-comers. We
can hardly suppose that _free_ English warriors would have settled down
at once as tillers of the soil, toiling half the days of the week on
land not their own. But Tacitus describes a class of persons among the
Germans whom he repeatedly calls _slaves_, and speaks of as subject to
the arbitrary authority of their masters. They were not, he expressly
says, employed in gangs, as on a Roman villa; but each man had his own
house and family, and rendered to his master no other service than the
periodical payment of a certain quantity of corn, or cattle, or cloth.
He goes so far as to compare this class with the Roman _coloni_, though
they differed from them in not being _legally_ free. He calls our
attention further to the presence of a number of _freedmen_, occupying
a position but little above that of slaves. There is no reason at all
to suppose that Tacitus regarded these slaves and freedmen as few in
number. And if there were slaves and freedmen in the same position
among the invading English, they would readily fall into the ranks of
the servile cultivators.[40]

On the whole, we may conclude that the main features of the later
manorial system were of Roman origin, and that a large part--how large
we are unable to say--of the working population was of Provincial
blood. But it does not follow that every later manor represents a Roman
villa, or that all the Roman estates had the extent of the manors which
now represent them. In both of these directions there was opportunity
for much later development: many new manors were doubtless created on
new clearings, and many old manors were enlarged. It would be easy
enough to create fresh servile tenancies if there was a large body
of slaves; and such there certainly was even in the early centuries
of the English occupation. One of the most unfortunate consequences
of the mark theory has been to create a vague impression that any
condition lower than absolute freedom was altogether exceptional in
early English society. But we can hardly turn over the old English
laws without seeing that this could not have been the case. Not only
is there frequent reference to slaves, but manumission occupies as
prominent a position as in the Continental codes, was accomplished
by ceremonies of a similar character, and brought with it the same
consequence in the abiding subjection of the freedman to his former
master.[41] As on the Continent also, the Church interfered for the
slave’s protection, and endeavoured to secure for him a property in
the fruits of his labour.[42] It is not necessary to revert to the
discussion as whence this class came. It is enough to point to it as
explaining the extension of the manorial system. It will, however,
be noticed that every fresh proof that the conditions of society in
England were similar to those on the Continent strengthens the argument
of the preceding pages.

There is one further element in the problem which must not be
overlooked. Mr. Seebohm’s doctrine that the later villeins were
descended from servile dependants has perhaps led some to suppose that
the only alternative to the mark theory is the supposition that the
villeins of the Middle Ages were all the descendants of slaves. But
here the analogy of Continental conditions is again of use. Though
there is no trace of the free village community, at any rate in
historical times, and the villa with its slaves was the germ of the
later seigneury; yet the servile tenants of subsequent centuries were
to no small extent the descendants of _coloni_, who, though bound
to the soil, were still technically free, centuries after the Roman
rule had passed away.[43] And so in the early English laws we find men
technically free, whom, none the less, it can scarcely be exaggeration
to describe as _serfs_. Such, for instance, is the freeman who works
on the Sabbath “by his lord’s command,”[44] or who kills a man “by his
lord’s command;”[45] who pays a fine if he goes from his lord without
leave;[46] or who receives from his lord a dwelling as well as land,
and so becomes bound not only to the payment of rent, but also to the
performance of labour services.[47] Yet, the _colonus_ of pre-English
days and his descendants might long retain a position superior to
that of a slave with an allotment. In obscure differences of this
kind may possibly be found the origin of the distinction between the
“privileged” and “unprivileged” villeins of later centuries.[48]

It must be allowed that there is still very much that is obscure in
the early history of villeinage. This obscurity may be expected to
disappear as social antiquities come to be studied by scholars who
are economists as well as historians. It was on the economic side, if
the criticism may be ventured, that M. Fustel de Coulanges was weak.
He never seemed to grasp the difference between what we may call the
joint-husbandry of the mediæval village group, and the liberty of the
modern farmer to make of his land what he pleases. While pointing
out that M. de Laveleye does not prove common _ownership_, he fails
to realise that, even if this is so, the joint-husbandry, with its
appurtenant common rights, is a phenomenon of the utmost interest, and
deserves careful attention. He seems to think that it explains itself;
although, the more complex and the more widespread it proves to be,
the less likely does it seem that it originated in the miscellaneous
promptings of individual self-interest.

We may perhaps state the problem thus. In the mediæval manor there were
two elements, the _seigneurial_--the relations of the tenants to the
lord; and the _communal_--the relations of the tenants to one another.
The mark theory taught that the seigneurial was grafted on to the
communal. The value of the work of M. Fustel de Coulanges and of Mr.
Seebohm is in showing that we cannot find a time when the seigneurial
element was absent; and also in pointing to reasons, in my opinion
conclusive, for connecting that element with the Roman villa. But the
communal element is still an unsolved mystery. Among the difficulties
which lie on the surface in M. Fustel’s treatment of the question,
it may be worth while to mention two. He insists that the _villa_
itself, from the earliest time at which it appears, has a unity which
it retains throughout.[49] This seems to suggest some earlier economic
formation out of which it arose; for if the villas were originally
nothing more than private estates, like the estates formed in a new
country in our own day, they would hardly have had such a fixity of
outline. Then, again, nothing is more characteristic of the later manor
than the _week-works_, the labour performed by each villein for two or
three days every week on the lord’s demesne. But such week-works do
not appear in mediæval documents until A.D. 622.[50] M. Fustel hardly
realises that a fact like this requires explanation; or, indeed, that
such services were far more onerous than any he describes in the case
of the earlier _coloni_.

Difficulties such as these can only be satisfactorily overcome by
taking into account both sides of the subject--the economic as well
as the constitutional or legal. Side by side with a development which
combined together gangs of slaves and the households of dependent
coloni into the homogeneous class of serfs, and then went on to make
out of the mediæval serf the modern freeman, another series of changes
was going on of which M. Fustel de Coulanges says nothing. It was the
development from a “wild field grass husbandry,” where a different
part of the area in occupation was broken up for cultivation from time
to time, to the “three-field system” with its permanent arable land
pasture, and then again from that to the “convertible husbandry” and
the “rotation of crops” of more recent times. The task for the economic
historian is to put these two developments into their due relation the
one to the other.

The study of economic history is altogether indispensable, if we
are ever to have anything more than a superficial conception of the
evolution of society. But it must be thorough; and we must not be
over-hasty in proclaiming large results. And although a principal
motive for such inquiry will be the hope of obtaining some light on
the direction in which change is likely to take place in the future,
it will be wise for some time to come for students resolutely to turn
away their eyes from current controversies. There is a sufficient
lesson in the topic we have been considering. The history of the mark
has served Mr. George as a basis for the contention that the common
ownership of land is the only natural condition of things; to Sir Henry
Maine it has suggested the precisely opposite conclusion that the whole
movement of civilisation has been from common ownership to private.
Such arguments are alike worthless, if the mark never existed.


NOTE A.--ON THE VILLAGE IN INDIA.

 It has been remarked above that the history of land-tenure in India
 calls for fresh examination, unbiased by any theory as to its
 development in Europe. It may, however, be added that, so far as may
 be judged from the material already accessible to us, India supports
 the mark-hypothesis as little as England. The negative argument may
 be thus drawn out:--1. The village-groups under the Mogul empire
 were bodies of cultivators with a customary right of occupation. The
 proprietor of the soil, in theory and in practice, was the Great
 Mogul. The dispute between the two schools of English officials early
 in the present century as to whether the _ryot_ could properly be
 regarded as an owner or not, arose from an attempt to make Indian
 facts harmonise with English conceptions. The _ryot_ had, indeed, a
 fixity of tenure greater than that of an ordinary English tenant; on
 the other hand, the share of the produce which he was bound to pay
 to the emperor or his delegate “amounted to a customary rent, raised
 to the highest point to which it could be raised without causing the
 people to emigrate or rebel” (Sir George Campbell, in _Systems of Land
 Tenure_). The French traveller, Bernier, who resided in India twelve
 years, and acted as physician to Aurungzebe, describes in 1670 the
 oppression to which the “peasantry” were subjected, and discusses the
 question “whether it would not be more advantageous for the king as
 well as for the people, if the former ceased to be sole possessor of
 the land, and the right of private property were recognised in India
 as it is with us” (_Travels_, tr. Brock, i., p. 255).

 2. Can we get behind the period of Mogul rule, and discover whether it
 was super-imposed directly on a number of free cultivating groups, or
 whether it swept away a class of landlords? Such an opportunity seems
 to be presented by the institutions of Rajputana, which are described
 by Sir Alfred Lyall as “the only ancient political institutions
 now surviving upon any considerable scale in India,” and as having
 suffered little essential change between the eleventh and nineteenth
 centuries (_Asiatic Studies_, pp. 185, 193). “In the Western Rajput
 States the conquering clans are still very much in the position which
 they took up on first entry upon the lands. They have not driven out,
 slain, or absolutely enslaved the anterior occupants, or divided off
 the soil among groups of their own cultivating families.... Their
 system of settlement was rather that of the Gothic tribes after their
 invasion of the Danubian provinces of the Roman empire, who, according
 to Finlay, ‘never formed the bulk of the population in the lands
 which they occupied, but were only lords of the soil, principally
 occupied in war and hunting.’ In a Rajput State of the best preserved
 original type, we still find all the territory ... partitioned out
 among the Rajputs, in whose hands is the whole political and military
 organisation.... Under the Rajputs are the cultivating classes ...
 who now pay land rent to the lords or their families, living in
 village communities with very few rights and privileges, and being too
 often no more than rack-rented peasantry” (_Ibid._, p. 197). Here,
 it is true, we have a case of conquest by an invading race; but if
 this be compared with the description given by Sir William Hunter
 of the constitution of Orissa under its native princes, before the
 period of Mahometan rule, it will be seen that the condition of the
 cultivators was much the same, whoever might be their masters. Orissa
 would seem to have been divided into two parts, the royal domain
 “treated as a private estate and vigilantly administered by means of
 land-bailiffs,” and the estates of the “feudal nobility,” known as
 Fort-holders (_Orissa_, pp. 214-219). In the petty Tributary States
 in the neighbourhood of British Orissa, there are said to be now no
 intermediary holders between the husbandman and the Rajah, “in whom
 rests the abstract ownership, while the right of occupancy remains
 with the actual cultivator.” The condition of things reproduces,
 therefore, on a small scale and subject to British control, what was
 to be found on an immensely larger scale under the Mogul emperors.
 Whether there ever were in these districts lords of land between the
 prince and the peasant is not clear.

 3. Sir William Hunter suggests that we can distinguish an even
 earlier stage. “We know,” he says (p. 206), “that the Aryan invaders
 never penetrated in sufficient numbers into India to engross any
 large proportion of the soil. That throughout five-sixths of the
 continent, the actual work of tillage remained in the hands of the
 Non-Aryan or Sudra races; and that, even at a very remote time,
 husbandry had become a degrading occupation in the eyes of the Aryan
 conquerors.... In Orissa, where Aryan colonisation never amounted to
 more than a thin top-dressing of priests and _nobles_, the generic
 word of husbandman is sometimes used as a synonym for the Non-Aryan
 caste. At this day, we see the acknowledged aboriginal castes of the
 mountains in the very act of passing into the low-caste cultivators
 of the Hindu village, as soon as Hindu civilisation penetrates their
 glens.” He thinks it probable, therefore, that the Hindu village is
 the “outcome” of Non-Aryan Hamlets such as those of the Kandhs. This
 is not unlikely; but supposing the conjecture to be correct, we must
 notice two essential points. The first is that the Kandh Hamlet, with
 its population of, on an average, some five-and-thirty persons, is
 nothing more than a cluster of independent households, placed close
 together for mutual protection. The absolute ownership of the soil
 is vested in each family; and the Hamlet as a whole exercises no
 corporate authority whatever (pp. 72, 77, 208, 210). And in the second
 place, if the Hamlet expanded into the village and the village became
 that “firmly cohering entity” which it now is, land-lordship would
 seem to have developed _pari passu_ (_Ibid._, pp. 212-3). At no stage
 of agrarian history do we find the village community of theory, which
 is “an _organised self-acting_ group of families exercising a _common
 proprietorship_ over a definite tract of land” (Maine, _Village
 Communities_, pp. 10, 12). Where the cultivating group are in any real
 sense proprietors, they have no corporate character; and where they
 have a corporate character, they are not proprietors.


NOTE B.--ON THE RUSSIAN MIR.

 Since the preceding chapter was written, fresh light has been cast
 on the history of the Russian village group by the work of M.
 Kovalevsky, _Modern Customs and Ancient Laws of Russia_ (London,
 1891). According to M. Kovalevsky, the view that the peasants retained
 their personal liberty until the decrees of Boris Godounoff at the
 end of the sixteenth century deprived them of freedom of migration,
 is now generally abandoned by Russian scholars (pp. 210-211); and
 it is recognised that long before that date serfdom of a character
 similar to that of western Europe was in existence, over, at any
 rate, a considerable area of the Empire. Still more significant is
 another fact on which M. Kovalevsky lays great stress. It is commonly
 asserted, or implied, that the custom of periodical re-division of
 the lands of the _mir_ is a survival from ancient usage, and forms a
 transitional stage between common and individual ownership (_e.g._,
 Maine, _Ancient Law_, pp. 267-270). But M. Kovalevsky assures us that
 the practice is quite modern; that it dates no further back than last
 century; and that it was due chiefly to Peter the Great’s imposition
 of a capitation tax (pp. 93-97).

 M. Kovalevsky is none the less a strenuous supporter of the village
 community theory; and he is indignant with M. Fustel for “endorsing an
 opinion,” that of M. Tchitcherin, “which has already been refuted” by
 M. Beliaiev. Unfortunately he does not cite any of the facts on which
 M. Beliaiev relied. He himself allows that but scanty evidence can be
 found in old Russian documents in support of the theory (pp. 74, 82);
 and bases his own argument rather on what has taken place in recent
 centuries, from the sixteenth down to our own day, when outlying
 territories have been colonized by immigrants. But this is a dangerous
 method of proof when used by itself; it would lead, for instance, to
 the conclusion that because the early communities in New England were
 not subject to manorial lords, there had never been manorial lords in
 England. And even in the cases he describes, “the unlimited right of
 private homesteads to appropriate as much soil as each required was
 scrupulously maintained” (p. 80)--which is very different from the
 Mark of Maurer.

[1] Earle, _Land Charters_, p. xlv.

[2] Cf. Southbydyk in _Boldon Book_, Domesday, iv. 568; and Nasse’s
remarks (_Agricultural Community_, p. 46) as to cases of purchase in
Mecklenburg.

[3] See Maitland, _Select Pleas in Manorial Courts_, Introduction; and
also in _Engl. Hist. Rev._, 1888, p. 568; Blakesley, in _Law Quarterly
Rev._, 1889, p. 113.

[4] Abundant instances in Earle, _Land Charters_; cf. Fustel de
Coulanges, _L’Alleu_, p. 377.

[5] See Fustel de Coulanges, _L’Alleu_, ch. vi.

[6] _Hist. Eccl._, iii., 17, 21, 22, 28. The use of the word _township_
and its relation to _villa_ require fresh examination in the light of
our increased knowledge of Continental usage. _Tunscip_ apparently
first appears in Alfred’s translation of Bede, at the end of the ninth
century; and its first and only appearance in A.S. law is in Edgar iv.
8, in the second half of the tenth. Schmid, _Gesetze der Angelsachen_,
_Gloss._ _s. v._

[7] _Le Moyen Age_ for June, 1889, p. 131.

[8] Sir George Campbell in _Tenure of Land in India_, one of the essays
in _Systems of Land Tenure_ (Cobden Club).

[9] Maine, _Village Communities_, p. 76; _Ancient Law_, p. 260.

[10] See Note A.

[11] _Principles of Economics_, p. 682, n.

[12] An account of it will be found in Faucher’s essay on _Russia_ in
_Systems of Land Tenure_; compare the English statute of 1388 in _St.
of the Realm_, ii. 56. See Note B.

[13] Boyd Dawkins, _Early Man in Britain_, p. 242.

[14] See the summary of recent philological discussion in Isaac Taylor,
_Origin of the Aryans_.

[15] Prof. Rhŷs in _New Princeton Review_ for Jan., 1888.

[16] _Village Community_ (1890), p. 71.

[17] Wilson, _Prehistoric Annals of Scotland_, vol. i. p. 492.

[18] _De Bello Gallico_, v. 14.

[19] Seebohm, _V.C._ 187, 223.

[20] _Agricola_, Chap. xix., and see the note in the edition of Church
and Brodribb.

[21] How thickly the villas were scattered over the country is shown by
Wright, _Celt, Roman and Saxon_ (3rd ed.), pp. 227 _seq._

[22] These are the phrases of Green, _Making of England_, pp. 6,7.

[23] Seebohm, 294 n. 3.

[24] _De Bello Gallico_, vi. 13.

[25] For Ireland, see Skene, _Celtic Scotland_, iii. pp. 139-140, 146;
for Wales, A. N. Palmer, _Hist. of Ancient Tenures in the Marches of
North Wales_ [1885], pp. 77, 80.

[26] Pp. 43 _seq._

[27] References in Seebohm, pp. 283, 287.

[28] Fustel de Coulanges, _L’Alleu et le Domaine Rural_ (1889), pp. 34,
207, 227 _seq._

[29] _Ibid._, pp. 80 _seq._

[30] This was pointed out, in correction of Rogers, by Nasse, _Agric.
Community of M. A._, pp. 52 _seq._

[31] The bearing of these facts was first pointed out by Mr. Seebohm,
_V.C._ pp. 372-4.

[32] Most recently in _Four Oxford Lectures_ (1887), pp. 61 _seq._

[33] Freeman, _Norman Conquest_, vol. v. ch. xxiv. p. 334.

[34] _Decline and Fall_, ch. xxxviii.

[35] See Hatch, _Growth of Church Institutions_, pp. 15, 39.

[36] _Ibid._, p. 10.

[37] _Archæologia_ xlii. espec. pp. 464-465.

[38] _Ibid._ p. 459.

[39] _Ibid._ 464. Cf. for traces of Iberians in other districts,
Greenwell and Rolleston, _British Barrows_, p. 679.

[40] _Germania_, cc. 24, 25; and see the commentary of Fustel de
Coulanges in _Recherches_, pp. 206-211.

[41] The passages relating to the subject are brought together in a
volume of old-fashioned learning--_A Dissertation upon Distinctions in
Society and Ranks of the People under the Anglo-Saxon Governments_, by
Samuel Heywood [1818], pp. 317 seq., 413 seq. Cf. Fustel de Coulanges,
_L’Alleu_, chaps, x., xi.

[42] _Penitential_ of Theodore [xix. 20, in Thorpe, _Ancient Laws and
Institutes_, p. 286; xiii. 3, in Hadden and Stubbs, _Councils_ iii. p.
202]. _Penitential_ of Egbert [Addit. 35, in Thorpe, p. 391.]

[43] Fustel de Coulanges, _L’Alleu_, pp. 359, 413. Such a use of the
term “free” may, perhaps, help to explain the phrase with regard to the
_cotsetla_ in the _Rectitudines_: “Det super heorthpenig ... _sicut
omnis liber facere debet_” (“_eal swâ œlcan frigean men gebyreth_”).
Thorpe, p. 185.

[44] Thorpe, _Ancient Laws_, p. 45 (Ine, 3).

[45] _Ibid._ 316 (Theodore).

[46] _Ibid._ 55 (Ine, 39).

[47] _Ibid._ 63 (Ine, 67).

[48] As stated, for instance, in Britton, ed. Nicholls, ii., p. 13.
Privileged villeins were, it is true, only to be found on the royal
demesnes. But in the later Roman empire, the _Coloni_ upon the imperial
estates were an especially numerous and important class. (Fustel de
Coulanges, _Recherches_, pp. 28-32). That there were such imperial
estates in Britain is probable; and it is made more likely by the
mention in the _Notitia_ of a _Rationalis rei privatae per Britannias_.
At the conquest by the English, these estates would probably fall to
the kings, as in Gaul. (Waitz, _Deutsche Verfassungsgeschichte_, ii.,
308.)

[49] _L’Alleu_, pp. 20-21.

[50] _Leges Alamannorum_ qu. Seebohm, p. 323. It is, however, possible
that the “_binae aratoriae_,” etc., on the _Saltus Buritanus_ meant
more than two _days_, although that is the interpretation of M. Fustel
de Coulanges. See _Recherches_, p. 33.




THE ORIGIN OF PROPERTY IN LAND


During the last forty years a theory has made its way into historical
literature, according to which private ownership in land was preceded
by a system of cultivation in common. The authors of this theory do not
confine themselves to saying that there was no such thing as private
property in land among mankind when in a primitive or savage state. It
is obvious that when men were still in the hunting or pastoral stage,
and had not yet arrived at the idea of agriculture, it did not occur to
them to take each for himself a share of the land. The theory of which
I speak applies to settled and agricultural societies. It asserts that
among peoples that had got so far as to till the soil in an orderly
fashion, common ownership of land was still maintained; that for a
long time it never occurred to these men who ploughed, sowed, reaped
and planted, to appropriate to themselves the ground upon which they
laboured. They only looked upon it as belonging to the community.
It was the people that at first was the sole owner of the entire
territory, either cultivating it in common, or making a fresh division
of it every year. It was only later that the right of property, which
was at first attached to the whole people, came to be associated with
the village, the family, the individual.

“All land in the beginning was common land,” says Maurer, “and belonged
to all; that is to say to the people.”[51] “Land was held in common,”
says M. Viollet, “before it became private property in the hands of
a family or an individual.”[52] “The arable land was cultivated in
common,” says M. de Laveleye; “private property grew up afterwards
out of this ancient common ownership.”[53] In a word, the system of
agriculture was, in the beginning, an agrarian communism.

This theory is not, strictly speaking, a new one. Long before the
present century, there were thinkers who loved to picture to themselves
mankind living together, when society was first formed, in a fraternal
communism. What is new in this, what is peculiar to our own times, is
the attempt to rest this theory on a foundation of historical fact, to
support it with quotations from historical documents, to deck it out,
so to speak, in a learned dress.

I do not wish to combat the theory. What I want to do is only to
examine the authorities on which it has been based. I intend simply
to take _all_ these authorities, as they are presented to us by the
authors of the system, and to verify them. The object of this cold and
tedious procedure is not that of proving whether the theory is true or
false; it is only to discover whether the authorities that have been
quoted can be fairly regarded as appropriate. In short, I am going to
discuss not the theory itself, but the garb of learning in which it has
been presented.

[51] G. L. von Maurer, _Einleitung zur Geschichte der Mark- Hof- Dorf-
und Stadtverfassung_, 1854, p. 93.

[52] P. Viollet, in the _Bibliothèque de l’École des Chartes_, 1872, p.
503.

[53] Em. de. Laveleye, _De la propriété et de ses formes primitives_,
1874.


I.

_The theory of Maurer as to community of land amongst the Germanic
nations._

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

He presented it with great clearness in a book published in 1854.
In this he maintained that, amongst the Germans, private domains,
villages and towns, all spring alike from a primitive _mark_; that
this primitive mark consisted of an area of land held in common; that
the land was cultivated for a long period without there being any
private property; and that the cultivators formed amongst themselves an
“association of the mark,” a “_markgenossenschaft_.” “All land,” he
said, “was in the beginning common-land, _gemeinland_ or _allmende_”
(page 93). “There was nothing which could be rightly termed private
property” (_ibid_). “The ground was divided into equal lots, and this
division was made afresh each year; every member received a part and
moved each year to a new lot.” “The whole mark, cultivated land as well
as forests, was held in common” (p. 97).

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

Our author re-stated his doctrine in another book published two years
later: “The associations of the mark are bound up with the primitive
cultivation of the soil; they can be traced back to the earliest
German settlements, and in all probability once occupied the whole of
Germany.”[54] We have to consider what are the facts, and what the
authorities on which Maurer builds up this doctrine.

As the question concerns very early times, he naturally begins with
early authorities. The first is Cæsar. Cæsar calls our attention, we
are told, to the fact that amongst the Germans “there are no separate
estates or private boundaries.”[55]

This is explicit; and, although one might say that Cæsar was
unacquainted with the Germans at home,[56] it has great weight as
coming from so clear-headed a writer. Let me, however, call attention
to the fact that the passage from Cæsar is by no means a description
of the mark as Maurer and his disciples conceive it. Cæsar does not
show us a _markgenossenschaft_, an association of peasants cultivating
in common land of which they were the common owners. He describes, and
this is a very different thing, the chiefs of the cantons arbitrarily
disposing of the soil of which they alone appear to be the owners, and
each year moving families and groups of men from one place to another.
These people apparently have no rights, no power of initiative; the
chiefs leave them only “as much land as they think fit,” “where they
think fit,” and they “force them” to move from place to place. All this
is far enough removed from the supposed association of the mark--an
association, that is, of free peasants cultivating land in common, in
virtue of their joint ownership; and it would be difficult to make
Cæsar’s observation fit into such a condition of things.[57]

Next comes Tacitus. Does he introduce the mark into the picture which
he draws of the institutions of the Germans? “Yes,” says Maurer; “for
in his 26th chapter, when he uses the word _agri_ he means the mark.”
And again, “all land held in common and not divided, Tacitus calls
_ager_.” But by what authority does Maurer translate _agri_ in Tacitus,
and further on _ager_, by “common lands,” when the word _common_ is not
to be found there? “Because,” says he, “the word _ager_, in the Roman
sense, signified when used by itself _ager publicus_.” Here we have
an apparently unimportant philological statement, but it is one which
plays a considerable part in Maurer’s book. He repeats it three times
(pages 6, 84, and 93). Indeed, if we look more closely into it, we find
that it is the foundation of his system. It was necessary for his view
that the mark should be found in Tacitus; and therefore the word _ager_
by itself had to mean _ager publicus_, _i.e._, mark, common land,
_Gemeinland_. This is exactly what has to be proved. The true sense of
a word cannot be got at by an effort of imagination, or by turning over
the pages of a pocket-dictionary. It is only to be found by bringing
together a number of examples of its use and comparing them; and the
term _ager_ occurs so often in Latin literature that an attentive
student can hardly make any mistake as to its meaning. Nowhere do
we find it in the sense of public land, unless when accompanied by
the adjective _publicus_ or the genitive _populi_, or some other term
to show clearly the especial meaning it is intended to have.[58] By
itself it never meant public land. Read Cato and Varro; they do not
once mention public lands; and yet the word _ager_ occurs frequently
in their works, each time in the sense of a private estate. Some one
buys an _ager_; the owner makes the lustration of his _ager_ (Cato,
141), that is to say, he perambulates the boundaries of his property.
Columella is continually talking about the _ager_ as the property of a
man whom he calls _dominus_. More than thirty passages in Cicero show
that he drew a distinction between an _ager_, which was the property of
a private citizen, and the _ager publicus_, which was the property of
the state. Even the agrarian laws, whose real object was to transform
an _ager publicus_ into an _ager privatus_, mark clearly the difference
between them.[59]

It is, therefore, in no sense true that the word _ager_ by itself
implied public or common land, or that it was in any way analogous to
the word _mark_. So far was this from being the case, that a Roman
jurisconsult expressly says that the dominant idea conveyed by the word
_ager_ is that of complete ownership.[60]

In fact, what a Roman calls _ager_ was very often what we call an
estate. In Cato, for instance, the _ager_ is not simply a field; it is
a domain of some 60, 75, or 150 acres (c.c. 1, 10), which is cultivated
by ten, twelve or sixteen slaves. Columella mentions, as if it were
not unusual, that an _ager_ might be so extensive that the owner would
have to divide it for purposes of agriculture between several groups of
slaves. _Ager_ and _fundus_ are synonymous terms, and they both mean
an area of land cultivated for an owner’s benefit.[61] Pliny speaks in
his letters of his _agri_; and each of these is a great estate that
he either lets out to farmers, or cultivates by means of a body of
slaves. Each _ager_ included, to judge from his description, arable
land, meadows, vineyards and woods. The jurisconsult Paulus makes use
of the two words, _ager_ and _fundus_, in referring to one and the same
domain.[62] Another jurisconsult says in so many words that the word
_ager_ includes all the land of an estate.[63] Finally, if there were
still any doubt, we need only look at the passage from Ulpian in the
_Digest_, which gives the formula under which estates were enrolled
in the census. We see that such properties are called _agri_, and
that each of them comprises land in tillage, vineyards, meadows, and
forests.[64]

All this has to be borne in mind, if we would know what was the idea
that Tacitus associated with the word _agri_; for no doubt Tacitus
used the language of the Romans of his own times. To suppose that he
attached to this word a meaning it had never had, _viz._, _public_
land, and, going even further, the idea of _common_ land--an idea which
never entered the Roman brain--is pure fancy. And this is the error
with which Maurer and his followers set out to misinterpret the whole
of chapter xxvi. of the Germania.[65]

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

In the Ripuarian law the _word_ is to be found, but in a sense quite
the opposite of that which Maurer attributes to it. Far from implying
a district of land common to all, it denotes the boundary of a private
estate. This will be seen on reading section 60: “If any one buys
a villa or any small estate, he ought to procure witnesses to the
sale.... If a proprietor encroaches on a neighbouring proprietor
(this is the meaning of the word _consors_), he shall pay fifteen
_solidi_.... The boundary of the two estates, _terminatio_, is
formed by distinct landmarks, such as little mounds or stones.... If
a man overstep this boundary, _marca_, and enters the property of
another,[66] he shall pay the fine mentioned above.” Thus, what the
law calls _terminatio_ in one line and _marca_ in the next is clearly
one and the same thing: it is the boundary which separates two private
properties. A fact like this upsets Maurer’s whole system.

Let us turn to the codes of the Germans who remained in Germany proper.
The word _mark_ is not to be met with throughout the Thuringian,
Frisian and Saxon codes. It does occur in those of the Alamanni and
Bavarians; but, instead of signifying a common territory, as Maurer
would have it, it is used for the boundary of a territory. The laws
of the Alamanni lay down that anyone who seizes a free man and sells
him across the borders, _extra_ _terminos_, shall restore him to his
country and pay a fine of forty solidi; immediately after, in the
following line, comes a similar direction in case of the sale of a free
woman beyond the borders, and the only difference is, that in place of
_extra terminos_ we have the phrase _extra marcam_: the two expressions
are, we see, synonymous, and both denote a frontier.[67]

The Bavarian law indicates still more clearly the meaning of the word.
Speaking of a man who takes a slave over the borders, it expresses it
by _extra terminos hoc est extra marcam_.[68] It is impossible more
clearly to indicate that the German word _mark_ is synonymous with the
Latin word _terminus_. Another passage from the Bavarian laws proves
that _mark_ was also used for the boundary of a private estate. Under
the rubric, _De terminis ruptis_, it says that if two neighbours are
at variance about their boundary, the judges ought first to examine
whether the boundary is indicated by visible landmarks, such as marks
on trees, hillocks or rivers. Now these two neighbours who have a
common boundary are termed in the law _commarcani_.[69] Maurer, it is
true, supposes that by this word is meant “men who dwelt in the same
mark, the same common territory,” but he would not have fallen into
this error had he noticed that the same clause in the very next line
expressly tells us that we have here to do with private property,
with land that has been inherited; for each of the disputants makes a
declaration that he has inherited his lands from his ancestors.[70]
Here we have, then, precisely the opposite of mark in the sense of land
held in common. Two neighbouring landowners are at law about their
boundaries. _Commarcani_ is analogous to _confines_, which we find
elsewhere; it is used of two men who have the same _marca_, the same
_finis_, that is, a common boundary.

That the _mark_ was a district possessed in common by a number of
persons there is not a trace in German law. But are there not, at any
rate, vestiges of some kind of common ownership? Maurer maintains that
there are; and as evidence brings forward three instances, all taken
from the Burgundian law: in section 13 he finds the words _in silva
communi_; in section 31, _in communi campo_; and in section 1 of the
“additamentum,” _silvarum et pascuorum communionem_.[71] This is quite
sufficient to convince some readers. Is not the word _communis_ enough?
And yet, let us make sure of our quotations, and with each of them let
us look at the context.

Article 13 does not in the least refer to a forest common to all,
but to one which happens to be held in common between a Roman and a
Burgundian, probably in consequence of the division of an estate which
had belonged to the former.[72] This is a very different thing from a
system of community. The passage shows, on the contrary, that in this
case the forest was the property of two men. The mention in section 31
of a _campus communis_ has led Maurer to say “that there were still in
Gaul many fields which remained undivided.” This is a mistake; for here
again it is a field belonging to two proprietors that is spoken of; one
which is only undivided so far as these two men are concerned. Anyone
who has planted a vine in a common field shall make up for it to the
other owner by handing over to him an equal extent of ground;[73] but
if the co-proprietor from the first objected to his doing it, and the
other has planted his vine in spite of him, he shall lose his pains and
the vine shall belong to the owner of the field.[74] It is plain that
here we have to do with something very different from a piece of ground
common to an entire village. Maurer has, in this instance, made the
mistake of isolating two words instead of reading the whole passage.
As to his third quotation, section 1 of the _additamentum_, we find
that this does not belong to Burgundian law. It belongs to the _Roman
law_ of the Burgundians; which is a very different thing.[75] It is, in
fact, connected with an arrangement entirely Roman in its character,
which is to be met with also in the code of Theodosius, according to
which forest and pasturage might be held in common by a certain number
of owners of land in tillage. The Roman law enacts that in such a
case each owner should have rights over the forest and pasturage in
proportion to the extent of his cultivated land.[76]

Thus we find that the three passages from German law, which Maurer
believes he has discovered to prove the existence of a system of
common ownership, either belong to Roman law or have no connection
with this supposed common ownership of land, and even give positive
proof of private ownership. In the same way finding somewhere the word
_consortes_, he exclaims: “Here we have the associates of the mark”
(p. 145), and he again quotes a passage from the Burgundian law; but,
as in the instance given above, we find that the passage belongs to
Roman law, and, on looking at it, we see that the word _consortes_ is
used in the Roman sense of co-heirs.[77] The meaning of the clause
is that if two or more co-heirs have not yet divided the estate and
apportioned their shares, and one of them demands a division of the
property, it is not to be refused him.[78] In this case, again, we are
far enough away from a system of community in land.

Such are the four passages which Maurer finds, or thinks he finds,
in German law; and he can only use them in support of his theory by
misinterpreting them. The whole body of German law is, in fact, a law
in which private property reigns supreme. Look at the Burgundian law,
and you will find mention of corn fields which are enclosed, and even
of meadows; the forest itself is an object of private property. “If a
Burgundian or a Roman possess no forest, he may take dead wood _from
the forest of another_, and he _to whom the forest belongs_, shall not
hinder him; but if he takes a tree bearing fruit, he shall pay a fine
to the owner, _domino silvæ_.”[79] A right of use, limited besides
to dead wood, is not the same thing as common ownership. It will be
noticed also that the term used in the code for a country domain is
_villa_, with its boundaries, _termini villæ_.[80] Even the lands given
by the king to his servants are marked off by definite boundaries.[81]
These boundaries are sacred; the Burgundian law-giver lays down that
any one who removes a boundary shall lose his hand. It never for a
moment entered into the minds of the Burgundians to establish agrarian
communism.

In the law of the Visigoths, we find men who own vineyards, fields,
meadows, and even pasturage and forests.[82] Land is hereditary
property; and there is an entire section upon the division of landed
possessions amongst co-heirs, as well as one on the boundaries of
private estates. It is the same throughout the Lombard law; the right
of ownership applies to everything, even to forests.[83] The owner of
the land--_dominus_--has the right of selling it.[84] He can also let
it on lease, _libellario nomine_.

The Salic law is a much less complete code than those we have been
considering. It makes no mention of sale; but it contains the rule of
hereditary succession. Land passes from father to son.[85] We also
find enclosed corn fields and meadows,--a state of things hardly to be
reconciled with community of land;[86] there are even forests which are
one man’s property, and where no one has the right of getting wood.[87]

The Ripuarian law indicates the use of hedges and enclosures; it
recognises the right of hereditary succession to land, and also the
power of disposing of it by sale.[88] All these are unmistakable signs
of the prevalence of private ownership.

The hastiest glance at the law of the Alamanni, makes it absolutely
clear that the soil was an object of private property throughout the
district in which it was in force. We see from the first section that
an individual might be so completely owner of his land that he could,
by a mere act of will, give it away to a church; he had not to ask
the leave of any group of associates. Ownership of land is spoken of
as _proprietas_ and it is “perpetual.”[89] It is also hereditary;
for the same law shows that if this man did not give his land to the
church, it would pass “to his heirs;”[90] and it provides for the case
of one of the heirs objecting to the gift, without mentioning the
possibility that an “association of the mark” might lay claim to the
land. The same code also mentions mills and water courses as objects
of private property.[91] The following clause enlightens us still
more as to the condition of the land: If a dispute arises between two
families concerning the boundary of their lands, the two families
fight in presence of the count; the one to whom God gives the victory
enters into possession of the disputed territory; the members of the
other family pay a fine of 12 solidi “because they have attacked _the
property_ of another.”[92] Here we have a law which cannot apply to
lands common to all. It is clearly dealing with property which is
permanent, and sharply defined; though it is property which belongs not
so much to the individual as to the family. Among the Alamanni, as we
see, traces of family ownership still survived.

In Bavarian law property in land is hereditary. Each domain is
surrounded by a boundary made “either by a bank of earth, or by stones
stuck in the ground, or by trees marked with some particular sign.”[93]
And we must not suppose that these boundaries merely enclosed gardens;
they enclosed fields and vineyards. “He who, whilst tilling his field
or planting his vine, has unwittingly moved a land mark, shall restore
it in the presence of his neighbours.” “When two neighbours having a
common boundary have a dispute, if the land marks are not clear, the
one says, ‘My ancestors possessed the land as far as this line, and
left it me by inheritance:’ and the other protests and maintains that
the land belonged to his ancestors as far as some other line; then the
dispute is settled by judicial combat.”[94] This is a good instance of
individual ownership. Ownership has long been hereditary; since each of
the litigants says he has received his estate from his ancestors, and
the lands have been held by the same families for several generations.
Nor is it only to land under tillage that the right of ownership
applies; it applies equally to forests and pastures; to uncultivated
as well as to cultivated land: “If any one sells his property, whether
cultivated land, or uncultivated, meadows or forests, the sale ought to
be transacted in writing and before witnesses.”[95]

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

The capitularies of the Merovingian kings, again, show that private
property was the normal and regular state of things. An edict of
Chilperic declares that land shall pass not only to the son according
to the ancient rule, but also to the daughter, brother, or sister. In
his treatment of this last point Maurer once more displays singular
inaccuracy. From this law which declares the rule of hereditary
succession, he draws the conclusion that before that time there had
been community of property. The edict of Chilperic says that in no
case shall the neighbours take possession of the land; this appears
to him to mean that, up to the day this law was made, the neighbours
were the real owners, and inherited before the son of the dead man. He
does not notice that it is precisely in the case where a son survives
that Chilperic contents himself with referring to the ancient rule of
hereditary succession. The words _non vicini_ occur in the paragraph
which deals with the case of the death of the owner without children.
To say that if a man dies without children, the nearest heirs must be
sought for, and the neighbours are not to take possession of the land,
is not the same as saying that until that time the neighbours had had
rights over the land. To exaggerate the meaning of a quotation to such
a point as this is really to pervert it.[96] Not a single Frankish
capitulary, not a single law, charter, or formula, mentions this
imaginary “right of the neighbours” over the land. Not one of these
documents even alludes to a village holding its land in common. The
Carolinginian capitularies, which were drawn up for Germany as well as
for Gaul, recognise two methods only of land-holding, the allodial,
_i.e._, complete and heritable ownership; and beneficiary, _i.e._, land
granted by its owner for a time and under certain conditions. They know
nothing of community of ownership.

If one could point anywhere to an annual or periodical division of the
soil this would be a proof of agrarian communism. Maurer accordingly
maintains (page 8) that this annual division was, as a matter of fact,
for a long time practised. In support of so grave an assertion, to
prove an historical fact of such magnitude, we might hope that he would
furnish us with numerous and precise references. He gives but one, a
document of the year 815, printed in Neugart’s _Codex diplomaticus_,
No. 182.[97] Now look at this deed; it is a gift made to a convent
by a certain Wolfin. Read it through; you will not find a single
mention of community, a single mention of a yearly division. Wolfin
is a landowner; the lands he grants are his property; even more than
that, they are his by inheritance; they have descended to him from his
father. Here then we have a deed which from its first word to the last
proves the existence of private property, and shows the very opposite
of common ownership.

How has Maurer managed to find in this a confirmation of his theory?
We have here a striking example of the light-hearted way in which he
works. The donor, in making a list according to custom of the lands he
is giving, writes _terræ anales_, _prata_, _vineæ_, _pascua_. Maurer
lays hold of this word _anales_. Of course, it is not Latin; so he
begins by supposing that the copyist made a mistake, and corrects
it to _annales_. But even the word _annalis_ does not belong to the
language of legal documents; there is not a single other instance
of its use. Maurer supposes that it means “lands that are held for
only one year.” But that is impossible; since, according to this
very deed, they are Wolfin’s property by inheritance. The whole list,
_terræ anales_, _prata_, _vineæ_, _pascua_ relates beyond doubt to
inherited property. The word _anales_ is puzzling; but any one who
is familiar with charters of this kind must have often observed in
those of this period the expression _terræ areales_ taking the place
of _terræ arabiles_,[98] but with the same meaning, _i.e._, arable
lands. It occurs frequently in deeds of gift. When in a number of
documents exactly alike in phraseology you find in eighty _terræ
arabiles_, _prata_, _vineæ_, _silvæ_, _pascua_, and in twenty more
_terræ ariales_, _prata_, _vineæ_, _silvæ_, _pascua_; then, supposing
in a single example you meet with _terræ anales_, _prata_, _vineæ_,
_silvæ_, _pascua_, common sense tells you that this word _anales_,
which, however we take it, is incorrect, was written for _ariales_,
and that either the editor or the copyist made a mistake. There is
no doubt whatever that the donor makes a gift of “lands he possesses
by inheritance,” which include “arable lands, meadows, vineyards and
pasture.” Such is the deed of 815; and it is an illustration of the
method Maurer follows. He cites a deed, which, taken as a whole, proves
the existence of private and heritable property; he does not tell
the reader this, but picks out from its context a single word; alters
it and translates it in his own way; and presenting the reader only
with this one word, tries to make him believe that the deed proves the
annual division and common ownership of land.

When Maurer comes to deal with the barbarian invasions, he takes
great pains to get together a number of quotations which will suggest
the idea of a partition of land (pages 72 _seq._); but if we examine
them, we see that there is absolutely nothing about a _yearly_ or
_periodical_ division. He first quotes from Victor Vitensis, who
tells us that Genseric, directly he was master of the province called
Zeugitana, divided its soil amongst his soldiers “in hereditary
lots.”[99] This is exactly the opposite of a yearly division of land,
and, consequently, of common ownership. Next comes Procopius who writes
that “the Ostrogoths divided amongst themselves the lands which had
before been given to the Heruli.”[100] Here again we have to do with
a division of land among private owners. Then Maurer, with a great
profusion of quotations, points to the divisions of property that many
scholars believe were effected between the Roman proprietors on the
one hand and the Visigoths, Burgundians and Franks on the other. But
this division, in any case, was neither yearly nor periodical. Each
portion became, from the very first day, permanent and hereditary. It
would be childish to maintain that a division of this kind was the sign
of a system of common ownership. It shows on the contrary that the new
comers knew nothing about community in land, and never practised it.

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

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

If in German law Maurer can discover no trace of the mark or of
community in land, what are the documents on which he rests his proof
of their existence? If we study his book with some attention, we
shall be surprised to find that he goes for his authorities to the
_Traditiones_, under which title are classed the various collections
of charters of the 8th to the 14th centuries.[101] But all these,
and they number almost ten thousand, are, without exception, deeds of
private property. In fact, they are always either deeds of gift, or of
sale, or of exchange, or of the grant of _precaria_. It is impossible
not to allow that the thousands of deeds of this kind are so many
proofs of private property, since you can neither sell nor give away
what is not already your own. Amongst these collections we also find
judicial decisions, and they all point in the same direction.

Observe, too, that there is absolutely no doubt as to the meaning of
the language employed. Could language be clearer than that of the
following passage taken from a deed of 770? “I, Wicbert, give to the
church of St. Nazarius the farms (_mansi_), lands, fields, meadows and
slaves that belong to me. All these I deliver to the church to be held
for ever, with the right and power of holding, giving, exchanging,
and doing with them as seems to it best.”[102] Or of a deed of 786:
“I, daughter of Theodon, give to St. Nazarius all that I hold by
inheritance in the places here mentioned; and everything that has been
in my possession and ownership, I hand over into the possession and
ownership of St. Nazarius.”[103] And again: “Whatever land belongs to
me I give to the abbot and his successors to hold and possess it for
ever;”[104] and yet again: “I, Wrachaire, give whatever land is mine in
my own right for the abbot henceforward to hold in his own right, _jure
proprio_.”[105] These expressions occur in thousands of documents.
Often the donor or seller adds that he holds the land by inheritance,
that he has received it from his father.[106] Another thing we must
not fail to notice is that ownership is not limited to land under
cultivation; it includes forest, pasture and streams,[107] as we find
over and over again. And it is never a village community or mark which
makes such a gift, but always a single individual.

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

We must go further. Are the eighteen or twenty deeds referred to
by Maurer given correctly? Do they really mean what our author
wishes them to mean? Observe that he never quotes more than a single
line, sometimes only one or two words. We must go to the documents
themselves and verify them.[108]

He first of all quotes, on page 47, a deed from the Lorsch collection.
It is a charter of 773, by which Charles the Great grants to that
monastery in perpetuity, the villa of Hephenheim, including lands,
houses, slaves, vineyards, forests, fields, meadows, pasture, water and
streams, with all its appurtenances and dependances, its boundaries and
its marks, _cum terminis et marchis suis_.[109] Here is the mark, says
Maurer. Yes, but not the mark of the village community. It is precisely
the opposite, the march or boundary of a private property. We have here
to do with a villa, a domain which has been the private property of
the king and is now becoming the property of a convent. There is not a
thought here of common ownership, or of a common mark, or of a village
association. There is not even a village. It is a domain, cultivated,
says the charter, by slaves. _Cum terminis et marchis suis_ are both
words meaning the boundaries of the domain; and in a repetition of
this kind there is nothing surprising. The _marca_ is precisely the
same as the _terminus_. We saw above, in the Bavarian law, _terminus
id est marca_. In the same way a charter of Childeric II. describes
the boundary-line of a domain as _fines et marchas_.[110] We must not
suppose that these _marchae_ were a stretch of land separate from the
domain. The expression _dono villam ... cum marchis_ will astonish no
one who is familiar with documents of this class. Any one who has any
acquaintance with them knows that it was the custom in deeds of gift,
or sale of a domain, to add, “with its boundaries.” Charters written
in Gaul have the phrase, _cum omni termino suo_; in Germany, _cum
omni marca sua_ or _cum marcis suis_.[111] In a large number of our
documents _marca_ is used in this sense alone, as, for instance, in the
_Codex Fuldensis_, No. 21, a deed of 760, in which a certain person
makes a gift of a villa _cum marcas et fines_.

Maurer refers to many other documents;[112] a charter of Louis the
Pious, a deed of 748 given by Grandidier, six deeds of 768, 778, 790,
794, 796 and 811 quoted by Schœpflin, and a diploma of 812 in the
collection of Neugart. But what do we gather from all this evidence?
Every one of these documents is a deed of donation in perpetuity; in
every case it is the donation of land situated in a locality described
indifferently as _villa_, _finis_ or _marca_: _in fine vel in villa
Berkheimmarca_; _in fine vel marca Angehisesheim_; _in villa vel in
fine Heidersheim marca_; _in villa Gebunvillare seu in ipsa marca_;
_dono portionem meam quæ est in marca Odradesheim_; _in loco et in
marca Hortheim_; _in curte vel in marca Ongirheim_; _quidquid in
ipso loco et ipsa marca habeo_. All these expressions are synonymous
and recur again and again. In 803 Ansfrid makes a gift of whatever
he owns _in marca vel villa Sodoja_ and also _in villa vel marca
Baldanis_.[113] All these quotations prove no more than this, that the
word _mark_, after being originally used in the sense of a boundary
of a domain, afterwards came to mean the domain itself; a change in
the use of a word, which is familiar enough to students of philology.
The same thing has happened with the synonymous terms _finis_ and
_terminus_. In Gaul, _villa_ Elariacus and _terminus_ Elariacus are
used indifferently; as are Longoviana _villa_ and Longoviana _finis_.
In Germany _villa_ or _marca_ are used in the same way. In the examples
given by Maurer, I recognise the existence of the mark, but of a mark
which was the same thing as a villa, that is a private estate.[114]
Maurer has mistaken private domains for common lands.

In the thousands of documents in the collections of the _Traditiones_
the name of the domain, which the donor owns either in whole or part,
is always given. And we may say that, roughly speaking, out of eight
instances we shall find it called _villa_ seven times and _marca_ once,
and that there is no other difference between the two sets of documents.

Another fact has escaped Maurer’s notice, and that is that these marks
frequently bear the name of their owner. It is well known that this was
the usual custom with the _villæ_ of Gaul,--_villa Floriacus_, _villa
Latiniacus_, _Maurovilla_, _Maurovillare_; and in the same way we have
many instances of names like _marca Angehises_, _marca Baldanis_,
_marca Munefridi_, _marca Warcharenheim_, _Droctegisomarca_. The
resemblance is noteworthy. In the study of history observation is worth
more than all the theories in the world.

Occasionally the word _mark_ denotes something larger than an estate,
and is applied to an entire province. What is the origin of this? In
the documents of the sixth and seventh centuries, in the writings of
Marius of Avenches, in the laws of the Alamanni and in those of the
Bavarians, and later on in the capitularies of Charles the Great,
_marca_ signified the frontier of a country.[115] Little by little
this word began to mean border-country, and so arose the expression
“the marches” of Spain, of Brittany, Carinthia, Austria, Brandenburg;
until almost every country had insensibly grown into a “march.” Must
we suppose from this, as Maurer would maintain, that the whole German
territory was mark-land from the very first? Not at all. We know the
origin of each of these marches, and almost the exact date at which
they came into existence. One belongs to the ninth century, another to
the tenth, and another was not created until the eleventh. To refer
them to a remote period of antiquity is an error which might easily
have been avoided.[116]

We may allow that Maurer proves easily and with abundant evidence that
the word _marca_ was often used; but what he had to prove was that this
_marca_ meant land held in common, and for this he has not, up to this
point, given the slightest evidence.

There are, on the contrary, thousands of documents showing that lands
within the mark were held as private property, and not in common.
In a deed of 711, Ermanrad gives away in perpetuity “thirty acres
which he owns in the _marca Munefred_,” and he adds that this land
is his “by inheritance from his grandmother.”[117] Another makes a
gift “of all he owns in the _marca Bettunis_, whether inherited from
his father or his mother.”[118] Maurer is ready to admit that arable
land was held as private property, but he will not allow that meadows
and forests could be held in the same way. We have seen, however, in
documents of the eighth or ninth centuries, that forests and pastures
were given away or sold in perpetuity, as well as arable land.[119] In
793 Rachilde makes a gift “of all that is his property in the _marca_
Dinenheimer; and this includes _mansi_, fields, meadows, pastures,
waters, and streams.”[120] Meginhaire, to take another case, gives
what he possesses in the villa Frankenheim and mentions “fields,
_mansi_, meadows, pastures, forests and streams.”[121] The same thing
is repeated in thousands of documents;[122] showing that a system of
private ownership was in force in the mark, as well as in the villa,
and that it extended to lands of every description.

This is the conclusion to which we are brought by the twenty documents
from the collections of _Traditiones_ referred to by Maurer. Not one
of them shows a trace of a community of the mark or of any other
community. All the twenty, like the thousands of documents Maurer
passes over, are simply deeds relating to private property.

It is, then, indisputable that all existing documents show us a
system of private property; but Maurer supposes, 1st, that there
must once have been a period of undivided common property; 2nd, that
the “associates of the mark” passed from this to the later system of
private ownership, by dividing the land amongst them. That property
had ever been undivided he has no kind of proof to bring forward. It
is a statement he frequently repeats as if he had already proved it,
but we shall search his book in vain for any such demonstration. It is
certainly very strange for a scholar to heap together evidence for a
host of matters of secondary importance, and neglect to bring forward
a single authority for that on which everything turns, _i.e._, the
existence of the primitive community. His book is rich in references,
but not one bears upon this; so that we might say that everything here
is proved except the very point that was in need of proof.

As evidence of the supposed partition by means of which the “associates
of the mark” passed to a system of private ownership, Maurer refers
to three authorities.[123] The first is the hagiographer Meginarius,
who, in his _Translatio Alexandri_, relates a tradition according
to which the Saxons, on getting possession of Thuringia, at once
divided the country amongst themselves into separate portions to be
held in perpetuity, and handed over parts of them to be cultivated by
_coloni_.[124] Here we certainly have an instance of a division of
land; but this division does not follow upon a condition of undivided
ownership; so far from implying the existence of such a state of
things, it shows rather that to these Saxons the very idea is unknown.
As soon as they are masters of the soil they establish a system
of private property. The same fact is illustrated by the passage
from Helmold, which Maurer quotes, where we are told that certain
Westphalians, on being settled in a conquered country, at once divided
it between them.[125] His third reference is to a Bavarian document
of the year 1247, where we are told that “the fields were divided by
a line, and twelve acres allotted to each house.” Maurer imagines
this refers to an association of free peasants who have for centuries
cultivated the soil in common, and at last divide it amongst themselves
in equal shares. Not at all. If we read the whole document we see that
it refers to a villa, that is to say, a large estate belonging to a
single proprietor, who distributes the soil in holdings amongst his
_rustici_.[126] The document is interesting as illustrating a very
common usage, according to which every peasant received three lots of
land, one in each of the three different kinds.[127] This is, however,
a very different thing from the division among common owners of land
hitherto undivided; it is a division amongst tenants, carried out by
the proprietor. Thus we see that not one of the documents referred to
by Maurer points to a partition amongst “associates of the mark,” or to
a partition which replaced an earlier system of undivided property by
one of private ownership. We must, accordingly, recognise that it is a
mere hypothesis to suppose that land was ever held in common by a group
of associates; that the only established certain fact is the existence
of private property, which rests on the evidence of all the laws and
all the charters; and that there is nothing to suggest that this state
of things was the outcome of a primitive system of community. As far
back as the day when the word _mark_ first appears in documentary
evidence, and throughout that evidence, the system of private property
is everywhere in possession of the field.

We would not say, however, that there are no examples of land held
in common; and we must now see what was the character of this common
ownership. It was of two sorts. Of the first kind an example is
afforded by a document of 815 cited by Maurer, in which occur the words
_silvæ communionem_; a certain Wigbald makes a gift of a _mansus_, and
of his share of a forest.[128] Another example which he refers to is
a forest belonging to three _villæ_ in common.[129] We are told also
of a Count Hugo who bestows all his possessions in the villa of Brunno
as well as “the three quarters of the _marca silvatica_ which make
up his share.”[130] Another less rich can only give a _huba_, but he
gives at the same time the portion of the forest to which his huba has
a right.[131] We might also refer to a case in which a forest was held
in common by two proprietors of two domains down to the year 1184, when
a division was effected by a judicial decision.[132] There were, then,
forests common to several persons; but that does not justify us in
saying that all forests were common to every one; for we have documents
without number in which a man gives away or sells a forest that clearly
belongs to himself alone. We must also remember that when we read
that a forest was common, it does not mean common to everyone, but
only common to a _villa_, or perhaps to two or three _villae_,[133] so
that the owners of these _villae_ alone have any rights over it.[134]
Now, supposing several persons are joint-owners of a forest, this is
a very different thing from a system of community in land. Each of
them has rights over the forest exactly in proportion to the amount of
his property.[135] “So much for every _huba_,” says one document. In
another a man makes a gift of all he has inherited in a villa, together
with his share, a twelfth, of a forest.[136] All the forests here
spoken of are nothing more than appendages to property. We must not
be misled by the expression “common forest;” which means no more than
that the forest was the property of several persons exercising over
it all the rights of ownership, even the right of selling their shares
(as we see in hundreds of documents) without having to ask the leave of
anyone, and without even consulting their fellow proprietors.

To the other class of instances belongs that referred to by Maurer (p.
93) from a document of the end of the eighth century, where again the
words _silva communis_ are to be found. The document relates to a large
estate; and it shows that the estate included a forest, part of which
was reserved for the lord, and the rest was common to the tenants.[137]
We are here far removed from the community “of the associates of the
mark,” for in this instance the cultivators of the soil are merely
tenants under a proprietor. Maurer quotes another deed of 1173, where
we read: “In this forest none of us had anything of his own, but it
was common to all the inhabitants of our villa.”[138] This is another
example, not of community of property, for it is tenants who are
speaking, but of community in tenure. Following upon this are a series
of quotations proving common use. “I give a _curtile_ with rights of
use in the forest, _cum usu silvatico_, that is with the privilege of
gathering dead and broken wood.”[139] “We give such and such _curtilia_
with all the rights of use belonging to these _curtilia_.”[140] Rights
of use, in this instance, included the power of cutting wood for fire
or for the purpose of building, and also of sending in pigs to feed on
the acorns; but a right of use does not imply common ownership.[141]
Maurer’s supposition that the rights of use in certain forests are
survivals from a time when the forest belonged to all, is a mere
theory. Reasoning _a priori_ he does not think it possible that such
rights could have arisen in any other way. It is, however, possible
that they spring from a very different source, and that a careful
examination of a number of documents will show us what that was.

Let us take, for instance, a deed of 863, wherein Count Ansfrid gives
his villa of Geizefurt to the monastery of Lorsch. He gives a detailed
account of this property; which includes a lord’s _mansus_, nineteen
servile tenements and a forest, whose size is measured by the fact that
it can feed a thousand pigs. The donor thinks he ought to put a clause
in the deed to the effect that his peasants have the use of the forest;
a use definitely regulated,--giving, for instance, to some the right to
send ten pigs, to others five, and not including for any of them the
right of cutting wood.[142] It is clear that the forest, as well as the
rest of the domain, belongs to a proprietor; the domain is cultivated
by serfs, and the serfs have a certain limited use of the forest; but
this right of use is only granted them by the favour of the proprietor,
and it is a sort of accessory to the holding which they have received
from him. He gives away the whole domain, including the forest and
including the serfs; but it is understood that the serfs under the new
proprietor shall continue in their holdings and in the enjoyment of
their very limited rights to the use of the forest.

Sometimes the owner of the estate divides the forest into two,
keeps one part for himself and leaves the other for the use of his
tenants.[143] Sometimes, again, he exacts payment in return for these
advantages, and this forms part of the yearly rent.[144] Instances
of this kind make it clear that the common occupation of a part of a
forest does not come down from an earlier custom of joint-ownership,
but is connected with the old system of the private estate and its
servile holdings.

This brings us to the _allmend_. According to Maurer and his followers,
_allmend_ is the land common to all; and they say that at first all
land was _allmend_. But, in the first place, _allmend_ is not to be
found in documents earlier than the beginning of the thirteenth
century; and secondly, the word means no more than the woodland and
pasture over which the peasants had common rights.

The “commons,” which are frequently to be met with in early documents,
are the same thing. Mention is made of them in a Merovingian diploma
of 687 (Pardessus, No. 408, Pertz, No. 56); in three charters in the
chartulary of St. Bertin in the eighth century; in seven formulas
and in miscellaneous documents to be found in various collections of
_Traditiones_.[145] Now, it is easy to see that in all these instances,
without a single exception so far as has yet been found, the “commons”
are spoken of as given, sold, or exchanged by some one to whom they
belong. The commons, therefore, are by no means the collective property
of a group of cultivators of the soil. They form part of a villa, that
is of a large estate; and when this is sold, given away or bequeathed
by the owner, he mentions, in accordance with the usual practice, the
different sorts of land which go to make up the whole estate; as, for
instance, “I, so and so, give to my nephews the property I possess
in such and such a district, which comprises so many _mansi_ with
buildings, lands, forests, fields, meadows, pastures _communia_, all
the serfs dwelling there, and all that I possess and hold.”[146] These
commons, which are the property of a single owner, cannot be common to
others except so far as the enjoyment of them is concerned, and that
only with the goodwill of the owner. As far as we can see, they were
that part of the domain which, not being fit for cultivation, was not
let out to individual tenants, but left to the tenants to use in common
to pasture their animals upon, or for getting wood. But they did not
for that reason cease to be the private property of the owner of the
estate, who sells them or gives them away precisely like any other part.

These documents of the eighth and ninth centuries, which speak of
_communia_, are followed by documents in succeeding centuries which
speak of the _allmende_. The two words are the equivalents one for the
other, and mean the same thing. The following is an example.

One of the most important documents instanced by Maurer is a deed of
the year 1150, in which mention is made of a forest called _allmend_,
“where the peasants often go and which is common to them.” To judge
from this phrase, apart from its context, we might suppose that we
have here to do with a mark, that is to say, with land owned in common
by a group of cultivators. But if we read the whole document we find
that it is a case where an entire villa belongs to three brothers “by
inheritance from their ancestors;” that they are making a gift of it
to a monastery,[147] and at the same time transferring their rights
over a forest adjoining the domain. “This forest,” they say, “called
in the vulgar tongue _allmend_, is frequented by the peasants, and
is used in common by them and us.”[148] But these peasants are their
tenants; though free in 1150, they had once been the _coloni_, serfs or
_villani_ of the proprietor; and what proves this is that the authors
of the deed from which we are quoting, add that one of their ancestors
granted these men “civil rights” and a charter; and they take care to
insert this charter in the deed so that it may be respected by the new
owner.[149] Here, then, is an instance in which peasants have certain
rights of use over a forest, but rights which are assuredly not derived
from a time when these men were owners of the forest. Some generations
before, the whole domain had belonged to a single owner and these
people had been his servants; they enjoyed certain rights in the forest
as tenants, and these were left to them when they became free men.[150]

What strikes one with astonishment in the writings of Maurer and his
disciples is that they omit and leave altogether out of sight a fact
which is of vital importance and rests on abundant evidence: the
existence of great estates in the early centuries of the Middle Ages.
They disregard also the existence of _coloni_ and of slaves. But these
were to be found not only in Gaul, but even in Germany. Tacitus himself
describes the cultivation of the soil in Germany by serfs.[151] He
gives a picture of a society full of inequalities, including rich and
poor, nobles and simple freemen, freedmen and slaves; and he remarks
this peculiar characteristic, that the Germans--those of them who
were free, that is--did not themselves cultivate their land, but left
the work “to the weakest of their slaves.”[152] Later on we see in
the laws of the Burgundians that proprietors of land have _coloni_
to cultivate their estates;[153] they have slaves;[154] they have
on each estate a manager, _actor_, or a farmer, _conductor_.[155]
When the Burgundian king makes a present to one of his warriors,
it is not a small field that he gives him, but “an estate with its
slaves.”[156] The laws of the Alamanni also indicate the existence
of large estates. As to those belonging to the king and the church
the laws give particularly clear information, and show that they were
cultivated by slaves, or by _coloni_ who paid a yearly rent in produce
or labour.[157] We may suppose that lands of the same character were
also in the hands of private persons; for reference is made to their
slaves, and in such a way as to show that they were numerous.[158]
Moreover, the laws speak of slaves holding portions of land, with
house, stable and barn,[159] by the side of the house and barn of the
owner.[160] In the laws of the Bavarians, the same classes of _coloni_
and slaves make their appearance. Amongst the Thuringians, Frisians
and Saxons, there are slaves and _liti_; and neither of these classes
is quick to disappear, for they are still to be found in the documents
of the Middle Ages, and to be found cultivating holdings which belong
to an owner and for which they pay dues.[161] It is also noticeable
in the greater part of these documents, that the owner declares that,
in giving or selling his land, he gives or sells at the same time
the slaves, freedmen, _coloni_, _liti_; in a word, all who actually
worked on the land.[162] The number of slaves is considerable. Thus
in a deed of 863, Ansfrid makes a grant of an estate and sixty-four
slaves.[163] In 786, Warinus presents the Abbey of Fulde with a
_marca_, which contains thirty _hubæ_ and three hundred and thirty
slaves.[164] Some one else, in 787, gives the lands that he owns in the
_marca_ of Wangheim, and, at the same time, the sixty-two slaves who
cultivate them.[165] Walafrid, in another _marca_, gives twenty-eight
slaves.[166] In 815, we find a man of middle rank possessing seven
_mansi_ and five-and-twenty slaves.[167] From all this the conclusion
is inevitable that the _marca_ or _villa_ is an area belonging to one
or more proprietors and cultivated by a much larger number of slaves or
serfs--_mancipia_, _liti_, _coloni_.

Maurer would have done better if, instead of devoting so much ingenuity
to discovering in the collections of _Traditiones_ a few passages in
support of his theory, he had noticed the evidence which is presented,
not in a few scattered lines, but in every page and in every document,
as to the way in which the land was actually distributed. As each
document mentions where the landed property given or sold is situated,
we are able to gather that the geographical unit is the _pagus_,
and the rural unit the _villa_, sometimes called the _marca_. The
customary form is: _res sitas in pago N, in villa quæ dicitur N_. The
word _villa_ is the same word as we find used in Gaul to designate an
estate; the word _marca_ which takes its place in about one out of
every eight instances, is but its synonym. Sometimes the villa belongs
to a single owner, sometimes it is divided amongst several. But, in
the one case as in the other, it preserves its earlier unity. The land
within it falls into two classes, a _dominicum_ and several _mansi_.
The _dominicum_ or _curtis dominicata_ or _mansus dominicatus_ is the
portion that the owner has reserved for his own use; the other _mansi_
or _hubæ_, are the tenant-holdings which he has put into the hands
of his _coloni_ or his serfs. To take an example. Ansfrid in 863 was
owner of the villa of Geizefurt, which comprised a _dominicum_ of three
mansi together with nineteen servile _mansi_.[168] In 868 the _marca_
of Gozbotsheim had a _dominicum_ of three _mansi_, seventeen servile
_mansi_, and serfs to the number of a hundred and forty-six.[169] In
989 a woman represents herself as owning in the marca of Schaffenheim
4 _hubæ dominicales_, 8 _hubæ serviles_, 5 _mansi_, vineyards,
meadowland, woodland and a mill, to all which are attached thirty
slaves.[170] The _dominicum_ is described in the same way in many
other documents.[171] Maurer supposes (p. 137) that this expression
refers to all that part of the ancient common mark which has become
private property. This is a mistake. The _dominicum_ is the land that
the proprietor has not entrusted to tenants.[172] Wherever we find the
_dominicum_, it is an unmistakable sign of a large private estate. A
_dominicum_ necessarily implies a lord and his serfs or _coloni_. With
time the interior organisation of the villa is modified; it is split
up as a consequence of inheritance and sale, and so we see proprietors
owning not more than four or two _mansi_, or perhaps only one. Many
of the peasants may also have become free men. But the _dominicum_
is still there and bears witness that in an earlier age the _villa_
or _marca_ had a single owner who stood out above a numerous body of
serfs. Maurer pays no attention to all these facts; he suppresses them,
and in their stead conjures up a picture of mark associates.

His theory once set up, he wrests the meaning of documents so that
they shall agree with it. Seeing, for instance, in the laws of the
Burgundians that the King Gondebaut commands “all his subjects” to
observe a law, _universitatem convenit observare_, he believes that
the word _universitas_ here relates to a village community;[173] and
it does not occur to him that this is the usual formula by which the
king addresses the whole body of his people. If he sees in the laws
of the Visigoths that when any one wishes to change or restore the
boundaries of a property, he must do it publicly, in the presence of
neighbours, this natural custom becomes in his eyes a right of joint
ownership possessed by the neighbours over the land in question.[174]
Because some forests are common to several owners, he concludes that
all forests are common to all. He maintains that the right of chase
belonged to all; and when you examine the authorities from which he
draws this conclusion, you discover that he quotes only two, and
that these, on the contrary, severely punish the man who has stolen
game.[175] Wherever he turns, he sees the mark. If the King Childebert
speaks of the _centena_, the _centena_ must be the _mark_.[176] The
duty of furnishing the king’s agents with a lodging when they are
travelling falls on the _mark_.[177] If later on you see a church in
every village, it is because, in times even earlier than Christianity,
“the association of the mark was united by religious bonds;” and in
proof of this he quotes a document of the year 1270 after Christ![178]
The “associates of the mark,” he says again, “are bound to support one
another” (page 161), and the only reference he gives is to the laws of
the Alamanni; you turn to the place indicated, and all you see there is
that two men have a quarrel, that one of them kills the other, and that
the friends of the victim pursue the murderer.[179] What connection
has this with an association of the mark? The village, according to
him, formed a free self-governing body, under its own head; and he
then instances the _comes loci_ of the laws of the Burgundians,[180]
though it is certain that the _comes_, far from being a village chief,
was the royal agent who administered a _civitas_. He does not fail to
seize upon the _tunginus_ as a chief elected by the villagers; which,
again, is pure imagination. He even discovers in a formula of Marculf
a _senior communiæ_, “a head of the rural community;” but the passage
in Marculf has a totally different meaning. The document in question
is a letter written in the name of a certain city begging the king
to appoint a bishop, and the expression _seniori communi_ is in the
heading, amongst the titles given to the king himself. It is a strange
mistake to suppose it referred to the principal man of a village
community.[181] These members of the village, he goes on to say, had
their assemblies (page 141); but for this he produces no authority.
“They administered justice amongst themselves;” but how does he explain
the fact that there is not a single document to be found referring
to such an administration of justice? What we do, on the contrary,
frequently find is, that men belonging to a villa or mark are under the
jurisdiction of the proprietor or his representative, his _judex_. To
tell the truth, the _communitas_ in the sense of a group of peasants,
does not make its appearance until the thirteenth century.[182] Then
only, or a little earlier, do the inhabitants of the villa or mark act
together as a sort of association for the common enjoyment of certain
privileges. Nothing of the kind appears in the early part of the Middle
Ages.

The success, therefore, of Maurer’s theory is not to be attributed to
the strength of his evidence. He has not furnished us with a single
proof, a single quotation, in support of the community or association
of the mark that he pictures to himself as existing when history first
begins. Go over the innumerable quotations at the bottom of the pages
of his book: more than two-thirds relate to private property; of the
rest some hundreds are concerned with minor points unconnected with the
subject; not a single one touches the main question; or if there are
any which at first sight appear to do so, the slightest examination
shows that they have been misunderstood and misinterpreted. The book,
nevertheless, has had an enormous influence. It has won many by its
neat consistency, others by its apparent learning. Anything like
verification of its arguments was gladly dispensed with; especially
as this is not an easy thing to do unless you happen to possess the
originals. And so, year after year, for forty years, the same story has
been repeated, the same arguments brought forward, the same authorities
quoted.

I shall not pursue this theory of Maurer’s through the works of all
his disciples; but I ought at least to notice in passing the latest of
them. Dr. K. Lamprecht has published recently a ponderous and learned
work upon the economic life of Germany in the Middle Ages.[183] His
first volume is a description of the rural economy of the basin of
the Moselle, and his principal object of study is Frank life in this
district. Unfortunately, under the influence of the ideas which have
been dominant in history since the time of Maurer, he takes as his
starting point “the association of the mark,” the _Markgenossenschaft_.
“The Frank people,” he says, “grew out of the mark-association; and
that institution has had an influence on the Frank constitution that
cannot be overlooked” (p. 51, cf. p. 42). Yet he brings forward
absolutely no proof, no indication of this primitive community of the
mark, and gives us nothing but the bare assertion.

He says (p. 46) that the mark appears in Frank law as an area of land
held in common; but he does not give a single quotation in which the
mark means an area of common land, and it is certain he could not
produce one. He tells us that he has seen the _marca_ in Ripuarian law,
but he neglects to say that this _marca_ is the boundary of a private
estate, and therefore exactly the opposite of common land.[184] He
also mentions that the word occurs again in an edict of Chilperic, and
he omits to add that the word _marca_ was only introduced into this
edict by a conjecture of Professor Sohm’s, and that in any case it is
impossible to give it in this place the meaning of common land.[185]

“The Frank village,” he says, “was a portion of the mark, and the
mark was the common property of all its inhabitants; everything was
in common--arable land, meadows, forests.”[186] You look at the foot
of the page for the authorities on which this statement is based, and
you find a reference to a document of 786; you turn to this; it is in
Beyer, (_Urkundenbuch zur Geschichte des Mittelrheins_, vol. i. p. 19),
and you see that it has nothing whatever to do with the mark, that
not even the word is to be found in it, and that the document merely
relates to a “villa Sentiacus.”

The absence of the term _mark_, and of all other like terms, from the
Franconian laws, does not trouble our author. He discovers there the
word _vicini_. To every one else this word signifies _neighbours_;
and it is easy to see that every system of law must pay some slight
attention to the mutual relations of persons who live near together. In
the eyes of Dr. Lamprecht, however, _vicini_ stands for _associates_;
neighbourhood and common mark are with him one and the same thing. You
have neighbours; therefore you form with them part of an association;
therefore the land is common to you and to them: such is his process
of reasoning. It would greatly surprise one of our peasants of to-day;
they are by no means accustomed to identify neighbourhood and corporate
union. But a scholar with a theory does not stoop to such small
considerations as this. Perhaps, however, some document has come down
to us from the Frank period, which would suggest that the men of that
time saw a connection between the two things? Not at all; not a single
clause in a law, not a charter, not a document of any kind suggests
that the idea of association was connected with that of neighbourhood.
The _vicini_ of the Salic law are neighbours in the ordinary sense
of the word. But Dr. Lamprecht has a peculiar method of interpreting
authorities. There is a certain Merovingian capitulary which runs as
follows: “If a man has been killed between two neighbouring _villae_,
without its being known who is the murderer, the count must proceed
to the place, call together the neighbours (that is to say, the
inhabitants of the two neighbouring _villae_) to the sound of the
trumpet, and summon them to appear before his tribunal on an appointed
day, for the purpose of declaring on oath that they are innocent of the
murder.” The passage is quite clear, and the method of procedure very
natural. But to Dr. Lamprecht it means that the men were “associates
of the mark” (p. 13, n. 3), and that they lived in a condition of
community. On this he builds up a complete theory of “neighbourhood,”
_Nachbarschaft_, and he maintains “that this ‘neighbourhood’ is one of
the principal factors of the Frank organisation” (p. 19).

He comes upon this word _vicini_, again, in an edict of Chilperic. The
fact is that this edict declares, 1st, that land shall continue to
pass from father to son in accordance with the old rule; 2nd, that in
default of a son the daughter shall inherit; 3rd, that in default of
son and daughter, the collateral relations shall take the land and the
neighbours shall not take it.[187] This Dr. Lamprecht interprets as if
it said that in case of the failure of the direct line the neighbours
formerly had the right of taking the land; but the edict of Chilperic
does not say this, and the opposite is positively proved by the section
on succession (tit. xli.) in the Salic law. Then, starting with this
misinterpretation, he goes on to maintain that the _vicini_ had a
common right to the land, and were, so to speak, the joint-owners of
it; a state of things of which there is not the slightest trace in the
documents.

He finds the word _vicini_ again in section xlv. of the Salic law, and
at once believes that he has discovered a community, and a community
of such a kind that it has the right of excluding every new-comer; so
that a man who has obtained a field by purchase or bequest has not
the right to occupy it without the leave of all the inhabitants. But
read this section xlv. and you will see at once that it does not apply
to a man who has got a field by lawful means.[188] You will notice,
moreover, if you read the entire section--people are always careful
not to quote more than a fragment--that there is no mention of any
community. Not a single word throughout these twenty-two lines means
or suggests the idea of a community or an association.[189] You do not
see a body of inhabitants meeting, deliberating, deciding. What you
do see is a man, who, in his own name, enters a complaint before the
royal functionary, the count, against a certain person who has taken
possession of a piece of land, without any right to it; and the count
expels the intruder, not in virtue of the rights of the community--not
a word of that--but simply in virtue of the rights of private
property, and because the intruder cannot justify his possession by
any legitimate title. Where do you find in all this the action of a
village community, of an association of the mark? If you think you see
it, it is assuredly not because it is in the original, but because your
preconceptions have put it there. We have here one of the most striking
examples of the result of the subjective method. Your theory requires
that a village community should be mentioned in some early document,
and you introduce the community into a document where there is nothing
about it. And still the mistake might easily have been avoided; for we
possess upon this very section xlv. a commentary which was written in
819, and written not by some chance person, but by the counsellors of
Louis the Pious.[190] Now these men, who were most of them judges, who
consequently were in the habit of administering this law and ought to
have known its meaning, saw in it simply this: that if a stranger came
and settled himself without a title on land which did not belong to
him,[191] it needed only that a single inhabitant should inform the
count, and he would put an end to the usurpation. But as there was a
final clause to the effect that this work of giving information ought
to be performed within twelve months, and that, at the expiration
of that term, the intruder could remain on the land and enjoy it in
security,[192] the men of 819 demanded that this last clause should
be abrogated.[193] Nothing could be plainer than the whole affair in
the eyes of every one not under the influence of a preconceived idea.
But Professor Lamprecht chooses to suppose that “the men of 819 did
not understand this document” (p. 47). This is an easy way out of the
difficulty; to understand a document otherwise than Professor Lamprecht
understands it, is to misunderstand it. It is not possible, however,
to overlook the fact that these counsellors of Louis the Pious were
learned men, who spent half their lives in deciding cases of law. It
must also be remembered that article xlv. occurs in the law as amended
by Charles the Great; and that whatever was its original source, it was
still a part of the existing law and actually in force. Copied, as it
had been, by the counsellors of Charles, how can it be supposed that
it was not intelligible to his son’s counsellors? I confess that, for
my own part, I would rather understand it as it was understood by the
men of 819 than as it is understood by Professor Lamprecht. I would
rather translate it literally in all its simplicity than put a village
community into it, which is not otherwise to be found there.

Professor Lamprecht cannot deny that the Salic law mentions enclosures
round corn-fields, meadows, and vineyards, and that this is an
indication of private property. According to him, it was the kings who
altered the old condition of things and introduced these novelties. But
this is mere hypothesis. He maintains that the forest and meadowland
at any rate continued to be common, and refers to article 27 of the
Salic law. You turn to the passage quoted, believing you will there
find a mention of a common forest, a forest where all are free to take
wood. You find exactly the contrary: “If any one has taken wood from
the forest of another, he shall pay a fine of three _solidi_.”[194]
This, then, is a forest which is someone’s private property, a forest
wherein none besides the owner has any rights. But Dr. Lamprecht is
not troubled by this. According to him, the words _silva aliena_ mean
a common forest. But what should lead him to attribute this unusual
meaning to the words? “Because,” says he, “in the Salic law the
word _silva_ is always used in the sense of common forest” (p. 48).
But the word _silva_ occurs nowhere else except in this section. He
then translates _aliena_ as if it signified “foreign.” Here we have,
indeed, to do with a word which recurs as often as thirty-one times
in Salic law; but in each of these thirty-one cases its meaning is
unmistakably “belonging to another.” The law, for instance, speaks of
_messis aliena_, _sepem alienam_, _hortum alienum_, _vinea aliena_,
_servus alienus_, _litum alienum_, _caballus alienus_, _sponsa aliena_,
_uxor aliena_. The word is always synonymous with _alterius_, which is
often found taking its place; and these very words _silva aliena_ are
replaced in several manuscripts by the words _silva alterius_.[195]
We must also notice that the whole of this section 27 concerns theft
committed “in the field of another,” “in the garden of another,” “in
the vineyard of another,” and, finally, “in the forest of another.”
Doubt is impossible. In every case it is a matter of private property;
and the law uses precisely the same expressions about a forest as
about a vineyard or garden. Professor Lamprecht’s reading of the
passage is opposed to all the evidence. But it was necessary for his
argument that the forests should be common; he was only able to find a
single section of the law which bore upon forests, and, although this
section related to a forest belonging to a single owner, he could not
refrain from making use of it; and so he maintains that _silva aliena_
means exactly the opposite of what it does mean.

Again, Professor Lamprecht says (p. 48), that “the meadows were
common;” although nothing of the kind is mentioned in the Salic law or
in any other document. More than that, if it is a fact that the meadows
were common according to the Salic law, how is it that only once in the
Salic law is any reference made to meadows, and then only to punish
with the enormously heavy fine of 1500 denarii the person who takes
a cartload of hay from another man’s field (tit. xxvii., sections 10
and 11)? Professor Lamprecht also maintains that mills were common,
although the law only mentions mills belonging to private owners.[196]
He fastens on authorities which are absolutely opposed to his theory,
and then interprets them according to his liking. If, for instance,
he sees that the Salic law punishes severely “anyone who ploughs or
sows the field of another without the permission of the owner, _extra
consilium domini_,” he maintains that this regulation is in his eyes
an indication of community in land. If he sees in another place that a
man who is unable to pay a fine must swear “that he possesses nothing
upon the earth or under the earth;” this is so much proof that land
is not an object of private ownership. The word _facultas_ occurs
frequently in documents of this period, and it always signifies a man’s
entire property, real and personal without distinction;[197] but, as
the theory requires that real property should not be too prominent in
Salic law, Professor Lamprecht supposes that the word applies only to
personal property.

Such is the character of the method he follows. By the aid of such
so-called scholarship everything is to be traced back to a primitive
community. Although the Frank documents of the Merovingian and
Carlovingian periods make no mention of such a community, although they
show exactly the opposite; the whole rural organisation, the entire
social life must be the outgrowth of this community of the _mark_. “The
_mark_ is the foundation, _substratum_, of everything” (p. 282). An
infallible rule is supposed to have been found; and the whole history
of the Middle Ages, willy nilly, must be made to fit into it.

[54] _Geschichte der Markverfassung_, 1856. The same theory has been
reproduced with slight differences, and sometimes fresh exaggerations
by Waitz, _Deutsche Verfassungsgeschichte_, 3 edit., I., pp. 125-131;
Sohm, _Reichs- und Gerichtsverfassung_, pp. 117, 209-210.

[55] Cæsar, vi., 22.

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

[57] _Neque quisquam agri modum certum aut fines habet proprios; sed
magistratus ac principes in annos singulos gentibus cognationibusque
hominum qui una coierunt, quantum et quo loco visum est, agri
attribuunt, atque anno post alio transire cogunt._

[58] Livy has been cited; but if those who have done so had first read
him, they would have seen that every time that he wishes to speak of
public land, he says _ager publicus_ and not _ager_ by itself. ii. 41:
agrum publicum possideri a privatis criminabatur. ii. 61: Possessores
agri publici. iv. 36: agris publicis. iv. 51: possesso per injuriam
agro publico. iv. 53: possessione agri publici cederent. vi. 5: in
possessione agri publici grassabantur, etc. That it sometimes happens
that in a passage where he has written _ager publicus_, he afterwards
writes _ager_ without the adjective, is natural enough. If he speaks in
one place of _triumvirum agro dando_ or _de agris dividendis plebi_,
he has no need to add the adjective which is obviously understood. In
chapter xxxv. of book vi. he speaks of the _lex Licinia_ “_de modo
agrorum_,” _i.e._, as to the maximum size of rural properties. It has
been conjectured that he made a mistake, and that he meant to speak of
the _ager publicus_; but this is very doubtful. Varro, _de re rustica_
1, 2, and Columella, 1, 3, understand the law as Livy does; they see
in it a limitation of property in general. I cannot, therefore, agree
with M. d’Arbois de Jubainville, who interprets _de modo agrorum_, as
if it were _de modo agri publici_. We must translate literally, and not
change the sense.

[59] See the _Lex dicta Thoria_, in the _Corpus inscriptionum
latinarum_, I., p. 79: “Qui ager publicus populi romani fuit ... ager
privatus esto, ejusque agri emptio venditio uti ceterorum agrorum
privatorum esto.”

[60] Javolenus, in the _Digest_, 50, 16, 115: “Possessio ab agro juris
proprietate distat; quidquid enim adprehendimus cujus proprietas ad
nos non pertinet, hoc possessionem appellamus; possessio ergo usus,
ager proprietas loci est.” Notice that this idea of property is found
even in the expression _ager publicus_, which does not at all mean
common land; it means the property of the state, the public domain.
If Maurer and his German or French disciples had known Latin or Roman
institutions a little better, they would never have identified the
_ager publicus_ with the _allmend_.

[61] As to the synonymous character of these two words, see Varro, _De
re rustica_, 1, 4, where both are used for the same thing; for another
example, see _ibidem_, iii. 2. Similarly Columella, 1, 2 and 1, 4, pp.
27 and 33 of the bipontine edition.

[62] Paul, in the _Digest_, xviii. 1, 40.

[63] _Digest_, L., 16, 211.

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

[65] We have shown elsewhere (_Recherches sur quelques problèmes
d’histoire_, pp. 269-289) the mistakes which have been committed as
to the words _agri_, _occupantur_, _cultores_, _arva_, _mutant_,
_superest ager_. On the special meaning of _occupare agrum_, to put
land to account by placing slaves upon it, see Columella, ii. 9; ii.
10; ii. 11; ii. 13; v. 5; v. 10; notice especially these two passages,
Columella, i. 3: occupatos nexu civium aut ergastulis, and _Code_ of
Justinian, ix. 49, 7: quot mancipia in prædiis occupatis teneantur. As
to the meaning of _cultores_, we must remember the _coloni_ of whom
Tacitus has spoken in the previous chapter. For the meaning of _arva_,
see Varro, _De re rustica_, i. 29: arvum est quod aratum est; _ibid._,
i. 13: boves ex arvo reducti; i. 19: ad jugera ducenta arvi, boum jugo
duo; cf. Cicero, _De republ._, v. 2, and especially Digest, L., 15, 4.
_Mutare_ does not mean to exchange among themselves; to express that
meaning _inter se_ would have been needed: _mutare_ by itself is the
frequentative of _movere_, and means to shift. The Germans shifted
their tillage, and tilled now one part, now another of the estate.
If we translate each of the words of Tacitus literally, especially
if we pay attention to the context and read the entire chapter, _nec
pomaria_, _nec hortos_, ... _sola seges_, etc., we see that Tacitus is
describing the method of cultivation among the Germans, and that it
does not occur to him to say whether they were or were not acquainted
with the system of private ownership. Do not forget, moreover, that
chapter xxvi. follows chapter xxv., where Tacitus has said that the
soil is cultivated by slaves, each paying certain dues to his master.
After a sort of parenthesis on the freedmen, he returns to these
_cultores_. He shows how they farm, and he blames their method. The
chapter ought to be closely scanned and translated word for word with
the meaning each word had in the time of Tacitus, and not hastily
rendered to suit some preconceived idea.

[66] _In sortem alterius fuerit ingressus._ In the documents from the
4th to the 8th century the word _sors_ meant a private property: _sors
patrimonium significat_, says the grammarian Festus. The contribution
of corn is proportional, says the Theodosian code, to the extent of
the properties, _pro modo sortium_, xi. 1,15. Cassiodorus, _Letters_,
viii. 26: _sortes propriæ_. Laws of the Visigoths, viii. 8, 5:
_sortem suam claudere_, x. 1, 7: _terra in qua sortem non habet_.
Salic law, Behrend, p. 112: _Si quis in mansionem aut sortem_. Law
of the Burgundians, xlvii. 3: _Filii sortem parentum vel facultatem
vindicabunt_; lxxviii.: _Si pater cum filiis sortem suam diviserit_. In
all these examples _sors_ signifies property or inheritance.

[67] _Lex Alamannorum_, xlv. and xlvi. edit. Pertz, p. 61; edit.
Lehmann, pp. 105-106.

[68] _Lex Baiuwariorum_, xiii, 9, Pertz, p. 316.

[69] _Ibidem_, xii, 8, Pertz, p. 312.

[70] _Ibidem_: “Hucusque antecessores mei tenuerunt et in alodem mihi
reliquerunt.” The word _alodis_ in the language of this period has no
other meaning but inheritance. [On the meaning of _alod_ see chap. iv.
in the author’s work _L’Alleu et le Domaine Rural_, which has appeared
since his death.]

[71] Maurer, _Einleitung_, pp. 87, 88 and 145.

[72] “Si quis tam burgundio quam romanus in silva communi exartum
fecerit, aliud tantum spatii de silva hospiti suo consignet, et exartum
quod fecit, remota hospitis communione, possideat.”

[73] “Quicumque in communi campo vineam plantaverit, similem campum
illi restituat _in cujus campo_ vineam posuit.”

[74] “Si vero post interdictum in campo alterius vineam plantare
præsumpserit, laborem suum perdat, et vineam _cujus est campus_
accipiat.”

[75] See the note in the edition of Pertz, p. 607; see also Binding, in
the _Fontes rerum Bernensium_, I. p. 142.

[76] “Silvarum, montium, et pascui unicuique pro rata possessionis
suppetit esse commune.” The same rule is to be found in another form
in the law of the Burgundians, tit. 67: “Quicumque agrum vel colonicas
tenent, secundum terrarum modum vel possessionis suæ ratam, sic silvam
inter se noverint dividendam.” Neither in the one passage nor in the
other is there any reference to a forest common to all.

[77] _Lex romana Burgund._, ed. Pertz, p. 607, Binding p. 142; “Agri
communis, nullis terminis limitati, exequationem inter consortes nullo
tempore denegandam.” As to the synonymous use of _consortes_ and of
_cohœredes_, see Cicero, _in Verrem_, III., 23; Paul, in the _Digest_,
xxvii, I., 31; Sidonius, _Letters_ iv., 24; and many other examples.

[78] Compare the sections _De familia herciscunda_ in the _Digest_, x.
2, and in the _Code_ of Justinian, iii. 36; see also in the _Code_ of
Justinian, the section iii. 37, _de communi dividundo_, and especially
the law No. 5.

[79] _Lex Burgundionum_, xxvii. and xxviii., 1-2.

[80] _Ibidem_, xxxviii. 4; cf. xlix. 3; “dominus extra fines suos.”

[81] _Ibidem_, lv.; “ex ejus agri finibus quem barbarus cum mancipiis
publica largitione percepit.” _Publica largitione_, by the gift of the
king. This is the meaning of the word _publicus_ in the language of the
time.

[82] _Lex Wisigothorum_, viii. 3, 15; viii. 5, 1; viii. 4, 27; “silvæ
dominus; is cujus pascua sunt.”

[83] _Lex Langobardorum_, Rotharis, 240.

[84] _Ibidem_, Liutprand, 116; Rotharis, 173.

[85] _Lex salica_, 59; “Si quis mortuus fuerit et filios non
dimiserit.” These words, with which the chapter begins, manifestly
imply that the inheritance goes first to the son; sect. 5; “De terra
nulla in muliere hereditas; ad virilem sexum tota terra pertineat.”

[86] _Ibidem_, ix. 4; Wolfenbüttel MS., ix. 9; cf. xvi. 5; xxxiv. 1.

[87] _Ibidem_, xxvii. 18.

[88] _Lex Ripuaria_, 43, 56, 60, 82.

[89] _Lex Alamannorum_ 1; proprietas in perpetuo permaneat.

[90] _Ibidem_, 2; si ipse qui dedit vel aliquis de heredibus suis....
Cf. _ibid._, 57.

[91] _Ibidem_, 80 (83), edit. Lehmann, pp. 144, 145.

[92] _Lex Alamannorum_, art. 81 (84), edit. Lehmann, pp. 145, 146.
Pertz, 113 and 163.

[93] _Lex Baiuwariorum_, xii, 4.

[94] _Ibidem_, xii, 4, Pertz, p. 311.

[95] _Ibidem_, xvi., 2. Pertz, p. 321; cf. _ibid._ 15, and xxii. p. 332.

[96] M. Viollet copies Maurer, but forces the meaning still further:
“King Chilperic,” says he, “was obliged to declare that the neighbours
should not succeed and that the sons should” (_Bibl. de l’École des
Chartes_, 1872, p. 492). Such an interpretation is the very opposite of
the original.

[97] Neugart, i. p. 153.

[98] The words _terræ areales_ or _ariales_ are to be found especially
in the _Codex Fuldensis_ of Dronke, Nos. 16, 78, 155, etc., and in the
_Traditiones possessionesque Wissemburgenses_ of Zeuss, Nos. 9, 35, 52,
etc.

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

[100] Procopius, _Gothic War_, i. 1.

[101] The chief of these collections are the _Codex Diplomaticus_
and the _Syllogi_ of Guden, 1728, 1743; the _Codex traditionum
Corbeiensium_ of Falke, 1752; the _Monumenta Boica_, beginning
in 1763; the _Codex Laureshamensis abbatiæ diplomaticus_, 1768;
the _Subsidia_ and the _Nova Subsidia diplomatica_ of Wurdtwein,
1772-1781; the _Codex diplomaticus Alemanniæ_ of Neugart, 1791;
the _Urkundenbuch_ for the history of the Lower Rhine district by
Lacomblet, 1840; the _Traditiones Wissemburgenses_ of Zeuss, 1842;
the _Traditiones Fuldenses_ of Dronke, 1844; and by the same editor,
the _Codex diplomaticus Fuldensis_, 1850. Add to these certain works
wherein a great number of similar documents have been printed:
Meichelbeck, _Historia Frisingensis_, 1724; Hontheim, _Historia
Trevirensis diplomatica_, 1750; Schœpflin, _Alsatia diplomatica_,
1772; Wigand, _Archiv für Geschichte Westphalens_, 1825; Bodmann,
_Rheingauische Alterthümer_, 1819; Mone, _Zeitschrift für die
Geschichte des Oberrheins_, 1850. Since Maurer wrote, several other
collections have been printed, especially those of Beyer, _Urkundenbuch
..., mittelrheinischen Territorien_, 1860; Binding, _Fontes rerum
Bernensium_, 1883; and the _Urkundenbuch der Abtei S. Gallen_, 1863.

[102] _Codex Laureshamensis_ No. 11, p. 25-26: “Ego Wigbertus dono
ad Sanctum Nazarium, ... in mansis, terris, campis, pratis, ...
quantumcunque in his locis proprium habere videor ... dono trado atque
transfundo perpetualiter ad possidendum, jure et potestate habendi,
tenendi, donandi, commutandi, vel quidquid exinde facere volueritis
liberam ac firmissimam habeatis potestatem.”

[103] _Codex Laureshamensis_, No. 12: “Dono ad Sanctum Nazarium ...
de propria alode nostra in locis nuncupatis ... ubicunque moderno
tempore mea videtur esse possessio vel dominatio, de jure meo in jus ac
dominationem S. Nazarii dono trado atque transfundo.”

[104] Neugart, p. 401, anno 879: “Donamus ... ut perpetualiter teneant
atque possideant.” Meichelbeck, pp. 48 and 53 of the _Instrumenta_:
“Donamus ... rem propriam nostram;” p. 67: “propriam alodem;” p. 36:
“rem propriam ... in possessionem perpetuam.”

[105] Lacomblet, No. 4.

[106] Meichelbeck, _Instrumenta_, p. 27: “Ego Chunipertus propriam
hereditatem quam genitor meus mihi in hereditatem reliquit.” Lacomblet,
No. 8, anno 796: “Omne quod mihi jure hereditario legibus obvenit in
villa Bidnengheim.” Neugart, No. 305, anno 843: “Quidquid proprietatis
in Alemannia visus sum habere, sive ex paterna hereditate seu ex
acquisito, sive divisum habeam cum meis coheredibus seu indivisum
... id est domibus, edificiis, mancipiis, campis, pomiferis, pratis,
pascuis, silvis, viis, aquis, cultis et incultis.”

[107] Meichelbeck, p. 27, document of the 8th century: “Tradidi
territorium, prata, pascua, aquarum decursibus, silvis, virgultis, omne
cultum aut non cultum, in possessionem perpetuam.” Lacomblet, No. 4,
anno 794: “Terram proprii juris mei ... cum silvis, pratis, pascuis,
perviis, aquis.”

[108] Not unduly to prolong this discussion we will leave on one side
the documents of the 14th and 15th century. It will be enough to
examine those of an earlier date.

[109] _Codex Laureshamensis_, No. 6, vol. i. p. 15.

[110] _Diplomata_, edit. Pardessus, No. 341.

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

[112] Maurer, _Einleitung_, pp. 41, 42, 45.

[113] _Codex Laureshamensis_, No. 34, i., pp. 70, 71.

[114] Sometimes a great _marca_ contains several hamlets (dörfer); as
in Gaul the _villa_ sometimes contains several _vici_. This will not
surprise anyone who has examined the nature and extent of rural estates
in the 6th century. In a document in the _Codex Laureshamensis_, vol.
iii. p. 237, a _marca_ includes several _villæ_. This case is rare, and
does not change the nature of the mark.

[115] _Marii Aventici chronicon_, ed. Arndt, p. 15. _Lex Alamannorum_,
xlvii. _Lex Baiuwariorum_, xiii., 9, Pertz, p. 316. _Capitulary_ of
799, art. 19; of 808; of 811; edit. Borétius, pp. 51, 139, 167.

[116] Maurer seems to me to have made another mistake in identifying
_mark_ with _gau_ (p. 59). No document gives the two terms as
synonymous: on the contrary, there are hundreds of documents which tell
us that such and such a _mark_ is situated in such and such a _pagus_,
which shows clearly enough that _marca_ and _pagus_ are not the same
thing.

[117] _Diplomata_, ed. Pardessus, ii. p. 434.

[118] _Ibidem_, ii. 440.

[119] Schœpflin, _Alsat. diplom._, i. p. 13, a charter of the year 730,
wherein Theodo sells all that he possesses in the _marca_ Hameristad,
“quantum in ipso fine est, ea ratione ut ab hac die habeatis ipsas
terras et silvas ... et quidquid exinde facere volueritis liberam
habeatis potestatem.”

[120] _Codex Laureshamensis_, No. 15, v. i. p. 34.

[121] _Tradit. Wissemburgenses_, No. 127.

[122] See for example a charter of the 8th century, where we read: “Ego
Oda dono in Pingumarca quidquid proprietatis habeo, id est, terris,
vineis, pratis, silvis, totum et integrum.” (_Codex Fuldensis_, No. xv.
p. 11.)--Neugart, i. p. 301, an exchange of 858: “Dedit 105 juchos de
terra arabili et de silva 140 juchos, et accepit a Willelmo in eadem
marcha quidquid ex paterno jure habebat, id est 105 juchos de terra
arabili cum omnibus appenditiis, silvis, viis, alpibus, aquis.”

[123] Maurer, _Einleitung_, pages 73, and 80.

[124] Read the whole passage. _Translatio S. Alexandri_, in Pertz,
vol. ii. p. 675, “Eo tempore quo Theodoricus rex Francorum, contra
Irmenfredum, ducem Thuringorum, dimicans ... conduxit Saxones in
adjutorium, promissis pro victoria habitandi sedibus.... Terram
juxta pollicitationem suam iis delegavit. Qui eam sorte dividentes,
partem illius colonis tradiderunt, singuli pro sorte sua sub tributo
exercendam; cetera vero loca ipsi possederunt.” Do not forget that
the word _sors_ is the usual term in the language of the period for
property. The narrative shows clearly that it is a division made for
ever that is here described.

[125] Helmold, _chr. Slav._ i. c. 91: “Adduxit multitudinem populorum
de Westphalia, ut incolerent terram Polaborum, et divisit eis terram in
funiculo distributionis.”

[126] Charter of 1247 in the _Monumenta Boica_, vol. xi. p. 33. The
estate in question is the _villa_ Yserhofen. Its owner is the Abbot
of Niederalteich: “Cum ad hoc devenisset quod agros et prata, quia
diu sine colonis exstiterant, nullus sciret ... rustici ecclesiæ
pro quantitate et limitibus contenderent. Ego Hermannus abbas ...
compromissum fuit ut maximus campus per funiculos mensuraretur et
cuilibet hubæ 12 jugera deputarentur ... in totidem partes secundus
campus et tertius divideretur.... Inchoata est ista divisio per Alwinum
monachum scribentem et fratrem Bertholdum prepositum et Rudolfum
officialem cum funiculis mensurantes.”

[127] [M. Fustel uses the term “les trois catégories;” but the
_maximus campus_, _secundus_, and _tertius_, would point rather to the
“three-field system.”]

[128] _Codex Laureshamensis_, No. 106, p. 164.

[129] Wigand, _Archiv_, i. 2, p. 86.

[130] _Codex Lauresh._, No. 69, p. 74: “Quidquid de rebus propriis
habere videbatur in villa Brunnon et tres partes de illa marca
silvatica, portione videlicet sua.” I will explain elsewhere the
meaning of _portio_. All I need say at present is that this word,
which occurs more than three hundred times in our authorities, always
means a part belonging to an owner. A _portio_ is spoken of as _sold_,
_bequeathed_, and _given_.

[131] Lacomblet, No. 7: “Hovam integram et scara in silva juxta formam
hovæ plenæ ... jure hereditario.”

[132] To be found in Mone, _Zeitschrift für Geschichte des Oberrheins_,
vol. i. pp. 405-406.

[133] [As late as the 13th century in England “the typical struggle as
to common rights was not a struggle between lords and commoners, but
a struggle between the men or the lords of two different townships.”
Maitland, _Bracton’s Note-Book_, I., 136.]

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

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

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

[137] Kindlinger, _Münsterische Beiträge_, ii. 3: “Est ibi silva
communis.... Silva domini quæ singularis est.”

[138] Maurer, _Einleitung_, p. 115, following Bodmann, _Rheingauische
Alterthümer_, i. 453: “In hac silva nullus nostrum privatum habebat
quidquid, sed communiter pertinebat ad omnes villæ nostræ incolas.”

[139] Deed of exchange of the year 905, Neugart, No. 653, vol. i. p.
539: “Curtile unum ... cum tali usu silvatico ut qui illic sedent,
sterilia et jacentia ligna licenter colligant.” Cf. _Lex Burgundionum_,
xxviii. 1.

[140] Neugart, No. 624, vol. i. p. 511, acte de 896: “Curtilia quæ sunt
sex et inter arvam terram et prata juchos 378, cum omnibus usibus ad
ipsa curtilia in eadem marcha (Johannisvillare) pertinentibus.”

[141] Alamannic formula, Rozière, No. 401: “In silva lignorum
materiarumque cæsuram pastumque vel saginam animalium.” Lacomblet, No.
20: “Cum pastu plenissimo juxta modulum curtilis ipsius.” Neugart,
No. 462: “Tradidi quinque hobas et quidquid ad illas pertinet et ad
unamquamque hobam decem porcos saginandos in proprietate mea in silva
Lotstetin quando ibi glandes inveniri possunt.” Mone, _Zeitschrift_,
i. 395: “Eodem jure quo licitum est villanis ... possunt oves suas vel
alia animalia pascere in communibus pascuis dictæ villae.” Schœpflin,
_Alsatia dipl._, ii. 49: “Jus utendi lignis in silva Heingereite.”
_Codex Laureshamensis_, No. 105, i. p. 164, anno 815: “Tradidit Alfger
terram ad modia 10 sementis, et prata, et in illam silvam porcos duos,
et in Rosmalla mansum plenum cum pratis et in silvam porcos sex.”
Guden, _Codex dipl._, i. 920: “Universitas rusticorum habet jus (in ea
villa) secandi ligna pro suis usibus et edificiis.”

[142] _Codex Laureshamensis_, No. 34, vol. i. p. 68: “Ego Ansfridus ...
trado res proprietatis meæ in Odeheimero marca, in villa Geizefurt,
hoc est, mansum indominicatum habentem hobas 3, et hubas serviles 19,
et silvam in quam mittere possumus mille porcos saginari, et quidquid
in eadem marca villave habeo proprietatis, exceptis tribus hobis quam
habet Wolfbrat et in eamdem silvam debet mittere porcos 10, alteram
habet Thudolf, tertiam Sigebure et debent mittere in silvam uterque
porcos 10, et nullam aliam utilitatem sive ad extirpandum sive in
cesura ligni. Unusquisque autem de servis de sua huba debet mittere in
silvam porcos 5.... Hæc omnia de jure meo in jus et dominium S. Nazarii
perpetualiter possidendum.”

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

[144] _Ibidem_: “Homines ... ex communione silvæ ... persolvunt censum
32 denariorum. Homines in hac silva communionem habentes persolvunt
tres modios avenæ. Homines de communi silva quam vocant Holzmarca
persolvunt curti adjacenti duos modios avenæ.”

[145] Lacomblet, _Urk. für die Gesch. des Niederrheins_, No. 3, anno
793. Zeuss, _Tradit. Wissemburgenses_, No. 200. Beyer, _Urkundenbuch
zur Gesch. der Mittelrheinischen Territorien_, No. 10, anno 868.

[146] _Formulæ_, ed. Rozière, No. 172, ed. Zeumer, p. 276: “Dulcissimis
nepotibus meis ... dono rem meam, id est, mansos tantos cum ædificiis,
una cum terris, silvis, campis, pratis, pascuis, communiis, mancipiis
ibidem commanentibus, et quidquid in ipso loco mea est possessio vel
dominatio.” The word _dominatio_, which is found more than 500 times in
charters, has never any other sense than private property, _dominium_.

[147] In Wurdtwein, _Nova subsidia diplomatica_, vol. xii., p. 88:
“Tradidimus fundum Uterinæ vallis ... quem habemus a progenitoribus.”
This _fundus_ has well-marked bounds, and the charter mentions them
all. “His terminis fundus tenetur inclusus, certis indiciis designatur.”

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

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

[150] The same position of affairs is found in a document of 1279, in
Wurdtwein, _ibidem_, p. 218, which Maurer cites, without mentioning
that it refers to an arrangement between an abbot and his _villani_.

[151] Tacitus, _Germania_, 25: “Servis ... frumenti modum dominus aut
pecoris aut vestis, ut colono, injungit; et servus hactenus paret.”

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

[153] _Lex Burgund._, 68: “Quicumque agrum aut colonicas tenent.”

[154] _Ibidem_, 38, 10: “De Burgundionum colonis et servis.”

[155] _Ibidem_, 50, 5: “Si privati hominis actorem occiderit.” 38, 9:
“Si in villa conductor....”

[156] _Ibidem_, 55: “Quicumque agrum cum mancipiis largitione nostra
percepit.”

[157] _Lex Alamann._, _pactus_, 8, 19, 20, 21; _lex_, 22-23.

[158] _Ibid._, 79: edit. Lehmann, pp. 138-139. “Si pastor porcorum....
Si pastor ovium qui 80 capita in grege habet domini sui.... Si
seniscalcus qui servus est et dominus ejus 12 vassos infra domum
habet.... Si mariscalcus qui super 12 caballos est.”

[159] _Lex. Alam._, 81, edit. Lehmann, 77, p. 141: “Si servi domum
incenderit ... scuriam vel graneam servi si incenderit.”

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

[161] See, for example, a document of 797 in Lacomblet, No. 9: “Dono
... unam hovam quam proserviunt liti mei; No. 4: terram quam Landulfus
litus meus incolebat et proserviebat.” [As to the _liti_, see also
Fustel de Coulanges, _L’Alleu_, p. 342, and Schmid, _Gesetze der
Angelsachsen_, pp. 5 (Aethelbirht, 26), 409 (Formula).]

[162] The usual formula runs: “Dono curtem cum domibus accolabus,
mancipiis, vineis, campis, silvis, etc.” Lacomblet, No. 1 _et
seq._; Meichelbeck, pp. 27, 34, 36, 49, 51, etc.; Neugart, passim.
_Laureshamensis_, No. 1: “Villam nostram cum omni integritate sua,
terris, domibus, litis, libertis, conlibertis, mancipiis.” _Monumenta
Boica_, viii. 365: “Colonos seu tributales;” xi. pp. 14 et 15: “Dedit
mansos 26 et vineas cum cultoribus suis.” Zeuss, No. 21: “villam ...
cum hominibus commanentibus.” Zeuss, 36: “Ipsi servi qui ipsas hobas
tenent.”

[163] _Codex Laureshamensis_, No. 33.

[164] Dronke, _Codex Fuldensis_, No. 84.

[165] _Ibidem_, No. 88.

[166] _Ibidem_, No. 163.

[167] _Codex Laureshamensis_, No. 105. Cf. Zeuss, No. 26, where an
owner sells an estate with twenty-two slaves, whose names he gives.

[168] _Codex Laureshamensis_, No. 33.

[169] _Ibidem_, No. 37.

[170] _Ibidem_, No. 83.

[171] Thus in the villa Frankenheim there is a _curtile dominicatum_,
Zeuss, _Traditiones Wissemb._, No. 127; in the villa Cazfeldes a _terra
indominicata_, _ibid._, No. 3; in the villa Oterefheim a _curtile
indominicatum_, _ibid._, No. 19; in the villa or marca Bruningsdorf, a
_curtis indominicata_, comprising houses, stables and barns, and having
attached to it about 100 acres in meadows, fields, vineyards, and
woods, _ibidem_, No. 25.

[172] The _dominicum_ is mentioned in the laws of the Alamanni, 22:
“servi faciant tres dies sibi et tres in dominico;” and in the law
of the Bavarians, 1, 14: “servus tres dies in hebdomada in dominico
operetur, tres vero sibi faciat.” It is generally known that it was the
almost universal practice for the _dominicum_ to be tilled and reaped
by the tenants.

[173] Maurer, _Einleitung_, p. 138. _Lex Burgundionum_, xlix. 3: “Quod
prius statutum est, universitatem convenit observare.” Cf. the frequent
phrase: “noverit universitas fidelium nostrorum.”

[174] _Lex Wisigothorum_, x. 3, 2.

[175] Salic law, 33; Ripuarian law, 42. Cf. the anecdote told by
Gregory of Tours, _Hist._, x. 10, which is the opposite of what Maurer
here maintains.

[176] Maurer, _Einleitung_, p. 164.

[177] _Ibid._, pp. 165-166.

[178] _Ibid._, p. 167.

[179] _Lex Alamann._, xlv. Pertz, p. 60; edit. Lehmann, pp. 104-105.
It is the word _pares_ which deceives him. He believes he sees in this
word the “markgenossen”; but _pares_ means the companions, the friends,
those who have adopted the cause of one or other of the adversaries.
Similarly article 93 of the same law punishes the man who, while with
the army, deserts _parem suum_, _i.e._, his comrade in the battle.

[180] Maurer, p. 140.--Cf. _Lex Burgund._, xlix, 1: “locorum comites
atque præpositi.”

[181] Maurer, p. 140. Marculf, i, 7: “Consensus civium pro episcopatu.
Piissimo ac precellentissimo domno illo rege (regi) vel, (remember that
_vel_ meant _and_) seniori commune illo.” _Commune_ is for _communi_;
and the meaning of the whole is, “To our most pious and excellent king,
chief of all the land.” The words which follow show clearly that the
letter is addressed to the king. “Principalis vestræ clementia novit
... etc., suppliciter postulamus ut instituere dignetis inlustrem virum
illum cathedræ illius successorem.”

[182] Documents of 1279 and 1290 in Wurdtwein, _Novia subsidia_, xii.
218 and 261: “pratum spectans ad Almeindam nostræ communitatis.”
Document of 1231 in Guden, _Codex dipl._, iii. p. 1102: “contulerunt
pascua communitatis quæ vulgariter Almeina vocantur.”

[183] Karl Lamprecht, _Deutsches Wirthschaftsleben im Mittelalter_,
Leipzig, 1886. [Summary in _Zeitsch. f.d. gesamte Staatswissenschaft_,
XLVI., 527 seq.]

[184] _Lex Ripuaria_, lx. 5; cf. lxxv.

[185] _Edictum Chilperici_, 8.

[186] K. Lamprecht, _Wirthschaft und Recht der Franken zur Zeit der
Volksrechte_, in the _Historisches Taschenbuch_, 1883, p. 57.

[187] _Edictum Chilperici_, art. 3: “Filii terram habeant sicut et lex
salica habet; si filii defuncti fuerint, filia accipiat terras.... Et
si moritur, frater terras accipiat, non vicini. Et si frater moriens
non derelinquerit superstitem, tunc soror ad ipsa terra accedat
possidenda.”

[188] This is expressed by the words _super alterum_, which mean, “on
another man’s land.” It is also expressed by the heading in more than
half the MSS., _de eo qui villam alterius occupaverit_.

[189] It is puerile to maintain that _si unus vel aliqui qui in villa
consistunt_ means a village community. Where, then, is the word which
does mean community?

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

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

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

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

[194] _Lex Salica_, xxvii. 18, ed. Behrend: _Si quis ligna aliena in
silva aliena furaverit, solidos 3 culpabilis judicetur_. This is the
reading of the Paris MS. 4404. MS. 9653 runs: _Si quis ligna in silva
aliena furaverit, solidos 45 culpabilis judicetur_. MS. 4627 runs: _in
silva alterius_.

[195] _In silva alterius_, MSS. Paris 4627, Montpellier 136, Saint-Gall
731, Paris 4626, etc.

[196] _Lex salica_, xxii. The Munich MS. has _in mulino alieno_.
Further on, _molinarius_ is replaced in the Wolfenbüttel MS. by _is cui
molinus est_.

[197] See the _Formulæ of Marculfus_ I. 35; II. 8; _Andegavenses_, 36
(37); Rozière, No. 252; _Turonenses_, 17.


II.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I shall not dwell at length on the second portion of M. Viollet’s
work, in which he gives a hasty and superficial glance at the Middle
Ages. Here I have not been more fortunate than before in verifying his
evidence. For example: he dwells at length upon the prior right of
purchase which belonged to neighbours. Everyone knows of this custom,
the meaning and reason of which are obvious enough. But in M. Viollet’s
eyes this right of the neighbours is a vestige of community in land.
He does not notice that the preference given in case of sale to a
neighbouring proprietor over a distant one has nothing to do with
community. Under a system of common ownership this prior claim of the
neighbour would not be found. The two things are incompatible. The
right of the neighbour is a custom belonging essentially to private
property; it is a grave error to convert it into a communistic practice.

Further on, M. Viollet speaks of the Franks; he represents them as
“dwelling in small groups called _villæ_ or _genealogiæ_.” One must
never have seen in the charters what a _villa_ is, to imagine it a
group of men; and it is something more than rashness to identify the
_villa_ with the _genealogia_. M. Viollet says again that amongst the
Franks “the tie of neighbourhood was so strong as to hold in check
the rights of blood in matters of succession;” and he does not notice
that this is absolutely opposed to the explicit statement of the Salic
law. He maintains that the Frank _villa_ was a village community, and
quotes section xlv. of the Salic law, which not only does not say one
single word about a community, but, on the contrary, one is surprised
to find, has nothing whatever to do with one. He maintains that the
Ripuarian law requires “the consent of the community” to a sale of
land, and quotes a section of the law which merely says that the sale
ought to take place in the presence of witnesses and in a public place.
It is his own addition that these witnesses are “a community,” and that
they have to give their “consent.” Elsewhere he maintains that the
Thuringians were unacquainted with the sale of land, and his only proof
is the section of the law which authorises such a sale. He says again
that according to the Ripuarian law real property could only be sold by
virtue of a royal writ; and he supports this statement by a reference
to the section of the law which enacts that the purchaser of an estate
shall demand a written document from the seller.

M. Viollet’s quotations are always exact in this respect, that the line
he quotes is to be found at the place mentioned; their inexactness
merely consists in this, that the same line taken with its context
means precisely the opposite of what M. Viollet says. In the same way
he once quoted a passage from a document of 890 in which he found
the word _communes_; surely this meant community in land, collective
ownership. Unluckily it turned out that the document did not contain
any reference to community, or even to a village, or to cultivators of
the soil; it concerned a dispute between two landowners, an abbot and
a count. The adjective _communes_ related not to lands, but to certain
“customary rights in a royal forest.” The abbot declared that “these
common rights were his,” free of charge, while the count maintained
that the abbot had always paid a rent, _sub conductione_. All this is
evidently the very opposite of community; but M. Viollet had seen the
word _communes_, and that was enough.[223] I have gone through his
whole work in a similar manner and tried to find a reference that was
to the point; and I have not found one.

[198] P. Viollet, _Du caractère collectif des premières propriétés
immobilières_, in the _Bibliothèque de l’École des Chartes_, 1872,
pages 455-504.

[199] “Nec signare quidem aut partiri limite campum Fas erat; in medium
quærebant.” M. Viollet makes a mistake, however, as to _in medium_,
which he translates as if it was _in commune_.

[200] We have italicised the words that are inexact. Diodorus does not
say that these men were divided into two “classes;” he does not say
that they “declared” the land “common property.” κοίνας ποιήσαντες
means that the islands were made common for a moment, it is the
statement of a fact, not the announcement of a perpetual institution.
In place of “they threw together all their possessions,” the Greek
tells us that they clubbed together their resources. However, the chief
mistakes are in the last words of the translation.

[201] Viollet, pp. 467-468.

[202] The passage is in Diodorus v. 9, bipontine edit., iii. p. 267.

[203] Thucydides explains this very well: “They lived on the island of
Lipara, and went from thence to cultivate the other islands,” iii. 88.

[204] Τὰς νησοὺς εὶς εἴκοσι ἔτη διελόμενοι, πάλιν κληρουχοῖσιν
ὄταν ὁ χρόνος οὗτος διέλθη. The word πάλιν means a second time and
not periodically. There is no expression such as νῦν ἔτι which the
historian would have used if he had meant to imply that it was still
practised in his own time. The conjunction ὄταν indicates a single
action; the historian has not written όσάκις. It is true he uses
κληρουχοῦσι in the present tense; whether copying an old document,
or employing the “narrative present” so usual with historians. It
is necessary, moreover, to notice the intrinsic meaning of the word
κληρουχεῖν; the term is usual enough in Greek for its meaning to be
perfectly well ascertained. It is always used of a definitive division,
a partition made for all time. We cannot suppose that Diodorus would
have used κληρουχεῖν for a temporary and periodical division.

[205] Diodorus, v. 53; v. 59; v. 81; v. 83 and 84; xii. 11; xv. 23.

[206] See Strabo vi. 1.

[207] Κοινὰ ποιοῦντες τὰ κτήματα τοῖς ἀπόροις ἐπὶ τὴν χρῆσιν.

[208] Εὔνουν παρασκευάζουσι τὸ πλῆθος.

[209] Xenophon, _Commentarii_, i. 2, 61, tells us that the Lacedæmonian
Lichas was celebrated for the generosity with which he entertained
his guests at dinner; Herodotus, vi. 57, represents individuals as
inviting a king to dinner in their own houses; Plutarch, _Lycurgus_,
12, says that every Spartan who made a sacrifice was excused from the
public meals, _i.e._, he could eat at his own home the animal he had
sacrificed. It is, therefore, a great mistake to say that the Spartans
always ate in common.

[210] Athenæus, iv. 16.

[211] Herodotus, who knew Sparta very well, says that the public meals
were not established till two centuries after the foundation of the
city; i. 65. The same will be found in Xenophon, _Republ. Laced._, v.
and in Plutarch, _Lycurgus_, 10, who says distinctly that before this
period the Spartans ate their meals at home. Private property, on the
other hand, was established from the very beginning of the city.

[212] Plato, _Laws_, vi. p. 781; Aristotle, _Politics_, ii. 7; Alcman,
in Strabo, x. 4, 18.

[213] Aristotle, _Politics_, ii. 7; Plutarch, _Lycurgus_, 12.

[214] Aristotle, _Politics_, ii. 6, 21.

[215] Plutarch, _Lycurgus_, 12.

[216] Cicero, _Tusculan. Disput._ v. 34; Plutarch, _Lycurgus_, 21;
Xenophon, _Republ. Laced._, v; and, above all, the authors cited by
Athenæus, iv, 20.

[217] We have elsewhere pointed to the evidence for private property in
Sparta, and the rules concerning it. (_Comptes rendus des séances de
l’Académie des sciences morales_, 1879-1880.) See, on the same subject,
the excellent work of M. Claudio Jannet.

[218] Viollet, p. 472.

[219] Diodorus, v. 53; v. 59; v. 81; v. 83; v. 84; xii. 11; xv. 23;
Odyssy, vi. 11; Herodotus, v. 77; Plato, _Laws_, iii. pp. 684-685;
Pausanias, _passim_.

[220] We do not doubt that there were some exceptions. What Diodorus
tells us of the Lipari Islands is one of them. It might occasionally
sometimes happen, for some reason or other, that the partition was put
off for a few years.

[221] Heraclides of Pontus, edit. Didot, vol. ii. p. 211; Aristotle,
_Politics_, ii. 4, 4; vii. 2, 5; Plutarch, _Instituta laconica_, 22;
_Life of Agis_, 5; _Life of Solon_, 21. Cf. _Laws of Manou_, ix.
105-107, 126.

[222] Plato, _Laws_, xi.

[223] The statement of M. Viollet is in the _Revue critique_, 1886,
vol. ii., p. 109. The document of 890 ought not to be interpreted from
the extract he gives from it; it is necessary to read the whole of it,
as it is to be found in the _Urkundenbuch der Abtei S. Gallen_, nᵒ 662,
vol. ii., p. 265.


III.

_Mommsen’s theory as to community of land amongst the Romans._

One never for a moment expected to find agrarian communism amongst
the Romans; in the first place because Rome was one of the youngest
of the cities of the ancient world, and, at the date of its birth,
private property had long held sway in Italy; and, in the second
place, because it is well known that the Romans had a very precise
and very firm conception of the right of private property, and did as
much as any other ancient people to define and protect it. And yet
Professor Mommsen states that with the Romans “land was originally
held in common;” that “community in land is closely bound up with the
constitution of the city;” that “it was only in later times that the
land was divided amongst the citizens as private property.”[224] In
support of this assertion, the learned and able historian gives three
references--to Cicero, Dionysius of Halicarnassus, and Plutarch. But on
examining these three references it seems to me that none of them says
exactly what Professor Mommsen makes them say.

The first is from Cicero in the _De Republica_, II., 14. _Numa agros
quos bello Romulus ceperat divisit viritim civibus._ The meaning of
this passage is that the lands which had been conquered by Romulus
in his wars with the neighbouring cities had not been divided by him
amongst the citizens. But it does not prove, as we shall presently
see, that the small Roman territory occupied prior to these conquests
was not divided when the city was founded. The quotation from Cicero
applies to a certain area of land; it does not apply to all land. It
does not imply that no division had taken place before this time;
and Cicero does not say a single word which can refer to a period of
community.

The second reference is to Dionysius of Halicarnassus, II., 74; and
the following is a literal translation: “Numa enacted laws concerning
the boundaries of estates; he laid down that each man should surround
his land with a boundary and set up landmarks of stone; he dedicated
these landmarks to the god Terminus, and ordained that sacrifices
should be offered up to him every year; he appointed the festival of
the Terminalia.” That the second king of Rome drew up regulations for
the worship of boundaries cannot be regarded as distinctly proving that
before his time there were no boundaries; and certainly it is not clear
evidence that till then private property did not exist. The historian
does not say that in the preceding generation the Romans lived under a
system of common ownership of land. On the contrary, he says a little
earlier that the founder of the city did divide the territory as other
founders were wont to do. In so doing he had paid attention to the
social divisions already existing; and as the people were divided into
thirty curiæ, he apportioned the territory into thirty lots in such a
manner that the members of each curia might remain together. Dionysius
adds that the founder, when dividing the land, reserved a part to form
the _ager publicus_, _i.e._, the property of the State. This piece
of information proves beyond doubt that in the mind of the historian
the whole territory was not _ager publicus_, as M. Mommsen thinks.
Dionysius of Halicarnassus indicates distinctly that the distinction
between _ager publicus_ and _ager privatus_ dates from the earliest
days of the Roman city.

The third authority quoted is Plutarch, _Life of Numa_, 16: “The Roman
city had in the beginning only a small territory; Romulus gained for
it by conquest an additional territory larger than its old one; and
the whole of this was divided by Numa amongst the poor citizens.” This
passage, like the one from Cicero, states that a division was effected
by the second king; but at the same time it draws a distinction
between the two territories; and it is not possible to draw from it
the conclusion that the district first occupied had not been already
divided.

Thus not one of three passages quoted by M. Mommsen seems to me to have
the meaning he attributes to it. Not one of the three implies that the
Romans held their land in common even for a single generation. Other
authorities also, which must not be passed over, expressly tell us of
this earlier partition, the recollection of which was preserved, as
was that of everything else connected with the founding of the city.
Besides Dionysius of Halicarnassus whom we have already referred to
(II. 7), Varro, who was as learned as a man could well be at that time,
declares that Romulus divided the territory into hereditary portions,
each consisting of but two _jugera_[225] (about an acre and a quarter).
The elder Pliny, Nonius and Festus give us the same information.[226]
But this first partition, which is contemporaneous with the very
foundation of the city, did not follow upon a period of non-division.
No Roman historian makes any such statement as that the land remained
for a period undivided.

M. Mommsen tries to dispose of these statements, and argues as follows:
Two _jugera_ are too little to support a family; therefore we cannot
consider that this was a real partition of the territory; and it
necessarily follows that the families must have lived under some kind
of communistic system, with a common use of the public lands. An
ingenious process of reasoning, but nothing more; mere guess-work.
The question is not as M. Mommsen thinks, whether two _jugera_ are
enough for the support of a family; but rather whether the founder,
who had only a very small extent of territory at his disposal, with a
population already numerous, could grant more. The lots were too small,
as it would appear, because the territory also was too small; but we
cannot deduce from this, as M. Mommsen does, that the Romans followed
some system of communism. The insufficiency of the land, besides, gives
a reason for the conquests which were soon afterwards effected under
Romulus.

In conclusion, it appears to me exceedingly rash to maintain that
the Romans had at first a system of common ownership of land. Such a
statement is not supported by any ancient authority. On the contrary,
the early writers describe a partition of land which takes place at
the very time when the city is founded; and the land thus divided
becomes complete and hereditary property. Some years later the city
conquers fresh territory; and again, with but little delay, it is
divided into private property. This is all that we are told.

We are, however, able to gather that these two successive partitions
were not in every respect alike. The first related only to the
_ager Romanus_, _i.e._, to that part of the territory which was in
primitive times attached to the _Urbs_; the second related to conquered
territory. In the first, the ground was distributed amongst the
_curiæ_, each curia then distributing it amongst its _gentes_, whence
it came about that these lots for a long time retained the name of the
several Roman _gentes_; in the second partition, which followed the
first but did not annul it, the land was divided according to heads,
_viritim_. This innovation will be seen to be of deep importance by any
one who is acquainted with the ideas of the ancients and with ancient
law. At the time of the first division, property still belonged to the
family; at the second, it belonged to the individual. Thus, then, the
two kinds of proprietary right that the ancient world successively
recognised are seen, one after the other, with an interval of but forty
years between. The Roman nation was one of the first to substitute
individual for family property. They made use of bequest and sale
from an early date. Roman law did indeed retain some traces of the
early rights of the family; but what really characterises it is that it
brought about the triumph of the system of individual ownership.

[224] Mommsen, _Roman History_, Engl. trans., vol. i., p. 194.
This theory has been copied and reproduced word for word, without
verification, by M. Viollet and M. de Laveleye.

[225] Varro, _De re rustica_, I. 10: “Bina jugera, quod a Romulo primum
divisa viritim, quæ heredem sequerentur.”

[226] Pliny, XVIII. 2, 7: “Romulus in primis instituit.... Bina tunc
jugera populo Romano satis erant nullique majorem modum attribuit.”
Nonius, edit. Quicherat, p. 61. Festus, v. centuriatus ager.


IV.

_On the application of the comparative method to this problem._

It is impossible to deny that the comparative method is not only of use
but also absolutely indispensable in dealing with a subject of this
kind. In order to discover the origin of property in land among mankind
it is plain that every nation must be studied; at any rate every nation
that has left any trace behind it. Some part of this work of comparison
had already been attempted by Maurer; but he had limited himself to the
Slavonic and Scandinavian countries. A great and powerful writer, Sir
Henry Maine, has applied the comparative method to India. But the first
to attempt what I may call “universal comparison,” is, if I mistake
not, M. Emile de Laveleye, in his work, “On Property and its Primitive
Forms,” published in 1874. His theory is that the agricultural groups
of the whole world, from India to Scotland, for a long time cultivated
the soil in common, and that “the history of all lands reveals to us a
primitive condition of collectivity.” M. de Laveleye is an economist;
but it is by historical evidence that he endeavours to support his
thesis, and it is this evidence that I shall now proceed to test. His
reputation either as economist or moralist can receive no injury from a
purely historical discussion.

He passes in review one after the other (I am following the order of
his chapters) the Slavs of Russia, the island of Java, ancient India,
the German Mark, the Arabs of Algeria, the ancient Moors of Spain,
the Yoloffs of the coast of Guinea, the Afghans, the ancient Greeks,
the ancient Romans, England, the Southern Slavs, Switzerland and the
Netherlands. Here we have peoples of every race, every degree of
latitude, and every age; yet this list does not include all nations. To
mention only some of the ancient world, we do not find here the ancient
Egyptians, the ancient Jews, or the ancient Assyrians, peoples which,
nevertheless, are much better known than the Yoloffs, the Javanese, or
the ancient Germans. Why are they not here? Can it be because all the
documents concerning them, however far back we may go, bear witness to
the custom of private ownership, and do not show a trace of community
in land? It is certain that the history of Egypt shows the existence
of property from the remotest times. It is certain that contracts
for the sale of land have been discovered upon Babylonian bricks. It
is certain, also, that the sacred books of the Jews refer to property
and the sale of land as far back as the time of Abraham (Genesis
XXIII.). Was it for this reason that they were omitted in the universal
comparison of all nations? But as our author was seeking a general rule
for the whole human race, and says that he has found it, he ought not
to pass over a single people of whom we know anything. When one seeks
to construct a general system, the facts which contradict it must be
presented as well as those in its favour. This is the first rule of the
comparative method.

Having insisted on this omission, of which every one will see the
importance, I shall consider one by one the nations spoken of by our
author, and verify his assertions.

1. Among the Slavs of Russia M. de Laveleye observes the _mir_,
_i.e._, a village dividing its soil annually or every few years among
its members. In this _mir_ he recognises an association with common
ownership of the soil. “The _mir_ alone,” he says, “owns the land,
and individuals have nothing more than the enjoyment of it, turn and
turn about.” On this I have two observations to make. In the first
place, the Russian _mir_ is only a village and a small village, the
population rarely exceeding two hundred souls; it always cultivates
the same land; so that if this be a communistic group it is at any
rate one which is confined to a narrow radius. The _mir_ by no means
represents a “tribal community,” still less a “national community.” One
cannot conclude from the _mir_ that the Russian nation follows a system
of agrarian communism, or that the soil is the property of the whole
nation, or that the soil is common to everyone; so that the example
departs widely from the thesis that is sought to be maintained.

In the second place, if we examine the _mir_ as it was before the
reforms of the last Czar but one, we discover that the _mir_ is not
owner of the soil, but is itself owned by some one else. In the _mir_,
lands and men alike belong to a lord; and lord and landowner are one.
M. de Laveleye does not deny this fact; he even recognises “that the
_mir_ pays the rent to the lord collectively.” This single fact makes
the whole theory fall to the ground. Since the soil belongs not to the
_mir_, but to some one else, the _mir_ does not represent agrarian
communism. It is a village, like all our villages of the Middle Ages,
which is the private property of a single individual; the peasants are
only tenants or serfs; the only peculiarity about it is, that these
peasants who pay rent for the land collectively also cultivate it
collectively.

It is true that there are certain theorists who say: “It is probable
that there was a time when the landlord did not exist, and when the
land was possessed in common by the peasants.” This is precisely what
would have to be proved. They ought first to prove that the landowner
or lord at one time did not exist, and next that the peasants then
possessed the land in common. Now these are two propositions in support
of which no one has ever been able to bring forward proof or even an
appearance of proof. On the contrary, according to M. Tchitchérin and
other writers who have studied the subject, it has been proved that the
association of the _mir_ has only been in existence for three hundred
years; that it was created in the year 1592; and that far from being
the result of a spontaneous and ancient growth, it was instituted
by the act of a despotic Government, by an ukase of the Czar Fédor
Ivanovitch. Before this epoch land in Russia was an object of private
property; so one is led to believe by the documents of donation and
bequest quoted by M. Tchitchérin. I am aware that the question is still
warmly discussed and remains obscure; but so long as documents proving
the existence of the _mir_ before the 16th century are not produced, we
must continue to doubt whether the _mir_ is an ancient institution at
all. So far as we know at present, it only came into existence with the
feudal period; it forms one of the wheels of the feudal organisation in
Russia--a group of serfs, which the Government requires to cultivate
its land in common, so as to be more sure of the payment of the rent.
Far from being collective ownership, the _mir_ is collective serfdom.
That, at any rate, is what appears from the material in our possession.
Theorists are at perfect liberty to hope that new documents will come
to light which will show the contrary. Till then, it is impossible to
bring forward the _mir_ as a proof that the human race once practised
agrarian communism.

2. M. de Laveleye passes on to the island of Java, and describes the
condition of things there in a chapter full of interest; in some places
the soil is cultivated in common, it is in others annually divided. But
I cannot help noticing that throughout he is speaking of the present
time. He describes the condition of things as they are now. He makes
use of the regulations of the Dutch Government, of laws of 1853, of
parliamentary reports of 1869. The furthest date to which he goes back
is to certain regulations of 1806. And yet, since he is dealing with
the problem of the origin of property, what one wants to hear about is
the ancient state of things. I am aware that some people will at once
say “such a system must be old;” but a student who has any critical
instinct will rather say that the present existence of such a system
proves nothing at all in relation to earlier times. And, indeed, we
read in one of the reports on which M. de Laveleye relies, that “this
system began with the cultivation of indigo, sugar and coffee for the
benefit of the Dutch Government.”[227] The sort of communism we are now
considering would in this case be but a recent institution, a creation
of the European conquerors. It is true that others make it commence
earlier, with the cultivation of rice.[228] This is easily explained:
“Rice growing in water requires a system of irrigation, which would
be impossible without association; and this necessity gives rise to
the practice of common cultivation.” It has been ascertained how these
villages arose. “Several families agree to establish a system of
irrigation in common. As the water has been brought by the co-operation
of all, the result is that the land irrigated by it is cultivated
by all.”[229] But it is apparent that the soil does not belong to
the nation or the tribe; it belongs to a group, an association. An
association of proprietors is not communism; it is one of the forms of
property.

We must also observe that private property does exist in Java. In six
out of the twenty provinces of the island that alone is to be found,
and association is unknown; in eight the two methods are practised side
by side; in six association is only practised on the rice fields and
irrigated lands, and the rest of the land is held entirely as private
property. From these facts I cannot draw the conclusion that community
in land was a primitive and natural institution in the island of Java.
We meet with it only under modern circumstances, and even here we must
recognise that it is less a community than an association.

3. Our author next devotes a few words to ancient India, and here I
shall imitate his brevity. He gives but one reference; a sentence from
Nearchus, the officer of Alexander the Great. I shall give it first
as translated by M. de Laveleye, and then as it really is. “Nearchus
informs us that in certain districts of India the land was cultivated
in common _by tribes_, which, at the close of the year, divided the
crop among them.” Now the Greek signifies: “In other parts the work of
agriculture is carried on _by each family_ in common, κατὰ σνγγένειαν
κοινῇ; and when the crops have been gathered each person takes his
share for his support during the year.”[230] We see that M. de Laveleye
had overlooked the words κατὰ σνγγένειαν. He has mistaken a community
of the family for a community of the tribe. I know that many people
only too readily identify the two things; but a little attention will
show that they are essentially different. When a family, even though
it may form a large group of persons, cultivates its land in common,
this is not agrarian communism; it is merely an undivided family and
undivided family property.

4. M. de Laveleye next speaks of the Germanic mark. Here he does not
do more than reproduce Maurer’s theory, on which he relies without
apparently having verified a single one of his references.

5. Then follows a chapter on agrarian communities amongst the Arabs
of Algeria, the Moors of Spain, the Yoloffs of the coast of Guinea,
the Mexicans, the Caribeans, the Afghans and the Tchérémisses. A
story or sentence from some traveller is quoted about each of these
nations. As to this I have one remark to make: there is nothing rarer
or more difficult than an accurate observation. This truth, which is
recognised in all other sciences, ought also to be recognised by every
one who is dealing with history; for history is precisely that one of
all the sciences in which observation is most difficult and demands
the greatest attention. A traveller makes the general statement that
amongst the Caribeans or the Yoloffs he has seen a partition of land,
or has been told that such a thing was customary. But has he observed
between whom the partition took place? Was it amongst the members of
the same family, or amongst all the inhabitants of the same village, or
between the villages and all the various parts of the tribe or nation?
These are shades of differences that a hasty traveller cannot notice,
and that an historian equally hasty refrains from inquiring into. And
yet, the character and consequences of the partition depend altogether
upon the answer to this question. The study of a social system is a
serious undertaking, and one not often to be met with in travellers’
tales.

And then we must ask whether, side by side with certain facts reported
by travellers, there are not others which contradict them. You see
common land among certain Arab tribes; but it must also be noticed that
the Koran recognises private property, and that it has existed among
the Arabs from time immemorial.[231] There are other nations where you
may meet with examples of land held in common, but where, nevertheless,
it must be acknowledged that private property greatly preponderates.
In Spain, for instance, we are told that “in certain villages the land
is divided anew each year amongst the inhabitants.”[232] In how many
villages? Two ardent inquirers, whose only desire was to find proofs of
this community in land, M. Oliveira Martins and M. de Azcarate, found
it in only four villages in the whole Iberian peninsula.[233] Perhaps
you will think that these are vestiges of an earlier state of things
that may once have been general. Not at all. It has been proved that in
these four villages the system of common ownership did not appear until
the twelfth or thirteenth century, A.D.; and the particular causes
which led to its appearance are well known. This kind of community was,
therefore, neither general nor ancient. M. de Laveleye also mentions
a village community in Italy; but it is one which was only created in
1263. A certain estate of about 5000 acres had till that date belonged
to a private owner; that is, it had been precisely the opposite of
common property. In 1263 the owner, who happened to be a bishop, gave
it to the tenants, on condition that they held it in common. Can a few
isolated facts like this prove that mankind used to hold land in common
in primitive times?

6. M. de Laveleye’s theory would be incomplete and insecure if he did
not manage to bring in the Greeks and Romans. He does little more than
repeat the authorities used by M. de Viollet. Like him, he believes
that the legend of a golden age--of an age, that is, when man did not
till the soil (for this is the distinctive and essential point in all
these legends),--is a proof that nations held land in common at a
period when they did till the soil; he even adds that “he is _forced_
to arrive at the conclusion that the ancient poets depicted in the
golden age a state of civilisation (sic) of which the recollection
had been handed down to later times.”[234] Like M. Viollet, he quotes
the passages from Virgil, Tibullus and Trogus Pompeius without looking
to see whether these passages describe a condition of civilisation
or one of barbarism. He tells us what Porphyrus says about the 2000
disciples gathered together by Pythagoras in his phalanstery. He quotes
the sentence from Diodorus about the Lipari isles; without seeing that
it distinctly describes the institution of private property. Trusting
in M. Viollet, he borrows his pages on the _copis_ and the Spartan
συσσίτια; for, like him, he believes that these common meals, from
which Aristotle tells us that the poorer Spartans were excluded, were
“a communistic institution.”[235]

M. de Laveleye also believes that the division of land at the founding
of each city implies an earlier stage in which the city cultivated the
land in common. He does not notice that this division, taking place
at the very moment when the city is founded, is not the result of an
earlier state of communism. It is the earliest fact to which we can go
back. So soon as a band of emigrants have made themselves masters of
a territory, they parcel it out in lots with complete and hereditary
ownership. With very rare exceptions, a Greek city did not hold or
cultivate land in common for a single year.

These lots were called κλῆρος in Greek, _sortes_ in Latin, because
they were originally drawn by lot. M. de Laveleye, noticing these two
words, at once concludes that the drawing by lot took place every
year (p. 85). This is a mistake. Out of all the cases where you find
mention of a partition, you will not find one in which it was annual or
periodical. In every case the division referred to takes place once and
for all, in perpetuity.[236] Each portion is henceforward hereditary in
the family to which it has fallen by lot; and this is the reason why
κλῆρος had the meaning of inheritance and _sors_ signified patrimony.

The prohibition against selling the land, _i.e._, against separating
it from the family in order to transfer it to another family or even
to bestow it on the State, appears to M. de Laveleye a proof that
the land belonged to the State (p. 166). It is merely a proof that
according to the ideas of the ancients it ought always to belong to the
same family. M. de Laveleye reproaches me with having, in the _Cité
Antique_, attributed this prohibition of sale “to the influence of
ancient religion.” The phrase gives an incorrect idea of my meaning.
What I showed was that family property was closely bound up with family
religion. Sale outside the family was not permitted because ancient
law and ancient belief connected the land with the family. The land
belonged to the family, not to the individual. It was the same, in my
opinion, amongst the ancient Germans and the Slavs; and hence it was
that amongst all these nations ancient law did not permit the sale of
land.

For the same reason bequest was prohibited among the Greeks, Italians,
Germans, and Slavs in the early period of their law. The land must
pass to the son or the nearest relations. For the same reason, again,
the daughter did not inherit; because by her marriage she would have
carried the land out of the family. All these facts, which it is now
impossible not to admit, are unmistakable signs of a condition in which
property belonged to the family. They are all directly contrary to a
condition of communism.

M. de Laveleye also lays great stress upon Sparta; only he omits to
mention that private property was established there from the first
beginning of the city, and that every κλῆρος remained attached to the
same family down to the revolution of Cleomenes, _i.e._, for eight
centuries.[237] To make up for that, he tells us of certain imaginary
brotherhoods, “which must have played an important part in the social
body;” a statement for which there is no authority. He adds that
Sparta “had a wide extent of common land;” for which also there is
no evidence: and that “this common land was used to provide for the
public meals;” which is directly opposed to the definite evidence we do
possess.

He accumulates quotations, but they are inexact. He refers to Aristotle
(_Polit._ vii., 10); but all Aristotle says is that men began by
being hunters and shepherds; does that imply that when they became
agriculturists they held the soil in common? He quotes Virgil, who in
the Æneid (xi. 315) says that “the Aurunci tilled the land in common;”
turn to the passage; the expression “in common” is not there; M. de
Laveleye has unconsciously added it himself. Every writer does this
who is under the influence of a fixed idea.[238] Speaking of Rome, he
declares “that he sees a proof of primitive community in the common
meals of the _curiæ_;” and he does not notice that these repasts of the
_curia_ only took place on certain festivals, and that they were sacred
feasts, as we are expressly told by Dionysius of Halicarnassus, who
witnessed them. “The _curiæ_,” he says, “with their priests, perform
sacrifices and eat together on feast days.” This is not an agrarian
community; it is a religious communion. Suppose that a stranger, seeing
a number of good Christians communicating in our churches, declared
that he saw in this a proof that the French held their land in common!
A little farther we read: “The law of the Twelve Tables preserves a
trace of common ownership; for in default of the _proximus agnatus_
the _gens_ is preferred to the other agnates.” There is nothing
resembling this in what we have of the law of the Twelve Tables; the
gens was never preferred to the agnates. Our author quotes, it is true,
the following sentence, which he attributes to Gaius: _in legitimis
hereditatibus successio non est: gentiles familiam habento_, which is
said to be in Gaius iii., 12; but look in Gaius for this extraordinary
sentence, and you certainly will not find it. Thus, alike for Greece
and for Rome, M. de Laveleye has got together a number of authorities;
but there is not a single quotation that is exact, or that has the
meaning he attributes to it.

7. We now come to the Southern Slavs, _i.e._, the Bosnians, Servians,
and Bulgarians, who, in their turn, have to furnish arguments in
support of the theory.[239] This chapter of M. de Laveleye’s is the
most interesting in the book, the most curious, and, in my opinion,
the most exact. Only I do not see how it bears upon the problem with
which we are occupied. It is very true that the Servian or Bosnian
village often cultivates its land in common. But this village is
composed of a small group of from twenty to sixty persons, who dwell
in four or five houses built within a single enclosure; and the land
belonging to it seldom exceeds sixty acres. Look at it closely, and you
will see that this little village is nothing more than a family. M.
de Laveleye recognises this (p. 204). The brothers as a rule keeping
together and the family continuing to form one undivided body, the
property remains united like the family. The land is cultivated in
common and the produce is consumed in common, under the direction
of the head of the family. This is described by M. de Laveleye with
zest and ability; but it is not community in land; it is the common
ownership of the family. We have seen it amongst the ancient Greeks;
in the most ancient Roman law; amongst the Germans; and now we find
it amongst the Servians. The family forms a small village; it keeps
to itself on its own land; and this land is a common possession which
has belonged to it from time immemorial. It must be added that all the
characteristics which accompany family ownership amongst the Greeks and
Germans are to be found here. The custom of bequest does not exist,
nor does that of gift or sale. All the members of a family are common
owners of the soil, and consequently they alone are the heirs. Anyone
leaving the family loses his rights over the land; anyone entering it
by adoption has the same rights as those who were born into it. Except
that the chief is no longer the eldest member or the son of the eldest,
but the one whom the rest elect--a change which naturally came about in
the course of time--this family resembles in every other respect the
ancient Greek family. But that the soil belongs to the nation or the
tribe there is not the slightest evidence.

8. M. de Laveleye now comes to the _allmenden_ of Switzerland. He
tells us “that never was there a more radical democracy than that
which was to be found in primitive Switzerland,” and he describes the
_landgemeinde_, “which goes back to the earliest times” (pages 270 _et
seq_). “The _Allmend_,” he says again, “presents the ancient type of
true justice, which ought to serve as the basis for the society of the
future” (p. 282).

I should like to learn, however, whether these _allmenden_ really
do come down from remote times. Our author tells us so, but without
bringing forward any kind of proof. He declares “that they go back to
the patriarchal period” (p. 291), “that they have lasted for thousands
of years” (p. 281). It is easy to say this; but on what evidence does
it rest? Private property exists in Switzerland, and our author cannot
point to any epoch in which it did not exist. If we examine the law of
the Burgundians and of the Alamanni, by which the country was first
governed, it is private property we find, not common ownership. If we
examine the charters down to the 12th century, we still find private
property. The _allmenden_ of to-day certainly date back some six or
seven centuries. Can they be traced farther back than that?

And what exactly are these _allmenden_? Do we see in them a system of
non-division of land, a system, that is, under which the land, being
considered the common property of the whole people, is not supposed
to belong to anyone individually? By no means. Private property is
in full force in Switzerland, side by side with the _allmenden_. The
_allmenden_ are only a part of the land of each village and indeed the
smallest part, a tenth, or, at most, a fifth. They are usually forests,
mountain pastures, or marshes, and include very little land capable of
cultivation. Private property is accordingly the dominant fact; common
ownership only concerns accessories.

The _allmenden_ are just what is to be found in every country; they
are the village commons. It would be interesting and instructive if we
could discover their origin, just as it is interesting to inquire into
the origin of the commons in France. But village commons do not in any
way prove a general system of common ownership; and no one has yet
been able to prove that they are the outcome of such a system. We know
that when the Romans founded a colony, they instituted private property
from the very first; but at the same time they reserved a portion of
the soil, which was to be the common possession of the new city. And
to go farther back, we know that Rome herself, from the time she first
appears in history, had an _ager publicus_ at the same time as _agri
privati_, and that the Greek cities also had a γῆ δημοσία. This public
land was in no way an indication that the people lived a single day
without individual estates. The _allmenden_ of Switzerland are commons
of the same character as we find everywhere else. Each village has its
own; and they are the property of the village, which sometimes sells
them, lets them to the highest bidder, or sells the wood upon them, to
defray the expenses of its school or church. Frequently the commons
are left for the inhabitants to use as they like; and they get wood
from them, graze their cattle there, or cultivate small portions. But
it is important to notice that only those who own land in the village
have any rights of enjoyment over the _allmend_. I refer chiefly to
the condition of things before the last forty years; for only quite
recently have such rights been extended to mere residents and the
inhabitants generally. In essential characteristics the _allmend_ is
not common property; it does not belong to all; it is held in common
by people who are already owners of land. It is an appendage of private
property.

M. de Laveleye has written some beautiful passages on the usefulness
of these commons, on the mistake which has been made in France in
their general alienation, and on the happy results produced by them in
Switzerland, both in almost entirely preventing the growth of absolute
destitution and in attaching the poorest peasant to his native soil.
These considerations are just, profound, and inspired by generous
feeling, although but little applicable to modern society. But we are
now considering them in relation to the supposed common ownership of
land; with that the _allmenden_ have nothing to do, and they prove
nothing as to its earlier existence.

9. M. de Laveleye finally refers to the Scotch townships as a proof
of primitive community.[240] In the more distant parts of Scotland,
especially in certain islands lying to the north-west, we find groups
of people who hold the land of a village in common and divide it
amongst themselves in separate lots every year. Is this a system of
land communism, or, as it is called, collective ownership? At the first
glance one would think so. But if you are not satisfied with a first
glance and look further, you will observe that the village belongs to
a single person, the landlord. The peasants are nothing more than the
cultivators. M. de Laveleye cannot help recognising this: “The land
of the village,” he says, “is let to them by the owner.” Again: “The
land does not belong to them; it is the property of a landlord to whom
they pay rent for it.” The cultivators act together as an association
“with the consent of the landlord;” and there are villages in which the
landlord does not allow this collective system of occupation. “They
have a head who is generally appointed by the landlord.” The rent is
paid collectively. We have a description of the _township_ in a work
published recently. The house of the lord, the _domus dominica_ of
our charters, stands in the centre of the village, by the side of the
church.[241] It is built of stone; and around it, at a little distance,
stand the dwellings of the “villeins,” built of mud and thatched with
straw. The villeins owe their lord rent and certain personal services.

We see from this that the Scotch or English township is not a community
which owns its own land; it is the property of an individual owner,
and the only thing about it which is collective is the cultivation.
The township is really a private estate; and the group of peasants
who till it in common are the tenants. Ownership and tenancy are two
distinct things, which must not be confused. To be owners in common is
very different from being tenants in common under a landlord. We find
in France also, throughout the Middle Ages, instances of tenancies in
common; and I know that there are writers who are quick to identify
them with ownership in common.[242] But this is a mistake which no
one can make who has any accuracy of thought; for it is quite evident
that whilst the land was cultivated by a common group of peasants, it
belonged to a lord who stood above them. The Scotch township has no
connection whatever with an ancient system of community in land.

M. de Laveleye puts forward an hypothesis; he supposes that there
was an earlier period in which the township belonged to the peasants
themselves, and the lord, whom we find in later times, did not exist.
But this is a mere hypothesis unsupported by a single document or a
single fact. He goes further and maintains that this system of village
communities was in force throughout the whole of England in the Saxon
period. But there is no evidence for this in the Anglo-Saxon laws;
they give not the slightest indication of it. The _tuncipesmot_ is not
community in land; nor is the _folcland_. We must never lose sight of
the fact that history is based upon documents, and not upon hypotheses
or flights of the imagination. When M. de Laveleye says that “the
English manor has destroyed the old village community,” he makes an
entirely hypothetical generalisation. To imagine the manorial lord
of the Middle Ages as a warrior who has forcibly set himself over
a community of free men, is to show that one knows nothing of the
documents from the fifth to the tenth centuries, and that one has an
altogether childish idea of the origin of feudalism.

To come back to the comparative method. I believe that it is infinitely
fruitful; but only on condition that the facts which are compared have
a real resemblance to one another, and that things which are widely
different are not confused. When you bring together the Scotch township
which is nothing more than an association of tenants, the Russian
_mir_ which seems to have long been only an association of serfs, the
Servian village which, on the other hand, is a household community, and
the _allmend_ or commons which are a consequence and accompaniment of
private property, you confuse things which are absolutely different,
and which, moreover, are very far removed from the system of community
in land that you are anxious to prove.

It is needful to come to an understanding as to what the “comparative
method” really is. I have observed that, during the last fifteen
years or so, there has been a strange misapprehension on this point.
Some writers maintain that to compare any facts, no matter what, is
to apply the comparative method. They search all over the world for
peculiar usages; they cite the legend of the golden age amongst the
ancients as if it were an historical fact; they seize upon a trifling
circumstance which occurred in the Lipari Isles as if it related to
the entire Greek world; they seize upon some custom, such as public
repasts or the festivals of the curia; thence they pass to the Russian
_mir_ and talk of it as if they knew all about it; then they describe a
township or an _allmend_; and, in short, whenever they find an instance
of anything that is done in common, at once they suppose that they have
discovered community in land. They pretend they have discovered the
most widespread institutions of the human race by the help of some few
instances that they have sought for far and wide, and that they do not
take the trouble to observe accurately. And, what is a more serious
matter, they omit and leave out of their consideration facts which are
constant, normal, well-authenticated, which are engraven in the laws
of all peoples, and which have made up their historical life. They
give us a few isolated facts and turn our thoughts away from permanent
institutions. This is not the comparative method.

If you wished to employ the comparative method it would first of all
be needful to study each nation in itself, to study it throughout its
history, and above all in its law. Should you wish to know if the
ancient Greek cities held their land in common, you must study Greek
law. For the Romans, you must go over the whole history of Rome; for
the Germans, you must take German law. M. Viollet and M. de Laveleye
make frequent references to ancient India; why do they not mention
that in all the ancient Hindoo law that has come down to us the rights
of private property are sanctioned, although, of course, the holding
of property in common by co-heirs is also recognised? Why has no one
quoted the old maxim: “The land belongs to the man who first clears
it, as the deer belongs to the man who first wounds it”? They prefer
to quote certain customs, whose importance they enormously exaggerate,
rather than present to us the rules which were constant and normal.
The comparative method does not consist in discovering amongst fifteen
different nations fifteen little facts, which, if interpreted in a
certain manner, unite in the construction of a system; it consists
in studying a number of nations in regard to their law, their ideas,
all the circumstances of their social life, and in discovering what
they have in common and wherein they differ. I greatly fear that this
comparative method, when it shall be seriously applied, will give very
different results than those that MM. Viollet and de Laveleye believe
they have obtained from the comparative method as they understand it.

[227] M. de Laveleye, _De la propriété collective du sol_, in the
_Revue de Belgique_, 1886, p. 50 of the reprint.

[228] _Ibidem_, p. 49.

[229] _Ibidem_, p. 65.

[230] Strabo, xv., 1., 66, edit. Didot, p. 610: παρ’ ἄλλοις δὲ κατὰ
συγγένειαν κοινῇ τοὺς καρποὺς ὲργασαμένονς, ἐπὰν συγκομίσωσιν, αἴρεσθαι
ἔκαστον εἰς διατροφὴν τοῦ ἔτους. If one reads the whole chapter, one
sees that Nearchus, who distinguishes between general and exceptional
institutions, νόμους, τούς μὲν κοινοὺς, τούς δὲ ἰδίους, includes this
among the exceptional.

[231] See the work of M. Eug. Robe, _Origines de la propriété
immobilière en Algérie_, 1883--a volume which is full of facts.

[232] Em. de Laveleye, _De la propriété_, p. 105.

[233] _Id._, _La propriété collective_, in the _Revue de Belgique_,
1886, pp. 2-24 of the reprint.

[234] Em. de Laveleye, _De la propriété_, p. 152.

[235] _Ibidem_, p. 161.

[236] Save in the exceptional case described by Diodorus in the Lipari
islands.

[237] This is shewn by Heraclides of Pontus in the _Fragmenta hist.
græc._, of Didot, vol. II., p. 211; and by Plutarch, _Life of Agis_,
5. To this can be added the other texts cited in my _Étude sur la
propriété à Sparte_, 1880. See also the work of M. Claudio Jannet.

[238] In the same way he cites Ælian, V. 9, as saying that the
inhabitants of Locri and Rhegium cultivated the land in common. What
Ælian says is that “the cities of Locri and Rhegium have made a
treaty which permits the inhabitants of the one town to settle on the
territory of the other.” Of common cultivation there is not a word.
These authorities are given in the article by M. de Laveleye, in _Revue
de Belgique_, 1886, pp. 9 _et seq._ of the reprint.

[239] _De la propriété et de ses formes primitives_, p. 201.

[240] _La propriété collective du sol_, in the _Revue de Belgique_,
1886. He repeats the argument in the _Revue socialiste_, 1888, p. 452,
and in the _Revue d’économie politique_, July, 1888.

[241] Isaac Taylor, in the _Contemporary Review_, Dec., 1886, referred
to by M. de Laveleye.

[242] _E.g._, M. P. Viollet in all the latter part of the article
already referred to.


V.

_On community of land amongst the Gauls._

It would be indeed surprising had the supporters of this theory not
applied it to the ancient Gauls. So little is known about them, that it
is very tempting and not very difficult to introduce community in land
into their history.

One single fact, however, ought to stand in the way; it is that
Cæsar, whose book is the only authority which has historical value,
nowhere tells us that land was common amongst the Gauls. His silence
on this point is not a thing which can be passed over. It is, indeed,
in the eyes of every one accustomed to historical research, a very
significant fact. It is true that Cæsar does not expressly state that
private property was the custom amongst the Gauls. For a writer who
is only speaking in passing of Gallic institutions, to omit to call
attention to a law of property which was in conformity with what he was
accustomed to, is not the same thing as to omit to mention a communism
which would be the opposite of what he was accustomed to, and which
would strike him by its very strangeness. It must be noticed that
Cæsar is not describing the entire social condition of the Gauls; he
contents himself with mentioning those customs which have struck him
as being very different from those he saw in Italy. We have only to
read the ten paragraphs which he devotes to this subject, to recognise
this. After describing in three paragraphs what was peculiar in their
political organisation, and in three more what was peculiar in their
religion, he passes on to what was peculiar in their private life,
and he begins as follows--“As to the institutions of private life,
the following are those wherein they differ from other nations.” By
“other nations” Cæsar clearly means the nations that he knew that is,
primarily, the Italians and Greeks. This opening sentence makes it
plain that Cæsar intended only to tell us of characteristics which
were peculiar to the Gauls. He is going to mention differences, not
resemblances. If private property is the custom there as it is in Rome,
it will not be necessary to say so; but if it is not the custom, he
will say so. His absolute silence on this point is a proof that the
Gauls did not sensibly differ from the Italians in the matter; his
silence implies that they were not ignorant of private property. We
must remember that the entire absence of private property would have
appeared so strange to a Roman that it could not have escaped Cæsar’s
notice. He observed it in Germany where he passed only eighteen days;
he would certainly have discovered it in Gaul where he passed eight
summers. If he does not mention community in land, it is obviously
because it did not exist.

But we have evidence even more convincing. Going on to speak of the
Germans, he remarks that he will explain “in what they differ from
the Gauls, _quo differant hae nationes inter sese_” (vi., 11); and
further on: “The Germans differ much from this manner of life of the
Gauls, _Germani multum ab hac consuetudine differunt_.” He then draws
the following contrast between the two nations: 1, the Germans have
no Druids; 2, the Germans have not the same gods as the Gauls; 3, and
lastly, the Germans have not private property. Is not this remark as
to the difference between the two nations almost the same thing as if
Cæsar had said that the Gauls recognised private property and held
their land in individual ownership?

This is not all. Cæsar uses an expression in which he indirectly and
almost unconsciously bears witness to the existence of property in land
amongst the Gauls. In Book VI., Chapter 13, he says that the Druids act
as judges in almost all suits, criminal as well as civil.[243] He then
gives a list of the disputes brought before them, and amongst criminal
offences he instances murder; amongst civil suits he mentions “those
concerning inheritance or boundaries,” _si de hereditate, si de finibus
controversia est_. If there were in Gaul suits concerning inheritance
or boundaries, it must have meant that the Gauls had a system of
inheritance and made use of boundaries; _i.e._, that land was private
and hereditary property. Cæsar says elsewhere that the Germans have no
_fines_; he says here that the Gauls have them.

We cannot say whether the institution of private property in Gaul was
exactly similar to that of private property in Rome; whether it had the
same legal guarantees; whether its boundaries had the same inviolable
character. We do not even know if property still belonged to the
family or was already in the hands of individual owners. Cæsar only
tells us one thing, and that is, that it existed; for “inheritance and
boundaries” are unmistakable signs of private ownership, and as clearly
disprove a system of corporate land-holding.[244]

This is the conclusion to which we are brought by a simple and unbiased
perusal of Cæsar’s account. But preconceptions have great force; and
if a writer starts with the idea that community in land was once
universal, the result will be that, in the face of all evidence, and
yet in perfect good faith, he will think he finds it amongst the Gauls.
One of the first scholars of the day, M. d’Arbois de Jubainville, whose
works on the Middle Ages and on Irish literature have been so highly
appreciated, thinks that the Gauls of the time of Cæsar were not far
enough advanced in civilisation to hold private property; and setting
out with this idea, the offspring of imagination, he supposes that
he can see evidence of undivided tenure. The fact that Cæsar never
mentions this troubles him very little. That Cæsar does mention, as
a point of difference between the Germans and Gauls, that the former
do not hold private property, he omits to notice. And lastly, when
Cæsar refers in so many words to inheritance and boundaries amongst
the Gauls, he disposes of this somewhat embarrassing statement by
interpreting it in a most unexpected fashion.

In his opinion, when Cæsar mentions suits concerning inheritance, _de
hereditate_, it is impossible that the inheritances of private persons
should be in question, as the custom of inheritance did not exist.
Then what was the inheritance referred to by Cæsar? According to M. de
Jubainville, he was speaking of succession to the crown. Sovereignty
existed; the sons of kings wished to succeed their fathers; and if
a dispute arose, the Druids acted as judges. M. de Jubainville has
omitted to notice that Cæsar gives at least ten instances of sons
who wished to be kings like their fathers; and that in not one of
these instances was the dispute carried before the Druids. It is a
grave error to suppose that the Druids were accustomed to meddle in
affairs of State; we have not a single example of their doing so. And
yet M. de Jubainville maintains that in Cæsar _de hereditate_ means
the succession to the throne; and for this he gives the following
reason,--that in another book, speaking of the Egyptians, Cæsar uses
the expression _hereditas regni_.[245] The argument is a strange one. I
reply that if Cæsar elsewhere wrote _hereditas regni_, it was because
the word _hereditas_ could not, when used alone, bear the meaning of
the inheritance of sovereignty. It is quite certain that if Cæsar had
meant to say that the Gauls brought before the Druids their disputes
as to succession to the crown, he would have said _de hereditate
regnum_.

With regard to the expression, _de finibus_, M. de Jubainville will
have it mean “frontiers between nations.” In this he is doubly wrong,
both historically and philologically. To begin with the historical
error, Cæsar tells us of numerous quarrels amongst Gallic tribes; and
these quarrels are never carried before the Druids. Are we to think
that Cæsar said that the Druids settled disputes about frontiers,
when he knew perfectly well that Druids did not decide them? It
is absolutely incorrect to say that the Druids had the right of
judging between tribes.[246] Moreover, when Cæsar enumerates the
principal matters which had to be tried, he mentions murder as well as
inheritance and boundaries; and it is impossible to doubt that he is
thinking of the murder of a single person, the inheritance of a single
owner, the boundaries of a single estate.

Philologically, M. de Jubainville maintains that the word _fines_ may
be used for the boundaries of a nation as well as for those of an
estate. No doubt. The word is even used in a philosophical sense, and
Cicero wrote a treatise, _De finibus bonorum et malorum_. In every
language there are words of wide application; but the student is not
misled by this. In philosophy he understands _fines_ in a philosophical
sense. If a general at the head of an army is crossing the territory
of several nations, he understands _fines_ in the sense of frontiers.
If it is a question of private law, he will not doubt that _fines_ is
connected with individual rights; that it means the boundaries of an
estate or a field. Now the passage in which Cæsar speaks of “suits
concerning inheritance and boundaries” is one which deals entirely with
law and justice.

M. de Jubainville has taken the trouble to count the number of times
that _fines_ occurs in the _De Bello Gallico_ as applied to national
or tribal frontiers, and finds they are seventy-seven. This is one
of those arguments based on statistics which impress most people by
an appearance of matter-of-fact appropriateness. But look at it more
closely. Is the _De Bello Gallico_ a book of private law? It is a
history of military campaigns, and of negotiations between nations;
and it is very natural that the author should frequently speak of the
frontiers or the territory of these nations. If he had written a work
on law, of which he was quite capable, he would have spoken throughout
of the boundaries of private estates. Ought one to be surprised at
this? Read Thiers’ thirty volumes; make the same calculation that M. de
Jubainville did for the _De Bello Gallico_; and, if you follow the same
method of reasoning, you will come to the conclusion that the French
are unacquainted with boundaries to private property.

What is more important to remark is, that in the whole work, in the
midst of the history of wars, there occur only seven paragraphs on the
customs of the Gauls and their institutions in times of peace (VI., 11,
13, 15, 18, 19, 21, 22). Now, in these seven chapters you will find the
word _fines_ used three times in the unmistakable sense of boundaries
of fields.[247] And so we see that, when Cæsar is speaking of wars,
he uses _fines_ in the sense of the frontiers of a country, and, when
he is speaking of law, he uses it in the sense of the boundaries of
private property. And, if we are partial to figures, we may notice that
while M. de Jubainville has counted up seventy-seven _fines_ in three
hundred and forty chapters, I have counted three in seven chapters. The
proportion is well kept.

But instead of making this calculation it would have been better
to have noticed something which is of far more importance; in
every instance where the word signifies a frontier, its meaning is
unmistakably indicated by the addition of the name of the people in
question. Thus Cæsar says, _fines Helvetiorum_, _fines Sequanorum_,
_fines Santonum_, _fines Æduorum_, _fines Lingonum_, _fines
Ambianorum_, and so on without exception.[248] Take the seventy-seven
examples collected by M. de Jubainville, and you will see that the
word _fines_, when it means frontiers, is always followed by the word
“people,” or by the name of a people. If Cæsar had wished to speak of
trials about national boundaries, he would have said _controversiæ de
finibus populorum_. If he did not so express himself, it was because he
was speaking of boundaries in the most restricted sense of the word.

M. de Jubainville might have found this very same phrase, which he has
twisted so strangely, _si de finibus controversia est_, in Cicero.
We have it there word for word; _si de finibus controversia est_ in
Chapter X. of the _Topics_. Let us see whether in this case it can
apply to the frontiers of a people. Cicero, giving an example of a
definition, writes: “When you say _si de finibus controversia est_, the
boundaries of private estates are clearly meant.”[249]

And so the passage from Cæsar cannot be explained away as M. de
Jubainville would wish. He cannot get rid of the fact that Cæsar
records in so many words that inheritance and boundaries were to be
found amongst the Gauls; the very opposite, that is, of community in
land. He gets together from other sources a variety of arguments which
appear to him to show that the Gauls held their land in common. They
are as follows: 1, Polybius says (II. 17) that the Gauls of Italy did
not cultivate the land; 2, in Cæsar’s time the Helvetii wished to leave
their country in order to settle in a more fruitful one; 3, the Ædui
admitted into their country ten thousand Boii and gave them land; 4,
there was in Gallic law a custom according to which a husband and wife
threw into a common stock an equal portion of the possessions of each,
and allowed the income arising from this property to accumulate, so
that the whole, principal and interest, might belong to the survivor.
These four circumstances are supposed to prove that private property in
land did not exist.[250]

Not one of the four appears to me to bear with it this consequence.
Examine them one by one. I. The passage from Polybius refers, not to
the Gauls of his own time, but to the Gauls who invaded Italy five
centuries before, and who drove out the Etruscans from the district
of the Po. The historian says that these invaders, being inclined to
pursue their conquests, did not at first settle down and cultivate the
soil, but lived on the produce of their herds. His information bears
upon the Gauls at one particular moment in their history, at the time
when they were planning an attack upon central Italy. It proves nothing
at all about the Gauls in general, and certainly nothing about the
Gauls of the time of Cæsar.

II. That the Helvetii wished to emigrate does not imply that they
lived under a system of community in land. It merely implies that they
preferred the soft climate and fertile plains of the south-west of Gaul
to their own rugged and mountainous country. Is it an unknown thing
for peasant proprietors to emigrate for the sake of seeking a more
productive soil elsewhere?

III. Because the Ædui invited ten thousand Boii to settle in their
country, does that prove that private property was unknown to them? Not
at all. The _civitas Æduorum_, which covered a considerable area and
included five of our departments, might very probably have had so large
an extent of public domain, or been able to find enough unoccupied
land, to admit ten thousand new cultivators. Such a circumstance,
following, as it does, immediately after the ravages of Ariovistus, can
easily be explained, and is not the slightest evidence of communism in
land.

IV. As to the custom by which a husband and wife contributed equal
shares to a common stock and allowed the income arising from it to
accumulate, I cannot understand in what way this proves that there was
no landed property. M. de Jubainville ingeniously explains that what
was contributed could not have consisted of land “because its produce
cannot be hoarded,” and that it must have consisted of herds of cattle,
because cattle can much more easily be set aside for a particular
object. In his long argument there is only one thing that he overlooks,
and this is that it is possible to sell the crops and set aside the
produce of the sale. Moreover, he gives an incorrect rendering of
Cæsar, VI. 19: _hujus omnia pecuniæ fructus servantur_. _Pecunia_, in
legal phraseology, is used not only of money, of not only personal
property, but also of property of every kind, including land;[251] and
_fructus_ does not simply mean produce in the literal sense of the
word, but revenues of every description. Cæsar, then, is speaking of
possessions of every sort, of which the income may be set aside. These
possessions may be an estate under cultivation, or a herd of cattle,
or a stock in trade, or a sum of money placed out at interest (for
this was not unknown to the Gauls); the income might be the produce of
the sale of the crops, or the increase of the herd, or the profits of
trade, or the interest on the loan. Whichever it may have been, Cæsar
did not intend to imply that the Gauls were unacquainted with landed
property.

I am anxious not to pass over a single argument brought forward by this
learned and able writer. He observes that the names of private domains,
such as we find them in the Roman and Merovingian periods, are all
derived from Roman proper names. This is quite true, and I had myself
made the same observation in an earlier essay; but what I had carefully
abstained from saying, and what is maintained by M. de Jubainville,
is that these Latin names of the Roman period prove the non-existence
of domains in the Gallic period. The most they could prove is that,
after the conquest, the names of domains were latinised as well as the
names of individuals. Just as Gallic landowners adopted Roman names
for themselves, they bestowed the same names on their estates; and
consequently domains were called Pauliacus, Floriacus, Latiniacus,
Avitacus, Victoriacus, etc. To conclude from this that there were no
private estates before the conquest would indeed be a rash argument.

M. de Jubainville also alleges that Cæsar does not make use of the
terms _villæ_ and _fundus_ in speaking of the Gauls; and he concludes
from this that neither country estates, _fundi_, nor farms, _villæ_,
were to be found in Gaul. “Before the conquest there were neither
_fundi_ nor _villæ_, and the land was in common.”[252] This is another
surprising statement. M. de Jubainville should not have overlooked the
fact that even if these two words do not occur in Cæsar, we find terms
which are precisely synonymous. The Romans had more than one word to
designate a country estate, _fundus_, or a farm, _villa_. Instead of
_fundus_ they sometimes said _ager_; and _ager_ always bears this sense
in Cato, Varro, and Columella, and frequently in Cicero and Pliny.
Instead of _villa_ they said _ædificium_. When Varro or Columella are
speaking of the buildings standing in the midst of an estate, they use
_ædificium_ as often as _villa_. Turn to the _Digest_ (Bk. L. Section
XVI.) and compare the three fragments 27, 60, and 211; and you will
recognise that the Romans were in the habit of calling a domain _ager_
and the buildings on it _ædificium_. Now Cæsar, in speaking of the
Gauls, often uses the word _agri_ and still more often _ædificia_. Here
are the domains and the _villæ_ which M. de Jubainville was looking
for. These _ædificia_ were farms, not huts. They contained as a rule
a somewhat numerous rural population; for Cæsar notes in one instance
as something exceptional “that he found in the _ædificia_ of the
Bellovaci only a small number of men, as almost all had set out for the
war” (viii. 7). They also included barns for the storing of crops; for
the historian mentions “that the Tencteri, having invaded the country
of the Menapii, supported themselves for several months on the corn
that they found in the _ædificia_” (iv. 4). The Roman general was well
aware that if he wished to find forage for his cavalry he must look for
it in these farms, _pabulum ex ædificiis petere_ (vii. 4, and viii.
10). What Cæsar says about the _ædificium_ of Ambiorix shows that it
was a large enough building to lodge a numerous body of followers. And
so the words _ager_ and _ædificium_ take the place in Cæsar of the
words _fundus_ and _villa_, and disprove the assertion that “the Gauls
had neither domains nor farms before the conquest.”

M. de Jubainville compares the whole Gallic territory with the _ager
publicus_ of Rome. I do not know whether the learned medievalist has
a very clear conception of what the _ager publicus_ really was. The
subject is a very difficult one, and requires for its study a good deal
of time, much minute research and great familiarity with Roman habits
and customs. I do not wish to dwell on this point; and will content
myself with saying that the _ager publicus_ was not common land, but
property of the State existing side by side with private property. To
suppose that in Gaul the State was the master of all the soil and
distributed it annually amongst the citizens, is to suppose something
absolutely opposed to Roman habits and to the usages of the _ager
publicus_. Moreover, it is impossible to find a single line in Cæsar
which authorises such a supposition.[253]

To sum up: the attempt made by this ingenious scholar to discover
community in land amongst the Gauls is supported by no original
authorities. When we come to verify his quotations and test his
arguments, we see that not one of his quotations bears the sense he
attributes to it, and that not one of his facts fits in with a theory
of common ownership in land. It is wisest to keep strictly to what
Cæsar tells us.

[243] “Fere de omnibus controversiis publicis privatisque constituunt.”
It is well known that in legal language, the _judicia publica_ are
criminal cases; as the term implies, cases which concern crimes
punished by a public authority; the _judicia privata_ are those
which concern private interests alone, and in which the State is not
involved. See on this distinction Paul, _Sententiæ_, I., 5, 2; Ulpian
XIII., 2; _Fragmenta Vaticana_, 197 and 326; _Digest_, XLVII., tit.
1 and 2; XLVIII., I.; I., l, l § 6; XXIII., 2, 43, § 11 and 12. To
translate _controversiæ publicæ_ in the passage from Cæsar as disputes
between two peoples would run counter to the meaning of words.
_Publicus_ never means _inter duos populos_.

[244] It may be added that the social condition described by Cæsar
is irreconcilable with agrarian communism, vi., 13: _in omni Gallia
plebs pæne serrorum habetur loco_, etc. Notice the numerous clients
of Orgetorix, i., 4; those of Vercingetorix, vii., 4; the many poor,
not in the towns, but in the country, _in agris agentes_, vii., 4;
the burden of the _tributa_, vi., 13. These traits are not those of
a society where the land is common. They point rather to a system of
great estates, with the soil in the hands of the magnates.

[245] This appears in the _Comptes rendus de l’Académie des
inscriptions et belles-lettres_, 1887, pp. 65, _et seq._

[246] M. de Jubainville has translated _controversiæ publicæ_, as if it
were _controversiæ inter duos populos_. I know of no example in Latin
literature where the word _publicus_ has this sense. In Suetonius,
_Augustus_, 29, the _judicia publica_ are certainly not suits between
peoples: they are criminal suits. When Cicero, defending Roscius of
Ameria, says he is conducting his first _causa publica_, it is clear
that he is not arguing for one people against another. He is defending
Roscius, who is accused of parricide: it is a criminal proceeding.

[247] Cæsar, vi. 22: _Nec quisquam (apud Germanos)_ FINES habet
proprios. _Ibidem: ne latos_ FINES _parare studeant, potentioresque
humiliores possessionibus expellant_.

[248] Or else the same thing is implied by the turn of the sentence, i.
5: _Helvetii a finibus suis exeunt_; iv. 3: _quum Suevi Ubios finibus
expellere non possent_; vi. 23: _extra fines cujusque civitatis_; v.
16: _fines regni sui_; v. 27: _Ambiorix tutum iter per fines suos
pollicetur_. By a natural transition, _fines_ comes to mean sometimes,
not only the boundaries, but also the territory itself, vi. 42: _ut
Ambiorigis fines depopularentur_.

[249] Cicero, _Topica_, 10: _Si de finibus controversia est, fines
agrorum esse videntur_.

[250] D’Arbois de Jubainville, in the _Comptes rendus de l’Académie des
inscriptions_, 1887, reprint, pp. 4-22.

[251] Gaius iii. 124: _Appellatione pecuniæ omnes res in lege
significantur ... fundum vel hominem._... _Digest_, L. 16, 222:
_pecuniæ nomine non solum numerata pecunia, sed omnes res tam soli
quam mobiles continentur_. Cf. S. Augustine, _De Discipl. Christ._,
i.: _omnia quorum domini sumus pecunia vocantur; servus, ager, arbor,
pecus, pecunia dicitur_.

[252] _Comptes rendus de l’Académie des inscriptions_, session of June
8, 1886, reprint, p. 6.

[253] M. de Jubainville does not translate latin texts very exactly.
For example, if he sees in Cæsar that no German possesses “agri modum
certum,” he immediately says that “this _ager_ must be the _ager
publicus_; because in Rome _modus agri_ was the technical expression
for the _ager publicus_.” But where has he seen that? He may read
in Varro, _de re rustica_, i. 14, the words _de modo agri_, which
incontestably mean “concerning the extent of a private property.” He
will find the same expression in Varro, i. 18, where the writer says
that the number of rural slaves ought to be proportionate to the extent
of the domain. And again he will find the jurisconsult Paul, in the
_Digest_, xviii., 1. 40, using _modum agri_ for the area of an estate
which an individual has just bought. To prove that _ager_ by itself
means _ager publicus_ he cites the _lex Thoria_; without noticing that
in that law the _ager publicus_ is mentioned eleven times, and that
_ager_ does not once stand for the public land unless accompanied by
_publicus_ or _populi_.


_Conclusion._

Are we to conclude from all that has gone before that nowhere and at no
time was land held in common? By no means. To commit ourselves to so
absolute a negative would be to go beyond the purpose of this work. The
only conclusion to which we are brought by this prolonged examination
of authorities is that community in land has not yet been historically
proved. Here are scholars who have maintained that they could prove
from original authorities that nations originally cultivated the soil
in common; but on examining these authorities we find that they are all
either incorrect, or misinterpreted, or beside the subject. M. Viollet
has not brought forward a single piece of evidence which proves that
the Greek cities ever practised agrarian communism. M. de Jubainville
has not brought forward one which proves communism in Gaul. Maurer
and Lamprecht have not produced one which shows that the mark was
common land. As to the comparative method, which has been somewhat
ostentatiously called into service, we are presented under its name
with a strangely assorted mass of isolated facts, gathered from every
quarter, and often not understood; every fact not in harmony with the
theory has been left on one side. In the prosecution of what professed
to be an inquiry into the domestic life of whole nations, the one thing
essential has been omitted, that is, their law. In short, an imposing
structure has been erected out of a series of misunderstandings.
National communism has been confused with the common ownership of the
family; tenure in common has been confused with ownership in common;
agrarian communism with village commons.

We do not maintain that it is inadmissible to believe in primitive
communism. What we do maintain is that the attempt to base this theory
on an historical foundation has been an unfortunate one; and we refuse
to accept its garb of false learning.

The theory itself will always be believed in by a certain class
of minds. Among the current ideas which take possession of the
imaginations of men is one they have learnt from Rousseau. It is that
property is contrary to nature and that communism is natural; and this
idea has power even over writers who yield to it without being aware
that they do so.

Minds which are under the influence of this idea will never allow that
property may be a primordial fact, contemporaneous with the earliest
cultivation of the soil, natural to man, produced by an instinctive
recognition of his interests, and closely bound up with the primitive
constitution of the family. They will always prefer to assume that
there must first have been a period of communism. This will be with
them an article of faith which nothing can shake; and they will always
be able to find authorities which can be made to support it. There
will, however, always be a few, endowed with a keener critical and
historical sense, who will continue to doubt what has yet to be proved.

However that may be, the question, in spite of so many attempts, still
remains unanswered. If any one wishes to give a scientific proof of
primitive communism, these are the conditions on which he may perhaps
succeed:

1. He must find definite and exact authorities; which he must
translate, not approximately, but with absolute correctness, according
to the literal signification of the words.

2. He must abstain from adducing facts which are comparatively modern
in support of an institution which he ascribes to the beginning of
things, as has been done in the case of the German mark, the island of
Java and the Russian _mir_.

3. He must not content himself with collecting a few isolated facts
which may be exceptional; but he must study phenomena which are
general, normal, and far-spreading; of these he will find the evidence
principally in legal records, and to a small extent in early religious
customs.

4. He will be careful not to confuse agrarian communism with family
ownership, which may in time become village ownership without ceasing
to be a real proprietorship.

5. He will not mistake undivided tenancies on a domain belonging to a
proprietor for community in land. The fact that _villani_, who were not
the owners of any land at all, often cultivated the soil in common for
a lord, or annually divided it amongst themselves, has no connection
with agrarian communism, and is in fact directly opposed to it.

6. He will be careful not to confuse the question by introducing
village commons, unless he has first of all succeeded in proving that
such commons are derived from a primitive communism. This has never yet
been proved, and all that has hitherto been ascertained about commons
is that they are an appendage of private property.

On these conditions alone can the work be done scientifically; short of
this the only result will be a confused picture of the fancy. If any
one, after taking all these precautions against gross error, discovers
a body of facts and evidence in support of a theory of communism, he
will have settled the question historically. Till then, do not invoke
history in its favour. Present your theory as an abstract idea which
may be valuable, but with which history has nothing to do. Let us not
have sham learning. In saying this I have at heart the interests of
historical science. There is danger lest, from love of a theory, a
whole series of errors should be forcibly thrust into history. What
I fear is not the theory itself; it will not affect the progress of
human events; but it is the method employed to secure its acceptance.
I distrust this pretended application of learning, this practice of
forcing documents to say the very opposite of what they really say,
this superficial habit of talking about all the nations of the world
without having studied a single one. Never have “original authorities”
been so much lauded as to-day; never have they been used with so much
levity.


THE END.


_Cowan & Co., Limited, Printers, Perth._




Transcriber’s Notes

In a few cases, obvious errors in punctuation and accentuation were
corrected.

A couple of words with inconsistent hyphenization were standardized.

“villien for two or three days” changed to “villein for two or three days”

“unbiassed by any theory” changed to “unbiased by any theory”

“à priori” changed to “a priori”

“Archiv fur Geschichte Westphalens” changed to “Archiv für Geschichte
Westphalens”.

“Zeitschrift fur die Geschichte des Oberrheins” changed to “Zeitschrift
für die Geschichte des Oberrheins”.

“miltelrheinischen Territorien” changed to “mittelrheinischen
Territorien”

“Rheinganische Alterthümer” changed to “Rheingauische Alterthümer”

“Zeitsch. f.d. gesante Staatswissenschaft” changed to “Zeitsch. f.d.
gesamte Staatswissenschaft”

“Let us see at anyrate” changed to “Let us see at any rate”

“that in ano her” changed to “that in another”